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Judgment
V. Kanagaraj, J.—The deceased Petitioner had filed this writ petition praying to issue a writ of certiorarified mandamus calling for the
records resulting in the impugned order of the second Respondent passed in 78 No. EC/14694/88 dated 11.4.1989, and quash the same as illegal
and without jurisdiction and further direct the second Respondent to permit the Petitioner providing a generator room as per the sanction granted
by the first Respondent in G.O. Ms. No. 1988 dated 31.12.1987.
In the affidavit filed in support of the writ petition, the writ Petitioner would submit that he purchased under a sale deed dated 03.07.1994, the
property bearing DoorNo. 124, Lattice Bridge Road, Adyar in S. No. 13/1 andl4/l in T.S. No. 8/7 and 8/8 in Block 40, measuring three grounds
and 1862 sq.ft and got it reclassified as commercial one by the approval of the second Respondent, that he constructed the basement ground floor
and three floors building as per the MMDA plan sanctioned in January 1986, and submitted the plan for additional construction, but the same was
refused by the second Respondent in their communication dated D. Dis. C/14729/87 dated 22.11.1987, that he filed an appeal before the first
Respondent for planning permission who was pleased to pass orders in G.O. Ms. No. 1988 dated 31.12.1987, u/s 113 of Tamil Nadu Town and
Country Planning Act 1971, thus allowing the said appeal and passing orders for the construction of fourth and fifth floors and further granting
exemption from the provisions of Rule 17, of the Development Control Rules relating to all the necessary items subject to the Petitioners
committing the security deposit that consequent to the said G.O. dated 31.12.1987, the second Respondent in his letter dated 20.6.1988 directed
the Petitioner to give a deed of undertaking and to remit a sum of Rs. 3,700/- towards development charges for the land and building and a further
sum of Rs. 36,500/- which he remitted.
The Petitioner would further submit that in view of the fulfilment of all the requirements of the said G.O., he completed the additional
construction of the 4th and 5th floors and thereafter put up the generator room with blower fans in the South East corner of the Petitioner''s land
since the provision for the same had also been sanctioned in the said G.O. dated 31.12.1987 as exemption under Rule 17(a) & 17(b) of the
Development Control Rules. But the second Respondent in his impugned order in No. EC/14698/88, dated 11.4.1988 alleging unauthorized
construction of generator room to the size of 29'' x 9'' called upon the Petitioner to restore the land and its condition before the said construction
within 30 days ending with 16.9.1988, failing which, threatening to demolish the same without notice to the Petitioner. It is further submitted that
the construction of the shed for the provision of the generator had been covered by the sanction granted in G.O. Ms. No. 1988 dated 31.12.1987
and the same is incorporated in Para - 1 of the notification under the G.O.; that since the first Respondent has exempted the Petitioner from the
provision of the Rules and Regulations of 17(a). 10 (b) relating to the provisions for the generator room and directed the second Respondent to
issue planning permission construction in the Petitioner''s plot; that the impugned order passed by the second Respondent is illegal and without
jurisdiction and it is liable to be quashed. On such averments the Petitioner would come forward to file this writ petition praying to the relief
extracted supra.
In the counter affidavit filed on behalf of the second Respondent he would submit that the impugned notice does not contemplate anything that
was exempted by the order of the Government in G.O. Ms No. 1988 dated 31.12.1987 and it requires only the removal of the generator room
and installation of the blower fans which were not covered by the Petitioner in para No. 7 of the affidavit to the effect that he had completed all the
construction of 4th and 5th floors as per the order of the Government and thereafter put up a generator room with blower fans and therefore this
Respondent issued the impugned demolition notice to the Petitioner which is a duty cast upon this Respondent by law.
