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Narayandas Gupta Vs. the Special Officer (Town Planning Committee, Corporation Council) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1980)2MLJ39
AppellantNarayandas Gupta
RespondentThe Special Officer (Town Planning Committee, Corporation Council) and ors.
Cases Referred and Natarajan v. Naina Mohamed
Excerpt:
.....according to the respondents, as per section 241 of the madras city municipal corporation act, a building application has to be refused if there is any contravention of any specified provision of any law, order, rule or by-law, and any sanction of the building application without obtaining planning permission under section 49 of the town and country planning act would contravene section 241. 9. the petitioner, however, contends that (i) the requirement of a planning permission under section 49 is not necessary as the sanction sought for is only for additional construction in the site already approved, (ii) even if planning permission is necessary the respondents acting under section 241 cannot insist on a planning permission, when there is no detailed development plan with reference to..........third respondent dated 18th july, 1977 rejecting his application dated 13th december, 1973 for a building licence. it is quite unfortunate that even for getting the said impugned order of rejection the petitioner had to seek the aid of this court more than once. the circumstances under which the impugned order had been passed may briefly be noted.2. the petitioner has taken on lease on 11th july, 1963 the land appurtenant to victoria public hall measuring about 10 grounds in 576/a, poonamallee high road, madras for the purpose of running a restaurant for a period of twenty years at a monthly rent of rs. 1,250 from the victoria public hall trust. the said land formed part of a larger block of land measuring 57 grounds taken on lease by the said trust from the corporation of madras for.....
Judgment:
ORDER

G. Ramanujam, J.

1. The petitioner herein seeks a writ of certiorari to quash the order of the third respondent dated 18th July, 1977 rejecting his application dated 13th December, 1973 for a building licence. It is quite unfortunate that even for getting the said impugned order of rejection the petitioner had to seek the aid of this Court more than once. The circumstances under which the impugned order had been passed may briefly be noted.

2. The petitioner has taken on lease on 11th July, 1963 the land appurtenant to Victoria Public Hall measuring about 10 grounds in 576/A, Poonamallee High Road, Madras for the purpose of running a restaurant for a period of twenty years at a monthly rent of Rs. 1,250 from the Victoria Public Hall Trust. The said land formed part of a larger block of land measuring 57 grounds taken on lease by the said Trust from the Corporation of Madras for 99 years on a nominal rent of 50 paise per ground per annux under lease deed dated 18th February, 1888. Under the lease deed dated 11th July, 1963 the trustees had granted the lessee permission to construct a building conforming to the architectural design of the Victoria Public Hall main building. The lease deed provided that at the end of the lease period the petitioner has to hand over the superstructure built by him on the leasehold land to the lessor, the Victoria Public Hall Trust. Thereafter the petitioner applied for permission to the Corporation to build a hotel on the leasehold land. Permission was, however, refused by the Corporation on 30th April, 1964 on the ground that the Victoria Public Hall Trust which is a lessee from the Corporation had no power to lease out the land for running a hotel. On appeal by the petitioner the Government, by G.O. Ms. No. 1689 dated 21st January, 1965 cancelled the rejection. The Corporation filed a review petition which was also rejected by the Government by Memo dated 20th October, 1956. Thereafter the plan for construction of a hotel was sanctioned by the Corporation on 29th December, 1965 and the construction of hotel building was started immediately. While the construction was in progress, the Corporation filed a suit O.S. No. 2083 of 1968 for a declaration that the Victoria Public Hall Trust was not entitled to lease out the premises taken on lease by it from the Corporation and for an injunction restraining the petitioner from constructing a hotel on the leasehold land. Since no injunction was granted restraining construction, construction was completed in 1968. After completion of the building the petitioner applied for the grant of a licence to the Corporation for running a hotel therein but that application was rejected on 13th March, 1969 on the pretext that a civil suit is pending. The petitioner filed W.P. No. 752 of 1969 for the issue of a writ of mandamus to grant the said hotel licence. The said writ petition was allowed by Ismail, J. (as he then was), by an order dated 21st April, 1969 and a mandamus was issued directing the grant of a licence. The petitioner then started running a hotel by name 'Hotel Picnic'. The said suit filed by the Corporation was, however, dismissed by the trial Court on 17th April, 1969. The Corporation filed an appeal which was allowed. The Victoria Public Hall Trust and the petitioner filed independent second appeals both of which were allowed on 23rd November, 1972 this Court upholding the validity of the lease in favour of the petitioner.

