Madras High Court
M.S.Arumugam vs The Block Development Officer on 18 August, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.11647 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 29.07.2022
Pronounced On 18.08.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.11647 of 2022
and W.M.P.No.11117 of 2022
M.S.Arumugam ... Petitioner
vs.
1. The Block Development Officer,
Sulur Village Panchayat,
Sulur.
2. The Divisional Engineer,
Tamil Nadu Pollution Control Board,
Pollachi Road,
SIDCO, Coimbatore 641 021. ... Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, challenging the
impugned order in Na.Ka.No.0409/2022/A1 dated 25.04.2022 passed by
the first respondent and consequently quash the same and consequently
direct the 2nd respondent to consider and pass appropriate orders based on
the petitioners representation dated 25.04.2022.
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 20
W.P.No.11647 of 2022
For Petitioner : Mr.S.Karthikei Balan
For R1 : Mr.U.Baranidharan
Addl.Govt.Pleader.
For R2 : M/s.Shanmugavalli Sekar
Standing Counsel.
ORDER
The petitioner has challenged the impugned order dated 25.04.2022 of the first respondent Block Development Officer directing the petitioner to suspend all further with the activities undertaken by the petitioner in his land, where, the petitioner appears to have put up a factory shed on the ground that the petitioner has violated the permission granted by the village panchayat Relevant portion of the impugned order reads as under:-
“nfhak;g[j;J}h; khtl;lk; NY}h; tl;lhuj;jpw;Fgl;l futspkhjg;g{h; Cuhl;rpapy; jpU/M.S.MWKfk; j/bg/rPuf";brl;oahh; vd;gtUf;F ghj;jpag;gl;l epyk; f/r/vz;/41/1A fl;olk; (Fnlhd;) fl;l ghh;it 2-y; fhz; eltof;iffspd;go. mDkjp tH';fpajpy; KiwnfLfs; fz;lwpag;gl;Ls;sd/ ,e;epiyapy; ghh;it 2-y; fhz; cj;jutpd;go. futspkhjg;g{h; Cuhl;rpf;Fg;gl;l jpU/M.S.MWKfk; j/bg/rPuf";brl;oahh; vd;gtUf;F ghj;jpag;gl;l epyk; f/r/vz;/41/1A - y; xnu ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 20 W.P.No.11647 of 2022 fl;olj;jpw;F 1937.25 r/mo vd;w mstpy; K:d;W gFjpfshf gphpj;J fl;ol mDkjp tH';fg;gl;Ls;sJ/ nkw;go ,lj;ij Ma;t[ bra;j nghJ jpU/M.S.MWKfk; j/bg/rPuf";brl;oahh; vd;gtUf;F ghj;jpag;gl;l epyk; f/r/vz;/41/1A - y; Rkhh; 10.000- rJu moapy; M/s.Activ Aluminium Alloys vd;w bjhHpw;rhiy mikf;f Maj;j gzpfs; nkw;bfhs;sg;gl;L tUtJ fz;lwpag;gl;lJ/ nkYk;. ghh;it 3-y; fhz; epyg;gj;jpuj;jpd;go. jpU/M.S.MWKfk; j/bg/rPuf";brl;oahh; vd;gtUf;F ghj;jpag;gl;l epyk; g[";bra; epykhfnt cs;sJ/ epy khw;wk; bra;ag;glhky; Fnlhd; mikg;gjhf fl;ol mDkjp bgw;W M/s.Activ Aluminium Alloys vd;w bjhHpw;rhiy mikf;fg;gl;L tUtJ fz;lwpag;gl;lJ/ jkpH;ehL Cuhl;rpfs; rl;lk; - 1994 tpjpKiwfSf;F g[wk;ghf f/r/vz;:41/1A-y; bjhHpw;rhiy mikf;fg;gl;L tUtjhy;. nkw;go bjhHpw;rhiyapy; kWcj;jut[ tUk; tiu midj;J gzpfisa[k; Klf;fk; bra;J ,jd; K:yk; Mizaplg;gLfpwJ/”
2. The fact on record indicates that the petitioner has applied for three different planning permission from the President of the KaravazhiMadampoor Village for putting up three Godowns in his agricultural land under Village Panchayat under Rule 3(1) of the Tamil Nadu Panchayat Building Rules, 1997. The applications filed by the petitioner were considered and building plan approvals were granted by the Village Panchayat. 3. Details of the planning permission are as under:- below:-
______________ https://www.mhc.tn.gov.in/judis Page No 3 of 20 W.P.No.11647 of 2022 Sl. Planing Permission Date of the Planning Extent of the land No. No. Permission 1 16/2021-2022 07.10.2021 1937.25 Sq.ft. 2 20/2021-2022 22.10.2021 1891.00 Sq.ft. 3 25/2021-2022 26.11.2021 1891.00 Sq.ft.
