IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 30..4..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 20034, 20336, 20337 and 30671 of 2007 and M.P. No.1 of 2007 in respective W.Ps. W.P. No. 20034 of 2007:- R. Ravichandran Manager Kodanad Estate Kothagiri Taluk The Nilgiris District .. Petitioner vs. 1. The President The Executive Authority Kodanad Village Panchayat Kothagiri Taluk Keradamattam The Nilgiris District 2. Kodanad Village Panchayt Kothagiri Taluk Keradamattam The Nilgiris District .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records pertaining to the order in Na. Ka. No. 1/2007 dated 05.6.2007 and quash the same. W.P. No. 20336 of 2007:- R. Ravichandran Manager Kodanad Estate Kothagiri Taluk The Nilgiris District .. Petitioner vs. https://hcservices.ecourts.gov.in/hcservices/ 1. The Chief Secretary Government of Tamil Nadu Secretariat Chennai – 9 2. The Director Information and Public Relations Secretariat Chennai 3. The District Collector The Nilgiris District Udhagamandalam 4. The Additional Collector The Nilgiris District Udhagamandalam 5. The District Revenue Officer The Nilgiris District Udhagamandalam 6. The Revenue Divisional Officer Coonoor The Nilgiris District 7. The Block Development Officer Kothagiri The Nilgiris District 8. The President The Executive Authority Kodanad Village Panchayat Kothagiri Taluk Keradamattam The Nilgiris District 9. Kodanad Village Panchayt Kothagiri Taluk Keradamattam The Nilgiris District .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Declaration declaring that the alleged inspection claimed to have been made by the respondents 3 to 7 on 31.5.2007 in Kodanad Estate by forcible entry into the Estate is not authorized or enforceable under the Tamil Nadu Panchayats Act, 1994 and Rules framed thereunder. https://hcservices.ecourts.gov.in/hcservices/ W.P. No. 20337 of 2007:- R. Ravichandran Manager Kodanad Estate Kothagiri Taluk The Nilgiris District .. Petitioner vs. 1. The Chief Secretary Government of Tamil Nadu Secretariat Chennai – 9 2. The Secretary to Government Rural Development Department Secretariat Chennai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Declaration declaring that the proviso to Rule 4(1)(d) of the Tamil Nadu Panchayats Building Rules, 1997 as invalid, void, excessive to the rule makingpower vested in Section 242 of the Tamil Nadu Panchayats Act, 1994 apart from being repugnant to Articles 14, 19(1)(e) and (g) and 21 of the Constitution of India. W.P. No. 30671 of 2007:- R. Ravichandran Manager Kodanad Estate Kothagiri Taluk The Nilgiris District .. Petitioner vs. 1. The President The Executive Authority Kodanad Village Panchayat Kothagiri Taluk Keradamattam The Nilgiris District 2. Kodanad Village Panchayt Kothagiri Taluk Keradamattam The Nilgiris District https://hcservices.ecourts.gov.in/hcservices/ 3. M. Ponthose .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records pertaining to the proceedings of the first respondent in proceedings dated 10.9.2007 and quash the same. For Petitioner : Mr. G. Rajagopal, SC in all W.Ps. for Mr. A. Navaneethakrishnan For Respondents : Mr. G. Masilamani, AG in all W.Ps. for Mr. G. Sankaran, Spl. GP C O M M O N O R D E R 1. Backdrop:- 1.1. Kodanad Estate represented by its Manager, is the petitioner in all the four writ petitions. The said Estate is situated within the Kodanad Village Panchayat coming under the Kothagiri Taluk, Nilgiris District. Within its sprawling 825 Acres, there are several buildings including servant quarters, guest houses, security quarters, godown, office buildings. The management of the present Estate came into possession of the Estate during February 1995 after purchasing the Estate from its erstwhile partners and re-constituting the partnership. 1.2. The erstwhile management of the Estate made an application to the Government for issuance of licences for constructing a residential building in Survey No. 168 (Field No. 4) Bancaad Division and also another residential building in Survey No. 159 (Warbrecan Division) at Kodanad Village, Kothagiri Panchayat Union, The Nilgiris District. The request of the erstwhile owner, Tmt. Radha Venkatachalam was placed before the Architectural and Aesthetic Aspects Committee [for short, 'AAA Committee']. The AAA Committee, in its meeting held on 15.3.1995, recommended her request for grant of permission subject to the condition that they must plant enough shade bearing trees around the Buildings. Thereafter, the Government, on considering the recommendations of the AAA Committee, accorded permission by virtue of G.O. (D) Nos. 67 and 68 Municipal Administration and Water Supply Department dated 17th March 1995, for construction of residential building as requested by her with the same condition. The Building plans perused by them were returned and copies of the Government Orders were also marked to appropriate authorities. 