Onondaga Agro Investments (P) Ltd. and Another vs The Executive Officer

Bakthavatsalam, J.—Writ Petition Nos. 4887 and 4888 of 1991 are filed by M/s. Onondaga Agro Investments (P) Ltd., W.P.Nos.4889

and 4890 of 1991 are filed by M/s. Onondaga Hotels and Resorts (P) Ltd., Kodaikanal.

W.P.Nos.4889 and 4890 of 1991 is filed for the issue of a writ of certiorarified mandamus to call for the records relating to the order of the

respondent dated 22.2.1991 refusing to grant permission/licence to the petitioner for the construction of residential buildings on the lands belonging

to the petitioner in S.No.108 Part Upper Lake Road, Kodaikanal as per the application dated 11.2.1991. W.P.Nos.4889 and 4890 of 1991 are

filed for the issue of a writ of mandamus to direct the respondent to grant licence/permission to the petitioner for the construction of buildings on the

petitioner''s lands situate in S.No.108 Part Upper Lake Road, Kodaikanal as per the application dated 11.2.1991 filed under Sections 191 to

208of the District Municipalities Act V of 1920.

The short facts are:

On 11.1.1991, applications were made for building licences enclosing necessary plans for sanction under the District Municipalities Act V of 1920

(hereinafter referred to as Tamil Nadu Act V of 1920). It is alleged in the affidavit that the respondent treated it as an application for permission for

putting up buildings u/s 48 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the Tamil Nadu Act 35 of 1972)

and on 22.2.1991 passed the impugned orders refusing to grant licences on the ground that the site intended to be used for new building is situated

in an area classified as agricultural use zone and that the site intended to be used for putting up new building is within 200 metres from the

gymkhana club. The petitioner further alleges in the affidavit that the order refusing to grant licence is arbitrary and illegal, and tantamount to a

failure to exercise the statutory powers under Chapter X of Tamil Nadu Act V of 1920. It is also alleged in the affidavit that the Planning

Authorities for Kodaikanal area have applied the provisions of Chapter III of the Tamil Nadu Act 35 of 1972, prepared a Master Plan for

Kodaikanal local planning area and submitted the plan to the Government. It is further stated that the Government gave its consent to the

publication of a Notice u/s 26 of the Tamil Nadu Act 35 of 1972 for the preparation of the Master Plan in G.O.Ms.No.5l7, Housing and Urban

Development Department, dated 11.5.1988 published in the Tamil Nadu Gazette on 31.8.1988. On 28.10.1988, the petitioner filed objections to

the said Master Plan prepared and published on 31.2.1988. It is further stated that no approval has been published as provided in Section 30 of

the Act and that it is not open to the respondent to rely on or invoke the draft master plan prepared and published u/s 26 of the Tamil Nadu Act

35 of 1972. It is further allowed that the impugned order of refusal relying on the proposals of the master plan dated 11.5.1988 in illegal and that it

is not authorised by the Scheme of Chapter III of Tamil Nadu Act 35 of 1972. It is also stated that in the absence of a final master plan u/s 30 of

the Act, the permission sought for by the petitioners for the putting up a new building on the site of the petitioners ought to be considered and that

the petitioners'' ought to be considered and that the petitioners'' application for building licences will have to be considered only under Tamil Nadu

Act V of 1920 read with Tamil Nadu Hill Areas Special Building Rules introduced on 31.1.1986. It is also alleged that on 30.10.1991 a notice to

the public was published in ''The Hindu'' that the consented master plan of Kodaikanal was introduced from 11.5.1988. It is also stated that the

order of refusal passed by the respondent on 22.2.1991 is arbitrary, that the reasons given in the impugned orderare based on the draft master

plan dated 11.8.1988 and that they are not correct. It is also stated in the affidavit that the failure of the respondent in considering the objections of

the petitioners to the draft master plan is in gross violation of the rule of audi alteram pattern and that the impugned order dated 22.2.1991 is liable

to be quashed on the ground of violation of the principles of natural justice. It is further alleged in the affidavit that in the absence of a final

publication of the master plan in a manner laid down in Section 30 of the Act, the respondent cannot proceed to consider the question of grant or

refusal purporting to rely on or invoke the draft master plan. It is further alleged in the affidavit that the intention of the respondent is to somehow

reject the applications of the petitioners for licence, placing reliance on some imperfect and inconclusive proceedings under Tamil Nadu Act 35 of

1972 instead of considering the petitioners'' applications under Tamil Nadu Act V of 1920. With these allegations, the petitioners have come up

with the present writ petitions with the prayer as stated supra.

