S.J.MUKHOPADHAYA,J The Writ Petition in public interest is preferred by the petitioner for issuance of a Writ of Mandamus to direct the respondents 1 to 5 herein to take action on the representation of the petitioner, dated 25.2.2009 and take appropriate action forthwith for demolishing the illegal and unauthorised constructions that have been put in violation of the applicable legal provisions by the respondents 6 and 7 in S.Nos.308/15,16-311/1-313/3A,3B,6G,7 part and connected survey numbers situated at Aayankudi Village and S.Nos.234/4,237/4,240/5,241/2,242/14,252 and 255 part and connected survey numbers situated at Irungalur Village, Manachanallur Panchayat Union limits, Trichirapalli District.
2. According to the petitioner, the respondents 6 and 7 are guilty of grave violation of the building rules and allowing massive construction to come up even without a basic permission required under the law. They are establishing a medical college. The establishment of medical institute, medical college, research institution and hospital in the village is laudable and welcome, but, at the same time, it would be seen that such public building requires planning permit and approval from the competent authority. The mandatory provisions of Rule 25 of the Tamil Nadu Panchayats Building Rules, 1997, provides for consultation with the Joint Director or Deputy Director of Town and Country Planning. Such consultation is lacking in the present case. It is stated that nobody can forget the unfortunate episode that took place at Kumbakonamm, which resulted in the death of hundreds of young students because of construction of educational institution without following the Building Rules. The hospital and the college are public buildings, as per the definition given in Rule 2(g) of the Tamil Nadu Panchayats Building Rules, 1997. The attention of the competent authorities was drawn by the petitioner by several representations, but the authorities have turned into deaf ears to his request as made by representations. It is stated that the petitioner has obtained valuable information that the planning permit and the building plan were cancelled by the sixth respondent.
3. It appears that M/s.SRM Institute of Science and Technology and TRP Educational Trust, have purchased vast extent of lands in Irungalur Village in Manachanallur Taluk. They have constructed multi-storey building in the name and style of SRM Hospital in the said place. The main allegation is that the construction has been made without obtaining proper permission as required under the law.
4. Learned counsel for the petitioner submitted that the constructions in the Panchayat areas are governed by the Tamil Nadu Panchayats Building Rules, 1997, framed in exercise of the powers conferred under Section 242(2)(xxxiii) of the Tamil Nadu Panchayats Act, 1994. The Tamil Nadu Panchayats Building Rules came into effect on 18.12.1997. Under the said Rules, a "public building" is defined under Rule 2(g) as any building to which the public or any class or section of the public are granted access or any building which is open to the public or any class or section of the public and includes any building, used as educational institution, including school or college, hospital, library, apart from hospital, nursing home, dispensary, clinic, etc. Under Rule 25 of the said Rules, every person intending to construct, re-construct, add to or alter any public building other than Government building, are required to follow the provisions of the Multi-Storeyed and Public Building Rules, 1973 issued under the Tamil Nadu District Municipalities Act, 1920, provided that the Executive Authority shall not grant approval for construction, re-construction, addition or alteration of any such building without consulting the concerned Joint Director or Deputy Director of Town and Country Planning.
5. It is also contended that under Section 47 of the Tamil Nadu Town and Country Planning Act, 1971, after the coming into operation of any development plan in any area, no person other than any State Government or Central Government or any local authority shall use or cause to be used, any land or carry out any development in that area otherwise than in conformity with such development plan.
Under Section 48 of the Town and Country Planning Act, on or after the date of the publication of the resolution under sub-section (2) of section 19 or of the notice in the Tamil Nadu Government Gazette under Section 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 of land or construct, form or layout any work except with the written permission of the appropriate planning authority and in accordance with the conditions, if any, specified therein.
Section 56 of the Tamil Nadu Town and Country Planning Act provides that where any development land or building has been carried out without permission required under the Act; or in contravention of any permission granted or of any condition subject to which permission has been duly granted; or after the permission for development of land or building has been duly revoked; or in contravention of any permission which has been duly modified, the appropriate planning authority may, within three years of such development, serve on the owner, a notice requiring him within such period, being not less than one month, as may be specified therein after the service of notice, to take such steps as may be specified in the notice, to restore the land to its condition before the said development took place. In case of construction without permission or in case of construction where permission has been revoked, the Authority has got the power to require demolition or alteration of the building and discontinuance of any use of the land or building.