1.3. A perusal of these two orders clearly shows that the Commissioner of Panchayat Union, Kothagiri was dealing with the said https://hcservices.ecourts.gov.in/hcservices/ issue at the relevant time. Thereafter, necessary licence fees were paid to the Panchayat and they were subjected to the House Tax, which was also paid. The copies of Licence fee receipts, proceedings of the Panchayat granting Building Licence as well as House Tax receipts in respect of these buildings are kept in a typed set filed along with W.P. No. 30671 of 2007. The partnership had undergone changes due to reconstitution in the years 1995 and 2000. 1.4. It is seen from the records that the Kodanad Village grama sabha, by a resolution dated 27.3.2007, took a decision to issue notice to all the unlicensed buildings and buildings which were not taxed for House Tax. By a letter dated 15.4.2007, the President of the Kodanad Village Panchayat informed the petitioner Estate that new buildings are being constructed and since they want to impose House tax in terms of the Tamil Nadu Panchayats Act [for short, 'Panchayats Act'], they were directed to furnish all the documents to the Panchayat Union Office. 1.5. It is the case of the petitioners that subsequent to the said notice, on 31.5.2007, the President of the Kodanad Village Panchayat, sent a letter to the Assistant Director of Local Fund Audit, Udhagamandalam stating that Estate has given documents on notice and till such time those documents are considered and a decision is made, no further action need be taken. Thereafter, a notice was given to the Estate by a letter dated 30.5.2007 stating that since the President of the Panchayat was not able to serve notice and he was told that the Manager of the Estate was out of station and the office premises was locked, he informed the Estate that the officials of the Revenue and concerned authorities will visit the Kodanad Estate for inspection on 05.6.2007 at about 9.30 am. 1.6. However, serious objections were raised with reference to these two documents by the respondents and they stated that no such document exists though the signatures found in those documents tally with the signature of the President of the Village Panchayat in the first letter dated 31.5.2007 and his subsequent correspondences. In any event, by a letter dated 30.5.2007, the Estate was sought to be informed about the impending inspection of the new buildings constructed without permission, to be conducted on 31.5.2007 at 9.30 am and the Eatate Manager was directed to co-operate with the same. 1.7. The original Notice was produced along with the file in which an endorsement is found to the effect that when the said letter was sought to be served, the petitioner Estate refused to receive the same and signatures of the two witnesses (who were the former Panchayat Assistant and Basic Health Servant) were also affixed. It was, thereafter, the entire dispute started between the parties. https://hcservices.ecourts.gov.in/hcservices/ 2. History of the confrontation:- 2.1. While the claim of the petitioner was that there was an illegal trespass into the Estate by certain officials including the respondents, it is stated that an inspection was conducted on 31.5.2007 by a team comprising of various officials which includes the President of the Panchayat, Village Administrative Officer, Tahsildar, Block Development Officer, Revenue Divisional Officer, Coonoor, Assistant Director, Town Planning and Kothagiri Panchayat Union Chairman and Kothagiri Panchayat Union Member of Ward II. 2.2. The original file was produced by the respondent State in respect of W.P. Nos. 20336 and 20337 of 2007. It is seen that a representation dated 19.5.2007 was addressed to the Chief Minister by stating that they could not conduct Grama Sabha meeting on 01.5.2007 at Anna Nagar hamlet. It was signed by the Chairman of the Kothagiri Panchayat Union, the President of the Kodanad President and a Ward Member II. The said representation was received by the District Collector, Udhagamandalam and forwarded to the Government with a covering letter dated 20.5.2007. Thereafter, another letter dated 19.5.2007 was sent by the Chairman of the Kothagiri Panchayat Union and also General Council Member of the DMK political party in his letterhead, to the Chief Minister of Tamil Nadu stating that the present owners have cheated the Government by not paying the Stamp Duty while purchasing the Estate and that they are building a big bungalow with 90 rooms and they are preventing the people from using the Estate Road to go to Anna Nagar hamlet. He requested the Government to take action and punish the persons responsible for the same. 2.3. It was thereafter, by D.O. Letter dated 21.5.2007, the Secretary to Government, Public Department, informed the Collector of the Nilgiris District to take necessary action and also requested him to be in touch with the Department concerned and to take necessary remedial measures. A further D.O. letter of the same date was sent to the District Collector informing him that there are buildings constructed without getting clearance