Total 5719.25 Sq.ft.
3. The petitioner has obtained permission for putting up merely three separate godowns measuring an extent of 5719.25 Sq.ft. [1937.25 + 1891.00 + 1891.00] vide Planning Permission No.16/2021-2022 dated 07.10.2021, Planning Permission No.20/2021-2022 dated 22.10.2021 and Planning Permission No.25/2021-2022 dated 26.11.2021. However, the petitioner appears to have put up a composite industrial shed measuring an extent over 10,000 Sq.ft. It was thus clearly in violation of the Tamil Nadu Combined Development Building Rules, 2019 relevant Rules. A reference was made to the following proceedings of DTCP:-
Sl. No. Reference No. of the Proceedings of Date of the DTCP Proceedings 1 Na.Ka.No.9862/2010-BA1 14.06.2010 ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 20 W.P.No.11647 of 2022 Sl. No. Reference No. of the Proceedings of Date of the DTCP Proceedings 2 Na.Ka.No.9862/2010-BA1 17.02.2011 3 Na.Ka.No.4367/2019 24.09.2019
4. Since repealed and substituted with the Tamil Nadu Combined Development and Building Rules, 2019 framed in exercise of the powers conferred under the various provisions of the Tamil Nadu Town and Country Planning Act, 1971, the Tamil Nadu District Municipalities Act, 1920, the Tamil Nadu Panchayats Act, 1994 and other enactments as detailed in G.O.(Ms) No.18, Municipal Administration and Water Supply (MA.I) Department, dated 04.02.2019].
5. The case of the petitioner is that the petitioner has not violated any of the Rules and has complied with the permission obtained from the President of Village Panchayat. It is submitted that the petitioner has also not violated either Section 47-A or Section 54 or Section 56 of the Tamil Nadu Town and Country Planning Act, 1971.
6. It is submitted that the petitioner is merely required to file ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 20 W.P.No.11647 of 2022 applications before the Local Authority for permission and it was for the Local Authority to obtain prior permission from the Directorate of Town and Country Planning before granting permission under Section 47-A of the Act in case it was of the view that there was a change in use of the land. It is therefore submitted that the petitioner cannot be held any guilty of violation.
7. It is submitted that in this case, the Local Authority namely, the Village Panchayat has not found the petitioner lacking in any manner. It is submitted that the action of the first respondent is clearly in contravention of the provisions of Section 47-A of the Town and Country Planning Act, 1971. It is also submitted that Section 54 of the Town and Country Planning Act 1971 also cannot be said to have been violated. A specific reference was made to proviso to Section 54(1) of the Tamil Nadu Town and Country Planning Act, 1971 as per which, where the permission relates to the carrying of building or other operation, no such order shall affect such of the operations as have been previously carried out, or be passed after those operations have been completed.
8. It is submitted that where the permission relates to a change of use ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 20 W.P.No.11647 of 2022 of land or building, no such order shall be passed at any time after the change has taken place. In any event, it is submitted that if at all, an action that can be contemplated only under Section 57 of the Tamil Nadu Town and Country Planning Act, 1971 and since entire exercise carried out by the respondent Block Development Officer without due notice to the petitioner, it is liable to be interferred. It is submitted that the second respondent has held up the permission / consent to operate the industrial unit though the consent to establish the unit has been granted by an order dated 24.12.2021.
9. It is submitted that only in the case of wet agricultural land, the prior concurrence of the District Collector is necessary. In this case, admittedly, the land on which the petitioner has put a construction of godown up a construction of godown albeit an industrial shed was only on a dry land (punja land) and therefore, it cannot be said that there was any violation of provisions of the Tamil Nadu Town and Country Planning Act, 1971.
10. In this connection, the learned counsel for the petitioner relied on the following decisions:-
i. Apesh Construction Limited Vs. The Corporation ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 20 W.P.No.11647 of 2022 of Madurai and another, 2013 (2) CTC 180.
ii.Kaviyan School Vs. The Director of Matriculation Schools, 2015 (2) LW 601 : (2015) 3 MLJ 792.
iii.The Tamil Nadu Unaided Polytechnic Management Association and others Vs. The State of Tamil Nadu and others, 2018 (4) CTC 129 : 2018 (3) LW 923.
11. The reason comes out that during the hearing appears to be that the petitioner not obtained requisite permission from the Directorate of Town and Country Planning.
12. Opposing the prayer in this Writ Petition, the learned Additional Government Pleader submits that the Tamil Nadu Panchayat Building Rules, 1997 has been repealed and now substituted with the Tamil Nadu Combined Development and Building Rules, 2019.
