IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.8.2006 C O R A M : THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.18898 of 2000, 19998 of 2001, 24316 of 2002 and 17646 of 2006 & W.M.P.Nos.27383 and 27384 of 2000, 29477 and 29478 of 2001, 33424 and 33425 of 2002 and MP.Nos.1, 2 and 3 of 2006 W.P.NOs.18898 of 2000, 19998 of 2001 and 24316 of 2002: Consumer Action Group rep.by its Trustee Tara Murali, No.7, 4th Street, Venkateswara Nagar, Adyar, Chennai-600 020. ... Appellant -vs- 1. The State of Tamil Nadu rep.by its Secretary to Government, Law Department, Fort St.George, Chennai-600 009. 2. The State of Tamil Nadu rep.by its Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai-600 009. 3. The Chennai Metropolitan Development Authority, rep.by its Member-Secretary, Thalamuthu Natarajan Malegai, Egmore, Chennai-600 008. ... Respondents WP.17646 OF 2006: K.R.Ramaswamy @ Traffic Ramaswamy ... Petitioner -vs- 1. State rep.by the Secretary, Municipal Administration, Government of Tamil Nadu, Secretariat, Chennai-600 009. 2. The Member Secretary, https://hcservices.ecourts.gov.in/hcservices/ Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai-600 008. 3. The Commissioner, Corporation of Chennai, Ripon Building, Chennai-600 003. 4. The Commissioner of Police, Greater Chennai City, Egmore, Chennai-8. 5. The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2. 6. The Chairman, Chennai Metropolitan Water supply and sewerage Board, Pumping Station Road, Chennai-2. ... Respondents (Respondents 5 and 6 impleaded suo motu as per the order of this court, dated 21.7.2006 in WP 17646 etc. Batch) PRAYER in WP.18898 of 2000: Petition filed under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring (a) Section 113-A of the Tamil Nadu Town and Country Planning Act,1971 as amended by the Tamil Nadu Town and Country Planning Amendment Ordinance, 2000 (Ordinance 7 of 2000) ultra vires Articles 14 and 21 of the Constitution of India; and (b) The provisions of the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as ultra vires Articles 14 and 21 of the Constitution of India; and pass such further orders. PRAYER in WP.19998 of 2001: Petition filed under Article 226 of the Constitution praying for the issuance of a writ of declaration declaring (a) Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971 as amended by the Tamil Nadu Town and Country Planning Amendment Ordinance, 2001 (Ordinance 5 of 2001) ultra vires Articles 14 and 21 of the Constitution of India and (b) The provisions of the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as ultra vires Articles 14 and 21 of the Constitution of India; and pass such further orders. PRAYER in WP.24316 of 2002: Petition filed under Article 226 of the Constitution praying for the issuance of a writ of declaration declaring (a) Section 113-A of the Tamil Nadu Town and Country https://hcservices.ecourts.gov.in/hcservices/ Planning Act, 1971 as amended by the Tamil Nadu Town and Country Planning Amendment Act, 2002 (Act 7 of 2002) ultra vires Articles 14 and 21 of the Constitution of India and (b) The provisions of the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as ultra vires Articles 14 and 21 of the Constitution of India; and pass such further orders. PRAYER IN WP.17646 OF 2006 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 2, 3 and 4 to enforce the provisions on the Tamil Nadu Multi-storeyed Building Act and Rules, 1973 and City Municipal Act, 1919 in respect of building in the city of Chennai to ensure the public safety and effective free flow of Traffic and pass such further orders. For petitioner in WP. Nos.18898 of 2000, 19998 of 2001 and 24316 of 2002 :: Mr. Sriram Panchu, SC for Mr.T.Mohan For petitioner in WP. No.17646 of 2006:: Mr.Elephant G.Rajendran For respondents :: Mr.R.Viduthalai, Advocate General assisted by Mr.Raja Kalifulla, GP for State assisted by Mr.J.Ravindran, for CMDA, TNEB and CMWSSB assisted by Mr.L.N.Praghasham, for Chennai Corporation. ********* COMMON ORDER (ORDER OF THE COURT WAS MADE BY THE HONOURABLE THE CHIEF JUSTICE) W.P.Nos.18898 of 2000, 19998 of 2001 and 24316 of 2002 have been filed by the Consumer Action Group challenging the constitutional validity of the amended provisions of Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971, hereinafter be referred to as 'the Act’ as also the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999, hereinafter be referred to as 'the Rules'. 