Madras High Court
Good Shepherd International ... vs The Principal Secretary To ... on 14 July, 2023
C.R.P.No.1704 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.No.1704 of 2019
and C.M.P.No.10943 of 2019
Good Shepherd International School,
Rep. By its Custodian & Public Relations Officer,
C.K.Dhananjayan,
Governor Shola Road, Fernhill,
Udhagamandalam,
Nilgiri District. .. Petitioner
vs
1.The Principal Secretary to Government
Department of Municipal Administration and
Water Supply,
Government of Tamil Nadu,
Fort St.George, Chepauk,
Chennai – 600 009.
2.The Commissioner,
Udhagamandalam Municipality,
The Nilgiris District. .. Respondents
Petition filed under Section 217L of the Tamil Nadu District
Municipalities Act, 1920 as amended by Tamil Nadu Act 58 of 1982
read with Article 227 of the Constitution of India to set aside the
order passed by the second respondent in his proceedings in UAC
No.21/1995 (s) dated 05.12.2008, as confirmed by the first
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1/20
C.R.P.No.1704 of 2019
respondent in his proceedings in Letter (Pa) No.106/Ne.Ne.-1/2019
dated 01.03.2019.
For Petitioner : Mr.Raja Kalifulla,
Senior Advocate
for Mrs.M.Thenmozhi
For Respondents : Mr.B.TamilNidhi
Additional Government Pleader
(CS) for R1
Mr.P.Srinivas, for R2
ORDER
The petitioner school has invoked the jurisdiction of this Court
under Section 217L of the Tamil Nadu District Municipalities Act,
1920 (in short, 'the Act'). The primary sections which fall for
interpretation are Section 217DD and Section 217J of Chapter XA of
the Act.
2. The petitioner school was started in the year 1978. It
purchased a property to an extent of 19.04 acres, together with
construction of 5000 square meters from the family of erstwhile
Maharaja of Baroda. It shifted the school to the premises in 1979.
From 1992 onwards, the building has been assessed to property
tax.
3. The Government brought in Chapter XA of the Act in the
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C.R.P.No.1704 of 2019
year 1992, to be specific, through the Tamil Nadu Act 58 of 1982,
with effect from 09.12.1992.
4. The cause of action for this petition is that the District
Collector had issued a notice to the institution on 14.07.1995 calling
upon an explanation from the School as to how it is putting up a
new construction measuring 59' x 22' 9” and 68' 9” x 75' 9”. The
said construction is alleged to be the ground, first and second floors.
It is accepted by both sides that the area of the School falls within
the 'prohibited zone' as per the master plan for the town of
Udhagamandalam.
5. In response to the show-cause notice dated 14.07.1995,
a reply was issued on 20.07.1995 stating that the building is
already in existence and all that is being done is strengthening, re-
plastering and re-flooring of the said building. Matter lay like this for
a period of nearly two decades.
6. One Elephant Rajendran, initiated a PIL before Court
regarding large scale violations that were taking place in Ooty and
the unauthorized construction that are happening therein. This, was
by way of a public interest litigation, in W.P.Nos.32747 and 32855
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C.R.P.No.1704 of 2019
of 2007. Directions were passed by this Court in the aforesaid writ
petitions to the municipalities and other authorities to initiate action
against any violation of laws. The said direction was issued on
19.02.2008.
7. Pursuant to these above directions, notice was issued
under Section 217J (1) of the Act. The Udhagamandalam
municipality issued a notice on 02.05.2008. The allegation of the
Municipality is that, the construction to an extent of 6601 square
feet had been made by the petitioner. Treating this as illegal, notice
was issued under Section 217J of the Act by the Executive Authority
of Udhagamandalam Municipality. A reply was issued by the civil
revision petitioner stating that they were taken by surprise for the
notice dated 02.05.2008 and that they had promptly replied to the
notice issued by the Collector on 20.07.1995 and that they have
paid the property tax and there is nothing illegal.
8. However, not being satisfied with the reply, on
05.12.2008, the show-cause notice was confirmed holding that the
building is a newly constructed building attracting the provisions of
Section 217J of the Act. Challenging the same, a review was filed
before the first respondent under Section 217K of the said Act. The
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C.R.P.No.1704 of 2019
review was filed in the year 2009 but was kept pending for a period
of nearly 10 years. It was finally taken up on 15.02.2019 fixing the
hearing date as 21.02.2019. Immediately on receipt of the letter, a
reply was given by the civil revision petitioner stating that being a
very short time, an opportunity may be afforded to them by
adjourning the matter for a period of thirty days. However, it is on
record that one Dhananjayan had appeared before the authorities
on behalf of the civil revision petitioner. Not being satisfied with the
response given by the said Dhananjayan, the Government
dismissed the review, against which the present revision has been
filed.
