AI Structured Summary
Not yet generated for this judgment
Judgment
P. Jyothimani, J.—While W.P. No. 6698 of 2005 has been filed by Nowroji Road and P.C. Hostel Road Neighbourhood Residents
Welfare Association represented by its Secretary, in which subsequently nine persons impleaded themselves as petitioners for declaration that Rule
7(a)(iv) of the Development Control Rules is illegal and unconstitutional, W.P. No. 10549 of 2005 has been filed by the individual petitioner for the
same relief.
The common grievance of the petitioners is against the 8th respondent in both the writ petitions, viz., Sindhi Educational Society (Madras),
represented by its Secretary which has proposed to put up a multi-storied building at Old No. 20, New No. 12, Nowroji Road, Chetpet, Chennai
to start a new school. The proposed construction for running the school is objected to by the petitioners, out of whom the petitioner in W.P. No.
10549 of 2005 is not only the President of the petitioner Association in W.P. No. 6698 of 2005, but also stated to be a neighbour of the
proposed building.
It is the case of the petitioners that while the width of the road viz., Nowroji Road is 28 ft., the effective motorable and usable road width in
front of the proposed school to be started by the 8th respondent is only 22 feet, after deducting the space taken by the storm water drain and
pavement. It is also observed that there is already a very large school located within 100 mts. to the west of the proposed School and there is yet
another school within 200 metres to the east of the proposed school.
a) The proposed construction is objected to since it would cause traffic hazards and congestion both in the morning and in the evening and the
traffic hazards would cause much hardship and difficulties to the residents since the school vans, cars, scooters, motorcycles, auto-rickshaws and
cycle rickshaws coming to drop and pick up the children would add traffic congestion.
b) It is also the case of the petitioners that there are five schools in the locality, within one kilometre radius viz., (i) Union Christian School, 33,
Nowroji Road, Chetpet, Chennai, (ii) Our Lady Matriculation School, 74 & 75 Mc Nichols Road, Chetpet, Chennai, (iii) Maharishi
Vidhyamandir, 28,Dr.Guruswamy Road, Chennai, (iv) Seetha Kingston House School, 768, Poonamallee High Road, Chennai, and (v)
St.Georges 738, P.H. Road, Chennai, and in addition to them, there are four other schools which are situated in much wider roads.
c) It is the case of the petitioners that the road being congested in nature and in case of emergency, it would be dangerous to the children since the
access of fire-fighting engine to the school premises is remote, and the building proposed to be constructed by the 8th respondent is nearly
accommodating 1000 children and such school without any compound wall or playground will be dangerous to the children.
d) It is stated that as per the proceedings of the Director of Matriculation Schools, before starting a school, the Management must obtain Structural
Stability Certificate from the Public Works Department/Chartered Engineers apart from Public Building License under the Tamil Nadu Public
Buildings (Licensing) Act, 1965 from the local Tahsildar, Sanitary and Hygiene certificate from the Local Health authorities and no objection
certificate from Fire and Rescue Authorities.
e) It is the case of the petitioners that the question as to whether the educational authorities are satisfied has to be ascertained from the 6th
respondent, the Director of School Education and whether the petitioner has obtained permission from the Fire Service and Rescue Department
has to be ascertained from the Director General of Fire Service, Chennai.
f) It is stated that the Association submitted various representations on 19.5.2004, 24.5.2004, 25.5.2004, 26.5.2004, 28.5.2004 and 29.5.2004
explaining the traffic hazards in the locality which has been already experienced by the residents and the more serious hazards that would happen if
the 8th respondent school is permitted to run.
g) It is stated that the petitioner Association through its President has also written a letter dated 29.5.2004, to the 8th respondent requesting not to
proceed with the construction of the school and informing that the petitioners are approaching the authorities for withdrawal of permission given for
such construction. However, the 8th respondent by reply dated 2.6.2004 has stated that it had already obtained permission and the construction
would be beneficial to the residents. The petitioners have also given various particulars about other schools situate in the city of Madras wherein
the width of the roads viz., total area, motorable area, etc. is comfortable for free movement of various vehicles and such facility is not available in
respect of the proposed school by the 8th respondent as the width of the road is 28 ft., (8.5 mtrs.) while the motorable area is 22 ft. (6.7 mtrs.).
h) The other schools came into existence when the Chennai Metropolitan Development Authority Rules, 1975 were framed. But, the Chennai
Metropolitan Development Authority (CMDA) cannot permit the construction of ground plus first and second floors with road width of 7.4 metres
wall to wall without specifying the motorable width, pavement area, especially when the private individuals in the area can only build ground plus
first floor with only four dwellings/kitchens. It is stated that putting up of a building for school by the 8th respondent is not to cater to the needs of
downtrodden community and the fee structure would show that the purpose is different.
i) The petitioners have learnt that the third respondent viz., the Chennai Corporation has granted permission to the 8th respondent to construct a
multi-storied building which according to the petitioners, is in violation of the regulations of the CMDA. It is stated that the approval granted by the
3rd respondent is for a total area of 24.531 sq.ft. with a building consisting ground floor, first floor and second floor.
j) The area is a primary residential zone and as per the CMDA regulations, in cases where the width of road is 33, it can have only 4 dwelling
units. However, if the school, which is to educate more than 1000 children, is allowed to run, more than 600 vehicles would use the road every
day in the morning and in the evening resulting in over crowding of the road apart from adding enormous additional load to the road affecting the
sewerage lines and entrance of the residents of the area would be obstructed.
