Madras High Court
The District Collector/Chairman vs Danial Thangaraj on 17 July, 2013
Author: N.Paul Vasanthakumar
Bench: P.Devadass, N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/7/2013 CORAM The Hon'ble Mr.Justice N. PAUL VASANTHKUMAR and The Hon'ble Mr.Justice P.DEVADASS W.A(MD)No.596 of 2013 and W.A(MD)Nos.597, 598, 599, 600, 601, 602, 603, 604, 605, 706, 707, 708, 709, 710, 711, 712, 713, 714 & 715 of 2013 and Connected Miscellaneous Petitions(20 Cases) W.A.(MD)No.596 of 2013 1. The District Collector/Chairman, Local Planning Authority, Madurai District, Madurai. 2. The Director/Commissioner, Directorate of Town & Country Planning, No.807, Anna Salai, Chennai. 3. The Member Secretary, Madurai Local Planning Authority, Madurai District, Madurai. .. Appellants Vs. 1. Danial Thangaraj 2. The Corporation Commissioner, Madurai Corporation, Madurai .. Respondents Writ appeal filed under Clause 15 of the Letters Patent against the common order dated 2.11.2012 in W.P.(MD)No.9946 of 2012. W.A.(MD)No.597 to 601, 604, 605, 707 to 711, 713 to 715/2013 1. The District Collector/Chairman, Local Planning Authority, Madurai District, Madurai. 2. The Member Secretary, Madurai Local Planning Authority, Madurai District, Madurai. .. Appellants in all writ appeals Vs. 1. P. Subramanian .. R-1 in W.A.(MD)No.597/2013 Dr.R.Aravindakumar .. R-1 in W.A.(MD)No.598/2013 Muthuraman .. R-1 in W.A.(MD)No.599/2013 M/s.Pandian Automobiles Pvt Ltd., rep.by its Chairman P.Rajangam, No.48, By-pass Road, Madurai-625 010 .. R-1 in W.A.(MD)No.600/2013 Dr.A.Devadass .. R-1 in W.A.(MD)No.601/2013 N. Rajendran .. R-1 in W.A.(MD)No.604/2013 R.P.Associates, rep.by its Managing Partner, P.Ramakrishnan, No.47/1 By-pass Road, Madurai .. R-1 in W.A.(MD)No.605/2013 Rajkumar .. R-1 in W.A.(MD)No.707/2013 S. Prabhakar .. R-1 in W.A.(MD)No.708/2013 M/s.Vishal Promoters (P) Ltd., rep.by its Chairman R.Ilankovan, No.31, Gokale Road, Chokkikulam, Madurai -625002 .. R-1 in W.A.(MD)No.709/2013 G.M.Barath Kumar .. R-1 in W.A.(MD)No.710/2013 Sivaperumal .. R-1 in W.A.(MD)No.711/2013 L.Rajakumari .. R-1 in W.A.(MD)No.713/2013 Karuppiah .. R-1 in W.A.(MD)No.714/2013 Karuppiah .. R-1 in W.A.(MD)No.715/2013 2. The Corporation Commissioner, Madurai Corporation, Madurai .. R-2 in WA(MD)Nos.597 to 601, 604, 605, 707 to 710, 713, 714, 715/2013 & R-4 in WA(MD)No.711/2013 3. Renuka Devi .. R-3 in WA(MD)No.711/2013 Writ appeal filed under Clause 15 of the Letters Patent against the common order dated 2.11.2012 in W.P.(MD)No.9947, 9966, 10018, 10566, 11117, 11574, 11702, 10217, 10744, 10303, 9362, 11641, 10794, 9964, 9965 of 2012. W.A.(MD)No.602, 603, 712 of 2013 The Member Secretary, Madurai Local Planning Authority, Madurai District, Madurai. .. Appellant in all writ appeals Vs. 1. Apesh Construction Limited, F-60, Malhotra Building, 2nd Floor, Connaught Place, New Delhi - 110001. .. R-1 in W.A.(MD)No.602/2013 M/s.Max Properties Pvt Ltd., rep.by its Managing Director K.Elango Packiaraj, No.12, Shanmuganathapuram 3rd Street, West Ponnagaram Main Road, Madurai-625010. .. R-1 in W.A.(MD)No.603/2013 Shanmuga Pandian .. R-1 in W.A.(MD)No.712/2013 2. The Corporation Commissioner, Madurai Corporation, Madurai .. R-2 in all writ appeals Writ appeal filed under Clause 15 of the Letters Patent against the common order dated 2.11.2012 in W.P.(MD)No.11295, 11467, 12069 of 2012. W.A.(MD)No.706 of 2013 The Member Secretary, Madurai Local Planning Authority, Madurai District, Madurai. .. Appellant in all writ appeals Vs. 1. P. Kayalvizhi .. R-1 in W.A.(MD)No.706/2013 2. The Corporation Commissioner, Madurai Corporation, Madurai .. R-2 in all writ appeals 3. The Deputy Commissioner (Division-II) Madurai City Municipal Corporation, Madurai .. R-3 in all writ appeals. Writ appeal filed under Clause 15 of the Letters Patent against the common order dated 2.11.2012 in W.P.(MD)No.9853 of 2012. !For Appellants/ ... Mr.K.Chellapandian, State Government Additional Advocate General, assisted by Mr.M.Alagadevan, Special Govt. Pleader ^For R-1 in WA.598,710/13 ... Mr.A.Mohamed Yusuf R-1 in WA(MD).599/2013 ... Mr.B.Ashok R-1 in WA(MD).601/2013 ... Mr.M.Panneerselvam R-1 in WA(MD).603/2013 ... Mr.N.Sathish Babu R-1 in WA(MD).709/2013 ... M/s.Aiyar & Dolia RR-1to3 in WA(MD).711/2013 ... Mr.V.Bharathidasan For Madurai Corporation ... Mr.R.Murali :COMMON JUDGMENT