2. Section 113-A was introduced through the Tamil Nadu Town and Country Planning (Amendment) Act, 1998 (Tamil Nadu Act 58 of 1998), whereby the Government is empowered, on an application being made by the person affected, to exempt any land or building developed https://hcservices.ecourts.gov.in/hcservices/ immediately before the date of commencement of this Amending Act, from all or any of the provisions of the Act or Rules or Regulations made thereunder, by collecting regularisation fee at such rate not exceeding Rs.2,000/- per square metre. The constitutional validity of Section 113-A was upheld by the Supreme Court in CONSUMER ACTION GROUP -VS- STATE OF TAMIL NADU ((2000) 7 SCC 425) as a one-time measure. By the Tamil Nadu Town and Country Planning (Amendment) Ordinance 7 of 2000 (Tamil Nadu Act 31 of 2000), Section 113-A was further amended, whereby all buildings constructed on or before 31st August 2000 were made eligible to be considered for such regularisation on payment of reduced regularisation fees. Thereafter, Tamil Nadu Town and Country Planning (Amendment) Ordinance 5 of 2001(Tamil Nadu Act 17 of 2001) was promulgated putting off the date for regularisation of the unauthorised constructions to 31st July 2001. Thereafter, the cut-off date for regularisation was again extended to 31st March 2002 by the Tamil Nadu Town and Country Planning (Amendment) Act, 2002 (Tamil Nadu Act 7 of 2002). The validity of these amending Acts is sought to be challenged as they being ultra vires Articles 14 and 21 of the Constitution of India. 3. W.P.No.17646 of 2006 is filed by the petitioner K.R.Ramaswamy, in public interest highlighting the violations of the Rules in construction of shopping complexes at T.Nagar and at N.S.C.Bose Road in Parrys area without allotting Car and Two Wheeler parking spaces in the multi-storied buildings. The petitioner is seeking a direction to the authorities to enforce the provisions of the Tamil Nadu Multi- storied Buildings Act, 1973 and Tamil Nadu Multi-storied Buildings Rules of 1973 as well as the Chennai City Municipal Corporation Act, 1919 and the Rules framed thereunder in respect of the buildings in the city of Chennai to ensure public safety and effective free flow of traffic. 4. In order to appreciate the challenge and to adjudicate the issues involved, it is necessary to scan through the periphery, scope and object of the Act and the Rules. The Preamble of the Act states that this is an Act to provide for planning, the development and use of rural and urban land in the State of Tamil Nadu and for the purposes connected therewith. Section 2 (13) defines ‘development’ to mean carrying out of all or any of the works contemplated in a regional plan, master plan, detailed development plan or a new town development plan prepared under the Act, which includes the carrying out of building, engineering, mining or other operations in, or over, or under the land and also includes making of any material change in the use of any building or land. Sub section 15 of Section 2 defines ‘development plan’ to mean the plan for the development or redevelopment or improvement of the area within the jurisdiction of a planning authority and includes a regional plan, master plan, detailed development plan and new town development plan prepared under the Act. The Act is an elaborate piece of legislation consisting of 14 Chapters, which contain 125 sections. The Act provides for https://hcservices.ecourts.gov.in/hcservices/ incorporation of the Metropolitan Development Authority for the metropolitan area. In pursuance of the powers set out in Chapter II-A of the Act, the Chennai Metropolitan Development Authority was formed. This Authority shall hereinafter be referred to as 'the CMDA'. The control and development plan of the Madras Metropolitan area is listed with CMDA. Chapter – III deals with the planning authorities and its plan, Chapter – IV deals with the acquisition and disposal of that land, Chapter – V contains special provision regarding new town development authority and Chapter – VI refers to control of development and use of land. This chapter gives clear guidelines to the appropriate authority in which manner it has to perform its statutory functions. Sub section 2 of Section 49 gives guidelines to enable the appropriate planning authority to grant or refuse permission in respect of an application made under Section 49(1) by any person intending to carry out any development on any land or building. Under Section 54 the CMDA has the power of revocation or modification of the permission which has been granted and this Section contains guidelines as to when such revocation or modification can be made. Section 56 confers power on the planning authority to require removal of unauthorized development. Section 57 provides for power to stop unauthorized development. The Act also provides for the constitution of a tribunal under Chapter IX and provisions under Chapter X for an appeal, revision or review. It is under Chapter XII the impugned Section 113-A is placed. This section as indicated earlier provides for regularization of illegal constructions on payment of a fee. Section 113 confers power on the State Government and states that notwithstanding anything contained in the Act the Government may subject to such conditions as they deem fit, by notification, exempt any land or building or class of lands or buildings from all or any of the provisions of the Act or Rules or Regulations made thereunder. 