from the Hill Area Conservation Authority [for short, 'HACA'] in the Kodanad Estate owned in the benami name of the former Chief Minister Ms.J.Jayalalitha and he was also informed that any construction exceeding 300 square metres requires clearance from the HACA. The District Collector, who himself was a member of the HACA and also the Chairman of the AAA Committee, was told to bring it to notice of the HACA any violation, deviation or non-compliance with the procedure stipulated by the HACA or the Government. He was also permitted to inspect the premises as well as to check the various points and send a detailed report to HACA and other auhtorities. https://hcservices.ecourts.gov.in/hcservices/ 2.4. On the same day, the Director of Town and Country Planning addressed to the Secretary to Government, Housing and Urban Development Department informing that the Kodanad Village Panchayat was coming under an Hilly Area and the development in the said Panchayat should be regulated as per the Tamil Nadu Hill Areas Special Building Rules, 1981 and the Tamil Nadu Panchayat Building Rules, 1997. The Secretary was also informed that for buildings of more than ground and first floor, buildings housing more than two families, commercial and office buildings of more than 300 square metres area, etc. permission should be obtained from the HACA. The Government also notified that the Special Building Rules will apply to the Panchayat Union and AAA Committee must give specific recommendations to the HACA and after getting clearance from the HACA, building licence will be given by the executive authorities. He also informed the Regional Joint Director of the Town and Country Planning, Coimbatore that if any proposal is was received in this regard from the Panchayat President, the same will be placed before the AAA Committee and HACA and also to send a factual report consulting the District Collector. 2.5. In response to these queries, the District Collector informed the Secretary to Government, Housing and Urban Development Department, by a letter dated 22.5.2007 that an inspection by the Additional Collector (Development) and Chairman of AAA Committee was organised on 22.5.2007 and the two Inspection Reports given by the Additional Collector (Development) and also the report submitted by the Joint Director and Deputy Director (in charge) of the Town and Country Planning Department were also sent. In another Inspection Report dated 22.5.2007, it was stated that when the inspection team comprising of the Panchayat President, Village Administrative Officer, Revenue Divisional Officer, Coonoor, Block Development Officer and Deputy Director of Town Planning, went to inspect the building constructed without proper permission, they were stopped at the gate and they were told that the details sought for by them will be given to them and they were not allowed to go inside the Estate because at that time, a V.V.I.P. was staying in the Estate and for security reasons, they were refused entry. 2.6. Again, on 29.5.2007, the Additional Collector informed the District Revenue Officer, Udhagamandalam, that when they went to the Estate on 28.5.2007 and 29.5.2007, the team of officials could not inspect the building since the Estate did not permit them for various reasons. Therefore, the assistance of the District Revenue Officer – cum - Executive Magistrate was sought, for carrying out the inspection. In this regard, the District Revenue Officer – cum – Additional District Magistrate, Udhagamandalam, by a letter dated 29.5.2007, permitted the Additional Collector (Development), Udhagamandalam, Regional Joint Director, Town and Country Planning, Coimbatore and their survey team to measure the property and do survey https://hcservices.ecourts.gov.in/hcservices/ works in the properties in Patta Nos. 517, 531 and 553 of Kodanad Tea Estate in exercise of his powers conferred under the Tamil Nadu Survey and Boundaries Act, 1923. 2.7. Once again, the Tahsildar, Kothagiri, informed the Deputy Superintendent of Police, Udhagamandalam, that since they wanted to carry out building survey work in the Kodanad Estate on 30.5.2007, they need police protection with top police officials. The District Revenue Officer – cum - Additional District Magistrate, Udhagamandalam, also gave a direction to the Revenue Divisional Officer – cum – Sub-Divisional Magistrate, Coonoor, that he was requested to make necessary bundobust arrangements in consultation with the Superintendent of Police, The Nilgiris, to carry out the survey and other related work in the Kodanad Tea Estate on 31.5.2007. It was thereafter, the notice dated 30.5.2007 was sought to be served and it was stated that the same was refused to be received. 