N.PAUL VASANTHAKUMAR, J.
These writ appeals are filed by the District Collector/Chairman; Member Secretary, Madurai Local Planning Authority; and Director of Town and Country Planning, challenging the common order dated 2.11.2012 passed by the learned single Judge in W.P.(MD)Nos.11295, 9362, 9853, 9946, 9947, 9964, 9965, 9966, 10018, 10217, 10303, 10566, 10744, 10794, 11117, 11467, 11574, 11641, 11702, 12069 of 2012 respectively (reported in 2013 (2) CTC 180).
2. The first respondent in these writ appeals have applied for planning permission for construction of respective building and the second respondent/Madurai Corporation granted such permission. All such buildings were granted planning permission prior to July, 2010. According to the first respondents, such planning permissions were granted in terms of the delegated power conferred by the District Collector/Chairman, Local Planning Authority through his proceedings dated 30.12.1993 to the Commissioner of Madurai Corporation, pursuant to the direction issued by the Director of Town and Country Planning in exercise of powers conferred under Section 91-A(1) of the Town and Country Planning Act, 1971. A clarification Letter was issued on 3.8.2010 based on the circular issued by the Director of Town and Country Planning on 14.10.2010. By virtue of the said circular, the planning/building permission can be given only by the District Collector/Chairman, Local Planning Authority and not by the Commissioner of Madurai Corporation after 14.10.2010.
3. After the said circular dated 14.10.2010 was issued and in some cases even before the circular was issued, notices were issued to the building owners to get planning permission from the District Collector/Chairman, Local Planning Authority, for the buildings which were already granted planning permission by the Commissioner of Madurai Corporation and in some cases lock and seal notices were issued. The notices/lock and seal orders were challenged before the learned single Judge, who gave a finding that the notices/orders passed to lock and seal the premises are not valid and granted liberty to the appellants herein to proceed against such of those buildings, which were constructed in violation of the planning permission granted, by following the procedures prescribed by law.
4. The contention of the appellants in these cases both before the learned single Judge and before this Court are that contrary to the delegation of power issued through circular dated 24.9.1993, building permissions were granted and buildings were constructed, without following any norms. Hence the District Collector, as Chairman of the Local Planning Authority, Madurai, is empowered to exercise his powers under sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, 1971. As the planning permission granted by the Commissioner of Madurai Corporation, who is not competent to issue planning permission, the planning permission obtained by the first respondent in these writ appeals are to be treated as nullity, which will not confer any right to the concerned respondent in these writ appeals to plead for estoppel/equity and the said constructions made should be treated as unlawful constructions. It is also the contention of the appellants that the indiscriminate planning permissions granted by the 2nd respondent are hazardous to the safety of occupants as well as residents of the multi storeyed buildings and the District Collector/Chairman, Local Planning Authority being the statutory authority, is entitled to issue notices calling upon the first respondents in these writ appeals to get planning approval from the competent authority, and if no planning approval was obtained, consequential lock and seal orders can be passed. The further contention raised by the appellants is that the Commissioner of Madurai Corporation has not signed the order granting planning permission and on behalf of the Commissioner, some other person has signed in the order granting planning permission, against whom disciplinary proceeding is initiated and the order having been signed not by the Commissioner of Madurai Corporation, the approval granted by signing on behalf of the Commissioner are to be ignored.