5. Section 122 of the Act confers power upon the State Government to make rules to carry out the purposes of the Act. Section 123 obligates the Government to place its rules before the legislature. Section 124 empowers the planning authority with the previous approval of the Government to make regulations prospectively or retrospectively not inconsistent with the Act and the Rules. Pursuant to the powers conferred under Section 122 of the Act, the Development Control Rules have been framed for the Madras Metropolitan area. The present Development Control Rules were substituted for the former Rules by G.O.Ms.No.328, Housing and Urban Development, dated 18.2.1983. Under the Development Control Rules, the Madras Metropolitan area is divided into nine zones as per Rule 3 of the said Rules. The rules provide for elaborate guidelines as to the limitations in respect of each such zone. For example, in each zone, the Development Control Rules have set out in a tabular form, the requirements relating to Floor Space Index (FSI), maximum height, minimum set back, front set back, side set back, rear setback etc. For the commercial zones, further restrictions are imposed in relation to the horsepower rating of https://hcservices.ecourts.gov.in/hcservices/ electric motors and provisions have also been made to regulate storage of explosives as well as to regulate effluents, smoke, gas or other items which are likely to cause danger or nuisance to public health. The Development Control Rules have been framed with great care to ensure that the use of land or development of any building is regulated in a proper manner. The said Rules have been framed on a scientific basis and norms have been set out on the basis of specific standards keeping in mind the public interest (especially public health and safety) as well as the requirements of land owners. 6. In the year 1988, after learning from press reports that 73 orders of exemption came to be passed in a day, the petitioner Consumer Action Group approached the Supreme Court in W.P.(C) No.926 of 1988 seeking a declaration that Section 113 of the Act was ultra vires Articles 14 and 21 of the Constitution and for quashing the 62 G.Os. granting exemption. While the said writ petition was pending in Supreme Court, the State of Tamil Nadu amended the Tamil Nadu Town and Country Planning Act, 1971 by the Amending Act, 1998 (Tamil Nadu Act 58 of 1998) by inserting Section 113-A to the Act, which reads as follows:- '' 113-A. Exemption in respect of development of certain lands or buildings.-- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, the Government or any officer or authority authorised by the Government, by notification, in this behalf may, on application, by order, exempt any land or building or class of lands or buildings developed immediately before the date of commencement of the Tamil Nadu Town and Country Planning (Amendment) Act, 1998, (hereafter in this section referred to as the said date) in the Chennai Metropolitan Planning Area, from all or any of the provisions of this Act or any rule or regulation made thereunder, by collecting regularisation fee at such rate not exceeding twenty thousand rupees per square metre, as may be prescribed. Different rates may be prescribed for different planning parameters and for different parts of the Chennai Metropolitan Planning Area. (2) The application under sub-section (1) shall be made within ninety days from the said date in such form containing such particulars and with such documents and such application fee, as may be prescribed. (3) Upon the issue of the order under sub-section (1), permission shall be deemed to have been granted https://hcservices.ecourts.gov.in/hcservices/ under this Act for such development of land or building. (4) Nothing contained in sub-section (1) shall apply to any application made by any person who does not have any right over the land or building referred to in sub-section (1). (5) Save as otherwise provided in this section, the provisions of this Act, or other laws for the time being in force, and rules or regulations made thereunder, shall apply to the development of land or building referred to in sub-section (1). (6) Any person aggrieved by any order passed under sub-section (1) by any officer or authority may prefer an appeal to the Government within thirty days from the date of receipt of the order." 