It would further be contended in the Counter affidavit that the Petitioner had not complied with the Respondent letter No. G/16735/88 dated
20.6.1988 requiring the Petitioner to pay the development charge and security deposit, inspite of the order of the government being specific and
clear that he should remit the security deposit of the same cannot be misconstrued to be a planning permission and will not confer the right on the
Petitioner to proceed with the construction work straightaway. Neither adhering the order of the Government nor complying with the requirements
of this letter dated 20.06.1988, the Petitioner has proceeded with the construction of 4th and 5th floors and as on date these floors are not
supported by the planning permission and it is therefore liable for removal that this Respondent in letter No. C/1673/88 dated 09.03.1989 has
requested the Government to revoke the order made in G.O. Ms No. 1988 dated 31.12.1987 not only on ground that the Petitioner has not
remitted the Development Charges and Bank Guarantee, but also since the exemption granted by the Government has aggravated the traffic
conditions on the Lattice Bridge Road, that there is no merit in the writ petition and the same becomes liable only to be dismissed. On such
averments the second Respondent would pray for dismissing the writ petition.
During arguments, the respective counsel for the Petitioner, the first Respondent (AGP) and the standing counsel for the second Respondent
would argue the case sticking to their standpoint. On the part of the learned Counsel for the Petitioner the two points that he laid emphasis are that
the second Respondent kept the bank guarantee for one and half years or more and now that they have come forward to charge that the .
Petitioner had not remitted the development charge, security deposit and bank guarantee. The second point stressed by the learned Counsel is that
without even a show cause notice issued to the Petitioner, the second Respondent admitted to demolish his compound wall as though the Petitioner
had encroached on the Government poramboke land.
The learned Counsel would also cite decided cases to stress his points. The first of such cases cited by the learned Counsel for the Petitioner is
one delivered in P.G. Viswanathan Vs. Government of Tamil Nadu, Madras, , wherein it is held that '' two questions are raised for consideration"".
(I). Whether the first Respondent (Government) has got powers under the Act and Rules to grant exemption? and
(II) Whether even if a power is available, the power has been exercised in an arbitrary manner?....
Section 113 which confers powers of overruling nature on Government to grant exemption from all or any of the provisions of the Act or the Rules
or Regulations made thereunder. Consequently, the first question which deals with the availability of the power of the Government to grant
exemption for the alleged violation has to be answered in the affirmative....
There is no stipulation in Section 113 that a party must invoke the powers of exemption of the Government under the above said Section only prior
to the putting up of a building is halfway through or is completed. It cannot therefore, be said that the representation by the third Respondent about
the stage of construction of the building is per se illegal. Moreover, the section does not limit the powers of Government to grant exemption only in
respect of buildings not yet constructed or partially constructed. In all such matters, the reason for non obstante powers being conferred on
Government by the legislature has to be taken note of. A Bench of this Court has recently considered the validity of an order of Government
relaxing Rule 2 of the Town Planning Subordinate Service Rules relating to the method of recruitment in favour of Surveyors who were appointed
as Draftsmen.
The second judgment cited by the learned Counsel for the Petitioner is one delivered by the Apex court in P.J. Irani Vs. The State of Madras,
wherein it is held:
Where an individual order of Government exempting certain premises was passed for reasons which did not fall within the purpose for which the
power was conferred by Section 13 of the Act, the order, itself would be one discriminatory of the tenant occupying the premises as violating his
fundamental right to equal protection of the laws. In such an event, Article 226, would be available to set aside such an order. Even if the order did
not violate Article 14, the High Court does not lack power under vitally affecting a person''s right to statutory protection against eviction. Immunity
from interference by the courts could not be sought for orders which are plainly ultra vires, merely because they were passed bona fide in the sense
of being without indirect motive. Particularly so when the power of the High Court under Article 226 of the Constitution is not limited to the issue
of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs have been understood in England, but the power is
general to issue any direction to the authorities. viz., for enforcement of fundamental rights as well as for other purposes.
The third judgment cited by the learned Counsel is from a Division Bench of this Court in P. Dwarakanath Reddy v. New India Maritime
Agencies Pvt. Ltd. and two Ors. reported in 1990 TLNJ 431, wherein also it is held.
The power of granting exemption is conferred on the first Respondent u/s 113 of the Act.
As we could see from the extract made above, the section does not by its terms set forth and delineate the conditions prerequisites for the exercise
of the power and further it does not requires giving of reasons for granting exemption.