Section 57 of the Act empowers the authority to serve on the owner and the person who are carrying out development, a notice requiring the development to be discontinued from the time service of such notice and the development shall not be continued during the period of notice even in case of final determination or disposal of application for permission under Section 49 was pending.
6. According to the petitioner, he has submitted an application under Right to Information Act, 2005 on 7.2.2009 to the respondents 1 to 7, to know as to whether the respondents 6 and 7 have obtained permission and building approval for putting up new building construction in the properties and whether the approval from the Town and Country Planning Department has been obtained. He also asked for copies of the same.
7. The fifth respondent, by letter dated 19.2.2009, stated that the President/Executive Officer does not have right for grant of approval for construction of the building without permission or order given by the Assistant Director of Town and Country Planning and that the grant of approval of planning right is vested with the Assistant Director of Town and Country Planning and that the SRM administration and TRP Educational Trust administration have presented an application for getting approval from the Assistant Director of Town and Country Planning, which is still pending.
8. It is also stated that the third respondent, pursuant to the petitioner's letter dated 25.2.2009, intimated by his letter dated 9.3.2009 that as per the instructions of the District Collector, the Regional Assistant Director of Town and Country Planing Department inspected the SRM Group of Chennai Construction, Chennai Medical College Hospital and Research Centre, in the presence of Block Development Officer, Manachanallur Panchayat Union, Assistant of Panchayat and Chief Administrative Officer of the SRM and found that the ground-floor of the RCC construction has reached the stage of completion and the construction was proceeded without permission of the Town and Country Planning Department and that the planning permit was granted without permission of the Town and Country Planning Department on 4.1.2008.
9. It is submitted that even on the basis of the intimation given by the other respondents, it is apparent that the respondents 6 and 7 are constructing the building without permission in illegal manner, and therefore, it is fit to be demolished. Even till the date of filing of the Writ Petition, no permission has been obtained from the competent authority by respondents 6 and 7.
10. Learned Senior Counsel appearing for the respondents 6 and 7 submitted that the Writ Petition should be dismissed in-limine, having filed by an Advocate, abusing the power of a Lawyer. It has been filed with a view to black-mail the authorities. Reliance was placed on the Supreme Court decision in the case of "Dattaraj Nathuji Thaware Vs. State of Maharashtra", reported in 2005 (1) SCC 590.
It is also contended that the public interest litigation should be bona-fide for public good and not merely a cloak for attaining private ends and the Court can examine previous record of public service of the litigant. Reliance was placed on the decision of the Supreme Court in the case of "Raunaq International Ltd. Vs. I.V.R.Construction Ltd.", reported in 1999 (1) SCC 492.
It is also contended that the Public Interest Litigation (PIL) can be maintained only for violation of
Article 21 or human rights or for the benefit of the poor and the underprivileged who are unable to come to the Court due to some disadvantage. Otherwise, no PIL should be entertained under
Article 226 of the Constitution of India, in view of the decision of the Supreme Court in the case of "Villianur Iyarkkai Padukappu Maiyam Vs. Union of India" reported in 2009 (7) SCC 561.
11. So far as the merits of the case is concerned, learned Senior Counsel appearing for the respondents 6 and 7 submitted that the survey numbers specified in the Writ Petition in the prayer as well as in the petitions for interim relief, were neither purchased, nor belong to the respondents 6 and 7 herein or even though belonging to the respondents 6 and 7, no building or constructions have been put up in respect of the survey numbers. S.No.308/15,16-311/1,313/3-A,3-B,6-G and 7 part, situated in Aayankudi Village, though purchased by respondents 6 and 7 herein, no constructions have been put up in those survey numbers. As regards Irungalur Village, Manachanallur Panchayat Union limits, Trichirapalli District, in S.Nos.237/4, 240/5 and 242/14, the said lands do not belong to the respondents 6 and 7 and they had not purchased the said lands. As regards S.Nos.241/2, 252 and 257 part, though purchased by the respondents 6 and 7 herein, no buildings have been put up and no constructions are being made on those lands. Prayer has been made to dismiss the Writ Petition on the sole ground.