k) It is stated that the Association has filed W.P. No. 27284 of 2004 challenging the building permission granted by the third respondent,
Corporation of Chennai dated 23.6.2003 to the 8th respondent and also for a direction to the respondents 2 and 3 viz., CMDA and the
Commissioner of Chennai Corporation not to grant any approval to the building constructed by the 8th respondent. The said writ petition was
admitted and interim injunction was granted. In the said writ petition, in the counter affidavit, respondents 2 and 3 have stated that the third
respondent Corporation is the competent authority to grant necessary approval of the building plan and that has been granted in conformity with
the Development Control Rules framed under the provisions of the Tamil Nadu Town and Country Planning Act. It is in those circumstances, by
withdrawing the said writ petition, the Association has filed W.P. No. 6698 of 2005 challenging the Development Control Rules.
The Development Control Rules are challenged as the same are illegal and ultra vires the Act and unconstitutional; that as per Sections 17 and
122 of the Tamil Nadu Town and Country Planning Act, educational institutions cannot be built up in the midst of residential zone and such
approval would be ultra vires the provisions of the Act; that the granting of such approval would affect the fundamental rights under Articles 19(1)
(d) and (e) of the Constitution of India and it does not save the conduct of the respondents under Article 19(5) of the Constitution; that the right of
8th respondent to establish and administer educational institution is not an unfettered right, that the petitioners being residents of Nowroji Road are
completely deprived of their free ingress and egress during day time on account of the acute traffic jam and therefore, the permission granted
against that right is ultra vires; that the impugned rule is opposed to Article 21 of the Constitution of India since usability of the road and
maintenance of the same is a right to life; that as per the existing rules, the 8th respondent should provide space for parking 25 cars within the
campus and there must be a playground and in the absence of the said provision, the permit given is not valid in law; and that after Kumbakonam
incident, the second respondent ought to have amended the Development Control Rules suitably, apart from raising many other grounds.
In the counter affidavit filed by the third respondent Corporation, it is stated that the planning permission was sanctioned by the Corporation of
Chennai, as per Town Planning Act to the 8th respondent, Sindhi Educational Society for demolition and reconstruction of the school building,
which is located in the premises at No. 20 (old No. 23), Nowroji Road, Chetpet, Chennai-31 as per P.P.A. No. 2180/2003 dated 23.6.2003.
a) It is stated that the said road is 30 ft. of width and free from traffic congestion. It is stated that there is no restriction for permitting the school
building in the said zone and there are already schools existing on the said road. It is stated that enough road width of more than 7.20 metre is
available which is the minimum road width required as per the Development Control Rules framed by the CMDA.
b) It is stated that when a representation was made on behalf of the petitioner Association on 6.7.2004, its Secretary met the Corporation
Engineer on 14.7.2004 and it was informed that the schools are necessary only in residential area and the availability of existing schools is not a
ground for not permitting another school to construct a building in the area. It is also stated that there is no heavy traffic in the area except during
school timings. The plan sanctioned was as per D.C. Rules and Town Planning Act and Educational Rules.
c) It is stated that in the road viz., Nowroji Road there is no school existing and one school is existing at premises No. 33, Nowroji Road in
Division No. 72, that is, in the surrounding area. It is stated that the school building has been constructed by the 8th respondent in basement,
ground floor and first floor without any violation or deviation from the Development Control Rules and the Corporation granted permission for
construction of school building with a total area of 24531 sq.ft. after scrutinizing the file, by exercising the delegated powers. It is stated that it is
not a multi-storied building. d) The extent of plot for the purpose of school building is 1521-27 sq.mt. which is more than the minimum extent
required viz., 1000 sq.mt. as per Development Control Rule 13(a).
While admitting the writ petition, this Court granted an order of stay on 1.3.2005 in WP.M.P. No. 7356 of 2005. It is stated by the
Corporation that after the stay was granted, the further construction of the second floor of the school building was stopped by the 8th respondent.
In the counter affidavit filed by the 8th respondent along with the petition to vacate the order of stay, it is stated that the writ petition is liable to
be dismissed as it is vexatious on the preliminary ground viz., the constitutionality of the Development Control Rule 7(a)(iv) is challenged on the
basis that there are other few schools existing in and around Nowroji Road and the right granted under Articles 19(1)(d) and (e) is available to
individual citizens and not to the Association.
a) It is stated that even otherwise, there is no nexus between the main relief claimed to declare the Development Control Rule as ultra vires and the
interim relief prayed for and even before the constitutional validity of the Development Control Rule is decided, an order of stay was obtained
against the permission granted under a valid rule, especially when there is no violation of permission granted by the authorities and unless and until
the rule is set aside, the constitutional validity of the rule is presumed to be existing and therefore, the miscellaneous petition for stay is not
maintainable.
b) Of course, it is thereafter, the President of the petitioner Association in his individual capacity has filed the subsequent writ petition challenging
the vires of the said Development Control Rules. Further, it is the objection of the 8th respondent that the petitioner Association has not even
revealed the particulars about the members of the Association. While it is stated that the 8th respondent has proposed to start a new school, it is
denied that the 8th respondent proposed to put up a multi-storied building. It is also denied that the effective and usable road width is 22 ft.
