Madras High Court
All India Private Educational ... vs The Principal Secretary on 10 February, 2021
WA No. 233 of 2019 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10-02-2021
Coram:
The Honourable Mr. Justice R. Subbiah
and
The Honourable Mr. Justice Sathi Kumar Sukumara Kurup
Writ Appeal Nos. 233, 1534, 1538, 1539, 1909, 2084 and 3495 of 2019
Writ Appeal No. 328 of 2021
and
C.M.P. Nos. 2475, 2477, 12987, 12989, 14109, 14110, 14457, 22371
and 22400 of 2019
C.M.P. No. 2067 of 2021
---
WA No. 233 of 2019
All India Private Educational Institutions
represented by its State General Secretary
K. Palaniappan
No.5, M.P. Avenue
Majestic Colony
Saligramam, Chennai - 600 093 .. Appellant
Versus
1. The Principal Secretary
Housing and Urban Development (UDA (3))
Department
Fort St. George
Chennai - 600 009
2. The Secretary
Department of School Education
Fort St. George
Chennai - 600 009
https://www.mhc.tn.gov.in/judis/
WA No. 233 of 2019 etc., batch
3. The Federation of Private Schools in
Tamil Nadu (FAPSIT)
a registered Society (Registration No. 108/2010)
rep. by its Secretary D.C. Elangovan
No.11/6A, P.T. Rajan Salai
20th Avenue, K.K. Nagar
Chennai - 600 078
(R3 impleaded as per the order dated 27.03.2019
made in CMP No. 6792 of 2019 in WA No.
233 of 2019) .. Respondents
WA No. 233 of 2019:- Appeal filed under Clause 15 of Letters Patent
against the order dated 10.12.2018 passed in WP No. 17178 of 2018 on the file
of this Court.
W.A. No. 233 of 2019
For appellant : Mr. K.M. Vijayan, Senior Advocate
for Mr. E. Vijay Anand
For respondents : Mr. P.H. Aravindh Pandian
Additional Advocate General
assisted by Mrs. A. Srijeyanthi
Special Government Pleader for RR1 and 2
Mr. Ar.L. Sundaresan, Senior Advocate
for Mr. G. Suresh Kumar for R3
COMMON JUDGMENT
(Judgment of the Court was delivered by R. Subbiah, J)
All these writ appeals arise out of the common order dated 10.12.2018
passed by the learned single Judge in WP Nos. 18539, 23484 to 23486. 23079
add 17178 of 2018. The said writ petitions were filed challenging the validity
of G.O. Ms. 76, Housing and Urban Development (UDA (3) Department dated
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WA No. 233 of 2019 etc., batch
14.06.2018 issued by the Principal Secretary, Housing and Urban
Development Department, G.O. Ms. No.167, School Education (MS)
Department dated 07.08.2018 passed by the Secretary, Department of School
Education, Chennai and after quashing the same in so far as it relates to
imposition of a condition that the member institutions of the Petitioners shown
in the annexure to the writ petitions have to submit plan Approvals from the
Directorate of Town and Country Planning of the buildings built in the non-
planning area before 01.01.2011 for the purpose of obtaining school
recognition.
2. It is seen from the averments in the writ petitions that most of the
educational institutions, which are functioning in non-planning area, have
hitherto applied to the local bodies and got the planning permission approved
for construction of the school building. While so, the Government issued G.O.
Ms. No.76, Housing and Urban Development Department dated 14.06.2018
ordering that the building of the educational institutions constructed prior to
01.01.2011 in non-planning area must also apply with Town and Country
Planning or DTCP Department and get the building plans approved.
Consequently by a letter No. 1818/MS/2018 1, dated 25.06.2018, the Principal
Secretary to the Government instructed all the education department to
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WA No. 233 of 2019 etc., batch
mandatorily insist for the educational institutions to apply for concurrence as
per the aforesaid Government Order. Aggrieved by the same, the writ
petitions were filed before the learned single Judge for the prayer stated supra.
3. The writ petitions were filed before the learned single Judge
mainly on the ground that (i) once the planning approval is granted by the
competent authority viz., local body after due verification and resolution, then
it cannot be said to be invalid unless it is set aside or modified in a manner
known to law (ii) the educational institutions in the non-planning area applied
to the local body or Village Panchayat as per Section 25 of the Tamil Nadu
Panchayat Rules, 1995 and the competent authority grants planning permission
under the Rules to the Executive authority and they cannot be directed to apply
to the Town and Country Planning Authority (iii) while the Government has
issued G.O. Ms. No.76 Housing and Urban Development Department dated
14.06.2018 making it optional for the educational to comply with the
directions issued in the said Government Order, the Education Department
insists the educational institutions to compulsorily apply and comply with
G.O. Ms. No.76 Housing and Urban Development Department dated
14.06.2018.