3. The petitioner, with a view to put up a multistoreyed structure adjoining the existing building where he carries on his hotel approached the V. P. Hall Trust and obtained its consent therefore on 11th October, 1973 on condition that he pays an enhanced land rent of Rs. 1, 500, as against Rs. 1,250. agreed earlier. He also obtained an extension of the lease period up to the year 2027. He thereafter applied to the Corporation for sanction of the building plan on 13th December, 1973 and also paid a sum of Rs. 10,140, as the requisite licence fee.

4. The Corporation by its letter dated 17th December, 1973 wanted a 'no objection certificate' from the Police. The petitioner complied with that formality. Thereafter the Corporation required the petitioner to furnish some other particulars which were accordingly given. Later, the Engineer of the Corporation by his letter dated 29th March, 1974 wanted a letter from the Victoria Public Hall Trust Board approving the fresh proposal, with a copy of the minutes of the Board meeting. The petitioner furnished the requisite letter and the copy of the resolution. Thereafter, the Engineer of the Corporation again by his letter dated 23rd July, 1974 directed the petitioner to produce the judgment of the High Court in Second appeal Nos. 1350 of 1970 and 1262 of 1971 in both of which the Corporation is actually a party. At that stage the petitioner took up the stand that since the Corporation was a party to the said proceedings before the High Court, it should have a copy of the High Court's judgment, and that, therefore, it is not justified in calling upon the petitioner to produce the same. The petitioner also took up the stand that the production of the High Court's orders cannot be insisted upon under Section 240(4) of the Madras City Municipal Act. Thereafter the Engineer of the Corporation by his letter dated 18th September, 1974 rejected the petitioner's building application on the ground that the petitioner had not produced the said judgment of the High Court. Aggrieved against the said order of rejection by the Engineer, the petitioner filed an appeal as prescribed in the Act to the Social Officer, (Town Planing Committee) Corporation Council, Madras, who, by his order dated 24th April, 1975 confirmed the rejection Then the petitioner filed Writ Petition No. 4367 of 1975 seeking a writ of mandamus contending that the Corporation authorities are not entitled to call upon the petitioner to produce the orders of the High Court in proceedings to which the Corporation was a party and that to the rejection of the petitioner's application for building licence on the ground that the High Court's orders were not produced is not sustainable,

5. When the said writ petition came up for hearing, this Court though felt that the Corporation was not justified in calling upon the petitioner to produce the judgment of the High Court, directed the petitioner to furnish a copy of the High Court's orders to the Corporation in compliance with the direction contained in its letter dated 23rd July, 1974 without prejudice to his contentions so as to expedite the issue of the licence. In pursuance of that direction the petitioner furnished copies of the orders of the High Court in the earlier proceedings to the Corporation so as to enable it to grant the to building licence without further delay. Having regard to the fact that the only ground of rejection having ceased to exist, and the petitioner having became entitled to a building licence, the Court was about to issue a mandamus for that purpose. At that stage the counsel for the Corporation represented that by its letter dated 13th August, 1976 the petitioner had been asked to meet certain other new points. This Court, therefore, without straightaway issuing a mandamus directed the Corporation by its order dated 13th August, 1976 to dispose of the building application expeditiously without raising any new and further objection relating to the building regulations frame under the City Municipal Act, apart from the points raised in its letter dated 13th August, 1976. Though the petitioner, by his letter dated 10th September, 1976 made his representation with regard to the new points, the building application was not disposed of. As there was considerable delay in the disposal of the building application, the petitioner filed Writ Petition No. 542 of 1977 to direct the Corporation to pass orders on his application without delay. When notice was served on the said writ petition, the Corporation passed orders on 12th July, 1977 rejecting the application for building licence. Since orders have been passed on his building application, the said writ petition was withdrawn on 18th July, 1977 and the present writ petition was filed on 1st February, 1978 against the said order of the Corporation rejecting the application for licence.