5. The learned Additional Advocate General appearing for the appellants argued that the Planning approval said to have been obtained by the appellants having been issued by the incompetent authority, the said approval are bound to be treated as invalid approval and the said approval need not be cancelled and the appellants are entitled to call upon the first respondents in the writ appeals to get approval from the District Collector/Chairman, Local Planning Authority, who is the competent authority to issue planning permission. The learned Additional Advocate General also submitted that the approval having been signed by some other person on behalf of the Commissioner of Madurai Corporation, and charge memo was issued against that person and the approval orders have no legs to stand, even if the charge memo issued is not proved.
6. The learned counsel appearing for Madurai Corporation contended that the building permission was granted as per the delegated power granted on 30.12.1993, which are valid, as the Commissioner has granted permission only after considering all the relevant factors and the buildings constructed cannot be faulted as illegal or unauthorised construction.
7. We have considered the rival submissions and perused the material papers and the order of the learned single Judge meticulously.
8. The learned single Judge framed the following issues while deciding the writ petitions:
(i) Whether the petitioner and others have made an application under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971, read with Section 272 of the Madurai City Municipal Corporation Act ?
(ii) Whether the Petitioners have obtained the Building Permission from the Competent Authority ?
(iii) Whether the building in question is an illegal construction without proper Planning permission and consequently noticed for locking and sealing ?
(iv) Is the building in question constructed in the Controlled Industrial Zone contrary to the approved Master Plan and contrary to 1973 Building Rules ?
(v) Whether the notice is valid in law and whether the authority has the jurisdiction to issue the notice under challenge ?
9. The learned single Judge dealt with issue Nos.(i) to (iii) jointly and held that the Corporation of Madurai is the competent authority for the grant of building permission and it performed its duties as well as Local Planning Authority, in terms of Section 272 of the Madurai City Municipal Corporation Act, 1971. Section 272 reads as follows:
"272. Application to construct or re-construct building.- If any person intends to construct or re-construct a building he shall send to the commissioner-
(a) an application in writing for approval of the site together with a site-plan of the land, and
(b) an application in writing for permission to execute the work together with ground plan, elevations and sections of the building and a specification of the work.
Every document furnished under sub-section (1) shall contain such particulars and be prepared in such manner as may be required under Rules or Bye-laws." Section 49 of the Tamil Nadu Town and Country Planning Act, 1971, is the other relevant provision, which reads as follows:
"49. Application for permission.- (1) Except as otherwise provided by Rules made in this behalf, any person not being any State Government or the Central Government or any Local Authority intending to carry out any development on any land or building on or after the date of the publication of the resolution under sub-section (2) of Section 19 or the notice in the Tamil Nadu Government Gazette under section 26 shall make an Application in writing to the appropriate Planning Authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed.
(2) The appropriate Planning Authority, shall, in deciding whether to grant or refuse such permission, have regard to the following matters, namely:
(a) the purpose for which the permission is required;
(b) the suitability of the place for such purpose;
(c) the future development and maintenance of the planning area.
(3) When the appropriate Planning Authority refuses to grant a permission to any person, it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same."
The delegation of power is provided under Section 91-A of the Tamil Nadu Town and Country Planning Act, 1971, which reads thus, "91-A. Delegation of powers by appropriate Planning Authority.- (1) The appropriate Planning Authority may, subject to such conditions as may be prescribed, authorise by order any committee or officer specified in such order to exercise any of the powers vested in such appropriate planning authority by this Act and may cancel such order.
(2) The exercise of any power delegated under sub-section (1) shall be subject to such restrictions and conditions as may be specified in the order, and also to control and revision by the appropriate planning authority." The delegation of power given by the District Collector/Chairman, Local Planning Authority to the Commissioner of Madurai Corporation in Roc.No.59/93(1) MP3, dated 30.12.1993 reads as follows:
"Powers to issue Planning Permission have already been delegated to Commissioner, Madurai Corporation for buildings in non detailed Development Plan areas and residential buildings in detailed development areas in the Resolutions 1st and 2nd cited.
The Director of the Town and Country Planning, has given Guidelines in the reference 3rd cited regarding the power delegation to local bodies with reference to issue of Planning Permission.
