Heard the learned counsel appearing for the petitioner and the learned counsels appearing for the respondents.
2. The petitioner has stated that he is the managing Director of M/s.Germanus Properties (P) Ltd. As per the decision of the board of directors, the petitioner had purchased 35 cents of vacant land, in Survey No.4/2C2, in Ponmeni Village, Madurai District, by a registered sale deed, on 6.2.2008, from Muthu Janaki and Muthu Seetha. When the land was with the erstwhile owners, Muthu Janaki and Muthu Seetha, it was acquired for the said purpose of New Ellis Nagar Housing Board Scheme. However, since the said land had not been used for the purpose for which it had been acquired, its erstwhile owners had filed two writ petitions before this Court, in W.P.Nos.6421 of 2007 and 6422 of 2007, for reconveyance of the land, to them. By an order, dated 2.8.2007, this Court had directed the Housing Board to re-convey the land in favour of the writ petitioners, on their payment of the developmental charges. Pursuant to the said order, the Housing Board had executed a Deed of Reconveyance, on 23.1.2008. Accordingly, the petitioners in the writ petitions had become the lawful owners of the land in question.
3. The petitioner has further stated that the master plan made for the purpose of New Ellis Nagar Housing Board Scheme had been dropped by the competent authority, in so far as it related to the land belonging to Muthu Janaki and Muthu Seetha. Due to the dropping of the acquisition proceedings in the adjacent survey numbers, the proposal for forming a 70 feet road had also been dropped from the master plan. Therefore, no acquisition proceedings was initiated under the Town and Country Planning Act, for the formation of the 70 feet road. Instead, the planning authorities had formed a 30 feet road, which is in use, as on date.
4. It has been further stated that after the purchase of the land in question, by the petitioner, a decision had been made by the Board of Directors of M/s.Germanus Properties (P) Ltd. to construct a multistoried residential building in the said land, with 7 floors. Later, a decision had been made to construct only four floors, with a foundation for seven floors. While so, the petitioner had approached the first respondent, on 25.7.2008, seeking building plan permission, by way of an application, enclosing a receipt for the payment of the licence fee, developmental charges and road cost, for a sum of Rs.5,35,475/-.
5. Along with the application, the petitioner had also furnished the necessary documentary proof to show that there was no arrears of property tax or vacant site tax payable to the respondent Corporation. Thus, the entire statutory charges payable to the respondent Corporation had been duly paid on the date of the submission of the application. The petitioner had also deposited a sum of Rs.16,100/- to the Member Secretary of the Local Planning Authority and a sum of Rs.52,950/-, towards the Labour Welfare Board Fund. As such, the petitioner had fulfilled all the requirements necessary for the grant of planning permission, as well as the building permission, from the first respondent Corporation. Even after the fulfillment of all the requirements, the first respondent had kept the application pending for several weeks, without the necessary approval being granted, as prayed for by the petitioner.
6. The petitioner has further submitted that the application had been filed, under Section 272 of the Madurai City and Municipal Corporation Act, 1971. Without such an application being filed, there cannot be any commencement of construction, under Section 274 of the said Act. According to Section 275 of the Act, the first respondent ought to take a decision, with regard to the issuing of the building plan and planning permission, within 30 days from the date of the submission of the application. Specific reasons are to be given for rejecting the request. In fact, the 30 days period had expired on 24.8.2008. After the expiry of the 30 days period, the petitioner had made an appeal to the second respondent Appellate Authority, by way of an appeal, dated 18.9.2008. The petitioner has further stated that under Section 277 of the Madurai City and Municipal Corporation Act, 1971, the second respondent Standing Committee is the competent authority to decide the appeal, in cases, where the first respondent had failed to pass an order, within the mandatory period of thirty days.
7. It has also been stated that the powers of the first respondent are subordinate to that of the second respondent. Sections 3, 9, 13, 21, 22, 27, 100(2), 201, 211, 277, 278(8), 296 and 453 of the Act, specifically provides the powers to the second respondent Standing Committee. From a reading of the said Sections, it is clear that the powers of the Standing Committee is not subordinate to the powers of the first respondent. In fact the first respondent Commissioner is only an enforcing authority. The first respondent does not have any power to supervise or supercede the decision of the second respondent. As such, the second respondent is the appropriate statutory authority to decide, in respect of the building plan and the planning permission.