6. Though rule nisi herein was served on the respondents on 14th February, 1978, no counter-affidavit was filed nearly for two years by the respondents. Even when the writ petition was ultimately taken up for hearing the respondents did not show any anxiety to file a counter-affidavit and their sole aim appeared to be to drag on the proceedings. Ultimately when the writ petition was being heard, the counsel for the Corporation during his arguments referred to certain orders and notifications as enabling them to reject the petitioner's application. When the Court pointed out that it is not open to the respondents to refer to certain documents without filing any counter-affidavit and without giving copies of the same to the other side, they took time and filed a counter-affidavit on 18th January, 1980.

7. In the counter-affidavit the respondents have justified their rejection on the ground that the petitioner has not obtained the planning permission required under Section 49 of the Town and Country Planning Act, 1971, as amended by Act XXXV of 1972. In the counter-affidavit the respondents had proceeded on the basis that this Court has directed the petitioner in its order in W.P. No. 4367 of 1975 to furnish the planning permission. But this Court did not go into the question as to whether planning permission is necessary or not at that stage. What this Court observed then was that as the only objection raised by the Corporation earlier for the grant of sanction of the building application having been met by the petitioner there is no impediment for the grant of sanction of the building application of the petitioner, but as the Corporation has raised certain new points at the last minute, the petitioner may satisfy the Corporation on those points. At that stage the Court was not concerned with the validity of the requirement as to planning permission. Thus the only question that arises now is whether the petitioner has to obtain the planning permission for obtaining the sanction of the building application as contended by the respondents.

8. According to the respondents, as per Section 241 of the Madras City Municipal Corporation Act, a building application has to be refused if there is any contravention of any specified provision of any law, order, rule or by-law, and any sanction of the building application without obtaining planning permission under Section 49 of the Town and Country Planning Act would contravene Section 241.

9. The petitioner, however, contends that (i) the requirement of a planning permission under Section 49 is not necessary as the sanction sought for is only for additional construction in the site already approved, (ii) even if planning permission is necessary the respondents acting under Section 241 cannot insist on a planning permission, when there is no detailed development plan with reference to the area in question, (Hi) that in any event the application having been filed in 1973 long before the Act came into force that will be governed by the law in force then and in respect of such application Section 43 cannot apply, and (iv) that the action of the respondents in rejecting the petitioner's application for building licence is not bona fide but is motivated by strong animosity against the petitioner and as such the impugned order is liable to be quashed. The petitioner further contends that, though the application for permission was filed on 13th December, 1973 the respondents had purposely delayed the grant of permission to build as will be evident from their earlier conduct in questioning the validity of the petitioner's lease as being against the terms of its lease to the V. P. Hall Trust, that as a result of the unwilling attitude of the respondents to grant the building licence the petitioner has been put to serious prejudice and that, therefore, the respondents cannot be allowed to take advantage of their own unjustified conduct in delaying the disposal of the building application and reject the application on the ground of subsequent change in the law.