7. Section 122(2)(cc) was added to the Act to provide the procedure for the collection of regularisation fee and the prescription, calculation, assessment and collection of such fee. 8. The Statement of Objects and Reasons for the Amendment Act reads as follows:- "As of today in Chennai as well as in other metropolitan cities of India, many aberrations in the urban development are noticed. Huge disparities between people's income and property value, together tempt the builders to violate the rules and the buyers to opt for such properties in the city of Chennai. A rough estimate of about three lakh buildings (approximately 50% on total number of buildings) will be violative of Development Control Rules or unauthorised structures. However, according to the Tamil Nadu Town and Country Planning Act, 1971 (Act 35 of 1972), the demolition action cannot be pursued on any of them unless a notice issued within 3 years of completion. The Chennai Metropolitan Development Authority has booked five thousand structures on which demolition action could be taken. Number of such cases booked by the Chennai City Municipal Corporation within its jurisdiction is nearly one thousand. Administratively also, demolition of such a large number of cases is neither feasible nor desirable as it will result in undue hardship to the owners and occupants. Considering this and the practice followed in other metropolitan cities of the country to deal with violated constructions, the State Government https://hcservices.ecourts.gov.in/hcservices/ have taken a policy to exempt the lands and buildings developed immediately before the date of commencement of the proposed legislation by collecting regularisation fee provided that the development has been made by a person who has right over such land or building". 9. The petitioner Consumer Action Group filed W.P.(C) No.237 of 1999 in the Supreme Court challenging the vires of Section 113-A of the Act. The Supreme Court vide a common order, dated 18.8.2000 in W.P.(C) No.926 of 1988 upheld the validity of both Section 113 and Section 113-A of the Act. However, the Court set aside the 62 G.Os. granting exemption under section 113 of the Act, but left it open to them to apply afresh under Section 113-A of the Act. The Supreme Court while upholding the validity of Section 113-A of the Act clearly stated that Section 113-A as a 'one-time measure' was a valid piece of legislation and underscored the need for taking effective steps to check at the root level, at the very nascent stage, such violations/deviations. 10. The grievance of the petitioner is that in spite of the order of the Supreme Court, no administrative schemes to enforce Town Planning law and to demolish deviations have been formulated till date. On the contrary, the Governor of Tamil Nadu promulgated Tamil Nadu Ordinance No.7 of 2000 (Tamil Nadu Act 31 of 2000) to amend Section 113-A of the Act. By virtue of the amendment, all the buildings constructed on or before 31st August 2000 were made eligible to be considered for regularisation and such application for regularisation had to be made on or before 31st October 2000. In the Statement of Objects and Reasons to the impugned Ordinance, it was stated that the expected number of applications were not received during the period of 90 days and only 5,474 applications had been received. It was further stated that it had been brought to the notice of the Government that the poor receipt of the applications was due to various reasons mainly because of the high rate of regularisation fee and in view of the order of the Supreme Court upholding Section 113-A, it had been decided to reduce the rate and extend the scheme covering all buildings constructed upto 31st August 2000 by amending the Act and the Rules. The Rules were also subsequently amended and now the fee has been reduced to only a fraction of what it was originally. Section 113-A of the Act was further amended by Tamil Nadu Act 17 of 2001. By virtue of Tamil Nadu Act 17 of 2001 all buildings constructed on or before 31st July 2001 became eligible to be considered for regularisation and such applications for regularisation were to be made on or before 30th November 2001. Further, by subsequent amendment (Tamil Nadu Act 7 of 2002), the cut-off date for regularisation was once again extended to 31st March 2002. 