8. The second respondent had convened a meeting, on 7.7.2008, to consider the application of the petitioner, consisting of the Chairman of the Committee and the seven members, who are elected members of the Council of the first respondent Corporation. The third respondent had also participated in the said meeting, along with the entire team of officers, who are responsible for the promotion of the building and its other related activities. In the said meeting it had been resolved to grant approval for the promotion of the building in the land in question.
9. During the meeting convened by the second respondent, on 24.9.2008, to consider the request of the petitioner for building plan and planning permission, the request by the petitioner had been granted. Thereafter, both the building plan, as well as the planning permission, in respect of the land in question had been placed before the General Council of the Corporation and it had been recorded by the Council. By an unanimous decision of the second respondent the said resolution had been forwarded to the Municipal Council and it was placed before the Council, on 31.10.2008.
10. On the basis of the resolution, the second respondent had also granted the necessary approval, by an order, dated 7.7.2008. As per the order, dated 01.11.2008, the second respondent had granted the necessary permission for proceeding with the construction. The petitioner had been directed to pay a sum of Rs.6,07,525/- towards developmental and other statutory charges. While the construction of the building was going on, the first respondent had issued an order, dated 21.8.2008. The said order had been antedated since it had been sent only on 24.9.2008. The said order had been passed when the appeal filed by the petitioner was pending before the second respondent. In the order of the first respondent, dated 21.8.2008, it has been stated that the construction of the building was being carried on, without proper permission from the authorities concerned.
11. The petitioner had also stated, that under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971, the building permission is required to be obtained from the planning authority. Such permission is granted based on the purpose for which the building is being constructed, the suitability of the place and the scope for future development and maintenance of the area. As such, the permission granted by the second respondent satisfies the statutory requirements of the relevant enactments.
12. It has also been stated that after the second respondent had granted the planning permission for the site and the building, by its resolution, dated 24.9.2008, the said decision had been placed before the Council of the first respondent Corporation, during its meeting, held on 31.10.2008. However, by the impugned order of the first respondent, dated 6.7.2009, it has been stated that the Standing Committee does not have the authority to approve the building plan, as per Section 277 of the Madurai City Municipal Corporation Act, 1971. Further, there has been a shortage of Rs.1,40,000/- in the payment made by the petitioner for the approval of the plan submitted by the petitioner.
13. It had also been stated that the building being constructed by the petitioner is in the nature of causing interference with the 70 feet road planned to be formed under the New Ellis Nagar Extension scheme. It had also been noted that the claim of the petitioner, stating that the plan submitted by the petitioner had been signed by the petitioner and registered by the Council of the first respondent Corporation, is incorrect. Therefore, appropriate action would be taken against the petitioner in accordance with the The Madurai City Municipal Corporation Act, 1971. In such circumstances, the petitioner has preferred the present writ petition before this Court, under
Article 226 of the Constitution of India.
14. In the counter affidavit filed on behalf of the first respondent, the averments made in the affidavit filed in support of the writ petition have been denied. It has been stated that the petitioner has presented the building plan application to the Madurai City Corporation, requesting for permission to construct five floors, in Survey No.4/2C2, Ponmeni Village, Madurai South Taluk. The said application had been returned due to various defects, by the proceedings, dated 21.8.2008.
15. The main defects in the plan submitted by the petitioner were that the petitioner had not obtained site approval, as per 15(1) of the Scheme Rules. Further, as per 17(1) of the Scheme Rules, the plan is affecting the park, as well as the 70 feet scheme road. Further, as per the scheme Rule 18(2), the rear side vacant space must be 15 feet, whereas the petitioner had provided only 11 feet and 9 inches.
16. It has also been stated that the proposed site of the petitioner is standing in the name of the Commissioner, Madurai Corporation, as per the detailed development plan of Madurai. A part of the 70 feet Scheme Road falls on a part of the petitioner's proposed site. The proposal for forming the 70 feet scheme road has not been dropped from the master plan.
