TMI Blog2000 (8) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamil Nadu is being exercised indiscriminately in granting exemptions to the violators violating every conceivable control, check including approved plan, in violation of the public policy as laid down under the Act and the Development Control Rules (hereinafter referred to as the Rules). The submission is, granting of such exemptions is against the public interest, safety, health and the environment. To bring home this indiscriminate exercise of power, reference is made to about sixty two such orders passed by the Government between the period 1.7.1987 to 29.1.1988 which have been annexed compositely as Annexure II to the petition. Submission is, it is this indiscriminate exercise of power which results in the shortage of water, electricity, choked roads and ecological and environmental imbalances. Mr. Dayan Krishnan, learned counsel for the petitioner submits, such exercise of power is because there are no guidelines or control under the Act. This is the main plank of attack, for declaring Section 113 as ultra vires as it can do or undo anything under the Act to wipe out any development without any check which amounts to the delegation by the Legislature of its essential legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has to perform its statutory functions. Sub-section (2) of Section 49 gives guidelines to enable the appropriate planning authority to grant or refuse permission in respect of an application made under Section 49(1) by any person intending to carry out any development on any land or building. Thus, this Section empowers MMDA to revoke or modify any permission already granted. This also provides as to when such an application for modification could be made. This Act also provides for the constitution of a tribunal under Chapter IX and provisions under Chapter X for an appeal, revision or review. It is under Chapter XII, the impugned Section 113 is placed. This confers delegation of power on the State Government and delegation of power to the Director under Section 91 and to the appropriate planning authority under Section 91-A. It is true both these later Sections are hedged with restrictions contained therein. It is under this setting, when there is no check, or restrictions in Section 113 its vires is challenged. This contrast between Section 91 and 91-A with Section 113 is submitted, is indicative that the power with the Government is unguided and uncontrolled. In Chapter XII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioner referred to Premium Granites and Anr. V. State@@ of T.N. and Ors. 1994 (2) SCC 691. In this case, Rule of@@ granting exemption from other provisions of the statute of the Tamil Nadu Minerals Concession Rules, 1959 was challenged as being arbitrary and without any guidelines. Same submission was made, as in the present case that this gives wide discretionary power to the authority uncanalised. This decision held:- ..In our view, in interpreting the validity of a provision containing relaxation or exemption of another provision of a statute, the purpose of such relaxation and the scope and the effect of the same in the context of the purpose of the statute should be taken into consideration and if it appears that such exemption or relaxation basically and intrinsically does not violate the purpose of the statute, there will be no occasion to hold that such provision of relaxation or exemption is illegal or the same ultra vires other provisions of the statute. The question of exemption or relaxation ex hypothesi indicates the existence of some provisions in the statute in respect of which exemption or relaxation is intended for some obvious purpose. This hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7. Section 22 was held to be ultra vires as the Act did not lay down any principle or policy for the guidance to the delegatee for exercising its discretion. In Mahe Beach Trading Co. and Ors. V. Union Territory of Pondicherry and Ors., 1996 (3) SCC 741, the Municipal Council decided to levy a municipal tax of 5 paise on each litre of petrol and diesel oil sold at the petrol pump. This levy was challenged which was struck down by the learned Single Judge. During the pendency of this appeal, the Administrator of Pondicherry, promulgated Pondicherry Municipal Decree (Levy and Validation of Taxes, Duties, Cesses and Fees) Ordinance, 1973 and this was later replaced by an Act. Sections 3 and 4 of the Validation Act were challenged on the ground of excessive delegation of the essential legislative power. This Court held: The principle which emanates from the aforesaid decisions relied upon by the appellants is very clear namely: that if there is abdication of legislative power or there is excessive delegation or if there is a total surrender or transfer by the legislature of its legislative functions to another body then that is not permissible. There is, however, no abdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the assessee for an enquiry or investigation of facts before the assessment; (c) Section 7 gave arbitrary power to the Government to pick and choose in the matter of grant of total or partial exemption from the provisions of the Act; and (d) the tax proposed to be levied had absolutely no relation to the production capacity of the land sought to be taxed or to the income they could arrive. This Court with respect to Section 7 of the said Act held:- Furthermore, Section 7 of the Act, quoted above, particularly the latter part, which vests the Government with the power wholly or partially to exempt any land from the provisions of the Act, is clearly discriminatory in its effect and, therefore, infringes Art. 14 of the Constitution. The Act does not lay down any principle or policy for the guidance of the exercise of discretion by the Government in respect of the selection contemplated by s.7. Section 7 was held to be ultra vires as the Act did not lay down any principle or policy for the