Madras High Court
Ganga Educational And Welfare Trust vs The Secretary To Government on 4 March, 2024
Author: P.D. Audikesavalu
Bench: P.D. Audikesavalu
W.P. No. 21738 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2024
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 21738 of 2014
and
M.P. No. 1 of 2014
Ganga Educational and Welfare Trust,
Represented by its President,
Ingur Post,
Perundurai Taluk,
Erode District. … Petitioner
-vs-
1. The Secretary to Government,
Housing and Urban Development Department,
Fort St. George,
Madras – 600 009.
2. The Member Secretary,
Town Planning Authority,
807, Anna Salai,
Chennai – 600 002.
3. The Deputy Director,
Town Planning Authority,
Salem Division,
Salem. ...
Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorari, calling for the records on the file of
the Third Respondent in ROC 3586/2012 CHEM – 3 dated 19.08.2013 and
https://www.mhc.tn.gov.in/judis
1/9
W.P. No. 21738 of 2014
13.01.2014 and quash the same as illegal, incompetent and without jurisdiction.
For Petitioner : Ms. R.Abirami
for M/s. V.Srimathi
For Respondents : Mr. P.Ganesan,
Additional Government Pleader
ORDER
Heard Ms. R.Abirami, Learned Counsel appearing for the Petitioner and Mr. P.Ganesan, Learned Additional Government Pleader appearing for the Respondents and perused the materials placed on record, apart from the pleadings of the parties.
2. The Petitioner, which is a Trust running educational institution in the name of Sri Ganga Matriculation School, had applied for planning permission to the Third Respondent, who had by Proceedings in Na. Ka. No. 3586/2012 Sema-3 dated 19.08.2013 and 13.01.2014 required the Petitioner to transfer 10% of the land towards open space reservation, which is challenged in this Writ Petition.
3. It is the contention of the Petitioner that there is no necessity to collect the guideline value for the open space reservation in view of G.O. Ms. No. 161, https://www.mhc.tn.gov.in/judis 2/9 W.P. No. 21738 of 2014 Housing and Urban Development [UD4(3)] Department dated 26.06.2013 issued by the Government of Tamil Nadu, the relevant portions of which is extracted below:-
➢ In respect of educational institutions for whom the Open Space Reservation Regulation is applicable, the Open Space Reservation shall be earmarked and kept open to sky without any construction with the condition that the Open Space Reservation area should be utilized only as a park and not as a playground by the concerned institutions. The guideline value should not be collected in lieu of Open Space Reservation area in such cases.
8. The Commissioner of Town and Country Planning and the Member Secretary, Chennai Metropolitan Development Authority are directed to pursue action accordingly. They shall also send proposals for amendment of relevant Rules separately.
4. Learned Additional Government Pleader appearing for the Respondents contends that inasmuch as the Petitioner had made the application for planning permission on 30.05.2013 and the said Governmental Order had later come into force on 26.06.2013, the Petitioner cannot claim its benefit. It is not possible to accept the said contention inasmuch as the said application was pending on 26.06.2013 when the Governmental Order relied by the Petitioner has come into https://www.mhc.tn.gov.in/judis 3/9 W.P. No. 21738 of 2014 force. In this regard, reference must be made to the dictum laid down by the Hon'ble Supreme Court of India in State of Tamil Nadu -vs- Hind Stone (1981 AIR 711), where it has been held as follows:-
13. ....While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application....
In view of the aforesaid legal position, it would necessarily follow that the Petitioner cannot be deprived of the said benefit in this case.
5. It is further brought to notice that an Advocate Commissioner was appointed by this Court by order dated 03.01.2023 and after inspection of the site, he has submitted a report dated 30.01.2023, which has been placed on record.
6. It is next contended that the Third Respondent has stated in his Counter- https://www.mhc.tn.gov.in/judis 4/9 W.P. No. 21738 of 2014 Affidavit dated 01.04.2019 that he has inspected the site on 26.02.2019, when it was found that constructions have already taken place without satisfying the norms as per particulars shown below:-
7 (i) The Block No. 1 has been constructed by providing a setback of 1.85 m and Block No. 2 has been constructed by providing a setback of 4.65 m and the hostel building has been constructed by providing a set back of 4.8 m. The sheds have been constructed with a setback of 1.8 m. The minimum setbacks required for the public building such as school and colleges are 6 meters whereas the building have been constructed with a setback of 1.80 m, and sheds have been constructed with a setback of 1.8 m violating the norms. In view of the same, it is pointed out that since all the buildings have been constructed violating the minimum setbacks 6.00 m specified in the Development Control Rules, it is not possible to grant approval.
7. In this regard, Learned Counsel for the Petitioner informs that necessary rectification measures would be taken by the Petitioner for making the construction compliant to the Rules as required as per existing Rules.
8. In view of the aforesaid submissions made, this Court without expressing https://www.mhc.tn.gov.in/judis 5/9 W.P. No. 21738 of 2014 any view on the merits of the controversy, passes the following order:-
(i) the concerned authority shall re-examine the application made by the Petitioner for grant of planning permission with reference to the relevant laws governing the same including G.O. Ms. No. 161, Housing and Urban Development [UD4(3)] Department dated 26.06.2013 issued by the Government of Tamil Nadu;
(ii) if it is found that any other details or supporting documents is necessary, the deficiencies in that regard shall be informed in writing to the Petitioner requiring the same to be furnished within a time frame of not less than 10 days for the same;
(iii) the concerned authorities may conduct such further inspection of the site, if required, to ensure that the constructions made by the Petitioner are in compliant of the relevant laws;
(iv) in the event of not being satisfied with the requirements even thereafter, an enquiry shall be conducted affording full opportunity of personal hearing to the Petitioner and all other persons concerned to explain their position in that regard;
(v) a reasoned order shall be passed dealing with each of the contentions raised on merits and in accordance with law and the decision taken https://www.mhc.tn.gov.in/judis 6/9 W.P. No. 21738 of 2014 communicated under written acknowledgment; and
(vi) the report of such compliance shall be filed by 30.09.2024 before the Registrar (Judicial) of the Court.
9. In the result, the Writ Petition is disposed on the aforesaid terms. Consequently, the connected Miscellaneous Petition is closed. No costs.
04.03.2024 Index: Yes/No NCC: Yes/No Note: Issue order copy by 05.06.2024.
vjt https://www.mhc.tn.gov.in/judis 7/9 W.P. No. 21738 of 2014 To
1. The Secretary to Government of Tamil Nadu, Housing and Urban Development Department, Fort St. George, Madras – 600 009.
2. The Member Secretary, Town Planning Authority, 807, Anna Salai, Chennai – 600 002.
3. The Deputy Director, Town Planning Authority, Salem Division, Salem.
https://www.mhc.tn.gov.in/judis 8/9 W.P. No. 21738 of 2014 P.D. AUDIKESAVALU, J.
vjt W.P. No. 21738 of 2014 04.03.2024 https://www.mhc.tn.gov.in/judis 9/9