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WA No. 233 of 2019 etc., batch
4. The learned single Judge accepting the submission of the writ
petitioners quashed the Government Order. While quashing the Government
Order, a direction was issued by the learned single Judge that if any
application is made it shall be considered by granting regularisation. The
relevant portion of the order of the learned single Judge is as follows:-
"12. In view of the above, firstly, it is made clear that
if any educational institution, either school or college,
building is constructed before 01.01.2011, i.e. prior to the
introduction of Section 47-A of the Act, after obtaining valid
and lawful permission from the competent authority, the G.O.
Ms. No.76 cannot be made applicable to them. Because, if any
new building was constructed after 01.01.2011 in any part of
the State without getting proper concurrence from the Director
of Town and Country Planning, the G.O. Ms. No. 76 can be
made applicable. Secondly, it is made clear that if any
building is constructed even prior to the said Section 47-A
came into force i.e. before 01.01.2011 leaving any
deficiencies to be rectified now and not rectified even today,
such buildings will be covered by the impugned proceedings.
In any event, if the three months time given in the said G.O.
had already lapsed, the 2nd respondent is also entitled to take
appropriate action against all those educational buildings
which have not obtained planning permission and put up even
prior to 01.01.2011 and not rectified any of the deficiencies
till 02.01.2011. Lastly, in respect of the charges of Rs.7.50/-
per square feet, if any application is made during the relevant
period i.e. before the expiry of three months, the 2nd
respondent shall consider the same to grant the benefits.
13. With the above observations and directions, all
these Writ Petitions are allowed and the Government Order in
G.O.Ms.No.76, Housing and Urban Development (UD4(3))
Department, dated 14.6.2018, issued by the 1st respondent
and the consequential Government Order in G.O.167, School
Education (MS) Department, dated 7.8.2018 on the file of the
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WA No. 233 of 2019 etc., batch
3rd respondent are hereby quashed. No costs. Consequently,
connected Miscellaneous Petitions are closed.
5. It is seen from the records that even during September 2018, by
complying with the directions issued in G.O. Ms. No.76, Housing and Urban
Development Department dated 14.06.2018, some of the educational
institutions have paid the Concurrence fee for obtaining the concurrence of the
Department of Town and Country Planning within the time stipulated in the
Government Order. However, the learned single Judge granted interim stay
pending disposal of the writ petitions. By virtue of the interim stay granted by
this Court, the applications submitted by the educational institutions could not
be processed. In such circumstances, implead petitions were filed before the
learned single Judge inter alia supporting the Government Order.
6. The grievance put forth by the Federation of Private Schools in
Tamil Nadu (FAPSIT), third respondent in W.A. No. 233 of 2019, is that even
though the learned single Judge, by the order dated 10.12.2018 granted liberty
to the institutions to submit their applications for concurrence as contemplated
under G.O. Ms. No.76, Housing and Urban Development Department dated
14.06.2018, in the operative portion of the order dated 10.12.2018, the learned
single Judge quashed the entire Government Order. Therefore, the Federation
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WA No. 233 of 2019 etc., batch
of Private Schools in Tamil Nadu (FAPSIT) seek a clarification of the order
dated 10.12.2018 passed by the learned single Judge.
7. Mr. K.M. Vijayan, learned Senior counsel appearing for the
appellants would contend that the concept of getting concurrence from the
DTCP was brought into effect only on 01.01.2011 by way of inserting Section
47-A in Town and Country Planning Act, 1971. Prior to such amendment,
Rule 25 of the Tamil Nadu Panchayat (Building) Rule 1977 was in force
which rule is still in existence. As per the said Rule, a consultation process
was contemplated whereby the local body has to consult the DTCP before
issuing a building planning approval. While so, the impugned Government
Order seeking to enforce Section 47A of the Act with retrospective effect and
thereby calling upon application for getting concurrence to the buildings
constructed prior to 01.01.2011 is against the provisions of the law and
contrary to the various decisions of this Court and the Honourable Supreme
Court. It is his contention that by virtue of an executive instruction, a statute
cannot be amended with retrospective effect. Such an amendment would
tantamount to taking away the powers of the legislature by the executive,
which is legally impermissible.