9. I have heard Mr. Raja Kalifulla, learned Senior Advocate
for Ms.Thenmozhi, learned counsel on record for the petitioner,
Mr.Tamil Nithi, learned counsel for the first respondent and
Mr.P.Srinivas, learned counsel for the second respondent.
10. Two fold submissions were made by Mr.Raja Kalifulla,
learned Senior Advocate.
10.1 The Executive Authority does not have jurisdiction to
issue a notice under 217J of the Act. He makes the submissions on
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the ground under Section 217DD of Chapter XA of the Act, the
power to grant licence for a building exceeding 250 square meters is
available only with the State Government and Municipality has the
power only to initiate action only if the construction is less than 250
square meters.
10.2 The next submission is that sufficient opportunity was
not afforded to the petitioner by the first respondent and, therefore,
this Court has to set aside the same.
11. Mr.P.Srinivas, learned counsel appearing for the
Executive Authority drew my attention to Section 217-O (2) stating
that Chapter XA is in addition to and not in derogation of the powers
conferred under the Act. For any unauthorized or unplanned
development under the Act, the Executive Authority has the power
to issue notice to stop work. Finally, both Mr.Tamil Nithi, learned
counsel for first respondent and Mr.P.Srinivas, learned counsel for
the second respondent, would submit that one Dhananjayan having
appeared before authority and having made his submissions, there
has been sufficient compliance with the principle of natural justice.
Therefore, they pray for dismissal of the civil revision petition.
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C.R.P.No.1704 of 2019
12. I have carefully considered the arguments on either
side. I have applied my mind to the facts of the case and to the
relevant statutory provisions and authorities cited before me.
13. Taking up the first argument, if I agree with learned
Senior Advocate that Section 217J of the Act is a stand alone
provision, then, the Executive Authority cannot issue a notice at all.
However, if I disagree with him, then, the notice that has been
issued and the consequential order that has been passed have to be
held as within the jurisdiction of the said authority. The argument as
already extracted shows that Section 217DD has to be read into
Section 217J. This is because, Section 217J itself does not have any
limitation with respect to the extent of construction.
14. Reading Section 217DD, one is able to see that the
State Government amended the law in the year 1998. The said
amendment was introduced because prior to the amendment, even
for grant of licence, person living in the hill station had to approach
only the State Government. This made the provision nearly
unworkable. It would have well-nigh impossible for ordinary
residents to rush to Chennai to move the Government for securing
permission.
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15. Perhaps, taking into consideration the difficulties faced,
the amendment came into force conferring the power to the
Executive Authority for granting licences for construction not
exceeding 250 square meters. This is clear from a reading of
Section 217D and the amendment, which occurred in 1998, by
inclusion of 217DD.
16. The power to grant licence is different from the power to
initiate action for unauthorized construction. For example, as in the
present case, the allegation is that the construction had gone on in
a prohibited zone i.e., next to Udhagamandalam Lake. This is
referable to Rule 5 sub-clause (5) of the Tamil Nadu District
Municipalities (Hill Stations) Building Rules, 1993. As per Rule 5,
sub-clause (5), no construction is permitted within 200 meters of
the boundaries of the lake in Kodaikanal and Udhagamandalam,
100 meters of the boundaries of Gymkhana grounds in Kodaikanal,
100 meters from the boundaries of Race course in
Udhagamandalam and 100 meters from the boundaries of SIMS
Park at Conoor. The Rule also makes it clear that apart from the ban
on construction, the existing character and manner of the buildings,
which stood as on 13.06.1993, cannot be amended.
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17. The power to grant licence under Section 217D and
Section 217DD are enabling provisions for a person who wants to
develop his property. In case, a person does not apply for licence
under Section 217D or under Section 217DD, then his/her action
will invite the wrath of action under Section 217J.
18. Learned Senior Advocate would argue that under
Section 217J, the State Government as well as the Executive
Authority have been given power to initiate action but I should read
the limitations placed on Section 217DD into Section 217J. To
expand on this, my understanding of the argument is that, if the
unauthorized construction is below 250 square meters only the
Executive Authority will have the power to initiate action and for
construction above 250 square meters it is the State Government
which will have the powers.
19. Learned Senior Advocate raises the above argument
because admittedly the construction of the property is 6601 sq ft
per floor, which comes to more than 19,000 square feet and,
therefore, exceeds the limit under Section 217DD. So his argument
is that only the State Government has the power under Section
217J.
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C.R.P.No.1704 of 2019
19.1 I am unable to accept the said submission on two
grounds.