c) It is stated that the petitioners themselves have made various representations stating that the width of the road is 30 ft. and as per the
Development Control Rules, the minimum road width required for the school building is 7.2 mts. (24 ft.) as against the available width of 30 ft. and
that was expressly stated by the second respondent-CMDA in the counter affidavit filed in W.P. No. 27284 of 2004 and there is no prohibition by
the Tamil Nadu Town and Country Planning Act and the Rules framed thereunder prohibiting establishment of school in an area where there is
already a school existing especially when the number of schools available in the area are not able to meet the requirements and the 8th respondent,
one of the charitable Societies, has decided to establish an institution for the benefit of the people of the area.
d) It is also not uncommon that in several areas of the City, many schools are situate in the same road and if there is traffic congestion or traffic
density due to school vans, cars, etc., the same has to be regulated in the manner known to law and that is not a ground to refuse permission for an
educational institution to come up with a school preventing the school children from availing quality education being a fundamental right. It is for the
educational authorities to decide the question as to whether the school has to be set up and the petitioners cannot assume extraordinary public
power.
e) The petitioner has already applied to the Director of Matriculation School and the need for the school is felt by everyone in the area. It is denied
that the Kumbakonam incident may recur and it is stated that the building is provided with all facilities and necessary steps have been taken
including installation of fire extinguishers, construction of clean and hygienic toilet, play area of 5000 sq.ft. apart from other facilities.
f) It is stated that before commencement of the School, the 8th respondent has obtained all statutory permissions and certificates including those
mentioned by the petitioner and therefore, it is premature for the petitioners to apprehend the traffic hazard during school hours and in the absence
of any illegality on the part of the 8th respondent it is not justified for the petitioner Association to interfere with the rights of the residents
challenging the validity of the Development Control Rules.
g) The Development Control Rules does not make an exemption for areas where schools are already in existence and such view is neither legally
sound nor does it appeal to logic and if such plea is accepted, the same could be equally extended to residential apartments, commercial
complexes, etc. and the scarcity of water is a problem met by all people in the City and in fact, throughout the State for several years and that has
nothing to do with the establishment of school by the 8th respondent which is strictly in accordance with law and the permit granted by the
Corporation has not been violated and the construction is being made in accordance with the Rules, providing all facilities like, water supply,
electricity supply, sewerage, etc. for the benefits of the children.
h) It is stated that inasmuch as Rule 7(a)(iv) of the Development Control Rules has not been introduced only for Nowroji Road, but it is applicable
to the entire Metropolitan area and therefore for the purpose of school to be started at Nowroji Road the Rule cannot be questioned and the
challenge to the Rule is only a rouse device for the purpose of obstructing the 8th respondent to come up with a school in the area and it is stated
that the rule does not infringe the right of any citizen guarenteed under Articles 19(1)(d) and (e) of the Constitution of India and the rule cannot be
struck down for the reason that several schools on Nowroji Road are permitted and there is no violation of Article 21 of the Constitution of India
and the impugned rule has stood the test of time which was framed many years ago.
In the affidavit filed on behalf of the impleaded respondent, EXNORA represented by its Director M.B. Nirmal, it is stated that when
EXNORA has taken the project area wise in the city, the request seeking for permission to the 8th respondent, Sindhi Educational Society
(Madras) for the construction of a school building at Nowroji Road was taken up and found that starting of such school would create further traffic
congestion and the site is not suitable to locate a new private school, in the interest of local public and student community. It is stated that the
permission has been granted in violation of Tamil Nadu Private Schools (Regulation) Act, 1973, apart from Chennai City Municipal Corporation
Act and the Tamil Nadu Town and Country Planning Act and the Rules framed thereunder.
a) The area wherein the school is sought to be put up is a primary residential area and during peak hours, since there are two more schools existing
within 150 mts., great inconvenience would be caused to the inhabitants and residents and there has been frequent shortage of protected water
supply by the Water Supply and Sewage Board and the water supply done through lorries would also get affected because of the existence of
nearly five schools in the area. It is stated that the 8th respondent is already running a big school in the same locality and starting a new school is
unwarranted.
b) It is stated that the educational authorities can grant approval for the school only as per the provisions of the Tamil Nadu Recognised Private
(Regulation) Schools Act, 1973 and the Joint Director of School Education is the authority to grant permission and unless such permission is
obtained by the Sindhi Educational Society, the approval for the building to an extent of 24531 sq.ft. cannot be granted by the third respondent
Corporation. It is stated that there is no need for starting a new school and the school building is categorized as a public building under the Special
Rules for Multi-storied and Public Buildings, 1974. It is stated that the width of the road is 28'' and the motorable road width is only 22'' and
therefore, the granting of approval by the Corporation on 23.6.2003 in favour of the 8th respondent is against the norms.
It is the main contention of Mr. R. Muthukumaraswamy, learned Senior Counsel appearing for the petitioners in these writ petitions that schools
are not to be permitted in primary residential area and he would refer to the Development Control Rules, especially Rule 7. It is his submission that
for permission to be granted for four floors, the Corporation is not the authority since the building is a special building.