17. It has also been stated that, as per Section 272 of the Madurai City Municipal Corporation Act, 1971, it is only the first respondent who has the jurisdiction to grant the building plan permission. Under Section 277 of the said Act, the second respondent has no power to approve a building plan, except to determine the validity of such building plan/site application. The second respondent can only recommend to the first respondent, on being satisfied with the application made by the petitioner. The second respondent is only an advisory body and not an executive body. Hence, any order passed by the second respondent, without the concurrence of the first respondent, is not a valid one. Since, the second respondent Standing Committee is to consist only of the elected members there is no role for the technically qualified persons for the granting of the planning approval in favour of the petitioner.
18. It has also been stated that, as per Section 9 of the Madurai City Municipal Corporation Act, 1971, the powers and duties of the second respondent should be determined only by the Council of the Madurai City Corporation and admittedly, the Council of the Corporation had not approved the powers and duties of the second respondent to grant the planning permission, suo motu, without the necessary approval by the first respondent.
19. It is also evident from Sections 9 and 32 of the Madurai City Municipal Corporation Act, 1971, that the scope of the Standing Committees are limited. Such committees can only make recommendations. Further, as per schedule I Rule 4 of the Act, the agenda for the standing committees should be prepared by the Commissioner of the Corporation. The agenda and the subjects to be dealt with during the meeting ought to have been circulated to all the members of the Standing Committee. Admittedly, the said procedures had not been followed in the resolution passed in favour of the petitioner. The resolution of the Standing Committee, in approving the petitioner's planning permission, has been placed before the Council only in the form of an information, in terms of Rule 19(2) of Schedule I of the Act. It does not amount to approval of the decision.
20. It has also been stated that the second respondent is not the competent authority and it is not technically qualified to approve the building plan. The second respondent may only recommend the matter to the first respondent, for his approval. The claim of the petitioner that there is no proposal for the formation of the 70 feet road, including a part of the petitioner's property, has been denied. Further, the claim that the second respondent is the competent authority, under Section 11(3) of the Tamil Nadu Town and Country Planning Act, 1971, for granting the site approval has also been denied. Only the Local Planning Authority, Madurai, is having the power to grant site approval, in respect of the petitioner's property.
21. Section 49 of the Tamil Nadu Town and Country Planning Act, 1971, states that if a person wants to carry out any development in the area, an application is to be made for the said purpose, to the appropriate authority, seeking its permission, in the prescribed form. As such, the petitioner ought to have impleaded the concerned Local Planning Authority, as a necessary party, in the present writ petition. It is also to be noted that, in Section 277(2) of the Madurai City Municipal Corporation Act, 1971, the word `determine' is found instead of the word `permission', as available in Sections 273 and 274 of the Act, showing that the first respondent has the authority and jurisdiction to have the final say, with regard to the granting of the building plan and planning approval.
22. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the impugned order of the first respondent, dated 6.7.2009, cannot be sustained in the eye of law.
23. From the records available before this Court, it is seen that the petitioner had approached the first respondent, on 25.7.2008, by way of an application, requesting for building plan permission to construct a multi storied residential building, in Survey No.4/2C2, in Ponmeni Village, Madurai District, by paying the necessary charges. The petitioner had also sought for the approval of the site plan by the respondent Corporation. The General Council of the respondent Corporation had recorded the decision for approving the said plan and for the grant of planning permission in its meeting, dated 30.7.2008. The petitioner had paid all the statutory charges, as required by the respondent Corporation. The necessary documents had also been placed before the respondent Corporation for the necessary approval and the permission sought for by the petitioner.
24. From a reading of the relevant sections of the Madurai City Municipal Corporation Act, 1971, it can be seen that an application for the building plan approval is to be made, under Section 272 of the said Act. If the necessary approval is not granted by the Commissioner of the Corporation, within a period of 30 days, the applicant could make an appeal to the Standing Committee, requesting for the grant of approval, under Section 277 of the Madurai City Municipal Corporation Act, 1971. The Committee has certain Appellate powers, under Sections 3, 6, 21, 22, 277, 278 and 453 of the Madurai City Municipal Corporation Act, 1971. Under Section 278 of the Act, the authorities concerned are given certain powers to ratify, reject or approve the application on certain specific grounds.