13. It is submitted that these proceedings of DTCP, clearly apply to housing plots and commercial plots and not to industrial plots. It is submitted that from 2010 to 2019, the extent of area has also been increased which is in any event confined only to housing plots and commercial plots. ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 20 W.P.No.11647 of 2022 It is submitted that the petitioner's construction is neither for housing requirement nor for a commercial requirement but an industrial shed. A reference was also made to Circular dated 07.03.2019 bearing reference Roc.No.4367/2019-BA2. It is submitted that as per the above Circular, there is a delegation to the Member Secretaries of all the Composite Local Planning Authorities, New Town Development Authorities and all the Regional Deputy Directors/ Assistant Directors in respect of grant of planning permission.
14. It is submitted that as far as industrial buildings in approved industrial layouts of SIPCOT/SIDCO is concerned, it has been specified as follows:-
“Manufacturing factory shed/sheds having only Ground floor upto 10,000 sq.m. of floor area along with additional buildings like office, canteen and any other structure which are for incidental use of the main factory shed/ sheds provided that if the total FSI area of the said additional incidental use buildings put together does not exceed 15% of the total FSI area of the main manufacturing factory shed/ sheds. Provided further that, in no case, height of each building does not exceed 18.3m. In case, if the proposal does not have any main factory shed limiting to only ground floor but involves buildings having more than one floor then, the field officer can grant permission only when the total FSI area of all buildings put together ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 20 W.P.No.11647 of 2022 does not exceed 2500 sq.m. However, in any case height of each building should not exceed 18.3m.”
15. It is submitted that in the case of industrial building in plots / sites other than SIPCOT / SIDCO layouts, one or more blocks of buildings when the total FSI area of all buildings put together does not exceed 2500 sq.m. and height of each building does not exceed 18.3m.
16. It is submitted that wherever the building proposal exceeds the limits as specified in items (a), (b) & (c), the application has to be forwarded to the Commissioner of Town and Country Planning (CTCP) for concurrence.
17. By way of rejoinder, the learned counsel for the petitioner further submits that above Circular dated 07.03.2019 has been further modified by subsequent Circulars dated 14.03.2019, 14.10.2019, 18.10.2019, 25.10.2019, 31.10.2019 & 06.11.2019. The amendment to Clause (b) and
(c), vide Circular dated 06.11.2019, reads as under:-
“(b) In case of Industrial buildings in plots of approved industrial layouts of SIPCOT/SIDCO:
______________ https://www.mhc.tn.gov.in/judis Page No 10 of 20 W.P.No.11647 of 2022 Manufacturing factory shed/sheds having only Ground floor upto 10,000 sq.m. (1,07,639 sq.ft) of floor area along with additional buildings like office, canteen and any other structure which are for incidental use of the main factory shed/ sheds provided that if the total FSI area of the said additional incidental use buildings put together does not exceed 15% of the total FSI area of the main manufacturing factory shed/ sheds.
Provided further that, in no case, height of each building does not exceed 18.3m. In case, if the proposal does not have any main factory shed limiting to only ground floor but involves buildings having more than one floor then, the field officer can grant permission only when the total FSI area of all buildings put together does not exceed 15000 sq.ft. However, in any case height of each building should not exceed 18.3m.
(c) In case of industrial buildings in plots/ sites other than SIPCOT/SIDCO layouts: One or more blocks of buildings when the total FSI area of all buildings put together does not exceed 15000 sq.ft.
and height of each building does not exceed 18.3m.”
18. In reply, the learned Additional Government Pleader for the first respondent would refer to paragraph No.2 of the above Circular dated 06.11.2019 which reads as under:-
(2) Power delegation to Director:
______________ https://www.mhc.tn.gov.in/judis Page No 11 of 20 W.P.No.11647 of 2022
(d) Building proposals exceeding the limits as specified in terms (a), (b) & (c) above shall be forwarded to Director of Town and Country Planning (DTCP) for concurrence.
19. The point for consideration in this Writ Petition is whether the first respondent is competent to interfere with the construction put up by the petitioner as admittedly the local authority, as far as the petitioner is concerned is a village as per Rule 2(66) of the Tamil Nadu Combined Development and Building Rules, 2019 for the properties in village. Section 47-A(4) of the Act, reads as under:-
Section 47 A : - Development of land in an area other than Planning area.
(4) Where any development of land has been carried out .
(a) without permission required under the Act, or
(b) in contravention of any permission granted or of any condition subject to which permission has been granted, or
(c) after the permission for development of land has been duly revoked, or
(e) in contravention of any permission which has been duly modified.
the local authority shall exercise the powers of the appropriate Planning Authority under Sections 56 and 57 of the Act with such modifications as may ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 20 W.P.No.11647 of 2022 be necessary.
20. As per 5(3) of the Tamil Nadu Combined Development and Building Rules, 2019, the competent authority for issuing building permit is the Executive Authority of the Local Body or any Agency or person with whom the powers to implement these Rules have been delegated by the Executive Authority.