11. We have heard Mr.Sriram Panchu, learned senior counsel appearing for the Consumer Action Group, the petitioner in https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.18898 of 2000, 19998 of 2001 and 24316 of 2002; Mr.G.Rajendran, learned counsel appearing for the petitioner in W.P.No.17646 of 2006; Mr.R.Viduthalai, learned Advocate General appearing for the State of Tamil Nadu; Mr.J.Ravindran, learned counsel appearing for the CMDA and Mr.L.N.Praghasham, learned counsel appearing for the Chennai Corporation. 12. The affidavits filed by the authorities, documents and other materials brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorised constructions in the City of Chennai. It is seen that the builders have violated with impunity the sanctioned building plans, and the Rules relating to FSI, fire safety and parking facilities to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Such wayward growth in illegal constructions has posed a serious threat to ecology and environment and affected water supply, sewerage and traffic movement facilities in the city. The violations of regulatory rules on such massive scale can result in development plan becoming merely a scrap of paper. On the one hand, various laws are enacted, master plans are prepared by expert planners, provision is made in the regulations also to tackle the problem of unauthorized constructions and misusers, and on the other hand, such illegal activities go on unabated openly under the gaze of everyone, without having respect for the law and other citizens. There is no gainsaying that the application and observation of the Development Control Rules is vital for the proper and planned growth and development of the city. If these rules are given a go-by, the inevitable result would be shortage of water and electricity, choked roads and ecological and environmental imbalances causing serious hardship to every resident of the city. 13. In CONSUMER ACTION GROUP'S CASE, cited supra, the Supreme Court while upholding the validity of Section 113-A as a one-time measure, has warned that before such pattern becomes cancerous and spreads to all parts of the country, it is high time that remedial measures were taken to check this pattern, as it retards development, jeopardises all purposeful plans of any city and liquidates the expenditure incurred in such development process. Misra,J. speaking for the Bench, observed in paragraphs 37 and 38 as follows:- '' 37. Mere reading of this reveals administrative failure, regulatory inefficiency and laxity on the part of the authorities concerned being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with staring eyes the Government feels helpless to let it pass; as the period of limitation has gone, so no action could be taken. This mess is the creation out of the https://hcservices.ecourts.gov.in/hcservices/ inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing the illegalities, which are writ large, no administrative action of demolition of such a large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal, what not? Are the consequences of such illegal constructions not laid down? Does the statute not provide for controlled development of cities and rural lands in the interest of the welfare of the people to cater to public convenience, safety, health etc.? Why this inaction? The Government may have a gainful eye in this process of regularisation to gain affluence by enriching coffers of the State resources but this gain is insignificant compared to the loss to the public, which is State concern also as it waters down all preceding developments. Before such pattern becomes cancerous and spreads to all parts of this country, it is high time that remedial measure was taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the laches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of the public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks, etc. Such a pattern retards development, jeopardises all purposeful plans of any city, and liquidates the expenditure incurred in such development process. 38. We may shortly refer to the possible consequences of the grant of such exemption under Section 113-A by collecting regularisation fees. Regularisation in many cases, for the violation of front setback, will not make it easily feasible for the corporation to widen the abutting road in future and bring the incumbent closer to the danger of the road. The waiver of requirements of side setback will deprive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight a fire in a high-rise building. The violation of floor