The learned Counsel would conclude his arguments stating that the Government order passed in G.O. Ms. No. 1988 dated 31.12.1987
comprises not only exempting the additional construction of 4th and 5th floors over the existing basement floor, ground floor plus three floors, but
also the provisions of standby generator, transformer rooms metre room etc., On the part of the first Respondent Government, the learned
Additional Government Pleader (Writs) would adhere to the Government order passed and would submit that any order passed by this Court may
be in adherence to the Government order passed in the G.O. Ms No. 1988 dated 31.12.1987. On the part of the second Respondent, the learned
Counsel appearing on his behalf would stick to his stand that the above Government order dated 31.12.1987 only exempted the 4th and 5th floors
but no provisions were made for generator room or transformer room.
Assessing the merit of the case based on the pleadings of parties, and having regard to the materials placed on record and upon hearing the
learned Counsel for the Petitioner and both Respondents, what comes to be known is that there is absolutely no dispute regarding the construction
of the 4th and 5th floors over and above the ground plus three floors. But on the part of the second Respondent it would be argued that for the
said construction the Petitioner has not complied with the legal requirements effecting the payment of the development charge, the security deposit
and the bank guarantee as it is usually imposed on all constructions and hence on ground that the additional construction is a hindrance to the
worsening traffic in the Lattice Bridge Road and therefore on the part of the second Respondent he would come forward to say that even they
have requested the Government to revoke the order already passed in G.O. Ms. No. 1988, Housing and Urban Development Department, dated
31.12.1987. On the part of the Petitioner so far as the payments of the development charges'', security deposit and bank guarantee are concerned
inspite of such amounts having been paid especially the bank guarantee having been kept alive for grant of one and half years, the second
Respondent did not make use of the same for the required purpose and hence the Petitioner is not to be blamed for such of the slackness
committed on the part of the second Respondent. So far as this issue is concerned this Court does not think that there would be any difficulty in
solving since these are the requirements which are imposed on all such constructions and the Petitioner is not an exception to the rule. But at the
same time the pertinent question that has to be solved is whether the provision of the generator room to the measurement specified in the impugned
demolition notice and the blower fans three in number should be allowed to be demolished since according to the second Respondent they have
been put up unauthorizedly and without obtaining the planning permission as required under the relevant provisions of the Town and Country
Planning Act, 1971.
The Petitioner would strongly contend that the crucial Government Order passed in G.O. Ms. No. 1988, dated 31.12.1987 not only exempts;
the additional construction of 4th and 5th floors but also the provisions of the generator room of the allied subjects and hence the impugned
demolition notice dated 11.4.1989 passed in notice No. EC/14694/1988 by the second Respondent is not only illegal but also without jurisdiction
and the same is liable to be quashed.
A glance into the Government Order passed in G.O. Ms No. 1988 dated 31.12.1987 would reveal that the Government after careful
consideration of the appeal preferred by the Petitioner calling for the remarks from the second Respondent and in consideration of various facts
had decided to allow the appeal exempting the additional construction of the 4th and 5th floors over the existing basement floor, ground floor plus
three floors for office purposes of the Petitioner thus exempting the Petitioner from the provisions of Rule 17(a)l; 17(a)2; 17(a)5; 17(a)8;
17(a)10(b); 17(a)12; 17(a)13; 5(i); and 79(c) of the Development Control Rules relating to abutting road width; height of the building, minimum
site extent, minimum length of the shortest site, floor face index, clear setback all around, car parking, Drive way, Height of the basement floor,
Head room, provisions of standby generator, transformer room, meter room, fire safety staircase, etc......to the extent of violations as per the plan
revised by the Member Secretary, Madras Metropolitan Development Authority subject to the condition that the Appellant should remit: the
security deposit to the Madras Metropolitan Develop-ment Authority ""decided, allowed and has passed the notification to the said effect"".
The order further contemplates that this G.O. will be deemed to be a planning permission and will not confer the right on the Appellant to
proceed with the construction work straightway. The Appellant should approach the Member Secretary, Madras Metropolitan Development
Authority after the publication of the notification in the Tamil Nadu Government Gazette for necessary planning permission and then proceed with
the construction work.
