Madras High Court
N.Santhakumar vs The Commissioner on 11 November, 2021
W.P.No.23572 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.11.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.No.23572 of 2021
N.Santhakumar ... Petitioner
-Vs-
The Commissioner
Dharapuram Municipality,
No.207-A, Park Road,
Dharapuram - 688 656,
Tiruppur District. ... Respondent
Prayer : Writ Petition under Article 226 of the Constitution of India praying
for the issuance of a Writ of Certiorarified Mandamus to call for the records of
the Order in Na.Ka.No.5025/2021/F1, dated 27.09.2021 issued by the
respondent and quash the same and consequently direct the respondent to
renew the building permission granted in proceedings Ref.No.157/2000/G1,
dated 29.09.2000 for constructing the building for commercial use in
T.S.No.20/12, Block No.8, Ward No.7, Bye Pass Road, Dharapuram, Erode
District.
For Petitioner : Mr.V.B.R.Menon
For Respondent : Mrs.Akila Rajendran
Government Advocate
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W.P.No.23572 of 2021
ORDER
The prayer sought for herein is for a writ of certiorarified mandamus, to
call for the records of the Order in Na.Ka.No.5025/2021/F1, dated 27.09.2021
issued by the respondent and quash the same and consequently direct the
respondent to renew the building permission granted in proceedings
Ref.No.157/2000/G1, dated 29.09.2000 for constructing the building for
commercial use in T.S.No.20/12, Block No.8, Ward No.7, Bye Pass Road,
Dharapuram, Erode District.
2. The petitioner's father, one Natarajan was the owner of the land in
T.S.No.20/12, Block No.8, Ward No.7, Bye Pass Road, Dharapuram, Erode
District, in short "the premises". It was already classified under commercial
zone category as per the development plan of Dharapuram Municipality.
3. The petitioner's father had applied and obtained planning permission
from the respondent to construct a commercial building in the said premises on
29.09.2000, which was valid for three years. Since within the three years
period, the petitioner did not commence the construction, on expiry of three
years, on application further made, the petitioner's permission was renewed
further or extended further period of three years up to 28.09.2006.
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W.P.No.23572 of 2021
4. Due to various reasons, the petitioner's father thereafter could not
undertake the construction within the extended time also, then the petitioner's
father settled the said premises, i.e., the property in question to his son, that is
the petitioner and the grand children by the registered settlement deed, dated
22.11.2018.
5. Thereafter the petitioner submitted a request to the respondent for
renewal of the building permission, vide his request dated 08.09.2021. The
same has been refused to consider by the respondent, which culminated in the
impugned communication, dated 27.09.2021, where the respondent has stated
that, if at all the petitioner wants to get any building permission from the
respondent / municipality, he has to make the said application in the website
through the UTIS-software, then only it can be considered. Felt aggrieved over
the said stand taken by the respondent municipality in compelling the
petitioner to make an application through the UTIS software, which is
otherwise called as new application through a cumbersome procedure ofcourse
through the website of the respondent, he has filed the present writ petition
with the aforesaid prayer.
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W.P.No.23572 of 2021
6. Heard Mr.V.B.R.Menon, learned counsel appearing for the petitioner
who would submit that, though the building permission was given initially in
the year 2000 and subsequently extended or renewed in the year 2003, at the
request of the father of the petitioner, subsequently, the father of the petitioner
could not initiate or complete the construction, thereafter, the property itself
was settled in favour of the petitioner, therefore the petitioner now wanted to
renew the said building permission and accordingly, when he made an
application, the same should have been considered and the renewal should
have been given after collecting the necessary fee prescribed in this regard,
instead the respondent municipality had rejected the same, saying that the
petitioner shall make a new application, as if that he is a new applicant through
a cumbersome process called UTIS-software and therefore that kind of process
cannot be applied to the case of the petitioner, because it is only a renewal
application.
7. In support of his contention, the learned counsel would also make
submission stating that, the issue raised in this writ petition, as to whether the
person like a petitioner has to make a new application or a fresh application,
has already been gone into in a batch of writ petitions by this Court, where an
order has been passed on 30.11.2020 in the matter of M/s. Mistair Realty's
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W.P.No.23572 of 2021
Private Limited, Rep, by its Director Mr.P.Kishore v. The Commissioner,
Udhagamandalam Municipality, where the learned counsel appearing for the
petitioner has relied upon the following portion of the order of the learned
Judge :
"12. Chapter~X of the Tamil Nadu District Municipalities
Act, 1920, deals with building regulations. It will be
relevant to extract Section 204 which falls under this
chapter hereunder:
204. Lapse of permission.? If the construction or
reconstruction of any building is not completed within the
period specified, the permission shall lapse and a fresh
application shall be made before the work is continued.
13. A plain reading of the above provision shows that
where a construction has not been completed within the
license period and the permission has lapsed, fresh
application should be made before the work is continued.