guidance. For the State reliance is placed in the State of Bombay and Anr. V. F.N. Balsara, 1951 SCR 682 (Constitution Bench). With reference to the validity of Section 139(c) of the Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir prices.As already pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy. In Sardar Inder Singh V. The State of Rajasthan 1957 SCR (Constitution Bench), this Court was considering Section 15 of the Rajasthan (Protection and Tenants) Ordinance, 1949 which, with similar provision authorised the Government to exempt any person from the operation of the Act. This Court held: A more substantial contention is the one based on s. 15, which authorises the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to Art. 14. It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision, the courts have to discover, whether there is any legislative policy purpose of the statute or indication of any clear will through its various provisions, if there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is controlled through such policy. In the fast changing scenario of economic, social order with scientific development spawns innumerable situations which Legislature possibly could not foresee, so delegatee is entrusted with power to meet such exigencies within the in built check or guidance and in the present case to be within the declared policy. So delegatee has to exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially effecting the policy of the Act, viz., development in the present case then such exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment plan, Section 20 refers to the contents of detailed development plan, Section 47 refers to use and development of land to be in conformity with development plan, Section 48 refers to the restrictions on building and lands in the area of the planning authority. Each of them contributes for subserving the policy of the Act, and clearly declares the purpose of the Act. Hence Section 113 cannot be held to be unbridled, as Government has to exercise its power within this guideline. Hence we hold Section 113 to be valid. There is a clear distinction between a provision to be ultra vires as delegation of power being excessive and the exercise of power by such delegatee to be arbitrary or illegal. Once the delegation of power is held to be valid the only other question left for our consideration is, whether the power exercised by the Government in passing the impugned sixty two G.Os under Section 113 could be said to be arbitrary or illegal. Submission is that the Government has exercised this power of exemption indiscriminately, contrary to the provisions of the Act and Rules. The fact that Government issued 62 GOs during the period 1.7.1987 till 29.1.1988 exempting large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. The various norms have been laid down exhaustively keeping in mind the public interest, the public health and public safety as well as interest of the builders and the landowners. Under Section 122 development control rules have been framed for the Madras Metropolitan Area. For developing of various zones, Rule 7 lays down for primary residential zone, Rule 8 for mixed residential use zone and Rule 9 for commercial use zone in the Madras Metropolitan Area which is divided into 9 zones. The rules provide with elaborate details which buildings are normally to be permitted for what purpose and what not otherwise covered in that zone to what extent they are permitted, e.g., schools and petty shops in the residential area, subject to the limitations in each such zone. Each zone sets out in a tabular form the requirements relating to the floor space index, (FS1) maximum height, minimum set back, front set back, side set back, rear set back etc. Similarly, for commercial zones restrictions are imposed in relation to the horsepower rating of electric meters and to regulate storage of explosives as well as the affluence smoke, gas or other items likely to cause danger or nuisance to pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy and not contrary to it. We find, in the present case, the Government while exercising its powers of exemption has given a go-by to all the norms as laid down under the Act and the Rules and has truly exercised its powers arbitrarily without following any principle which could be said to be in furtherance of the objective of that, nor learned counsel for the State could point out any. Whenever any statute confers any power on any statutory authority including a delegatee under a valid statute, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test to judicial scrutiny. This judicial scrutiny is one of the basic features of our Constitution. The reason recorded truly discloses the justifiability of the exercise of such power. The question whether the power has been exercised validly by the delegatee, in the present case, if yes, then it can only be for the furtherance of that policy. What is that policy? The policy is the development and use of rural and urban land including construction of, colonies, buildings etc. in accordance with the policy of the planning as laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anting relief has to equate the resultant effect of such a grant on both viz., the public and the individual. So long it does not materially effect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc., the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may be in a given case, be justified but in no case effecting the public at large. So every time Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise every individual right including fundamental right is within reasonable limit but if it inroads public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted effecting public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, Government must keep in mind, whether such a grant would recoil on public or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for different planning para- metres