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WA No. 233 of 2019 etc., batch
8. Mr. Aravindh Pandian, learned Additional Advocate General
submitted that the Government Order was issued as an one time measure and it
is optional for the educational institutions to get the concurrence and it is not
compulsory. He also invited the attention of this Court to the counter affidavit
filed in the WP No. 17178 of 2018 wherein it was stated as follows:-
"5. It is further submitted that by way of implementing
the impugned G.O., those educational buildings which are
functioning without the concurrence of the Town and Country
Planning Department are to be subject to audit to confirm
whether they stand to the scrutiny of safety and security of the
students and the staff of the educational institution. With a
view to ensure the above objective, the impugned G.O. has
been issued as a one-time measure and it is optional for the
educational institutions to avail the benefits under the scheme
and it has not been made compulsion in the perspective of the
Town and Country Planning Department. It is further
submitted that in respect of the said letter issued by the second
respondent instructing all the educational departments to
mandatorily insist the institutions to apply for concurrence
under the impugned G.O. authenticity of which will be
confirmed by him.
6. With regard to the averments made in Ground (F,
G, H & I) of the affidavit, it is submitted that the averment
made by the petitioner is false. Under the impugned G.O. the
individual developers of the educational institutions are not
compelled to obtain concurrence, however, it is only an
optional to avail the benefits under the one-time scheme. The
concurrence to be issued under the impugned G.O. is not
another approval and the necessity to obtain concurrence of
the official of the Town and Country Planning Department
under the said proviso of Rule 25 has been confirmed vide the
order of the Division Bench of the Madras High Court dated ;
06.07.2018 in W.P. Nos. 17236 of 2013 and 3622 of 2014 and
other connected Miscellaneous Petitions."
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Thus, the learned Additional Advocate General would submit that
WA No. 233 of 2019 etc., batch
by recording the counter affidavit, the appeals may be disposed of.
10. By way of reply, Mr. K.M. Vijayan, learned Senior counsel for the
appellant submits that the writ appeal has been filed only to test the
correctness of the order of the learned single Judge. The learned single Judge,
after quashing the Government Order, ought not to have issued the
consequential direction and thus, he prayed this Court to consider the legal
grounds raised in the appeal.
11. Mr. Ar.L. Sundaresan, learned Senior counsel appearing for The
Federation of Private Schools in Tamil Nadu (FAPSIT) submits that in view of
the stay granted by the learned single Judge, they could not apply or the
application already submitted for concurrence within the time granted in the
Government order could not be processed. Therefore, the learned Senior
counsel submits that time may be extended to enable the individual
educational institutions to submit the application seeking concurrence.
12. On consideration of the rival submission, it is evident that most of
the educational institutions have chosen to comply with G.O. Ms. No.76,
Housing and Urban Development (UDA (3) Department dated 14.06.2018.
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WA No. 233 of 2019 etc., batch
However. by virtue of the interim stay granted in the Writ Petition, some of the
educational institutions could not get their applications processed. Therefore,
they have filed impleading applications to vacate the interim stay so as to
enable them to apply for concurrence from the Town and Country Planning
authorities. All the applications were dismissed by the learned single Judge,
which has given rise to the filing of the writ appeals.
13. In our opinion, when the Government itself says that obtaining
concurrence is only optional and not mandatory, dealing with the direction
given by the learned single Judge is unnecessary. Therefore, by recording the
statement of the respondents in para Nos. 5 and 6 above to the effect that
compliance of the Government Order is not mandatory and it is only optional,
the writ appeals can be disposed of.
14. In the light of the above submission of the learned counsel on
either side, particularly, the averments in Para Nos. 5 and 6 of the counter
affidavit filed before the learned single Judge in WP No. 17178 of 2018,
which we have extracted above, all the writ appeals are disposed of. No costs.
We direct the Directorate of Town and Country Planning to process the
applications already filed by the educational institutions during the pendency
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WA No. 233 of 2019 etc., batch
of the writ petition/writ appeal before this Court seeking concurrence and to
pass appropriate orders thereof as per the guidelines issued in G.O. Ms. No.76,
Housing and Urban Development Department dated 14.06.2018. To those
educational institutions, who have not applied so far, they are permitted to
submit their application (s) seeking concurrence to the Directorate of Town
and Country Planning within a period of two weeks from the date of receipt of
a copy of this judgment and on receipt of the same, the Directorate shall
process it and pass appropriate orders thereof.
(R.P.S.J.,) (S.S.K.J.,)
10-02-2021
rsh
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WA No. 233 of 2019 etc., batch
R. Subbiah, J
and
Sathi Kumar Sukumara Kurup, J
rsh
WA Nos. 233, 1534, 1538, 1539,
1909, 2084 and 3495 of 2019
and
WA No. 328 of 2021
10-02-2021
https://www.mhc.tn.gov.in/judis/