19.2 Section 217DD has a non-obstante clause. In the non-
obstante clause it does not deal with Section 217J. Similarly,
reading of Section 217J does not show anywhere that the extent of
the unauthorized construction shall be a jurisdictional divide to issue
stop work notice by the Executive Authority or by the State
Government. Section 217J reads as follows:-
“217-J. Power to stop work .— (1) The State
Government 1 [or the Executive Authority as
the case may be] may, at any time by notice
in writing, direct the owner, lessee or
occupier of any land in a hill station
(a) to stop the construction or
reconstruction of any building on such land ;
or
(b) to stop the user of any building or land
for any purpose ; or
(c) to alter or demolish, within such time as
may be specified in the notice, any building
or any part there of, or
(d)to stop the user of any agricultural land
for non-agricultural purpose; or
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C.R.P.No.1704 of 2019
(e) to stop the building, engineering, mining
or other allied operations,
if in the opinion of the State Government 1
[or the Executive Authority as the case may
be,] the construction or reconstruction of
the building or part thereof, the user of the
building or land or the user of any
agricultural land for non-agricultural purpose
or the carrying out of the building,
engineering, mining or other allied
operations is in contravention of any of the
provisions of this Act and in particular, the
provisions of this Chapter or the rules made
thereunder or any of the terms and
conditions subject to which a licence is
granted under this Chapter.
(2) If any direction. given under sub-section
(1) is not complied with, within the time
specified in the notice, the State
Government [or the Executive Authority as
the case may be] may have such direction
carried into effect at the cost of the local
authority of the hill station concerned and
the amount thereof shall be recovered from
the defaulter by the said local authority as if
it were an arrear of land revenue.”
19.3 Where the section is clear, I need not labour myself with
any more than reading the section itself. Section 217J operates
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when work has commenced without requisite permission. At the
time of commencing of the work, the Executive Authority or the
State Government will have no idea as to what extent the person is
proposing to violate the law. To assume that the construction will be
only less than 250 square meters is a matter which cannot be read
into the Section. The extent of violation is known only to the
violator.
20. When a stop work notice is given, perhaps only ground
work would have just commenced. Therefore, the limitation on
extent of construction cannot be read into Section 217J. Apart from
the lack of non-obstante clause excluding Section 217J and the fact
that there is no limitation in Section 217J itself, I agree with
Mr.P.Srinivas, that the Executive Authority will have the power by
virtue of the other provisions of the Act. It cannot be disputed that
the Executive Authority has been empowered by the Act to stop
unauthorized construction under the Act.
21. A reading of Section 217-O(2) makes it clear that the
provisions under Chapter XA is in addition to and not in derogation
of any of the provisions of the Act. Therefore, reading all the three
together, I have come to the irresistible conclusion that the
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Executive Authority has the power to initiate action irrespective of
the extent of violation.
22. I am not willing to telescope Section 217DD into Section
217J for the simple reason that if I were to do so, I will not be
interpreting the Section but I will be amending the section and I will
be bringing into the fold of the non-obstante clause in Section
217DD, the provision of Section 217J. I am not willing to do so as
the Court has the power only to interpret laws and not to amend the
laws. Therefore, on the question of jurisdiction, I hold against the
petitioner.
23. I take support of the judgment of this Court in
W.P.No.7069 of 1996 order dated 23.01.2003 (DB). Speaking for
the Division Bench, Justice Sirpurkar (as he then was), held as
follows:-
“7. The contention raised by the learned
Government Advocate appears to be a
correct contention. Merely because
Sec.217DD has been introduced by way
of an amendment, it does not divest the
Collector of the power if the power of the
State Government has been delegated to
him. It will be seen that all the notices
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pertain to the buildings which are already
in existence. The Collector has issued those
notices because the Collector finds prima
facie that it is necessary to stop the
construction/reconstruction activities or to
stop the user of the building or of altering
or demolishing the existing building, etc.
However, Sec.217DD operates in a very
limited sphere. It pertains to the buildings
which are essentially the residential
buildings and which do not exceed 250
sq.mts. in plinth area. The purpose of the
section is only to empower the Executive
authority for the grant of licence to
construct the buildings, which are residential
in nature and which are not to exceed 250
sq.mts. in plinth area. There is no power to
deal with an existing building under that
provision. If any existing building or any
building, the construction of which is in
progress, is in contravention of the norms
then, the State Government or the
Executive authority, as the case may be,
would alone have the power under Sec.217J.