and for different parts of the Chennai Metropolitan Planning Area. (2) The application under sub-section (1) shall be made within ninety days from the said date in such form containing such particulars and with such documents and such application fee, as may be prescribed. (3) Upon the issue of the order under sub-section (1), permission shall be deemed to have been granted under this Act for such development of land or building. (4) Nothing contained in sub-section (1) shall apply to any application made by any person who does not have any right over the land or building referred to in sub-section (1). (5) Save as otherwise provided in this section, the provisions of this Act, or other laws for the time being in force, and rules or regulations made thereunder, shall apply to the development of land or building referred to in sub-section (1). (6) Any person aggrieved by any order passed under sub-section (1) by any Officer or authority may prefer an appeal to the Government within thirty days from the date of receipt of the order. It seems, situation developed to such an extent, that irregularity, violation became order of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the regularisation fees, as prescribed. So, this section not only infuses the Government with power to exempt but also lays down the procedure and condition to grant exemption. This covers all buildings or land developed immediately before the date of the commencement of the aforesaid 1998 Act. Here Legislature lays down everything and does not leave to the absolute direction of the delegatee. So, Section 113-A cannot be challenged that discretion of the delegatee is unbridled or uncanalised as section itself confers full guidelines in this regard. It is significant also to reproduce the Objects and Reasons for the introduction of this section which is quoted below: The Statement of Objects and Reasons for the Amendment Act state that: As to today in Chennai as well as in other metropolitan cities of India many aberrations in the urban development are noticed. Huge disparities between peoples income and property value, together tempt the builders to violate the rules and the buyers to opt for such properties in the city of Chennai. A rough estimate of about three lakh buildings (approximately 50% on total number of buildings) will be violative of Development Control Rules o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Rough estimate of about three lakh buildings (Approximately 50% of the total number of buildings) will be violative of Development Control Rules or unauthorised structure. (B) Under the Act demolition action against such structure cannot be pursued against any of them unless a notice was issued within 3 years of its completion. (C) Chennai Metropolitan Development Authority could book only five thousand such structures and Chennai City Municipal Corporation could book only one thousand such buildings against which demolition action could be taken. (D) Administratively also demolition of such a large number of cases are neither feasible nor desirable, as it will result in undue hardship to the owners and the occupants. (E) Considering practice followed in other metropolitan cities of the country, the State Government took a policy decision to exempt buildings and lands by collecting regularisation fees. Mere reading of this reveals, administrative failure, regulatory inefficiency and laxity on the part of the concerned authorities being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with stari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight a fire in a high rise building. The violation of floor space index will result in undue strain on the civil amenities such as water, electricity, sewage collection and disposal. The waiver of requirements regarding fire staircase and other fire prevention and fire fighting measures would seriously endanger the occupants resulting in the building becoming a veritable death trap. The waiver of car parking and abutting road width requirements would inevitably lead to congestion on public roads causing severe inconvenience to the public at large. Such grant of exemption and the regularisation is likely to spell ruin of any city as it affects the lives, health, safety and convenience of all its citizens. This provision, as we have said, cannot be held to be invalid as it is within the competence of State Legislature to legislate based on its policy decision, but it is a matter of concern. Unless check at the nascent stage is made, for which it is for the State to consider what administrative scheme is to be evolved, it may be difficult to control this progressiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng exemptions to various persons under Section 113 of the Act cannot be sustained, we quash each one of the 62 GOs annexed compositely as Annexure II to the writ petition. In view of this such land or building under each such GO would become unauthorised. In the absence of Section 113-A the consequence of demolition would have been the only option. However, in view of Section 113-A, the person covered by the said 62 GOs, as a consequence of quashing, would be the person affected, and would also be persons entitled for regularisation under Section 113-A in terms of the aforesaid Rules 1999. Though all the affected 62 persons are parties, some of them have chosen not to appear in spite of service, hence we feel it appropriate that the Government will issue public notice including a notification that any person desiring regularisation of the unauthorised construction as a consequence of the orders passed by this Court may apply to the concerned authorities within 30 days of such publication and on such application being made the authority concerned will dispose it of in accordance with law treating them to be filed within time. In view of the aforesaid findings recorded, by us we c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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