By considering all the views and in supersession of the resolutions already passed and in exercise of the powers conferred under Section 91-A(1) of the Town and Country Planning Act, 1971, the Madurai Local Planning Authority delegates its power to the Commissioner, Madurai Corporation to issue Planning Permission for the following cases as resolved in its Resolution No.7 dated 6.12.1993:
1. To issue Planning Permission for all the buildings in Madurai Corporation which satisfy all the rules in force.
2. Those cases which are in contravene to the Master Plan Zoning Regulations, proposals of the Detailed Development Plans, Scheme clauses, Parking Bye-laws, Madurai City Corporation Building Rules, Multi-storied and Public Building Rules, Layout conditions, etc., in existence should be forwarded to Director of Town and Country Planning, Madras through Local Planning Authority."
The said delegation of power granted was in force till the issuance of the circular dated 14.6.2010 by the Director of Town and Country Planning. The learned single Judge having noticed the said statutory provisions as well as the delegation of power given to the Commissioner of Madurai Corporation till 14.6.2010, and the submission made by the Commissioner of Madurai Corporation to the effect that the original file relating to planning permission was signed by the Commissioner, and merely because the orders issued to the building owners contain the signature of the authority stating signed 'on behalf of the Commissioner', the approval granted by the Madurai Corporation will not become invalid. The learned single Judge thus answered the issue Nos.(i) to (iii) in favour of the building owners. We are in entire agreement with the said findings given by the learned single Judge.
10. Insofar as issue No.(iv) framed by the learned single Judge is concerned, a finding was given to the effect that with regard to the question of violation of Multi-storeyed and Public Buildings Rules, 1973, or issues which are basically factual in nature, the Local Planning Authority should have taken action as per law either by issuing notice to the writ petitioners calling upon them to show cause, how the condition of zone have been violated for the grant of planning permission or that there is violation of Multi-Storeyed and Public Buildings Rules, 1973, and having failed to take any action on those lines, the Local Planning Authority is not entitled to take the said plea, based on vague and bereft details of violations. The learned single Judge also held that unless prior proceedings are initiated, supported by the relevant documents and adjudicated in the manner known to law, appellants are not justified in taking such a plea. Thus, the said issue was also held against the appellants. The learned single Judge further held that the planning permission granted have not been cancelled in the manner known to law. There is no error in the said findings and we are in agreement with the learned single Judge in respect of issue No.(iv).
11. Insofar as issue No.(v) is concerned, permission having been granted by the competent authority and the same have not been cancelled in the manner known to law, the notices issued to restore the property in its original position, or to lock and seal the premises, are bad in law.
12. Insofar as signing of the planning approval, no material was placed to prove that the original file granting approval was not signed by the competent authority and liberty was granted to the appellants to look into each case and find out whether the Commissioner of Madurai Corporation has passed the order and thereafter proceeded in accordance with law. By stating the said reason, the learned Judge concluded issue No.(v).
13. In the facts and circumstances pleaded and the materials produced before this Court, we are not persuaded to take a different view than the one taken by the learned single Judge. It is a well settled principle of law that even if planning permissions obtained by the first respondents in these writ appeals are not granted as per law, as asserted by the appellants, the same have to be cancelled/challenged, in the manner known to law. In the decision reported in (2011) 3 SCC 363 (Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group) the Hon'ble Supreme Court considered the necessity to challenge the order, even if the order /notification is void or voidable. In paragraphs 16 to 19 the Hon'ble Supreme Court held as follows:
"16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K.Kunhikannan Nambiar Manjeri Manikoth Naduvil ((1996) 1 SCC 435 : AIR 1996 SC 906); Tayabbhai M.Bagasarwalla v. Hind Rubber Industries (P) Ltd. ((1997) 3 SCC 443 : AIR 1997 SC 1240); M.Meenakshi v. Metadin Agarwal ((2006) 7 SCC 470); and Sneh Gupta v. Devi Sarup ((2009) 6 SCC 194), this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
17. In State of Punjab v. Gurdev Singh ((1991) 4 SCC 1 : AIR 1991 SC 2219) this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC (1956 AC 736 : (1956) 2 WLR 888 : (1956)All ER 855), wherein Lord Radcliffe observed: (AC pp.769-70) "... An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity (on) its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
18. In Sultan Sadik v. Sanjay Raj Subba ((2004) 2 SCC 377 : AIR 2004 SC 1377), this Court took a similar view observing that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e., for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so far another purpose or another person."
14. Applying the above decision to the facts of these cases, and as long as the planning permissions granted to the first respondents in these writ appeals are not cancelled, the appellants are not entitled to direct the first respondents/building owners to get planning approval from the District Collector/Chairman, Local Planning Authority, or, having jurisdiction to pass the order of lock and seal, except on the ground that the building is construction in violation of the planning approval already granted.