This provision came up for consideration in [M/s Golden
Homes Private Ltd. Vs. The Secretary to Government and
others] in WP 3946 of 2017, dated 17.04.2017. The
relevant portions in the judgment are extracted hereunder:
10.Admittedly in the case on hand, the
petitioner has applied within the time. Section
204 of the Tamil Nadu District Municipalities
Act, 1920, has to be looked at from his own
context. It merely states that a fresh
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W.P.No.23572 of 2021
application has to be made before the work is
continued. Therefore, the object of this
provision is to make sure that there is no
construction without permission. There is a
difference between a fresh application and a
new application. To put it differently, an
application seeking renewal is nothing but a
fresh application and not a new one.
Provisions of a statue have to be read in
consonance with each other to avoid any
unnecessary conflict. Therefore, Section 204
has to be read with 321 (9a) of the Tamil
Nadu District Municipalities Act, 1920.
11.The matter can be looked at from the
different perspective as well. The permission
is sought for the same project. The petitioner
has not changed the permission sought for and
obtained earlier. Merely because, the project
could not be completed, the respondent no.3
cannot seek the payment once again. A mere
availability of the alternative remedy per se
cannot be a ground. This issue sought for lies
in a very narrow campus. It is one dealing
with the payment of charges.
14. It will also be relevant to take note of the orders
passed by this Court in WP Nos. 13696 and 11432 of
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W.P.No.23572 of 2021
2017, dated 07.08.2017. The relevant portions in the order
are extracted hereunder:
6. The 1st respondent has filed his
counter, wherein at Para 7, he has stated that
as per Section 204 of the Tamil Nadu District
Municipalities Act, 1920, at the time of
ending license, new building permission can
only be granted. Further, he has also
mentioned that under Section 50 of the Tamil
Nadu Town and Country Planning Act, 1971,
the respondent had demanded for New
Building Planning Permission, vide letter
dated 15.05.2017.
7. Mr.P.H.Aravind Pandian, learned
Senior counsel appearing for the petitioner
submitted that in similar circumstances, this
Court in an unreported Judgment dated
17.04.2017 made in W.P.No.3946 of 2017 set
aside the impugned order passed by the
Municipality and directed the authority to
renew the planning permission on payment of
requisite scrutiny fee.
8. Mr.P.H.Aravind Pandian, learned
Senior counsel appearing for the petitioner
also submitted that the petitioner is willing to
pay the requisite scrutiny fee on demand
being made by the 1st respondent.
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W.P.No.23572 of 2021
9. Mr.S.Diwakar, learned Special
Government Pleader appearing for the
respondents has also submitted that the issue
involved in the present Writ Petition is
covered by the Judgment relied upon by the
learned Senior Counsel appearing for the
petitioner.
10. In view of the submission made by
both sides, the impugned orders dated
27.02.2017 and 13.04.2017 passed by the 1st
respondent and the impugned order dated
15.05.2017 passed by the 1st respondent in
W.P.No.13696 of 2017 passed by the 1st
respondent are set aside. The 1st respondent
is directed to process the petitioner-s
application for renewal of the planning
permission, on payment of requisite scrutiny
fee and other applicable payments, such as,
Building Construction Welfare Fund and
Vacant Site Tax.
15. The learned standing counsel appearing on
behalf of the respondent municipality placed reliance
upon Section 321(9~A) of the Act. It is clear from the
above judgment that this Court made a conjoint reading
of Section 204 along with Section 321(9~A) of the Act
and has given a beneficial constructions by holding that an
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W.P.No.23572 of 2021
application seeking for renewal is nothing but a fresh
application and it is not a new application more
particularly when it is sought for the same project without
any change made to the earlier plan which was sanctioned
and permission was granted.
16. Once the concerned authority approves the
site plan and a building license is granted and the
construction is not able to be completed within the license
period, on the application seeking for renewal, a fresh
permit is given under Section 204 of the Act for the site
plan already approved and there is no question of once
again going through the entire process afresh once the
building has already been approved by the concerned
authority. This construction of Section 204 of the Act read
in consonance with Section 321(9~A) has been
consistently followed and this Court does not find any
ground to deviate from this view. In fact, such a
construction has been upheld by the Division Bench of
this Court in WA No. 719 of 2017 by order dated
13.06.2018.
17. In view of the above, the Respondent
municipality ought to have considered the renewal
application submitted by the petitioners as a fresh
application and dealt with the same under Section 204 of
the Act. The application submitted by the petitioners
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W.P.No.23572 of 2021
should not have been rejected merely on the ground of
delay since the petitioners are not seeking for any change
in the earlier plan that was sanctioned and they do not
want to deviate from the earlier license given for putting
up the construction. That apart, the property continues to
be classified as a ?primary residential zone? under the
master plan and there is no change in rules in considering
an application seeking for building permission. The
respondent ought to have considered the application by
collecting the requisite scrutiny fee and other applicable
payments and granted renewal of building license.