Up to the amendment, which was introduced
in the year 1998, this power was only
concentrated in the State Government;
now that power is also given to the
Executive authority but, that is under
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Sec.217J. The essential difference between
Sec.217DD and Sec.217J, at least in so far
as it concerns the buildings, is that
Sec.217 DD is in respect of grant of
licence to construct the building while
Sec.217J is for the purposes of controlling
the constructions already in existence, fully
or partly. Therefore, there is nothing
wrong if the Collector, in whose favour there
is a valid delegation of power of the State
Government, exercises the power under
Sec.217J. In all these petitions, the
buildings are in existence and, therefore, in
our opinion, there is nothing wrong if the
notices are issued by the Collector who had
the necessary authority to do so.”
(emphasis supplied)
24. The Division Bench had pointed out the essential
difference between Section 217DD and Section 217J. A reading of
the judgment shows that Section 217J does not operate in the same
field as Section 217DD and, therefore, there is no bar on the
Executive Authority of the Udhagamandalam Municipality for
initiating action as against any violation of the master plan.
25. Turning to the second point, I have to agree with
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Mr.Raja Kalifulla, learned Senior Advocate that the first respondent
had not given a fair opportunity to the petitioner to place its case
before it. The petitioner had moved the authorities, taking the
assistance of a lawyer, even as early as 2009, when it filed the
appeal. But for the reasons best known to the first respondent,
notice was not issued to the lawyer, but it was sent directly to the
petitioner at Udhagamandalam.
26. Immediately on receipt of the letter, the civil revision
petitioner had brought to the notice of the first respondent that it
wants a month's time for the purpose of gathering documents and
evidence to place it before the first respondent. The said request for
adjournment had not been specifically refused but nonetheless the
review had been taken up for hearing on 21.02.2019.
27. Learned Senior Advocate would submit that on that day
i.e., 21.02.2019 Mr.C.K.Dhananjayan, PRO/custodian appeared
before the authority and had sought for time and the authority also
graciously agreed to grant time. He would state that his client was
under the impression time was being granted and therefore, he had
left the premises. The civil revision petitioner has made a specific
statement in paragraph 9 of the affidavit in support of the stay
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C.R.P.No.1704 of 2019
application that no enquiry / no hearing was conducted. To the said
specific averment, the first respondent has not gone on record by
way of any counter.
28. Fixing a time for hearing is not a formality. The
petitioner ought to have been granted sufficient time to make its
case, especially when the appeal is taken up for hearing after a
lapse of nearly ten years. He had sought for time because he had
filed appeal through a lawyer but the lawyer had not been put on
notice of the hearing at all. Having received the request for
adjournment, heavens would not have fallen if the matter had been
adjourned especially when the matter had been kept pending before
the authority for ten years.
29. Learned Senior Advocate also would point out that
insofar as the building in question is concerned, they had obtained
permission from the authority as early as 12.10.1982.
30. This statement is seriously disputed by Mr.P.Srinivas,
learned counsel for the second respondent. He would state that the
building covered under the building plan B.A.No.205/82
L.No.162/82 dated 12.10.1982 is not the construction which is the
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C.R.P.No.1704 of 2019
subject-matter of the dispute. He would state that as per the show-
cause notice issued by the Collector, the construction had
commenced in and around July, 1995 and the said building which
has been put up in 1982 is a different building and not the building
which is the subject-matter of the civil revision petition.
31. I am not going into the said issue at this stage. I feel
that sufficient opportunity had not been granted to the petitioner,
and his advocate was not put on notice by the first respondent.
Therefore, while setting aside the order of the first respondent, I
remit the matter to the first respondent to have a re-look at the
said review. It is made clear that the first respondent will not go
into the issue of jurisdiction of the Executive Authority as I have
concluded that the authority has jurisdiction to issue notice under
Section 217J. The authority shall grant sufficient time not less than
two weeks to the petitioner to make his submissions.
32. Prior to passing the order, the first respondent shall
hear the second respondent, who shall, if necessary, file a report in
reply to the review. It is always open to the second respondent to
adopt the report already filed or file a fresh report, if it so desires.
The said exercise of hearing the petitioner and the second
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C.R.P.No.1704 of 2019
respondent and passing an order shall be completed within a period
of three months from the date of receipt of a copy of this order. In
any event, the proceedings should conclude on or before
31.10.2023.
33. With the above directions, this civil revision petition is
allowed. No costs. Connected miscellaneous petition is closed.
14.07.2023
Index:Yes/No
Neutral Citation:Yes/No
ssm
To
1.The Principal Secretary to Government
Department of Municipal Administration and
Water Supply,
Government of Tamil Nadu,
Fort St.George, Chepauk,
Chennai – 600 009.
2.The Commissioner,
Udhagamandalam Municipality,
The Nilgiris District.
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C.R.P.No.1704 of 2019
V. LAKSHMINARAYANAN,J.
ssm
C.R.P.No.1704 of 2019
14.07.2023
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