The Palani Hills Conservation Council v. The Union of India & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 26.07.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MS. JUSTICE K.SUGUNAW.P. NO. 2504 OF 1995The Palani Hills Conservation Councilrep. by its Vice PresidentMr. Navroz ModyKodaikanal – 2... Petitioner- Vs -1. The Union of India rep. by its Secretary to Government Ministry of Environment and Forest Paryavaran Bhavan, CGO Complex Phase II, Lodhi Road New Delhi – 3.2. The State of Tamil Nadu rep. by its Secretary to Government Municipal Administration and Water Supply, Fort St. George Madras 600 009.3. Pleasant Stay Hotels (Kodai) Private Limited, rep. by its Executive Director, Mr.Rakesh Mittal Old Post Office Roiad Kodaikanal.4. Mr. Rakesh Mittal C/o. Pleasant Stay Hotels Post Office road, Kodaikonal.5. Kodaikanal Township Committee C/o Collector, Dindigul Anna District. .. RespondentsWrit Petition filed under Article 226 of the Constitution of India,for the issuance of a writ of declaration declaring the Tamil NaduDistrict Municipalities (2nd Amendment & Validation) Act, 1994, as ultravires Article 14 and 21 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr. T.Mohanfor M/s.J.SivanandarajFor Respondents : Mr. K.Gunasekar, ACGSC for R-1 Mr. D.Sreenivasan, AGP, for R-2 Mr. P.Srinivas for R-5 No Appearance for RR-3 & 4ORDERS.J.MUKHOPADHAYA, J.This writ petition, in public interest, has been preferred by thepetitioner for the issuance of a writ of declaration declaring the TamilNadu District Municipalities (2nd Amendment & Validation) Act, 1994,(hereinafter referred to as the 'Amendment & Validation Act, 1994) asultra vires Article 14 and 21 of the Constitution of India.By the aforesaid amendment, the State of Tamil Nadu substitutedSection 217-Q in place of the old Section 217-Q of Tamil Nadu DistrictMunicipalities Act, 1920, (hereinafter referred to as 'Act, 1920)empowering the State to exempt or relax the Central Government or theState Government or any building or class of buildings from all or any ofthe provisions of Chapter X and X-A of Act, 1920. By new Section 3 of theAmendment & Validation Act, 1994, all acts done, proceeding taken, ordersissued by the State Government exempting building or class of buildingsfrom the provision of the particular Act during the period commencingbetween 9th Dec., 1992 and 28th Nov., 1994, have been validated,notwithstanding anything contained in any law in force or any judgment ordecree or order passed by the Court or any authority.2. The petitioner, a registered society, has its objective ofpreservation and protection of ecology of the Palani Hills, an areaextending over 2000 sq. kms. It being vitally interested in the ecologyof the hills, including Kodaikanal town, had taken up many matters inpublic interest. According to the petitioner, it is bringing to thenotice of the Court the impunity with which the State Government had beenexercising the non-existent power and, when confronted, with legislation,had been attempting to legitimise infractions of law. The impugned act isan attempt at usurpation of judicial power and is fraught with dangers asexercise of powers conferred upon the 1st respondent by virtue of the Actwould lead to the deterioration of ecology of hill stations, such asKodaikanal in Tamil Nadu.The petitioner society had been actively campaigning against theproliferation of construction, which had come in total disregard of allplanning regulations. It initiated proceeding in respect of pollution ofKodaikanal lake by holiday resort promoters and other establishmentsaround the lake. Subsequently, a 'no construction zone' of 200 mtrs. hadbeen established around the lake. The petitioner society was called uponby the Chairman of the Township Planning Committee to submitrepresentation to the draft master plan and it filed representation beforethe High Power Committee setup to investigate pollution of Kodaikanallake. It pointed out the recent development of commercial buildings andthe enormous strain it placed on the fragile ecology of the town and thelake in particular. Pursuant to such hearing, the Kodaikanal Master Plan https://hcservices.ecourts.gov.in/hcservices/ came into being to zone the town and stipulate F.S.I. as the principleregulator of growth as is the practice in other metropolitan master plans.Amongst various other activities, petitioner society is planting trees,running several nurseries for supply of seedlings to farmers, preservationof flora and fauna, sustainable development of Palani Hills, villages,including analysis and safeguarding of dwindling drinking water sources,bee keeping, women's welfare and environmental education.3. Further case of the petitioner is that Kodaikanal town with apopulation of 25,000, spread over an area of 2 sq. km., became a vibranttourist paradise with all the attendant evils, which are inadequatesanitation, scarce drinking water supply and increase in urbanisation of afragile hill station. Kodaikanal Towhship Committee, which is the localplanning authority for Kodaikanal, had proved largely unable and incapableof meeting the challenges posed by increasing urbanisation and has beenunable to enforce building requirements, which had been framed aftermeticulous survey done on foot by the Directorate of Town and CountryPlanning, Madras, the apex body for urban planning activity in Tamil Nadu.Recognising Kodaikanal's fragile eco system, a draft master plan, preparedin 1988, restricted the heights of the buildings, objections were calledfor