On the other hand, it is the contention of Mr. AL. Somayaji, learned Senior Counsel appearing for the 8th respondent that the earlier writ
petition filed by the petitioners challenging the approval granted by the Corporation came to be dismissed on 2.3.2005 as withdrawn, after the
petitioner obtained ex parte order of stay in W.P. No. 6698 of 2005 and when the writ petition filed questioning the permission granted by the
Corporation was withdrawn, consequently, the permission granted to the 8th respondent has become valid. He would refer to the judgment of the
Supreme Court in Greater Kailash Part-II Welfare Association and Others Vs. DLF Universal Ltd. and Others, . He would also submit that in the
absence of any prohibition for having a new school in the primary residential area, the petitioners cannot be heard on the plea of striking down a
statutory rule, because it is unnecessary. He would also refer to the case in State of Mysore and Another Vs. K.G. Jagannath, . Inasmuch as the
planning permission has become final, there is no violation of the building plan. It is his submission that the filing of writ petition is opposed to the
process of law. He would rely upon the judgments K.K. Modi Vs. K.N. Modi and Others, , Ranipet Municipality Vs. M. Shamsheerkhan, and T.
Vijayalakshmi and Others Vs. Town Planning Member and Another, . It is his submission that as per the second master plan which has come into
existence, the Corporation by way of delegated power from the CMDA, granted permission to the 8th respondent to run a higher secondary
school.
Mr. R. Krishnamurthy, learned Senior Counsel appearing for the impleaded party-9th respondent would submit that the requirements of Tamil
Nadu Private Schools Regulation Act are to be scrupulously followed and he would refer to Sections 4, 5, 6 and 11 of the said Act to insist that
the permission has to be necessarily obtained from the authorities. It is his submission that as per the rules framed under the Act, the authorities
ought to have been satisfied with the need of a school in the said area and therefore, the permission granted to the 8th respondent shall be withheld.
In any event, it is his submission that the 9th respondent being an NGO is interested in public welfare and therefore, it can maintain its stand.
Mr. Bharathidasan, learned Counsel appearing for the Corporation as also Mr. A. Edwin Prabhakar, learned Additional Government Pleader
and Mr. C. Kathiravan, learned Counsel for CMDA would submit that the Corporation has granted permission as per the delegated powers u/s 9-
C of the Tamil Nadu Town and Country Planning Act and they would refer to the second master plan which has been approved to show that such
delegation is permissible.
On facts, it is clear that the 8th respondent school has been granted permission by the Chennai Corporation-3rd respondent for demolition and
reconstruction in Old No. 23, New No. 20 Nowroji Road, Chetpet, Chennai, in its order dated 23.6.2003. The Corporation has issued
demolition and reconstruction permission as stated above based on the Development Control Rules under the First Master Plan and the Rule 7
deals with primary residential zone and permits for the buildings and premises to be put up in the primary residential zone in the following
categories:
Primary Residential Use Zone:
(a) In the Primary Residential Use Zone, buildings or premises shall be normally permitted only for the following purposes and accessory uses.
Permissible nonresidential activity shall be limited to one in a sub division.
(i) Any residence including dwelling detached, semi-detached, tenements or flats.
(ii) Professional consulting offices of the residents and incidental uses there to occupying a floor area not exceeding 40 square metres.
(iii) Petty shops dealing with daily essentials including retail sale of provisions, soft drinks, cigarettes, newspapers, tea stalls, confectionery retail
shops, mutton stall and milk kiosks, cycle repair shops, tailoring shops and trades declared as non-offensive as per G.O.Ms. No. 2771, Rural
Development and Local Administration dated the 22nd December 1962 (as amended from time to time) may be permitted subject to the
restrictions contained in the said order occupying a floor area not exceeding 20 square metres.
(iv) Nursery, primary and high schools.
(v) School of commerce including tutorial institutions occupying a floor area not exceeding 40 square metres.
(vi) ....
It is, as per Rule 7(a)(iv), the permission is normally granted for nursery, primary and high schools. The petitioners are challenging the said part
of the Development Control Rules which enables for the permission to be granted in respect of construction of nursery, primary and high schools.
It remains a fact that the third respondent Corporation has granted permission for the construction of Sindhi Middle School run by the 8th
respondent-Society for putting up basement and ground plus two floors as per the delegation of powers by the second respondent/Chennai
Metropolitan Development Authority to the Corporation, by orders dated 24.1.1991. As per the said order of the second respondent, the City
Engineer is entitled to issue planning permission for developments other than special buildings, group developments, multi-storied buildings, etc.
While the Commissioner of the Corporation is entitled for revocation of the planning permission issued by the Chennai Corporation u/s 54 of the
Town and Country Planning Act, the said order shows that such power of the Commissioner for revocation shall not be redelegated. The order
shows that the power given to City Engineer is by way of delegation by the Chennai Metropolitan Development Authority to the Corporation. The
relevant portion of the order is as follows:
I. The Commissioner Corporation of Madras.
Revocation of planning permission issued by Madras Corporation u/s 54 of the Town and Country Planning Act, 1971. This shall not be re-
delegated to any other officer.
II.1. The City Engineer:
(i) Issue of planning permission for developments other than special buildings, Group developments, Multi-storied Buildings and Cinema Theaters,
on sites abutting or gaining access from the 9 corridors mentioned in the Annexure to this proceedings.
