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Judgment
Vinod K. Sharma, J.—The Petitioner/society has approached this Court with a prayer for issuance of a writ in the nature of Certiorari, to quash the impugned order, granting conditional permission to Respondent No. 8 to raise construction for storing of petroleum products/lubricants.
The case of the Petitioner is that the members of the Petitioner/Association purchased plots from Housing Society on the basis of sanctioned site plan duly approved by the competent authority. In the sanctioned site plan, Plot No. 70 and 71 were shown as shopping complex which were purchased by Respondent No. 8.
When Respondent No. 8 wanted to raise construction to set up a godown for storing petroleum products, the Petitioner society filed objection with the competent authority i.e., with Respondent No. 5 against the proposed planning permission. The Respondent No. 5 did not take any action on the objection filed by the Petitioner which forced the Petitioner to file the writ petition No. 43429 of 2002.
The Writ Petition was disposed of finally by this Court by directing the Respondent No. 5 to take action against Respondent No. 8, if any unauthorised construction is raised.
The Respondent No. 5 accepted the objections, and restrained Respondent No. 8 from raising further constructions.
The Respondent No. 8 being aggrieved by the order of Respondent No. 5 filed a statutory appeal. Pending statutory appeal, Respondent No. 8 also filed W.A. No. 1240 of 2003, to challenge the order passed by the Honourable Single Judge in W.P. No. 43429 of 2002. The Writ Appeal filed by Respondent No. 8 was disposed of by this Court, directing the appellate authority to dispose of the appeal filed against the order passed by the Respondent No. 1 restraining further construction.
The appeal filed by Respondent No. 8 was accepted and Respondent No. 5 was granted planning permission to Respondent No. 8.
The Petitioner being aggrieved by grant of planning permission filed another Writ Petition No. 34374 of 2003 and succeeded in obtaining interim directions against construction over plot No. 70 and 71.
The application moved by Respondent No. 8 for vacating the interim direction was dismissed and interim order was made absolute, subject to Respondent No. 5 finding out whether the plot Nos. 70 and 71 was a shopping complex or for commercial purposes.
The Petitioner also filed W.P. No. 3586 of 2005 in the Madurai Bench of Madras High Court, which was also admitted. This practice of filing repeated writ deserves to be depreciated.
When this fact was brought to the notice of this Court, W.P. No. 34374 of 2003 was disposed of on account of the pendency of writ Petition No. 3586 of 2005 in this Bench of Madras High Court.
The W.P. No. 3586 of 2005 filed by the Petitioner was allowed by this Court on 06.03.2006 and the planning permission granted to the Petitioner through Respondent No. 8 was quashed with directions to Respondent No. 5 to consider the representation filed by the Petitioner and thereafter, to pass a fresh order.
The impugned order has been passed in pursuance to the directions issued by this Court in W.P. No. 3586 of 2005.
The Respondent No. 5 after giving an opportunity of hearing to the Petitioner granted planning permission to Respondent No. 8, subject to conditions,i.e.,
(1) that the Respondent No. 8 would only store oil lubricants and No. other petroleum products.
(2) That planning permission is subject to final decision in the Writ Petition said to be pending in this Court.
The learned Counsel for the Petitioner challenged the impugned order by contending that the order on the face of it is arbitrary and outcome of non-application of mind. The Respondent No. 5 has proceeded on the presumption that the writ petition is pending in this High Court, wherein, the Writ already stood decided with directions to record a finding whether the planning permission could be granted or not?
It is also the contention of the learned Counsel for the Petitioner that inspite of repeated directions by this Court, the objection raised by the Petitioner that No. commercial activity can be allowed in Plot No. 70 and 71 being a shopping complex has not been answered.
The prayer in the writ petition therefore is to allow the writ and impugned planning permission be quashed.
The Writ Petition is opposed by the learned Counsel for the State on the plea that this Writ Petition is not competent as the Petitioner has the statutory remedy of appeal against the impugned order.
The learned Counsel appearing on behalf of the Respondent No. 8, on the other hand supported the impugned order by contending that u/s 49 of the Tamil Nadu Town and Country Planning Act, the Respondent No. 5 has jurisdiction to grant planning permission. In the absence of any material showing as to how the members of the Petitioner society are effected, it has No. jurisdiction to challenge the impugned order.
It is also the contention of the learned Counsel for the Respondent No. 8, that in order to safeguard the interest of the residents, the condition has been imposed to store Lubricants only which satisfies the grievance of the Petitioner. Therefore, the Petitioner has No. locusstandi to challenge the impugned order.
It is the contention of the learned Counsel for the Respondent No. 8, that as in previous W.P. No. 3586 of 2005, No. stay was granted by this Court. In pursuance of the construction raised, the Petitioner is running his business, as No. stay was granted by this Court in this Writ Petition also.
On consideration, I find force in the contention raised by the learned Counsel for the Petitioner. The impugned order is primafacie arbitrary being outcome of non-application of mind. The objections raised by the Petitioner that the Respondent No. 8 could not be permitted to run commercial business has not been answered inspite of repeated directions by this Court.
This assumes more importance as the stand of Respondent No. 8 is also that he is not constructing any godown,but is running a shop for sale of oil lubricants.
In this view of the matter, it was necessary for Respondent No. 5 to record a positive finding that there is No. violation of provision of sanctioned site plan, or that the planning permission does not violates the scheme framed by the society for allotment of plots, or that it is permissible in law to change the planning permission.
The impugned order also suffers from non-application of mind as only conditional permission has been granted subject to the final decision by this Court though No. writ petition was pending in this Court when the impugned order was passed.
Thus the order was on the face of it is arbitrary, therefore hit by Article 14 of the Constitution of India
The objections raised by the learned Counsel for the Respondent No. 8, in view of the finding recorded cannot be accepted, as mere hearing of a person does not amount to complying with the principles of natural justice, as the authorities dealing with the matter are also required to consider the objections raised and answered them by passing a speaking order. The impugned order is completely silent on the objection raised by the Petitioner.
The contention of the learned Counsel for the Respondent No. 8, that the Petitioner has No. locus-standi to maintain a writ petition and that of the State Counsel that because of an alternative remedy, this Writ Petition is not maintainable and only deserves to be noticed to be rejected. The Petitioner is a society representing the residents of the area who are entitled to enforce the planning permission, on the basis of which the plots were purchased by the member of the Petitioner. It cannot be said that the Petitioner has No. locus standi to maintain a writ petition.
The objection with regard to alternative remedy also cannot come in way, as this Court on earlier three occasions entertained the writ petitions by ignoring the alternative remedy of appeal, and that the impugned order has been passed on the directions issued by this Court.
Consequently, the Writ Petition is allowed, the impugned order is set aside, and the case is remanded back to Respondent No. 5 to reconsider the matter afresh and to pass a detailed speaking order, specially, taking into account the issue as to whether it is permissible to change a shopping complex into a commercial complex or whether the Respondent No. 8 raised any commercial building/go-down or is running only a shop as per sanctioned plan.
In case, Respondent No. 2 only running a shop to sell lubricants then there will be hardly any objection by the Petitioner.
No. costs.