From the reading of the said Government order it is clear that the Petitioner had been exempted so far as his construction of the 4th and 5th
floors and the other connected items are concerned he had been exempted from many of the provisions of the Development Control Rules as afore
extracted which includes the provisions of standby generator, transformer room, metre room etc., which are only the subject matters connected to
the writ petition. Therefore the arguments put forth on the part of the second Respondent that those items which are the subject matters of the writ
petition are not covered under the Government order nor exempted in any manner is nothing but wrong. The second paragraph of the Government
order would specifically mention that the Petitioner should approach the Member, Secretary, Madras Metropolitan Development Authority for
necessary planning permission and then proceed with the construction work. It is the case of the Petitioner that the second Respondent
Metropolitan authority inspite of the compliance of the required provisions did not at all come forward to grant the planning permission and hence
adhering to the Government Order he put up the construction of the generator room whereas the second Respondent would come forward to say
that no prior planning permission had been obtained by the Petitioner and hence it is to be demolished.
Even though the Government have permitted the Petitioner exempting him from many of the Rules of the Development Control Rules of which
the subject matter covering the writ petition is also one and hence eventhough in paragraph - 2 the government have directed the Petitioner to
obtain planning permission prior to construction, it should be mentioned the granting of the planning permission for such construction has been
reduced into a mere formality which in compliance of the requirements on the part of the Petitioner should have been granted by the second
Respondent. But the second Respondent even from the tenor of language used in the counter affidavit seems to have taken a vow not to issue the
planning permission since on rejection of the planning permission the Petitioner was able to succeed before the Government on appeal and in a
spiteful manner the second Respondent seems to have been reluctant to grant the planning permission inspite of the Petitioner being ready and
willing to comply with the required formalities. Hence the second Respondent has no right or locus standi to deny the due planning permission in
adherence to the Government order which is specific and telling. Infact, the second Respondent is duty bound to abide by the directions of the
Government order and the moment the Petitioner had come forward to comply with the requirements such as effecting the payment of
development charges, security deposit, bank guarantee and such other formalities without any further delay the second Respondent should have
issued the planning permission in favour of the Petitioner. But since the second Respondent was not prompt in his performance of duty, the
Petitioner has been left with no option but to approach this Court for relief against the impugned demolition notice issued by the second
Respondent. In fact when the Government have permitted such construction by the Petitioner on account of the non compliance of certain
formalities, if a demolition notice is issued by the second Respondent, it is nothing short of an Act perpetrated on the part of the second
Respondent as against the letter and spirit of the Government order permitting the Petitioner to have such facilities as it is in the case in hand. The
second Respondent should not allow the situation to reach the stage that it has attained. It is high time that the second Respondent acted granting
the planning permission in favour of the Petitioner for the additional construction of 4th and 5th floors and also the generator room, the transformer
room, and the meter room which have all been specified in the G.O.provided only the Petitioner complies with the usual requirements such as
remitting the development charges etc., which are deemed to have been issued prior to the construction of the 4th and 5th floors, the generator
room and the transformer room. In view of the above discussions the impugned demolition order passed by the second Respondent as per his
proceeding in notice No. EC/14694/1988 dated 11.4.1989 cannot at all be sustained and the same become liable only to be quashed.
In result, the above writ petition succeeds and the same is allowed.
The impugned order passed by the second Respondent in his proceeding No. EC/14694/88 dated 11.04.1989 is quashed.
The second Respondent is: directed to issue the proper planning permission in favour of the Petitioner as required under G.O. Ms. No. Housing
and Urban Development Department dated 31.12.1987 provided the Petitioner observes the required formalities for the grant of such planning
permission.
In view of the long pending nature of this issue the second Respondent is hereby further required to issue the necessary planning permission as
required under the said G.O.within a period of 60 days from the date of presentment of this order. However in the circumstance of the case there
shall be no order as to costs.
Consequently, W.M.P. No. 10223 of 1989 is closed.