and finally came for approval in April, 1993. Between the publicationof the draft master plan and the approval of the master plan of KodaikanalTown, the 3rd respondent, M/s.Pleasant Stay Hotels commenced work on itssanctioned two floors, but illegally constructed ground plus six floorswithout approval of plan. 4. The petitioner, being aggrieved, preferred a public interestlitigation, reported in 1995 (2) WLR 737 – Palani Hills ConservationCouncil – Vs – State of Tamil Nadu & Ors. The writ petition was preferredin the year 1992 and, whileso pending, the impugned Amendment andValidation Act, 1994, came into force on 28th Nov., 1994. A Division Benchof this Court, at paragraph-15 of the judgment referred to above, noticedthat when the two writ petitions were taken up for disposal on 18th Oct.,1994, on behalf of the State Government, adjournment was sought for. Thematter was being adjourned periodically. On 9th Nov., 1994, a bill wasmoved in the Legislative Assembly to amend the District Municipalities Actby amending Section 217-Q so as to provide for a power of exemption to theGovernment with regard to private buildings also. The Bill was passed andAmending Act, viz., Tamil Nadu District Municipalities (2nd Amendment andValidation) Act, 1994, (No.52 of 1994) was passed and it received theassent from the Governor on 26th Nov., 1994, and gazetted on 28th Nov.,1994. As per the amendment, Section 217-Q empowers the State Governmentto exempt any building or class of buildings from all or any of theprovisions of Chapter X or Chapter X-A of the Act or relax any rule madeunder the said Chapters in respect of all buildings or class of buildings.Section 3 of the said Act contain the validation clause, the amended Actreads thus:-“1. (1) This Act may be called the Tamil Nadu DistrictMunicipalities Act, 1920 (hereinafter referred to as theprincipal Act), the following section shall be substituted,namely :-“217-Q. Power to exempt or relax – The State Governmentmay, if satisfied that it will not result in thedeterioration of senic beauty or destruction of the https://hcservices.ecourts.gov.in/hcservices/ environment and eco-system of the hill station, by order, -(a) exempt, subject to such conditions if any, as may bespecified in the order, the Central Government or the StateGovernment or any building or class of buildings from allor any of the provisions of this Chapter or Chapter X ofthis Act; or(b) relax, subject to such conditions if any, as may bespecified in the order, any rule made under this Chapter orChapter X of this Act, in favour of the Central Governmentor the State Government or in respect of any building orclass of buildings.”.3. Notwithstanding anything contained in any law for thetime being in force or in any judgment, decree or order ofany court or other authority, all acts done, proceedingstaken or orders issued by the State Government exemptingany building or class of buildings from any of theprovisions of the principal Act or relaxing any of therules made under Chapter X or Chapter X-A of the principalAct in respect of any building or class of buildings,during the period commencing on the 9th day of December1992 and ending with the date of publication of this Act inthe Tamil Nadu Government Gazette shall for all purposes,be deemed to be and to have always been validly done, takenor issued in accordance with law, as if section 217-Q ofthe principal Act, as amended by this Act, had been inforce at all material times when such acts, proceedings ororders were done, taken or issued.”In the earlier case, it was pleaded on behalf of the State thatSection 3 of the amended Act is a validating provision. The expression“for all purposes” means that the validity of the exemption orders passedbetween 9th Dec., 1994 and 28th Nov., 1994, i.e., the date of publication ofthe said Act cannot be questioned in any court of law. Such submissionwas not accepted by the Division Bench of this Court, which proceeded toconsider the question whether the Government Orders under challenge werevalid or not, as if Section 217-Q of the amended Act was in existence from9th Dec., 1992. The aforesaid case, preferred by the petitioner, PalaniHills Conservation Council (supra), was allowed alongwith some other caseswith the following observations :-“67. In the result, all the three writ petitions areallowed in the following terms :(1) A writ of Mandamus shall issue directingrespondents 1 and 2 in W.P. No.13231 of 1992 todemolish the building constructed by the Hotel to theextent to which it is contrary to the plan sanctionedby the second respondent on 01.11.1991. Respondents 1and 2 shall see to it that there are only two floors,ground floor and first floor above natural ground levelof the site as per the original plan submitted by thehotel for sanction in April, 1991. The remaining partof the building shall be demolished.(2) It is necessary for the Hotel to obtainenvironmental clearance from the Central Ministry.(3) Till the demolition as aforesaid and till obtainingclearance of the Central Ministry, there shall be no https://hcservices.ecourts.gov.in/hcservices/ supply of electricity or water to the Hotel and nooccupancy shall be permitted in the building.(4) The second respondent-Township Committee is herebydirected to investigate all the cases of constructionsin Kodaikanal erected in contravention of the Rules andtake appropriate action in accordance with law againstthe violators within a period of three months from thisdate.(5) G.O. Ms. No.126, Municipal Administration and WaterSupply, dated 13.05.1994 is quashed.