10. With reference to grounds (i) to (iii) set out above, it is seen that Section 241 of the Madras City Municipal Corporation Act sets out the grounds on which approval of a site or permission to construct or reconstruct a building may be refused. One of the grounds is that 'the work or the use of the site for the work or any of the particulars comprised in the site plan, ground plan, elevations, sections, or specification would contravene some specific provision of any law or some specified order 2, Rule 2, declaration or by-law made under any law. According to the respondents it is under this provision the petitioner's building application was refused. It has to be seen as to how the grant of sanction of the building application of the petitioner would violate Section 49 of the Tamil Nadu Act XXXV of 1972 which provides that any person intending to carry out any development on any suit land or building or after the date of the publication of the resolution under Sub-section (2) of Section 19 or of the notice in the Tamil Nadu Government Gazette under Section 26 shall make an application in writing to the appropriate planning authority for permission in such from and containing such particulars as may be required. Under Sub-section (2) the appropriate planning authority has to grant or refuse the permission having regard to the matters set oat in that section Thus Section 49 refers to the publication of the resolution under Section 19(2) of a notice under Section 26. Section 19 provides for a resolution by the local planning authority no prepare a development plan to be called 'a detailed development plan' in respect of any land in its planning area. Sub-section (2) of that section enjoins that the resolution under Sub-section (1) shall be published by the local planning authority in the prescribed manner by notification in the District Gazette concerned. Section 26 contemplates a regional plan master plan, and a new town development plan. Preparation of the regional plans has been detailed in Sections 10, 11 and 12, a master plan in Section 17 and new town development plan in Section 18 In this case, except showing that there has been a master plan for the whole of the Metropolitan area, no regional plan or new town development plan had been produced. A notice as required under Section 26 and Rule 8 of the master plan for the Madras Metropolitan Planning Area (Preparation, Publication, and Approval) Rules, 1974 was published in 'The Hindu' dated 10th August, 1975. That notice was with reference to a master plan for the whole of the Metropolitan area notified by the Government in G.O. Ms. No 2451, R.D. and L A. dated 19th November, 1974 under Section 26, The section proceeds on the basis that no person shall erect any building or make or extend any excavation or carry out any mining or other operations, in, or, over or under any land or make any material change in the use of the land. 'Building operation' has been defined in Section 2(9) and as per the definition includes any material alteration or enlargement of any building which involves more than 1/10th of the extent of the cubical contents of such building But the said definition has to be construed in the light of the object and purpose for which the Act was enacted. The avowed object of the Act is it provide for planning the development and use of rural and urban land in the State of Tamil Nadu and for the purposes connected therewith. Having regard to the said object, it is possible to say that any construction requires a planning permission after publication of a notice under Section 26. Section 241 of the City Municipal Act, however, enables the Corporation to reject the building application only if the work contravences any rule, by-law, order o declaration made under any law. In the case it is not the case of the respondents, not has it been shown that the proposed construction contravenes any on the provisions of the master plan which has been published under Section 26 of Tamil Nadu Act XXXV of 1972. I am, therefore, of the view that planning permission is not one of the requirements under Section 240. The question may arise whether even after obtaining building licence, one has to obtain the planning permission to proceed with the actual construction under Section 49. But that is entirely a different matter.

11. As regards the fourth ground the learned Counsel for the petitioner submits that whatever may be the position after the coming into force of the Tamil Nadu Act XXXV of 1972, the application for sanction having been filed in the year 1973, that application should be dealt with as per the law then prevailed. According to the learned Counsel though the Act was passed in the year 1971 it came into force only in the year 1975 and in such a case the legislative intention can easily be assumed that the effect of the Act is only prospective and not retrospective so as to affect the application filed in 1973 long before the Act came into force. The learned Counsel also submits that the machinery was constituted under the Act by the appointment of officers under Section 9(1) only by Act XXII of 1974, long after the passing of the Act in 1972 and this shows that the legislative intention was to make the provisions of the Act prospective and not retrospective. He also points out that Section 49 in so far as it provides for an application for permission only after publication of a resolution under Section 19(2) and issuance of a notice under Section 26 would also indicate that the Act is to act prospectively, that is in respect of applications for building licence made after the commencement of the Act. In this connection the learned Counsel for the petitioner refers to the following decisions:

In In re School Board Election for Parish of Pulborough Bourke v. Nutt (1894) 1 Q.B. 725, a bankrupt was subject to certain disqualifications by Section 32 of the Bankruptcy Act, 1883. When a question arose as to whether those disqualifications will attach to a person made bankrupt before the passing of the said Act, the Queen's Bench's decision was that the section has no retrospective operation and therefore the disqualifications will apply to a person who became a bankrupt before the Act. One of the Lord Justices expressed the view:

It is a well recognised principle in the construction of statutes that they operate only on cases and facts which come into existence after the statutes were passed, unles a retrospective effect is clearly intended.

This principle of construction is especially applicable when the enactment to which a retrospective effect is sought to be given would prejudicially affect vested rights of the legal character of past transactions. It need not be penal in the sense of punishment.

Every statute, it has been said, which takes away or impairs vested rights acquired under existing law, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect.

There cannot be any difficulty in accepting the petitioner's stand that the provisions of the Act are not retrospective and that it will apply only prospectively. In this case, the building application was filed on 13th December, 1973. The provisions of the Act have come into operation only in 1975. If the building application had been sanctioned then and there, and a construction had been put up, that will riot be affected by the subsequent coming into force the provisions of the Act. If sanction for the building licence had been granted even a day prior to the notice contemplated under Section 26 of the Act, the provisions of the Act cannot come into operation, for the grant of a building licence creates a vested right in the applicant and such a vested right cannot be taken away by the provisions of the Act which have come into force subsequent to the grant. I am inclined to agree with this contention of the petitioner. The application for building licence was filed in 1973 and the requirement as to planning permission came into force in 1975 The delay in the disposal of the application by the respondents cannot prejudice the petitioner. The decision in Cheran Transport Company Limited v. Kannan Lorry Service : [1977]2SCR389 , and Natarajan v. Naina Mohamed : AIR1978Mad280 , are directly in point. The petitioner's application for building licence should therefore be disposed of on the basis of the law in force on the date of the application.