12. It is also submitted on behalf of the respondents 6 and 7 that the petitioner should welcome that a big medical college and hospital would be coming up in the locality, which will be in the public interest, as it would serve the public cause, but on the other hand, as far as the contention that the constructions are being put up without the approval from the authorities concerned, the same could not be countenanced. It is stated that though there are large number of constructions going on at Trichirapalli and the petitioner is an Advocate practising at Trichirapalli, he is not raising any hue and cry, but in the present case all wrong allegations are being made.
13. It is informed that the respondent No.6 filed application for building permission on 4.1.2008 by remitting the requisite fee for plan approval and they also obtained electricity connection on 3.2.2008. It is submitted that the hospital was permitted to function by order of this Court, dated 30.9.2008 passed by a Division Bench in C.M.A.(MD).No.1126 of 2008. Gazette Notification regarding change of lands used into educational zone, has been made on 17.6.2009. The Fire and Rescue Services Department has given the "No Objection Certificate" (NOC) on 26.6.2009. Similarly, the NOC has also been given by the Police Department from the Traffic angle on 30.6.2009. The Commissioner of Town and Country Planning, Chennai, sanctioned the building plan on 1.7.2009 and the Assistant Director of Town and Country Planning, Trichirapalli passed orders on 10.7.2009. Irungalur Panchayat again sanctioned the building plan on 10.7.2009, consequent upon the sanction given by the Town and Country Planing authority. The Government of India has also issued "Letter of Intent" to establish the medical college with the First Year M.B.B.S. Course, by letter dated 13.7.2009. The "Letter of Permission" given by the Government of India is dated 14.7.2009 and the Environment Impact Assessment authority has granted conditional clearance on 13.10.2009.
14. Learned counsel appearing on behalf of the State submitted that the provisions of the Tamil Nadu Town and Country Planning Act, 1971, are not applicable to this case, as no development plan has been prepared for the area in question. According to him, the provisions of Sections 49 and 56 of the Town and Country Planning Act, are not applicable. However, it is accepted that the Town and Country Planning Department, Trichirapalli, has passed orders and the Government has issued the Gazette Notificationm, changing the use of lands into 'educational zone'. Therefore, the aforesaid submission made by the learned counsel for the State cannot be accepted and we hold that the provisions of the Tamil Nadu Town and Country Planning Act, are applicable to this case, though permission of the Town Panchayat is also required to be obtained.
Then, it is contended that Rule 25 of the Tamil Nadu Panchayats Building Rules, 1997 is applicable, apart from the Multi-Storeyed and Public Building Rules, 1973, including Rule 4 therein, but we are of the view that in view of the recent development that has taken place, it is not necessary to discuss the question whether those Rules are actually applicable or not.
15. We have noticed that the Government of India, from its Ministry of Health and Family Welfare, by letter dated 14.7.2009, has communicated the Registrar of SRM University the approval of the Central Government for establishing new medical college at Trichirapalli with annual intake of 150 students with prospective effect, i.e. from the academic year 2009-2010, under
Section 10(A) of the IMC Act, 1956. The permission is for one year. As per the said order, the admission process for the academic year 2009-2010 has to be completed within the time schedule indicated in the Graduate Medical Education Regulations, 1997, as amended.
16. There are some infirmities in the matter of construction of building. It appears that originally, the approval may not have been taken from the Tamil Nadu Town and Country Planning Department and no clearance was obtained from the State Level Environment Impact Assessment Authority. However, during the pendency of the Writ Petition, on 1.7.2009, building approval has been granted by the Commissioner of Town and Country Planning, Chennai, giving the details of construction which could be put into for the location purpose, such as Examination Hall, Hospital Building, Institution Block, Hospital extension, Animal House, Forensic Lab, Canteen, Store, Administrative Block, College Block, Hostel, Triple bed quarters and Individual House Block. Certain conditions have also been put forth, such as installation of solar water heating system, provision to be made for parking area, maintaining of open space, provision for Rain Water Harvesting facility, etc. It is also mentioned that contrary to the approval obtained at present, the change should not be carried out during the construction.