3. Entry into the Estate:- 3.1. In the meanwhile, the petitioner Management sent a telegram to the District Revenue Officer asking him to inform them as to under what provision of law and authority, they are descending on the Estate and was also asked to stop their coercive activities and they were requested not to obey political diktats. It transpires that despite the objection by the petitioner Estate, the team of officials referred to above, visited the Estate on 31.5.2007 and took survey of the building and structures in the Estate and submitted a report on the same day, viz., 31.5.2007. It was stated by them that they were prevented by the Estate workers and the Superintendent of Police cleared them without any force. After crossing the main entry and when proceeded for about 100 Mts. into the estate premises with bundobust, they were again stopped at the second gate by a group of persons. 3.2. Then, after crossing the barrier, the team went to the building and recorded the actual measurement of the buildings from outside. It was also stated the structure of the building seems to be luxurious. The report submitted by the team was signed by the Panchayat President, Kodanad Village Panchayat, Tahsildar, Kothagiri, Deputy Director of Town and Country Planning, Village Administrative Officer of Kodanad, two officials of Town and Country Planning staff, Revenue Divisional Officer, Coonoor Division and Field Surveyor. 3.3. The Inspection report contained the following details: https://hcservices.ecourts.gov.in/hcservices/ Details regarding construction work (New Building) Sl. No. Details of construction work Land survey Extent of building(in Sq. Mts.) Present stage 1. Residential Bungalow Cellalr floor Ground Floor First Floor 65 (New No. 168) Residential Bungalow 1205.85 1339.87 1205.85 Construction work completed Construction work completed Construction work completed Construction work completed 2 Guest House 1 65 83 Construction work completed 3 Guest House 2 65 106 Construction work completed 4 Watchman quarters 65 50.41 Construction work completed 5 Godown and Watchman shed 219/1 (New No. 160/4) 36+36 = 72.00 Construction work completed 6 Lake View Guest house 219/1 (New No. 160/4) 230.69 Construction work completed 7 Office Building 60 Construction work completed 3.4. The petitioner also sent two telegraphic notices to the Additional District Collector, Project Director and Chairman of AAA Committee stating that he had attempted to trespass into the Estate. When demanded for an written order, he did not give the same. When they came as a team, they had also brought newspaper men (including people from electronic media). He was also asked to furnish the legal provisions under which such activities were carried out in the Estate. 3.5. It was on the strength of this report, the Panchayat President informed the petitioner Estate by a letter dated 04.6.2007 that when an inspection was conducted on 31.5.2007, no building plans and permission or approved plan were submitted to him. Therefore, it was presumed that the building was not authorised. Unless the owner or the persons in enjoyment of the property or their authorised representative shows the plan and permission, he will presume that they have nothing to offer in terms of Rule 34 of the Tamil Nadu Panchayat Buildings Rules Act read with Section 217 (j) of the District Municipalities Act, 1920 and action will be taken. Seven days time was given in the said notice for submission of the said plan https://hcservices.ecourts.gov.in/hcservices/ and permission. 3.6. In the notice after extracting the description of six buildings, it was stated in Tamil by the Kodanad Panchayat President which, if translated, will read as follows:- "Construction work will have to be started only after getting a building licence in terms of the Tamil Nadu Panchayats Building Rules. But it is clear that you have not obtained any permission." "During the year 1995, Mrs. Radha Venkatachalam applied for licence for construction of residential building under the District Municipalities Act and got Government Orders in G.O. Nos. 67 and 68 on 17.3.1995 and obtained permission for the same in Survey Nos. 168 (Field No. 4) Bancaad Division and 159 Warbrecan Division respectively at Kodanad Village, Kothagiri Panchayat Union approximatedly to an extent of 2900 sq. mts." "However, after obtaining the Government order, Tmt. Radha Venkatachalam did not take any further steps through the executive authority as per law and no approval for the building plan was obtained and no licence fee was paid and also no construction work was carried out in that land. The land in which permission was obtained and the present land in which buildings were constructed, were in different lands." "In terms of Section 217(f) of the Tamil Nadu Municipalities Building Rules and Tamil Nadu Municipalities Hill Areas Building Rules, if the work was not begun, after obtaining building approval, within one year, the said licence will lapse. After recording the same, he came to the conclusion to issue notices under Section 31(4) and 32(4) of the Panchayats Act." 4. Show Cause Notice dated 05.6.2007:- 4.1. Once again, another notice dated 05.6.2007 was sent by the Panchayat President informing the details of the structures found in