Madras High Court
Srinivasan vs The Commissioner on 28 June, 2023
W.P.Nos.17842 and 17907 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.Nos.17842 and 17907 of 2023
and
W.M.P.No.16966 of 2023
Srinivasan ..Petitioner in W.P.17842/2023
Vivek Valsaon ..Petitioner in W.P.17907/2023
Vs.
The Commissioner,
Udhagamandalam Municipality,
Hospital Road,
Upper Bazaar, Ootacamund,
The Nilgiris. ..Respondents in both the WPs
PRAYER in W.P.No.17842 of 2023: Writ Petition filed under Article
226 of the Constitution of India, praying for a writ of Certiorarified
Mandamus to call for the records of the proceedings in
Ka.Vi.No.54/2020/F2 dated 14.02.2023, on the file of the respondent and
to quash the same as illegal, and without jurisdiction and to consequently
direct the respondent to pass orders on the petitioner's building
application dated 01.09.2020.
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PRAYER in W.P.No.17907 of 2023: Writ Petition filed under Article
226 of the Constitution of India, praying for a writ of Mandamus to
direct the respondent to pass orders on the application for building
permission bearing No.B.A.No.29/2021/F1 within a time frame fixed by
this Court.
For Petitioners : Mr.K.Sharath Chandran in both WPs
For Respondent : Mr.P.Srinivas,
Standing Counsel in both Wps
*******
COMMON ORDER
The issue involved in the both the writ petitions are common
and hence they are taken up together, heard and disposed of through this
common order.
2. The petitioner in W.P.No.17842 of 2023 has challenged the
proceedings of the respondent in Ka.Vi.No.54/2020/F2 dated 14.02.2023
and has sought for consequential direction to the respondent to pass
orders on the building application submitted by the petitioner on
01.09.2020.
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3. The petitioner in W.P.No.17907 of 2023 has approached this
Court seeking for issue of a writ of Mandamus directing the respondents
to pass order on the application submitted by the petitioner seeking for
building permission within the time frame fixed by this Court.
4. Heard Mr.K.Sharath Chandran, learned counsel appearing
for the petitioners and Mr.P.Srinivasan, learned Standing Counsel
appearing for the respondent.
5. The learned Standing Counsel appearing on behalf of the
respondent/ Municipality sought for time to file counter in these writ
petitions. However, considering the fact that the issue involved in these
writ petitions are squarely covered by the earlier order passed by this
Court in L.Loganathan Vs. Commissioner of Udhagamandalam
Municipality reported in 2020 SCC OnLine Mad 18809 and the
subsequent order passed in B.Nagaraj Vs. The Commissioner of
Udhagamandalam Municipality in W.P.No.6674 of 2020 dated
03.03.2023, it will be an useless formality to wait for counter, since the
stand that was taken by the respondent / Municipality was considered
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W.P.Nos.17842 and 17907 of 2023
and only thereafter those orders were passed by this Court.
6. The case of the petitioners is that they are the absolute
owners of the subject property and they are claiming their right and title
through registered documents. The petitioners submitted their
applications seeking for building permission before the respondent/
Municipality under the Tamil Nadu District Municipalities (Hill Stations)
Building Rules, 1993, for grant of permission to construct a residential
building. Pursuant to the same, the report was also sought for from the
Tahsildar and the Tahsildar has submitted a report to the effect that the
building is within 150 Kms from the reserve forests. In view of the
same, the respondent seems to have come to the conclusion that the
building permission cannot be granted in view of the bar under Section
7(2) of the Tamil Nadu District Municipalities (Hill Stations) Building
Rules, 1993.
7. The very same issue was considered by this Court in the
earlier writ petitions that have been referred supra. In fact, the order
passed in W.P.No.6674 of 2023 had taken into consideration the earlier
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order passed by this Court and it was held as follows:-
23. In L.LOGANATHAN Vs. THE
COMMISSIONER, UDHAGAMANDALAM
MUNICIPALITY, UDHAGAMANDALAM, NILGIRIS
(W.P.No.10262 of 2020), the learned Single Judge of
this Court extensively considered the Master Plan
and Development Control Rules applicable to the
Hill areas and also considering the Rule 7 (2) had
directed the authorities to grant permission and the
above order has also been complied. The above
judgment was passed on 04.09.2020. Despite this
Court interpreted and directed the authorities to
grant permission, the authorities simply rejected the
application citing Rule 7(2). Such act of the officials
is certainly take away the rights of the citizens to
have a decent living with dignity and to shelter and
also it violates fundamental rights.
24. Therefore, considering the above, the
rejection citing Rule 7(2) is improper and already a
judgment of this Court interpreted the rules in the
latest judgment in W.P.No.10262 of 2020 and the said
order has been complied and therefore, the same is
binding on the authorities, as they are already parties
to the above said writ petition and the same is also
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binding on the Commissioner, Udhagamandalam
Municipality.
25. In such view of the matter, the
impugned order is set aside. Respondent is directed
to consider the application and grant permission, if it
is otherwise in order and also there shall be a
direction to the Commissioner of Udagamandalam
Municipality not to reject any such application in
future merely on the ground of Rule 7 (2), if the
application satisfies the other parameters provided in
the approved Master Plan.
8. In view of the above, it is quite clear that the respondent
cannot reject the application by quoting Rule 7(2) of the Tamil Nadu
District Municipalities (Hill Stations) Building Rules, 1993 and the
application has to be considered independently without any reference to
Rule 7(2). These writ petitions can also be disposed of in terms of the
above orders referred supra.
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9. In the light of the above discussion:
a) W.P.No.17842 of 2023 is allowed and the
impugned proceedings of the respondent in
Ka.Vi.No.54/202/F2 dated 14.02.2023 is hereby set aside.
The respondent is directed to process the application
submitted by the petitioner seeking for building permission
and it shall be considered and permission shall be granted,
if it is otherwise in order without making reference to Rule
7(2) of the Tamil Nadu District Municipalities (Hill
Stations) Building Rules, 1993. This process shall be
completed by the respondent within a period of four (4)
weeks from the date of receipt of a copy of the order.
b) W.P.No.17907 of 2023 is allowed and the
respondent is directed to process the application submitted
by the petitioner seeking for building permission and it
shall be considered and permission shall be granted, if it is
otherwise in order without making reference to Rule 7(2)
of the Tamil Nadu District Municipalities (Hill Stations)
Building Rules, 1993. This process shall be completed by
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the respondent within a period of four (4) weeks from the
date of receipt of a copy of the order. No costs.
Consequently, the connected miscellaneous petition is
closed.
28.06.2023
dsa
Index :Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
Speaking order/ Non-speaking order
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W.P.Nos.17842 and 17907 of 2023
To:-
The Commissioner,
Udhagamandalam Municipality,
Hospital Road,
Upper Bazaar, Ootacamund,
The Nilgiris.
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W.P.Nos.17842 and 17907 of 2023
N.ANAND VENKATESH, J.
dsa
W.P.Nos.17842 and 17907 of 2023
28.06.2023
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