Though no counter affidavit has been filed by the respondent, the learned Counsel appearing for the respondent contends that since the issue

raised in the writ petitions is purely based on a question of law, the writ petitions can be disposed of on the interpretation of the various provisions

of District Municipalities Act, 1920 and Town and Country Planning Act, 1971.

Mr. K.C. Rajapa, the learned Counsel appearing for the petitioners contends that grant or refusal can be made only after a final plan is

published u/s 30 of the Town and Country Planning Act, 1971 and that in this case after receiving the objections from the petitioners a draft plan

was published on 29.7.1988and thereafter nothing has happened. According to the learned Counsel appearing for the petitioners, power u/s 48 of

the Act cannot be invoked till final notification is made u/s 30 of the Act 1971. The learned Counsel also contends that the applications of the

petitioners should be disposed of only under the provisions of the District Municipalities Act V of 1920 and sub-Section (2) of Section 49 of Act,

1971 is not applicable at the stage of draft plan. He further contends that the said order is violative of principles of natural justice as no opportunity

has been given to the petitioners even though the petitioners gave their objections even before the master plan u/s 30 of the Act. He further

contends that when the applications have been dismissed by the impugned order based on the draft plan, this Court should strike down the same

as it has been passed without given an opportunity to the petitioners under the Act 1971.

Per contra, Mr. K. Govindarajan, the learned Counsel appearing for the respondent contends that the applications have been filed by the

petitioners only after the draft scheme has been published under Sections 48 and 49 of the Town and Country Planning Act, 1971 and as such the

rejection of the applications cannot be said to be bad as it has been done on the basis of draft plan.

I have considered the arguments of Mr. K.C. Rajappa the learned Counsel appearing for the petitioners and of Mr. K. Govindarajan, the

learned Counsel appearing for the respondent. To appreciate the contentions of both parties, it is necessary to refer to certain provisions of the

District Municipalities Act V of 1920 and Town and Country Planning Act, 1971. Chapter III of Act, provides for the planning areas, planning

authorities and plan. Section 17 of the Act provides for Master Plan and Section 2-C provides for contents of detailed development plan. Section

24 enables the Government to give consent to the publication of notice of preparation of plan. Section 26 provides that the appropriate planning

authority shall publish the notice in the Tamil Nadu Government Gazette and in leading daily newspapers of the region of the preparation of master

plan or the new town development plan as the case may be and the place or places where copies of the same may be inspected inviting objections

and suggestions in writing from any person in respect of the said plan within such period as may be specified in the notice. An opportunity of being

heard had to be given by the appropriate planning authority to any person who makes representations. u/s 30 of the Act, 1971, the approval of the

Government to a regional plan, a master plan or a new town development plan shall be published by the Government in the Government Gazelle

and in leading daily newspapers of the region and the said notification shall be conclusive evidence that the master plan or the new town

development plan has been duly made and approved and the said plan shall come into operation from the date of publication of such notification in

the Gazette. Chapter VI of the Act 1971 contains the control of development and use of land. u/s 48 of the Act, 1971 certain restrictions are

placed on buildings and lands in the area of the planning authority. Section 48 of the Act 1971 is in the following terms'',

...Restrictions on buildings and lands in the area of the planning authority: On or after the date of publication of the resolution under sub-Section (2)

of Section 19 or of the notice in the Tamil Nadu Government Gazette u/s 26, no person, other than any State Government or Central Government

or any local authority, shall, erect any building or make or extend any excavation or carry out any mining or other operation, in, on, over or under

any land or make any material change in the use or land or construct, form or lay out any work except with the written permission of the

appropriate planning authority and in accordance with the conditions, if any specified therein...

Section 49 of the Act, 1971 reads as follows:

...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 of notice in the Tamil Nadu Government Gazette u/s 25 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 the 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...

Section 105 of the Act, 1971 reads as follows:

Act to override contract and other laws:...Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding

anything inconsistent therewith contained in any other law, custom, usage or contract...