12. On the fifth ground, the petitioner submits that the respondents have acted with considerable bias and personal hostility towards him and, therefore, the Court is entitled to infer that the rejection of the petitioner's building application is quite mala fide, and to quash the order on that ground as well. The learned Counsel refers to the following passage in S. A. de Smith's Judicial Review of Administrative Action, Second edition at page 247 in support of his stand.

There can be no doubt that in the ordinary Courts strong personal animosity towards a party disqualifies a Judge from adjudicating if it gives rise to a real likelihood of blas. Thus, a conviction by an Irish Magistrate was quashed when it was shown, by an uncontradicted affidavit, that very bad feeling (originating in a trespass by a fowl) existed between him and the defendant's family, and that shortly after the conviction he had used words indicative of enmity towards the defendant. In Canada, a Magistrate was held to be disqualified from hearing a charge against a person with whom he had recently come to blows. Bat the evidence must be compelling; the Courts are reluctant to conclude that any judicial officer's judgment is likely to be warped by personal feeling....

If member of a Tribunal have formed an unfavourable impression of a party in previous proceedings before them, it may be unrealistic to insist that it is contrary to natural justice for them to adjudicate. But a close scrutiny of the conduct of the proceedings may be justified if he complains that he has been denied a fair hearing.

The legal effect of personal hostility by members of administrative bodies exercising judicial functions ought in general, to be determined by reference to the same criteria as those adopted for Courts of justice.

13. The learned Counsel for the petitioner submits that the facts of the case will clearly show that there was continued animosity, or the part of the respondents against the petitioner as the lease taken by him from V. P. Hall Trust was not to their liking, that because of that animosity his attempt to erect the building had been thwarted continuously from 1973 till date, and that as a result of such persistent refusal to sanction the building plan by the Corporation, the petitioner has been put to great loss in that the building even if permitted to be erected now will cost at least 35 lakhs of rupees as against the original cost of Rs. 15 lakhs worked out in 1973. The petitioner also has been unnecessarily paying the additional rent to the V. P. Hall Trust amounting to Rs. 3,000 per annum for the last seven years with no possibility of reimbursement. It is also pointed out that a sum of Rs 10,140 which has been paid as licence fee on 13th December, 1973 in retained by the Corporation till date and there is also loss of interest to the petitioner on the said amount as well.

14. From the facts set out above it appears to be clear that the Corporation is aggrieved against the grant of lease of land by the V. P. Hall Trust to the petitions without its concurrence, that having failed in its suit challenging the validity of the lease granted to the petitioner by the V. P. Hall Trust the respondents are bent upon preventing the petitioner to exploit the lease by putting the leasehold land to a profitable use. The way in which the petitioner's application for building licence has been dealt with during the last 7 years shows that the respondents are intent upon rejecting the application for building licence on some ground of other. It is significant to note that the Mayor and the Commissioner, Corporation of Madras are the Member and Secretary of the Trust Board respectively which granted the lease to the petitioner as also permission to construct a three storeyed building thereon. The Commissioner having been a party to the resolution of the Trust granting the lease as also the permission to construct a three storeyed building thereon is not justified in standing in the way of the petitioner putting up the leasehold land to a beneficial user. All these facts would indicate that the refusal of the Corporation to grant the petitioner's building licence was based on personal animosity towards the petitioner. The impugned order of rejection is liable to be quashed on that ground as well.

15. For the foregoing reasons, the impugned order of rejection of the petitioner's building application is quashed. Since the refusal of the permission was only on the ground that planning permission has not been obtained and it has been held that planning permission is not necessary in this case, the respondents are directed to grant the licence applied for by the petitioner within two weeks from this date. The respondents will pay the costs of the petitioner which I fix at Rs. 250.


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