Such delegation of power has been effected by the Chennai Metropolitan Development Authority as per the provisions of Section 9-C(3) of
the Tamil Nadu Town and Country Planning Act, 1971 which is as follows:
9-C. Functions and powers of the Metropolitan Development Authority.
(3) The Metropolitan Development Authority may, by order, authorise any local authority or other authority as may be specified in such order, to
exercise any of the powers vested in it by or under this Act and may, in like manner, withdraw such authority; and the exercise of any power
delegated in this behalf shall be subject to such restrictions and conditions as may be specified in such order.
It is also not in dispute that even the Development Control Rules for Chennai Metropolitan area authorize such delegation of power by the
Chennai Metropolitan Development Authority to the local authority in respect of grant of planning permission and it is, by virtue of such delegated
power, the third respondent issued planning permission to the 8th respondent for construction of school building. In the earlier writ petition filed by
the petitioner Association in W.P. No. 27284 of 2004 challenging the said planning permission issued by the Corporation dated 23.6.2003, the
second respondent-CMDA clearly stated that the permission granted to the 8th respondent by the third respondent is not relating to a special or
multi-storied building as per the Development Control Rules. The expression, multi-storied building has been defined under the said Development
Control Rules as a building with four floors and 15 mts. of height, while the term, special building is defined as a residential building or commercial
building with more than two floors or residential building with more than six dwelling units or a commercial building exceeding a floor area of 300
sq.mts.
It was the specific stand of the second respondent-CMDA in the said writ petition filed by the petitioner Association that the permission
granted by the third respondent Corporation to the 8th respondent to put up the building is not attracted either under Regulation 17-A or 19-B of
the Development Control Rules which relates to multi-storied building/special building. That stand of the CMDA stood not repudiated. On the
other hand, Rule 7(a)(iv) alone was challenged on the ground that granting of such permission normally for nursery, primary and high schools will
be inconvenient to the public especially with reference to the school proposed to be started by the 8th respondent in Nowroji Road. Therefore, it
is, in the context of existing Development Control Rules which permits the third respondent Corporation by delegation of power as per Tamil Nadu
Town and Country Planning Act, 1971, the third respondent Corporation granted permit to the 8th respondent. In view of such permit having been
granted to the 8th respondent, the petitioners have chosen to challenge the above said impugned rule alone.
The second respondent, Chennai Metropolitan Development Authority has created a second master plan with development regulations, as
approved by the Government of Tamil Nadu in G.O. Ms. No. 190, H & UD Department, dated 2.9.2008 and notified in the Tamil Nadu
Government Gazette dated 2.9.2008. Now, the petitioners take a stand that after the said second master plan has come into effect, in respect of a
building for high school and higher secondary school, special sanction of CMDA has to be obtained. The Regulation 14 of the said Development
Regulations for Chennai Metropolitan Development Authority which came into effect from the above said date as notified by the Government on
2.9.2008, deals with primary residential use zone. Clause (1) of the said regulation divides the zone into two categories, one as normally
permissible category and another permissible with special sanction of the CMDA. Under the normally permissible category, permission for
buildings in primary residential use zone regarding nursery schools, primary schools, libraries and reading rooms are included, while in respect of
permission for high schools and higher secondary schools, special sanction of the CMDA is required. For the proper appreciation, it is relevant to
extract the portion of Regulation 14, which is as follows:
Primary Residential use zone:
(1) In this zone buildings or premises shall be permitted only for the following purposes and accessory uses. Permissible non-residential activity
shall be limited to one in sub-division.
A. Normally permissible category:
i) to (iv) xxxx
(v) Nursery schools, Primary schools, Libraries and reading rooms.
(vi) To (x) xxxxx
B. Permissible with the special sanction of the CMDA:
(i) to (ix) xxxx
(x) High Schools and Higher Secondary Schools.
(xi) To (xv) xxxxx
Further, it is pertinent to point out that Regulation 13 which speaks about repeal and saving, saves any action taken with reference to
Development Control Rules under the first master plan, as having been taken in accordance with the development regulations regarding the second
master plan. The said Regulation 13 is as follows:
Repeal and Savings
Anything done or any action taken including action against unauthorised/deviated constructions, with reference to the D.C.R. Under First Master
Plan shall be deemed to have been done or taken with reference to the corresponding provisions of these Development Regulation under this
Second Master Plan and continue in force accordingly unless and until superseded by any thing done or any action taken with reference to this
Second Master Plan Development Regulations.
Provided further that the action against unauthorised/deviated developments with reference to first Master Plan D.C.R., taken by the Authority or
person to whom the Authority had delegated powers, immediately before commencement of these regulations under Second Master Plan, may be
continued irrespective of whether the unauthorised/deviated development is in conformity with the Second Master Plan DR, or not, as if this
Second Master Plan Development Regulations have not come into force, till the unapproved/deviated development is demolished or got
regularised on its merits with reference to these Development Regulations.
Inasmuch as, admittedly, the permission has been granted by the third respondent Corporation as per the delegated powers under the
Development Control Rules of the first master plan which is saved by the above said saving clause of the second master plan for Chennai
Metropolitan area, the contention of the learned Senior Counsel for the petitioners, Mr. R. Muthukumaraswamy that special sanction of CMDA
must be obtained for the purpose of construction of the building by the 8th respondent is not sustainable.