17. The Assistant Director of Town and Country Planning, Trichirapalli Zone, Trichirapalli, also granted approval on 10.7.2009 almost with similar terms and conditions, as given by the Commissioner of Town and Country Planning, on 1.7.2009, but with special condition that after the E.I.A. clearance, the final approval should be granted by the Panchayat.
18. The Panchayat has also given approval on 10.7.2009 consequent upon the sanction by the Town and Country Planning Authority.
19. The State Level Environment Impact Assessment Authority, Tamil Nadu, Chennai, by letter dated 13.10.2009, has also given conditional Environment Impact Assessment (E.I.A.) Clearance, without prejudice to the present case. There are "Specific Conditions" which have been put forth in Part-A therein, such as "obtaining 'Consent for Establishment' from the Tamil Nadu Pollution Control Board, all required sanitary and hygienic measures should be in place and they have to be maintained throughout, a First Aid Room shall be provided in the project site during the construction of the project" etc. The further actions to be taken are stated in the said order dated 13.10.2009 in the columns "Operation Phase" and "Part-B: General Conditions" with the details mentioned therein.
20. Taking into consideration the aforesaid facts, the question is whether it is desirable to grant the relief as sought for by the petitioner by directing the respondents to demolish the building.
21. Section 56 of the Town and Country Planning Act deals with the power to require removal of unauthorised development, where any development of land or building has been carried out without permission required under the Act or in contravention of any permission, etc. For that, notice is required to be given to the parties along with the particulars and purpose, as specified in Sub-section (2) to Section 56. Any person aggrieved by such notice within a specified period may apply for permission under Section 49 for retention of the land or building, as evident from Sub-section (3) to Section 56, and quoted hereunder:
"Section 56: Power to require removal of unauthorised development--
(1) where any development of land or building has been carried out--
(a) without permission required under this Act; or
(b) in contravention of any permission granted or of any condition subject to which permission has been granted; or
(c) after the permission for development of land or building has been duly revoked; or
(d) in contravention of any permission which has been duly modified, the appropriate planning authority may, within three years of such development, serve on the owner, a notice requiring him within such period, being not less than one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice--
(i) in cases specified in clause (a) or (c) above, to restore the land to its condition before the said development took place;
(ii) in cases specified in clause (b) or (d) above, to secure compliance with the permission or with the conditions of the permission, as the case may be.
(2) In particular, any such notice may, for the purposes aforesaid, require--
(i) the demolition or alteration of any building or works;
(ii) the carrying out on land, of any building or other operations;
(iii) the discontinuance of any use of land or building:
Provided that, in case the notice requires the discontinuance of any use of land or building, the appropriate planning authority shall serve a notice on the occupier also.
(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 49 for the retention of the land, or any buildings or works or for the continuance of any use of the land or building to which the notice relates."
22. Thus, it is always open for the respondents 6 and 7 even to ask for post-facto approval, if notice would have been issued under Section 56(1) of the Tamil Nadu Town and Country Planning Act, 1971. In the present case, as the approval has been granted by the Town and Country Planning Department, the question of demolition of the building at this stage does not arise. However, the respondents 6 and 7 are required to comply with the conditions as stipulated by the State Level Environment Impact Assessment Authority (E.I.A), by order dated 13.10.2009 and the orders passed by the other authorities.
23. There being no merits, the Writ Petition is dismissed. No costs.
(S.J.M.J) (M.D.J) 01.12.2009 Index: Yes Internet: Yes cs To
1. The Commissioner, Town and Country Planning Department, No.807, Anna Salai, Chennai-600 002.
2. The District Collector, Office of the District Collector, Trichirapalli-620 001.
3. The Assistant Director, Town and Country Planning Department, No.10, Williams Road, Cantonment, Trichirapalli-620 001.
4. The Commissioner/Block Development Officer, Manachanallur Panchayat Union, Manachanallur, Trichirapalli-621 216.
5. The President, Irungalur Panchayat, Irungalur, Manachanallur Taluk, Trichirapalli District.
6. The Chairman, Assessment Committee, Department of Environment, Government of Tamil Nadu, Panagal Buildings, Saidapet, Chennai.
S.J.MUKHOPADHAYA,J and M.DURAISWAMY,J cs Order in W.P.NO.6457 of 2009 01.12.2009