Chapter X of the Tamil Nadu Municipalities Act, 1920 (Act V of 1920) provides for building regulations. Section 192 of the Act V of 1920 reads

as follows:

...Building site and construction or reconstruction of buildings: No piece of land shall be used as a site for the construction of a building and no

building shall be constructed or reconstructed otherwise than in accordance with the provisions of this part and of any rules or bylaws, made under

this act relating to the use of building sites or the construction or reconstruction of buildings...

Section 197 of Act V of 1920 reads as follows:

...Application to construct or reconstruct building: (1) If any person intends to construct or reconstruct a building other than a hut, he shall send to

the executive authority,

(a) an application in writing for the 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 a ground-plan, elevations and sections of the building, and a

specification of the work.

(2) Every document furnished under Sub-section shall contain such particulars and be prepared in such manner as may be required under rules or

bye-laws...

In the instant case, it is to be seen whether a sanction can be granted when the draft plan has been published u/s 25 of the Act, 1971. Section 48

of the Act, 1972 places certain restrictions on buildings and lands in the area of the planning authority. Mr. K.C. Rajappa, the learned Counsel for

the petitioner contends that unless a final plan is published in the Gazette, the authorities cannot reject an application for construction of a building. I

am not able to accept the contention of Mr. K.C. Rajappa, the learned Counsel appearing for the petitioners that this Court should read that the

aforesaid provision will apply only when the final notification is made u/s 30 of the Act, 1971 and not when a draft notification is published u/s 26

of the Act, 1971. I am not able to construe as the learned Counsel for the petitioner wants me to construe the aforesaid provision of the Act,

1971. Section 48 of the Act, 1971 clearly shows the intention of the Legislature that even when publication u/s 26 of the Act, 1971 are made,

restrictions on buildings and lands in the area of the planning authority comes in. So, in my view, once a draft plan is approved and published u/s 26

of the Act, 1971, Chapter VI of the Act, 1971 comes into operation and any construction made contra will be contravention of that section. In my

view, it is not possible.

With regard to the contentions raised on the principles of natural justice, I am not able to accept the arguments of Mr. K.C. Rajappa, the

learned Counsel for the petitioners. It is nobody''s case the final publication u/s 30 of the Act, 1971 has been published. Only where it is published,

the objection will be considered. What the learned Counsel for the petitioners contends before me is only based on the draft publication which is

made u/s 26 of the Act 1971. As such, I am not able to accept the argument of the learned Counsel for the petitioners and in my view, there is no

merit in that argument. It is nobody''s case that final publication has been made. The decision referred to by the learned Counsel for the petitioners

in Union of India and Others Vs. Dev Raj Gupta and Others, , will not apply to the facts of the cases on hand. In that case, u/s 7 of the Delhi

Development Act, master plan has been prepared. All that has been held in that case if that the change of user of land cannot be effected

unilaterally. That is not the case here. Here, it is a question of granting permission under the provisions of the Town and Country Planning Act,

1971 as it stands to-day.

However, I am of the view, that one another question has to be considered on the facts of the case on hand, that is, whether the reasons given

by the respondent are right for refusing the grant of licence. On a careful reading of the impugned order before me, I am of the view that the

reasons given in the impugned order cannot be sustained in view of the decision of the Division Bench of this Court which is reported in The

Executive Officer v. Dr. Ramasubramani Raja (1990) 2 L.W. 608, which affirmed the judgment of S. Ramalingam, J. which is reported in Dr.

Ramasubramani Raja v. The Executive Officer (1990) 2 L.W. 607. I am of the view that the rejection order to grant permission in these cases also

is arbitrary and such they deserve to be quashed and they are set aside. As such W.P.Nos.4887 and 4889 of 1991 will stand allowed, setting

aside the impugned order therein. But I am not inclined to allow the W.P. Nos. 4888 and 4890 of 1991. I am of the view that no mandamus will

lie against the statutory provisions extracted above. It is open to the authorities to re-consider the applications of the petitioners in so far these

W.P.Nos.4888 and 4890 of 1991 are concerned afresh and pass orders on or before 30.11.1991 on merits. The W.P. Nos. 4888 and 4890 of

1991 shall stand dismissed. However, there will be no order as to costs in the writ petitions.