The submission made by Mr. R. Krishnamurthy, learned Senior Counsel appearing for the impleading 9th respondent, by placing reliance on
various provisions of the Tamil Nadu Recognised Private Schools Regulation Act, 1973 also deserves to be rejected for the reason that the
permission to be granted by the educational authorities under the said Act is to establish and administer educational institutions which are aided,
private educational institutions under the said Act. As correctly submitted by the learned Senior Counsel, certainly if the 8th respondent desires to
start a school as an aided school, the provisions of Sections 4, 5 and 6 which are as follows:
New private school to obtain permission.- Save as otherwise expressly provided in this Act, no person shall, without the permission of the
competent authority and except in accordance with the terms and conditions specified in such permission, establish on or after the date of the
commencement of this Act, any private school.
Application for permission and sending of statement.
(1) The educational agency of every private school proposed to be established on or after the date of the commencement of this Act shall make an
application to the competent authority for permission to establish such school.
(2) Every such application shall-
(a) be in the prescribed form;
(b) be accompanied by such fee not exceeding [one thousand rupees] as may be prescribed; and
(c) contain the following particulars, namely.-
(i) the name of the private school and the name and address of the educational agency;
(ii) the need for the private school in the locality;
(iii) the course for which such private school proposes to prepare, train or guide its pupils of appearing at any examination conducted by, or under
the authority of the Government;
[(iii-a) the extent of the playground available to pupils and the adequacy of the playground with reference to the strength of the pupils in the
schools;]
(iv) the amenities available to pupils and teachers;
(v) the equipment, laboratory, library and other facilities for instruction;
(vi) the sources of income to ensure the financial stability of the private school;
(vii) the situation and the description of the buildings in which such private school is proposed to be established; and
(viii) such other particulars as may be prescribed.
(6)Grant of permission.-
On receipt of an application under Sub-section (1) of Section 5, [or Sub-section (1) of Section 5-A, as the case may be,] the competent authority-
(a) may, after considering the particulars contained in such application, grant or refuse to grant the permission; and
(b) shall communicate its decision to the applicant within a period of four months from the date of such receipt:
Provided that the permission shall not be refused under the section unless the applicant has been given an opportunity of making his
representations:
Provided further that in case of refusal of the permission, the applicant shall be entitled to refund of one-half of the amount of the fee accompanying
the application are to be scrupulously followed.
As far as the educational authorities are concerned, the granting of permission relates to the need for private schools in the locality which has to
be established to the satisfaction of educational authorities, apart from showing various amenities that are to be given to the children, equipments,
etc., and these are all relevant aspects when the grant borne by the Government, especially teaching/non-teaching grant is involved.
Certainly, the educational authorities have to decide about the need for a school in the said locality and that would arise only when the
petitioner institution applies to the educational authorities and that application is considered by the educational authorities in accordance with law.
Therefore, it is premature at this stage for the petitioners to contend about the decision which may be taken by the educational authorities in future
about the permission to be granted to the 8th respondent to run the school.
The next submission by the learned Senior Counsel appearing for the 9th respondent that the 9th respondent being an NGO, must be given an
opportunity to submit before the educational authorities or other authorities before granting permission including regulation of traffic, etc, is not
actually an issue before this Court, since the petitioners have come forward challenging the provision of the Development Control Rules which
enables the authority concerned to grant permission normally for the building to run nursery, primary and high schools.
In the light of the powers available to CMDA under the Tamil Nadu Town and Country Planning Act, 1971 to delegate its power to the
Corporation and based on the provisions of the Development Control Rules, it is not possible to accept the contention of the learned Senior
Counsel for the petitioners, Mr. R. Muthukumarasamy that the school should not be permitted in the primary residential zone and that the third
respondent Corporation has no authority. It is also relevant to point out the fact that the petitioner Association had earlier challenged the planning
permission in W.P. No. 27284 of 2004, which came to be dismissed on 2.3.2005 as withdrawn by the petitioner Association, after obtaining an
order of interim stay on 1.3.2005 in the present writ petition, W.P. No. 6698 of 2005 filed to challenge the above said portion of the Development
Control Rules shows that the petitioner Association has not come with clean hands. The action of the petitioner Association in originally challenging
the building permission granted to the 8th respondent in the earlier writ petition, in which the 8th respondent was a party, and then, allowing the
same to be dismissed as withdrawn, after obtaining an interim order in the present writ petition, itself speaks volume about the conduct of the
petitioner Association, which cannot be lightly brushed aside.
As far as the validity of the Development Control Rules which are challenged in this writ petition, it is relevant to point out at this stage that the
Supreme Court held that the Town and Country Planning legislations are regulatory in nature and when an amendment has been made in such
statutory regulations, the presumption is that the authority has taken note of the future need of the building plans that are required to be dealt with in
terms of the existing law and regulations. It was in T. Vijayalakshmi and Others Vs. Town Planning Member and Another, , the Supreme Court
held as follows:
Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right,
however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a
comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development
plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a
development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens.
Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this
behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the
field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame
therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the
parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force.
Nobody questioned the validity of the existing law. The High Court has not held that the existing laws are ultra vires. It merely proceeded on
the assumption that the law which may be brought into the statute-book would be more eco-friendly.
The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can
only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that
the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken
away. Doctrine of legitimate expectation in a case of this nature would have a role to play.