the Estate as per the inspection (already referred to above). He informed that in terms of G.O. No. 44 Planning and Development (TC II) Department dated 02.01.1990 read with G.O. No. 49 Housing and Urban Development Department dated 24.4.2003, in respect of hill areas, for any construction beyond 300 sq. mts., permission should be obtained from the HACA and before that, the plan should be submitted to the AAA Committee and only after getting plan approval with recommendation from the concerned Committee, proposal should be sent in terms of Rule 4 of the Tamil Nadu Panchayat Building Rules. Only after getting the building licence, construction can be started in terms of the Tamil Nadu Panchayat Building Rules. https://hcservices.ecourts.gov.in/hcservices/ 4.2. According to him, the buildings mentioned in the tabular statement have been completed and that it was stated that building work in respect of one building is still going on and it was asked as to whether the approval was obtained for all the buildings and as to whether the buildings were constructed in terms of the Rules and since the same was not replied, it was presumed that such Rules were not followed while constructing such buildings. 4.3. Therefore, the petitioner was directed to submit the building plan, topo sketch, approval obtained for the building plan and the documents relating to ownership of the land within seven days on receipt of the notice dated 05.6.2007. Till such time such details are furnished and a decision is taken, they were advised to stop new constructions. If such documents are not furnished within the stipulated period, it will be presumed that these buildings will be construed as an unauthorised construction and legal steps will be taken. It was also stated that the said notice was given in terms of Rules 32 and 34 of the Tamil Nadu Panchayat Building Rules. 5. High Court was approached:- 5.1. As soon as this notice was received, the petitioner filed W.P. No. 20034 of 2007 and challenged the Show Cause Notice. Thereafter, W.P. No. 20336 of 2007 was filed seeking for a Declaration declaring that the inspection carried on 31.5.2007, when the official respondents 3 to 7 therein have forcibly entered into the Kodanad Estate, was not authorized or enforceable under the Tamil Nadu Panchayats Act, 1994 and the Rules framed thereunder. 5.2. On the same day, the petitioner filed another writ petition being W.P. No. 20337 of 2007 seeking for a Declaration declaring that the proviso to Rule 4(1)(d) of the Tamil Nadu Panchayats Building Rules, 1997 as invalid, void, excessive to the rule making power vested in Section 242 of the Tamil Nadu Panchayats Act, 1994 and also being repugnant to Articles 14, 19(1)(e) and (g) and 21 of the Constitution of India. 5.3. In W.P. No. 20034 of 2007, a counter affidavit dated 22.6.2007 has been filed by the Kodanad Panchayat President. In W.P. No. 20336 of 2007, the District Collector of The Nilgiris District has filed a counter affidavit on 18.6.2007. A counter affidavit dated 19.6.2007 was filed in W.P. No. 20337 of 2007 on behalf the Chief Secretary to Government and Secretary of Rural Development Department and an additional counter affidavit dated 31.7.2007 was filed. Thereafter, by an order dated 12.7.2007, panchayat minutes was ordered to be produced in original before this Court. 5.4. Even when before all these writ petitions were being heard, the Kodanad Panchayat President issued a notice dated 10.9.2007 https://hcservices.ecourts.gov.in/hcservices/ purporting to be under Rule 34 of the Tamil Nadu Panchayat Building Rules informing that he considers that building work was carried on without the permission of the executive authority and, therefore, the owners of the building were directed to demolish those buildings in terms of his provisional order issued under Rule 34(i)(iii) of the Building Rules. Pursuant to the said provisional order issued under Rule 34(1) of the Building Rules, a further show cause notice was given to the petitioner Estate as to why the provisional order should not be confirmed and the petitioner was asked to show cause and submit explanation within 15 days. It is against this order dated 10.9.2007, W.P. No. 30671 of 2007 has been filed. 5.5. In W.P. No. 30671 of 2007, a counter affidavit was filed in October 2007 by the President of the Kodanad Village Panchayat. He was named in his personal capacity as the third respondent. Rejoinder affidavit was also filed to the said petition and set of documents were produced. 6. Petitioner's challenge summed up:- 6.1. After the matter having been directed to be posted before this Court by the orders of the Hon'ble Chief Justice, all these four writ petitions were clubbed together and with the consent of the learned counsel appeared for the parties, the writ petitions were taken for final disposed. The respondents waived service. 6.2. Heard the arguments of Mr. G. Rajagopal, learned Senior Counsel leading Mr. A. Navaneethakrishnan appearing for the petitioner