25. In the present case, it is found that the petitioner had approached the Appellate authority, namely, the second respondent Committee, making a request on 18.9.2008, after nearly two months from the date of the submission of the application to the first respondent. After the appeal had been made to the second respondent, an agenda had been issued and a meeting of the Committee had been convened, on 24.9.2008, including the matter relating to the request of the petitioner for the approval of the building plan.
26. By a resolution, the second respondent Committee had considered the application of the petitioner and a decision had been made in favour of the petitioner, by the proceedings, dated 1.11.2008. Thereafter, the resolution of the second respondent Committee had been placed before the General Council of the respondent Corporation. In the ordinary general meeting of the Council held, on 31.10.2008, the first respondent Commissioner had presented the decision of the second respondent Committee. The General Council, had, unanimously, recorded the planning permission given by the second respondent Committee. Accordingly, the petitioner had proceeded with the construction of the building, on the assumption that all the necessary formalities had been completed.
27. While so, the first respondent had issued a notice, dated 11.5.2009, under Section 296 (1) and (2) of the Madurai City Municipal Corporation Act, 1971, asking the petitioner to submit his explanation. The petitioner had submitted his explanation, on 6.6.2009, stating that the second respondent appellate authority had already approved the building plan, submitted by the petitioner, on 1.11.2008, as per the resolution, dated 24.9.2008, and therefore, the respondent Corporation should not take any adverse action against the petitioner. Thereafter, the first respondent had issued the impugned order, dated 6.7.2009.
28. As it is seen from the records available, the petitioner's request for the building plan approval had been approved by the second respondent Committee, by its resolution, dated 24.9.2008. It is seen that the second respondent Committee had taken up for discussion, the request of the petitioner for the approval of the building plan, as an Appellate Authority, under Section 277 of the Madurai City Municipal Corporation Act, 1971. Thereafter, by a formal resolution, the second respondent Committee had passed a resolution in favour of the petitioner, on 1.11.2008. The said resolution of the second respondent had also been placed before the General Council of the respondent Corporation and it had been communicated to the petitioner.
29. Based on the said process the petitioner had started constructing the building in his property, assuming that all the necessary formalities had been completed. However, the first respondent had passed the impugned order, dated 6.7.2009, stating that the building in question has been constructed by the petitioner, without the necessary approval from the first respondent.
30. From the series of events it is clear that the petitioner had fulfilled all the necessary statutory requirements, as contemplated by the provisions of the Madurai City Municipal Corporation Act, 1971, for obtaining the necessary building plan approval from the respondent Corporation. Both the second respondent Standing committee, as well as the General Council of the respondent Corporation, had passed the necessary resolutions to grant the building plan approval, in favour of the petitioner.
31. In such a situation the necessity of the grant of approval of the first respondent would only be a proceedural formality. Since, the petitioner had invested huge amounts of money and had put up the construction, based on the resolutions of the second respondent Standing Committee, as well as the recording of their approval by the General Council of the respondent Corporation, it would be in the interest of justice to set aside the impugned proceedings of the first respondent, dated 6.7.2009. However, the prayer of the petitioner, with regard to the payment of compensation, stands rejected, as it would be open to the petitioner to move the appropriate Civil Forum, for the necessary relief. It is made clear that the building plan approval and the permission granted in favour of the petitioner is subject to the other legal requirements, if any. Accordingly, the impugned order of the first respondent, dated 6.7.2009, is set aside and the writ petition stands partly allowed. No costs. Consequently, connected miscellaneous petitions are closed.
csh To
1.The Commissioner, Madurai City Corporation, Madurai.
2.The Standing Committee, Town Planning and Improvement, Madurai City Corporation, Madurai.
3.The Chief Town Planning Officer, Madurai City Corporation, Madurai.