While questioning the validity of a statutory regulation, it cannot be a ground that by virtue of such statutory regulation a particular individual is
to be affected or any inconvenience caused to such individual. That was the view of the Supreme Court in State of Mysore and Another Vs. K.G.
Jagannath, , wherein it was held as follows:
The validity of the Rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the
respondent. It has to be looked at from the point of view of the generality of the motor vehicles operators as well as the public. We have shown
above that the vehicles with the minimum capacity available in this country can carry 35 passengers and if, as is alleged by the respondent, the
average number of passengers in buses over this route is only 25, the proper thing to do in due course is to reduce the number of vehicles plying on
this route. Otherwise, it would mean unnecessary waste of valuable transport space and facility. Buses so released could be used elsewhere to
much greater advantage to the traveling public. There are many areas and many routes crying for transport facilities and they would be better
served. We are unable to place any weight on the basis of an argument which affects one or two individuals, where by insisting upon this provision
of a minimum seating capacity the larger public interest will be served. If it causes some inconvenience to a few individuals like the respondent they
have got to face the situation. It appears from the additional affidavit filed by the petitioner (respondent herein) that he has got four buses running
between Boddaballapur and Tumkur. If it is found that the average number of passengers is only 25, the proper thing to do would be for him to cut
down his buses on this route from four to three. In that case there can be no question of his suffering any losses or his being affected in any way in
the matter of his carrying on his business.
While considering about the traffic congestion in putting up a cinema theatre complex, the apprehension of the respondents came to be rejected
by the Supreme Court by holding that when the authorities who are competent have taken a stand that such apprehension is unfounded, it is not for
the writ Court to interfere. That was in Greater Kailash Part-II Welfare Association and Others Vs. DLF Universal Ltd. and Others, , wherein the
Supreme Court held as under:
What transpires from the submissions made on behalf of the appellant Association is its apprehension of serious traffic problems if respondent
1 is permitted to use the Savitri Cinema Complex for the purposes mentioned in the sanctioned plan without suitable modifications. One the one
hand, the owners of the Savitri Plot have obtained requisite sanction under the relevant Rules and Regulations and Building Bye-Laws to convert
the existing single-screen cinema hall into a mini cinema hall-cum-commercial complex. There is no denying the fact that Respondent 1 has
complied with all the requirements of the law for the aforesaid purpose. On the other hand, there is a real apprehension on the part of the
appellants that the approach to the above mentioned colonies will be completely choked on account of the traffic congestion that is likely to be
caused as a result of the number of visitors who are likely to visit the renovated complex which will consist of not only a cinema hall, but a six-
storeyed building dedicated to commercial activities.
Respondent 1 has complied with the parking standards prescribed under the Building Bye-Laws, the Delhi Master Plan and the
Cinematograph Rules and as pointed out by Mr. Arun Jaitley, even more space than what was required under the Rules has been set apart for the
purpose of parking so that congestion at the T-junction is avoided, notwithstanding the number of visitors to the renovated complex. However, the
problem that is envisaged by the residents of the aforesaid colonies is not only the parking related problems, but the problems resulting on account
of the increased flow of vehicles at the T-junction. It is such apprehension that has led to the filing of the writ petitions by the residents of the
aforesaid colonies.
to 57. xxxxx
The owner of a plot of land is entitled to use and utilise the same for any lawful purpose and to erect any construction thereupon in accordance
with the existing rules. So long as such owner does not contravene any of the provisions which restrict his use of the plot in any manner, he cannot
be prevented from utilising the same in accordance with law. In this case Respondent 1 which is the owner of the plot in question cannot be denied
the use of the plot on account of the apprehension of the appellants, particularly when he has already raised the structure in accordance with the
sanctioned plan. It is not the case of the appellants that Respondent 1 has in any manner deviated from the building plan as sanctioned. The
grievance of the appellants is confined to the possible problem that may arise from the use of the building as a cinema hall-cum-commercial
complex. Once the authorities who are competent to do so have indicated that the apprehension was unfounded, it is not for the writ court to
interfere with such decision.
Although the parking standards under the Delhi Master Plan, 1990, do not specify the parking space to be set apart for a cinema hall-cum-
commercial complex, the Municipal Authorities, who are the sanctioning authorities of any building plan, have considered the parking space set
apart for the renovated complex to be sufficient to meet the requirements so as not to cause any traffic congestion as apprehended. In fact, the
Delhi Development Authority to whom a direction has been given by the learned single Judge in terms of Note 1 of the Parking Standards
prescribed under the Delhi Master Plan has little or no role to play in the sanctioning of the building plan. Such a direction, in our view, is
misconceived and cannot be sustained.
Applying the above said yardstick to the facts of the present case, where the second and third respondents have taken a categorical stand that
there is no possibility of traffic congestion and taking note of the fact that the building approval was granted to the 8th respondent in accordance
with the rules and guidelines, and when it is not even the case of the petitioners that the building has been put up in deviation from the approved
plan, the mere allegation of possible traffic congestion cannot be a ground either to set aside the impugned part of the provision of the Development
Control Rules or to interfere with the planning permission granted in favour of the 8th respondent.