21. The facts on record indicate that the petitioner has obtained three separate building plan permissions as detailed above for a total extent of 5719.25 Sq.ft. for putting up three godowns.
22. However, in reality, it appears that the petitioner has put a composite industrial shed measuring an extent of over 10,000 sq.ft. as is evident from the photographs included by the respondents in their typed set of papers. The facts on record further indicate that the petitioner intends to operate a factory for manufacture of aluminium product. The petitioner has also not denied the same. The petitioner has not obtained requisite permission as contemplated in Section 160 of the TamilNadu Panchayat Act 1994 which reads as under;-
160. Permission for construction of factories and the installation of machinery.No person shall, ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 20 W.P.No.11647 of 2022 without the permission of the panchayat union council in panchayat villages and except in accordance with the conditions specified in such permission,-
(a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power, or
(b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the rules.
23. The Planning permissions obtained by the petitioner from the Village Panchayat for putting shed are without getting an appropriate approval under Rule 3 of the Tamil Nadu Change of Land Use (From Agriculture to Non-agriculture Purposes in Non-planning Areas) Rules, 2017.
24. The petitioner should have also obtained a requisite permission as contemplated in Section 160 of the Tamil Nadu Panchayat Act 1994 Section 160 of the Tamil Nadu Panchayat Act 1994 read with the provisions of the Tamil Nadu Combined Development and Building Rules 2019 Section 160 ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 20 W.P.No.11647 of 2022 of the Tamil Nadu Panchayat Act 1994 reads as under;-
“Section 160. Permission for construction of factories and the installation of machinery. No person shall, without the permission of the panchayat union council in panchayat villages and except in accordance with the conditions specified in such permission,-
(a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power, or
(b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the rules.”
25. Before proceeding to apply for permission the petitioner should have obtained permission under Rule 3 of the Tamil Nadu Change of Land Use (From Agriculture to Non-agriculture Purposes in Non- planning Areas) Rules, 2017.
26. The Planning Permissions obtained by the petitioner from the Village Panchayat are only for putting up three godowns (shed) and not for any industrial factory as is evident from the photographs filed by the ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 20 W.P.No.11647 of 2022 respondents.
27. Rule 3 of the Tamil Nadu Change of Land Use (From Agriculture to Non-agriculture Purposes in Non-planning Areas) Rules, 2017 reads as under:-
3. Application for permission.-- Any person intending to carry out any development in the non-planning area shall apply to the local authority in Form-I. The applicant shall pay a nonrefundable scrutiny fee of Rs.1,000/- (Rupees one thousand only) per plot to the local authority.
28. Since the president of Village Panchayat is the competent authority, the President of Sulur Village Panchayat, Coimbatore is suo moto impleaded as the third respondent.
29. Although the Village Panchayat is the competent authority to issue appropriate planning permission in terms of Rule 5(3) of the Tamil Nadu Combined Development and Building Rules, 2019, read with Section 160 of the Tamil Nadu Panchayat Act 1994, what is evident is the construction put up by the petitioner is in deviation of the planning ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 20 W.P.No.11647 of 2022 permit under Rule 22 of Tamil Nadu Combined Development and Building Rules, 2019 permit. If any construction or development is carried out illegally or in deviation to the approved plan, the competent authority is duty bound to take action against the constructions or developments as provided in the Act and in these rules.
30. Rule 22 of Tamil Nadu Combined Development and Building Rules, 2019 is reproduced below:-
22. Illegal Developments.— If any construction or development is carried out illegally or in deviation to the plan approved, the competent authority shall take action against the constructions or developments as provided in the Act and in these rules.
31. Therefore, there is no merits in the present writ petition. This writ petition is liable to be dismissed. Under these circumstances, the first respondent is directed to proceed further and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. The third respondent is directed to take appropriate action under Rule 22 of Tamil Nadu Combined Development and Building Rules, 2019.
______________ https://www.mhc.tn.gov.in/judis Page No 17 of 20 W.P.No.11647 of 2022
32. This Writ Petition stands dismissed with the above observations. No cost. Consequently, connected Miscellaneous Petition is closed.
18.08.2022
Index : Yes/No
Internet : Yes/No
Speaking : Non Speaking Order
kkd
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https://www.mhc.tn.gov.in/judis
Page No 18 of 20
W.P.No.11647 of 2022
To
1. The Block Development Officer,
Sulur Village Panchayat,
Sulur.
2. The Divisional Engineer,
Tamil Nadu Pollution Control Board,
Pollachi Road,
SIDCO, Coimbatore 641 021.
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https://www.mhc.tn.gov.in/judis
Page No 19 of 20
W.P.No.11647 of 2022
C.SARAVANAN,J.
kkd
Pre-delivery Order in
W.P.No.11647 of 2022
18.08.2022
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https://www.mhc.tn.gov.in/judis
Page No 20 of 20