18. The above discussion makes this Court come
to an irresistible conclusion that the impugned rejection
notice issued by the respondent municipality requires the
interference of this Court. Accordingly, the impugned
notice dated 11.10.2019 issued by the respondent
municipality is hereby quashed. There shall be a
consequential direction to the respondent to renew the
building license in favour of the petitioners after
collecting the requisite scrutiny fee and other applicable
payments, within a period of 4 weeks from the date of
receipt of copy of this order.
19. In the result, both the Writ Petitions are
allowed with the above directions. No costs.
Consequently, the connected miscellaneous petitions are
closed."
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W.P.No.23572 of 2021
8. By relying upon this decision, the learned counsel appearing for the
petitioner would submit that, the issue raised in this writ petition is squarely
covered by the said decision of this Court, before which a number of orders in
this regard had been passed. Therefore if at all the respondent insist the
petitioner to make an application, it should be only a fresh application and not
a new application and in this regard, whatever the fee they want to collect from
the petitioner, to consider his fresh application for renewal of the building
permission, that the petitioner would be ready and willing to pay it, hence, the
learned counsel seeks indulgence of this Court against the impugned
communication of the respondent dated 27.09.2021 and to issue a mandamus
to that effect.
9. Per contra, Mrs.Akila Rajendran, learned Government Advocate
appearing for the respondent, on instruction would submit that, even in the
impugned order, it has not been stated by the respondent Municipality that, the
application of the petitioner can not at all be considered. The only request or
requirement of the respondent Municipality is that, if at all the petitioner wants
to make a fresh application, it has to be made only in the website through
UTIS-software, as that is the only procedure available, since there is no
manual application received and processed by the respondent Municipality.
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W.P.No.23572 of 2021
10. However, in response to the said submission made by the learned
Government Advocate, learned counsel appearing for the petitioner would
contend that, if once the application is made in the website through UTIS
software, that would be routed through various cumbersome process, as if it is
a new application, that is the procedure to be avoided for filing a fresh
application to get renewal of the already lapsed building permission, that is
what has been reiterated in the aforesaid Judgment, he contended.
11. I have considered the said submission made by the learned counsel
appearing for the parties and have perused the materials placed before this
Court.
12. Now the stand of the respondent Municipality is that, whether it is a
fresh application or new application, the only way to make the application is
through the website of respondent Municipality, as no other go by making an
application in person or manually is available with the respondent
Municipality to accept the application.
13. However, merely because an application is made in the website
through UTIS-software, it cannot be construed that, all such application made
through that software are only new applications.
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W.P.No.23572 of 2021
14. Either it may be new application or fresh application, that should be
routed only through the UTIS software and therefore, the petitioner cannot
take any exception to the said mode of making an application
15. But at the same time that merely because the petitioner has made an
application through the mode of UTIS software, the respondent Municipality
also shall not consider it or construe it, as if that the petitioner makes a new
application to take the cumbersome route to consider it, as if, first time the
petitioner making application to get the relief concerned.
16. Instead, such an application, if any to be filed by the petitioner
through UTIS software as a fresh application as has been declared or
interpreted by this Court in the Judgment referred to above, the same shall be
treated only as a fresh application, of course after collecting the necessary fee
to that effect, the same shall be processed and the plea of the petitioner to get
renewal of the building permission can be considered accordingly and an order
to that effect may be passed within a time frame.
17. In that view of the matter, this Court feel that, this writ petition shall
be disposed of with the following order :
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W.P.No.23572 of 2021
"(i) that the petitioner is permitted to make a fresh
application for getting renewal of the building
license, which was lapsed in the year 2006 itself in
the website through UTIS software mode as
required by the respondent Municipality, within a
period of two weeks from the date of receipt of a
copy of this order.
(ii) On making such application through the said
UTIS software mode, the respondent Municipality
shall process the same, as if, it is only a fresh
application for getting renewal of already lapsed
building permission and not as a new application
and accordingly, decide the same in accordance
with law.
(iii) In this regard, whatever the fee to be collected
by the respondent Municipality for renewal of
building license can be collected from the
petitioner and on collecting the same, the final
order shall be passed by the respondent
Municipality in this regard with regard to the
renewal of the building permission. The needful as
indicated above shall be undertaken by the
respondent municipality within a period of Eight
weeks from the date of receipt of such online UTIS
software application afresh to be submitted by the
petitioner."
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W.P.No.23572 of 2021
18. With these directions, this writ petition is disposed of. No costs.
11.11.2021
tsvn
Index : Yes / No
Speaking order / Non-speaking order
To
The Commissioner
Dharapuram Municipality,
No.207-A, Park Road,
Dharapuram - 688 656,
Tiruppur District.
https://www.mhc.tn.gov.in/judis
W.P.No.23572 of 2021
R. SURESH KUMAR, J.
tsvn
W.P.No.23572 of 2021
11-11-2021
https://www.mhc.tn.gov.in/judis