One other aspect which is relevant to consider in this case is about the conduct of the petitioners. On the factual matrix that the petitioner
Association filed the earlier writ petition challenging the grant of permission given to the 8th respondent by the 3rd respondent and got it adjourned
from time to time and only after obtaining an order of stay in the present writ petition, W.P. No. 6698 of 2005, the petitioner Association chose to
withdraw the earlier writ petition, as submitted by the learned Senior Counsel for the 8th respondent, the conduct of the petitioner Association
correlates to that of abuse of process of Court. S.S. Subramani, J. in Ranipet Municipality Vs. M. Shamsheerkhan, , while categorizing the
incidents of abuse of process of Court, held that resorting to and encouraging multiplicity of proceedings is an incident of abuse of process of
Court, in the following lines:
It is this conduct of the respondent that is attacked by the petitioner as abuse of process of Court. What is abuse of the process of the Court?
Of course, for the term ''abuse of the process of the Court'' the CPC has not given any definition. A party to a litigation is said to be guilty of abuse
of process of the Court, in many of the following cases:
(1) Gaining an unfair advantage by the use of a rule of procedure.
(2) Contempt of the authority of the Court by a party or stranger.
(3) Fraud or collusion in Court proceedings as between parties.
(4) Retention of a benefit wrongly received.
(5) Resorting to and encouraging multiplicity of proceedings.
(6) Circumventing of the law by indirect means.
(7) Presence of witness during examination of previous witness.
(8) Institution vexatious, obstructive or dilatory actions.
(9) Introduction of Scandalous or objectionable matter in proceedings.
(10) Executing a decree manifestly at variance with its purpose and intent.
(11) Institution of a suit by a puppet plaintiff.
(12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc.
The above are only some of the instances, where a party may be said to be guilty of committing abuse of the process of Court.
In K.K. Modi Vs. K.N. Modi and Others, the Supreme Court, while considering the abuse of process of Court, held that the same depends
upon the relevant circumstances for which the public policy and interest of justice are to be considered. The relevant portion of the judgment of
Supreme Court is as follows:
The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase abuse of the process
of the court thus:
This terms connotes that the process of the Court must be used bona fide and properly and must not be abused. The court will prevent improper
use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the
process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the
relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to
justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or
may not be barred as res judicata. But if the same issue is sought to be reagitated, it amounts to an abuse of the process of the court. A proceeding
being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of
the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are
absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from
being wasted. Undoubtedly, it is a matter of the court''s discretion whether such proceedings should be stopped or not; and this discretion has to
be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should
also be satisfied that there is no chance of the suit succeeding.
Therefore, looking from any angle, it is not possible to accept the contention of the learned Senior Counsel for the petitioners as well as 9th
respondent/impleading party to interfere with the said impugned provision of the Development Control Rules. The writ petitions accordingly fail and
the same are dismissed and the interim orders passed in the above writ petitions shall stand vacated.
Before concluding, on the facts and circumstances of the present case, a word of caution is necessarily to be made in respect of construction,
nature and infrastructure of the buildings for schools, in view of the dreadful experience of Kumbakonam incident. No doubt, starting of new
schools by private charitable Associations is good and appreciable, to achieve the constitutional goal of education for all, but that is subject to the
safety norms which are more relevant in order to preserve the valuable lives of innocent children. The dismissal of the writ petitions does not mean
that the 8th respondent is empowered to act on its own whims and fancies, and in the matter of infrastructural developments, the 8th respondent
shall conform to the safety norms including the fire extinguishing technology, apart from providing sufficient space for the children to play and taking
adequate safety measures during emergency.
This observation is made due to the reason that the Deputy Director, G.I. Fire. I (India & U.K.) in his letter addressed to the Director of Tamil
Nadu Fire and Rescue Services Department, Chennai-8 dated 12.4.2007, while referring to the fire safety norms in school premises, has stated
that the building has not been provided with any fire protection arrangements and required the following measure to be taken as per the National
Building Code.
Static Tank 5000 lts.
Portable Fire Extinguishers 2 Nos. of 10 kg ABC type for each floor (as 2190, 1992)
Co2 5Kg type 2 nos specially for each lab + 2 Buckets of sand for lab.
Basement should be sprinkled & smoke vents system should be provided.
Exit signs should be provided with independent power supply.
The following are advisable:
Basement should not be used for housing the children in the classroom or running a lab or it should not be used for housing the children for any
sort of activity or storing any inflammable material.
Public address system should be arranged.
Door arrangements for the Basement should be so arranged for easy evacuation of the occupants.
Hose reel system to be provided.
This is one of the instance to show that the 8th respondent has not fully conformed to various requirements even though the sanction of plan has
been obtained from the respondents 2 and 3 as per the regulations which cannot be held to be invalid. Therefore, it is made clear that the 8th
respondent shall not only adhere to various norms and standards required for the purpose of maintaining the building and the surrounding
atmosphere, but also to follow safety measures such as providing fire extinguishers, etc. which are to be made to the satisfaction of the concerned
authorities. In respect of the problem which may be faced by the residents like, traffic congestion, etc., it is for the authorities concerned including
the Commissioner of Police, who is the 4th respondent herein, to take appropriate measures so as to see that the normal life conditions of the
residents in the area are not affected and in that regard, it is always open to the said authority to consult NGOs. like, 9th respondent herein.
Net result, the writ petitions stand dismissed with the above observations/directions. No costs. Connected miscellaneous petitions are closed.