15. In the light of the above cited decision, the decisions cited by the learned Additional Advocate General, reported in 2005 (1) LW 643 (SC) (Salaudeen Babu v. P.T.Prabhakar & Others); AIR 2005 SC 4446 (Harshad Chiman Lal Modi v. D.L.F., Universal Ltd.); AIR 2007 SC 1077 (Hasham Abbas sayyad v. Usman Abbas Sayyad) and AIR 2009 SC 1645 (Chandrabhai K.Bhoir v. Krishna Arjun Bhoir) have no application to the facts of these cases.
16. The procedures contemplated under section 56 of the Town and Country Planning Act, 1971, has to be followed even for taking action for any deviation of planning permission as against the buildings constructed. Section 56 reads as follows:
"56. Power to require removal of unauthorised development.- (1) Where any development of land or building has been carried out-
(a) without permission required under this 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 or building has been duly revoked; or
(d) in contravention of any permission which has been duly modified, the appropriate planning authority may serve on the owner a notice requiring him within such period, being not less than one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice;
(i) in cases specified in clause (a) or (c) above to restore the land to its condition before the said development took place;
(ii) in cases specified in clause (b) or (d) above to secure compliance with the permission or with the conditions of the permission, as the case may be.
(2) In particular, any such notice may, for the purposes aforesaid, require-
(i) the demolition or alteration of any building or works;
(ii) the carrying out on land, of any building or other operations;
(iii) the discontinuance of any use of land or building:
Provided that, in case the notice requires the discontinuance of any use of land or building, the appropriate planning authority shall serve a notice on the occupier also.
(2-A) If the owner or occupier, as the case may be, of land or building has not discontinued, the use of such land or building as required in the notice served under sub-section (1), within the time specified therein, the appropriate planning authority if prima facie satisfied, may take action to discontinue the use of such land or building by locking and sealing the premises in such manner as may be prescribed irrespective of pendency of any application under section 49 or appeal under section 79 or any litigation before a court. The owner or occupier, as the case may be, of such land or building shall provide security for such sealed premises.
(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 49 for the retention of the land, or any buildings or works or for the continuance of any use of the land or building to which the notice relates. (4) (a) The notice except the cases covered by clause (iii) of sub-section (2) shall not be of any effect pending the final determination or withdrawal of the application.
(b) (i) The foregoing provisions of this Chapter shall, so far as may be, apply to an application made under sub-section (3).
(ii) If such permission applied for is granted on that application, the notice shall not take effect, or if such permission applied for is not granted, the notice shall have full effect or if such permission is granted for the retention only of some buildings or works, or for the continuance of use of only a part of the land or building, the notice shall not take effect regarding such buildings or works or such part of the land or building, but shall have full effect regarding other buildings or works or other parts of the land or building, as the case may be.
(5) If within the period specified in the notice or within such period after the disposal or withdrawal of the application for permission, the notice or so much of it as continues to have effect, is not complied with, the appropriate planning authority may-
(a) prosecute the owner for not complying with the notice; and in case where the notice requires the discontinuance of any use of land or building, any other person, who uses the land or building or causes or permits the land or building to be used in contravention of the notice; and
(b) (i) in the case where the notice requires the demolition or alteration of any building or works or carrying out of any building or other operations, itself cause the restoration of the land to its condition before the development took place and secure the compliance with the conditions of the permission or with the permission as modified by taking such steps as the appropriate planning authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and
(ii) the appropriate planning authority concerned may recover the cost of any expenses incurred by it in this behalf from the owner as arrears of land revenue."
Admittedly the said power is not exercised by the appellants and such power being available to initiate action against any violator of the planning permission, it is always open to the appellants to follow the procedures as contemplated under Section 57 of the Act and take appropriate action in accordance with law. The said liberty is also given by the learned single Judge in his order.
17. The learned single Judge also gave a finding that merely because charge memo was issued to one or other officers, the appellants are not entitled to initiate action against the persons, in whose favour planning permission was granted. It is a well settled principle of law that mere issuing charge memo without the same being proved, no consequential drastic action can be initiated, as the charge memo is only a mere allegation and not proof. The said finding given by the learned single Judge is also upheld.
18. For the foregoing reasons, the order passed by the learned single Judge dated 2.11.2012, reported in 2013 (2) CTC 180 requires no interference and the same is confirmed. Consequently all the writ appeals are dismissed. No costs. Connected miscellaneous petitions are also dismissed.
Vr