Madras High Court
The Secretary vs The Director Of Town & Country ... on 28 November, 2022
W.P(MD)No.7028 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.11.2022
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.7028 of 2015
and
M.P(MD)No.1 of 2015
The Secretary,
Servite College of Education for Women,
Therkupallam, Thogaimalai,
Karur District-621 313,
Managed by the Sisters of the
Congregation of Mother of Sorrows,
Servants of Mary. ... Petitioner
Vs.
1.The Director of Town & Country Planning,
Directorate of Town & Country Planning,
No.807, Anna Salai, Chennai-600 002.
2.The Deputy Director of Town & Country Planning,
10, Williams Road,
Contonement, Tiruchirapalli-620 001.
3.The President / District Collector,
Tiruchirapalli Local Planning Authority,
Tiruchirapalli, Tiruchirapalli District.
4.The Member Secretary,
Tiruchirapalli Local Planning Authority,
Tiruchirapalli, Tiruchirapalli District.
1/10
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W.P(MD)No.7028 of 2015
5.Thogaimalai Panchayat Union,
Represented by its President,
Karur, Karur District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorari, calling for the
records relating to the impugned notice issued by the second respondent
Deputy Director of Town and Country Planning in Na.Ka.No.1484/ 2014
Thi.ma2, dated ...03.2015, quash the same.
For Petitioner : M/s.K.Ragatheesh Kumar
for M/s.Isaac Chamber
For R-1 to R-4 : M/s.A.Baskaran
Additional Government Pleader
For R-5 : M/s.G.Muthukannan
ORDER
The present Writ Petition has been filed challenging an order
passed by the second respondent herein under Section 56 and 57 of the
Tamil Nadu Town and Country Planning Act, 1971.
2. According to the learned Counsel for the petitioner, they have
constructed the buildings prior to 01.01.2011. Thereafter, the Tamil
Nadu Town and Country Planning Act was amended and Section 47-A
was introduced for non-planning areas. Since the constructions were
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W.P(MD)No.7028 of 2015
located in the non-planning areas, the authorities under the impugned
order have invoked Section 47-A and proceeded to issue this lock and
seal order on the ground that, they have not obtained building plan
approval from the first and second respondents herein.
3. According to the learned Counsel for the petitioner, Section
47-A is prospective in nature (i.e.) for any building that is to be
constructed on or after 01.01.2011. The building in question have been
constructed prior to the said date and hence, Section 47-A is not
applicable to the petitioner Institution.
4. The learned Counsel for the petitioner had further contended
that the Government has issued G.O.Ms.No.76 Housing and Urban
Development [UD4(3)] Department, dated 14.06.2018. Under the said
Government order, the Educational Institutions, who have constructed
the buildings prior to 01.01.2011 in non-plan area were permitted to
approach the authorities for regularizing their constructions. This
Government order was challenged by the Educational Institutions in a
batch of writ petitions in W.P.Nos.18539 of 2018 and other writ
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W.P(MD)No.7028 of 2015
petitions, and they were disposed of by an order, dated 10.12.2018.
Paragraph Nos.12 and 13 of the order reads 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 01.11.2011, 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 01.11.2011 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 01.11.2011 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 second 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 second
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W.P(MD)No.7028 of 2015
respondent shall consider the same to grant the benefits.
13. With the above said 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 14.06.2018, issued by the first respondent
and the consequential Government Order in G.O.167, School
Education (MS) Department, dated 07.08.2018 on the file of
the third respondent are hereby quashed."
5. This order of the learned Single Judge was challenged before
the Hon'ble Division Bench in a batch of writ appeals in W.A.No.233 of
2019 etc., and they were disposed of by an order, dated 10.02.2021.
Paragraph Nos.8, 13 and 14 of the order reads as follows:
"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 W.P.No.17178 of 2018 wherein it was
stated as follows:-
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W.P(MD)No.7028 of 2015
"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
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W.P(MD)No.7028 of 2015
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"
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 W.P.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
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W.P(MD)No.7028 of 2015
Planning to process the applications already filed by the
educational institutions during the pendency 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."
6. In view of the above said judgments, Section 47-A is not
applicable to the buildings of the petitioner College. That apart, they are
applicable only to the constructions that have been put up after
01.01.2011. The said Section does not have any retrospective effect.
Since there is no building plan violation by the petitioner College, the
question of invoking Section 56 and 57 of the Tamil Nadu Town and
Country Planning Act does not arise.
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W.P(MD)No.7028 of 2015
7. In view of the above said facts, the order impugned in the writ
petition is set aside. The writ petition stands allowed. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition stands
closed.
28.11.2022
Index : Yes / No
Internet : Yes / No
btr
To
1.The Director of Town & Country Planning,
Directorate of Town & Country Planning,
No.807, Anna Salai, Chennai-600 002.
2.The Deputy Director of Town & Country Planning,
10, Williams Road,
Contonement, Tiruchirapalli-620 001.
3.The President / District Collector,
Tiruchirapalli Local Planning Authority,
Tiruchirapalli, Tiruchirapalli District.
4.The Member Secretary,
Tiruchirapalli Local Planning Authority,
Tiruchirapalli, Tiruchirapalli District.
5.The President,
Thogaimalai Panchayat Union,
Karur, Karur District.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.7028 of 2015
R.VIJAYAKUMAR, J.
btr
Order made in
W.P(MD)No.7028 of 2015
28.11.2022
https://www.mhc.tn.gov.in/judis
