D. Manikandan and S. Balasubramaniam vs State of Tamil Nadu and Others

R. Banumathi and T.S. Sivagnanam, JJ.—In these batch of cases, the appellants and writ petitioners have challenged the levy of I & A

charges and the manner in which the levy was imposed. By our order dated 27.08.2013, we have upheld the validity of Sections 63-B and 63-C

of the Tamil Nadu Town and Country Planning Act and the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities

Charges) Rules, 2008, consequently, the writ petitions challenging the vires of the Act and Rules and the writ appeals challenging the orders passed

in the writ petitions filed challenging the vires of the Act and Rules have been dismissed.

In these batch of cases, the appellants and writ petitioners have challenged the levy of I & A charges and the manner in which the levy was

imposed. The sheet anchor of the challenge to the levy is on the ground of violation of principles of natural justice.

The common ground of challenge to the levy by the appellants as well as the petitioners is by contending that the procedure contemplated under

Rule 7 and Rule 8 of the Rules have not been followed. Therefore, it is submitted that when there is violation of principles of natural justice, the

question of availing alternate remedy of appeal does not arise.

At this juncture, it is to be noted that each of the writ petitioners some of whom are the appellants also have challenged the levy by raising

separate contentions with particular reference to the nature of construction to be put up by them. We find that the Government filed a common

counter affidavit in the batch of writ petitions before the learned Single Judge as well as before us. The learned Additional Advocate General would

fairly state that the counter affidavit has not dealt with the individual grounds raised by the appellants/petitioners, but the focus was on the challenge

to the constitutional validity of the impugned provision.

The learned Single Judge while dismissing the batch of writ petitions after upholding the validity of the impugned enactment proceeded to deal

with the individual writ petitions challenging the demand notices or the threat of cancellation of planning permission. While dealing with the

individual writ petitions, the learned Single Judge opined that some of the writ petitioners having not challenged the statutory provisions including

Section 3 of the validating provision introduced by the Amending Act, cannot maintain the writ petitions and consequently dismissed the same. In

respect of certain other writ petitions, where the demand was challenged on the ground that the respondents lack authority to charge certain

amounts, they were dismissed, since the writ Court upheld the constitutional validity of the Amending Act. In cases where the writ petitioners

challenged the demand by stating that if there is any wrong levy, they were dismissed by observing that it is open to the writ petitioners to file an

appeal before the appellate authority.

On a careful perusal of the order passed by the Writ Court, we find that the question as to whether a notice was issued under Rule 7 of the

Rules to the petitioners before making a final assessment under Rule 8 has not been considered. The further contention raised alleging that there has

been violation of principles of natural justice, as no notice was issued prior to the final assessment has not been specifically considered in the batch

of writ petitions filed challenging the demand notices. It is further submitted that the writ petitioners have an efficacious remedy of appeal before the

appellate authority in accordance with the Rule 10 of the Rules and without availing such remedy, they cannot approach the Writ Court challenging

the demands.

After having heard the learned counsels for the parties and the findings recorded by the learned Single Judge while dismissing the writ petitions

challenging the demand notices, we find that the factual contentions raised in each of writ petitions has not been fully dealt with, but largely based

upon the conclusion arrived at by the learned Single Judge upholding the constitutional validity of the impugned provisions. In the absence of a

counter affidavit or specific instructions on each of the writ petitions, the facts of each case could not have been fully examined.

Insofar as the writ petitions which have listed before us in which the petitioners have challenged the demand notices, no counter affidavit has

been filed nor the respondents have given instructions to the learned counsel appearing for them on the factual contentions raised in each of the writ

petitions. Therefore, we deem it appropriate that the writ petitions should be heard by the learned Single Judge after affording an opportunity to the

respondents to meet the grounds raised in each of the writ petitions which may be peculiar to the facts and circumstances and the nature of

construction put up/proposed to be put up by each of the writ petitioners. Hence, the writ appeals challenging the orders passed in the writ

petitions wherein demand notices or notices threatening to cancelling the planning permits, are allowed and the writ petitions are restored to the file

of this Court and directed to be placed before the learned Single Judge for being heard and disposed of on merits after affording an opportunity to

the respondents to meet the contentions raised by each of the writ petitioners. Insofar as the writ petitions listed before us wherein the demand/levy

has been challenged shall also be placed before the learned Single Judge to be heard and decided on merits after affording an opportunity to the

respondents to meet the contentions.

As we have upheld the impugned provisions, namely Sections 63-B & 63-C and the Rules, the writ petitioners are entitled to canvass before the

Writ Court the contentions regarding violation of principles of natural justice or any other specific factual contention peculiar to each case, which

will be examined by the Writ Court after affording an opportunity to the petitioners and to the respondents to contest such contentions. In the

result, the writ appeals challenging the orders passed in the writ petitions wherein demand notices or notices threatening to cancelling the planning

permits, are allowed and the writ petitions are remitted back to the writ Court and directed to be placed before the learned Single Judge for being

heard and disposed of on merits after affording an opportunity to the petitioners and also to the respondents to meet the contentions raised by each

of the writ petitioners. Insofar as the writ petitions listed before us wherein the demand/levy has been challenged shall also be placed before the

learned Single Judge to be heard and decided on merits after affording an opportunity to the petitioners and also to the respondents to meet the

contentions. No costs. Consequently, connected miscellaneous petitions in the writ appeals are closed.