(5) G.O. Ms. No.317, Municipal Administration and WaterSupply, dated 6th December, 1994 is quashed.(7) The petitioner is entitled to costs in W.P.No.13104 of 1994 and 20375 of 1994 against the firstrespondent therein. Counsel's fee Rs.2,500/= in eachof the said writ petitions.5. Pleasant Stay Hotel and Another, thereafter, moved before theSupreme Court against the aforesaid judgment of the Division Bench of thisCourt, reported in 1995 (2) WLR 769. The Supreme Court upheld theDivision Bench judgment with the following observation :-“27. Since the above findings of fact are based on aproper appraisal of the entire materials available to theHigh Court we do not find any reason to disturb the samesitting in our jurisdiction under Article 136 of theConstitution. .......... We are not prepared to accept theabove contentions, for, the High Court took great pains toconsider the contour plan in its proper perspective. Thisapart, the High Court's findings as noticed above are notsolely based on the contour plan but other factors also.In our considered opinion the most eloquent and patent factthat must tilt the scale in this dispute in favour of theCouncil is that the Hotel has admittedly made a residentialconstruction of seven floors even though their sanctionedplan was only for two floors. That necessarily means thatfive floors of the building have been constructed illegallyand unauthorisedly. ............”However, having noticed the argument that the demolition has to be ofthe five floors below the road level, the plan was sanctioned showing theroad level as ground level, the Supreme Court observed that the order ofthe High Court is not clear as to whether the High Court intended that theconstruction of the two floors above the road level is to be kept intactand the rest demolished or the stepped structure of two floors raisingfrom the natural ground level has to be kept intact and the restdemolished, which High Court should clarify.The case was again taken up by the Division Bench of this Court on28th Oct., 1995, reported in 1995 (2) WLR 778, wherein the Court clarifiedthat the sanction was for constructing two floors above the “naturalground level”, the top five floors have to be demolished and the twofloors above the natural ground level alone to be retained withoutdemolition.6. Learned counsel appearing on behalf of the petitioner informed thatinspite of such direction of this Court, as affirmed by the Supreme Court, https://hcservices.ecourts.gov.in/hcservices/ the 3rd respondent has not demolished the building and structure, may bebecause of Section 3 of the Amendment and Validation Act, 1994. 7. The scope of regularisation of unauthorised construction de horsthe town planning fell for consideration before the Supreme Court inFriends Colony Development Committee – Vs – State of Orissa reported in2004 (8) SCC 733. In the said case, the Supreme Court opined as follows :-“25. Though the municipal laws permit deviations fromsanctioned constructions being regularised by compoundingbut that is by way of exception. Unfortunately, theexception, with the lapse of time and frequent exercise ofdiscretionary power conferred by such exception has becomethe rule. Only such deviations deserve to be condoned asare bona fide or are attributable to some misunderstandingor are such deviations as where the benefit gained bydemolition would be far less than the disadvantagesuffered. Other than these, deliberate deviations do notdeserve to be condoned and compounded. Compounding ofdeviations ought to be kept at a bare minimum. The casesof professional builders stand on a different footing froman individual constructing his own building. Aprofessional builder is supposed to understand the lawsbetter and deviations by such builders can safely beassumed to be deliberate and done with the intention ofearning profits and hence deserve to be dealt with sternlyso as to act as a deterrent for future. It is commonknowledge that the builders enter into underhand dealings.Be that as it may, the State Governments should think oflevying heavy penalties on such builders and therefromdevelop a welfare fund which can be utilised forcompensating and rehabilitating such innocent or unwarybuyers who are displaced on account of demolition ofillegal constructions.”In the case of Consumer Action Group – Vs – State of Tamil Nadureported in 2000 (7) SCC 425, the Supreme Court held :-“While exercising such power the authority has to keep inmind the purpose and the policy of the Act and whilegranting relief has to equate the resultant effect of sucha grant on both viz., the public and the individual. Solong as it does not materially affect the public cause, thegrant would be to eliminate individual hardship which wouldbe within the permissible limit of the exercise of power.But where it erodes the public safety, public convenience,public health, etc., the exercise of power could not before the furtherance of the purpose of the Act. Minorabrasion here and there to eliminate greater hardship, mayin a given case, be justified but in no case affecting thepublic at large. So every time the Government exercisesits power it has to examine and balance this beforeexercising such a power. Even otherwise, every individualright including fundamental right is within reasonablelimit but if it makes inroads into public rights leading topublic inconveniences it has to be curtailed to thatextent. So no exemption should be granted affecting the https://hcservices.ecourts.gov.in/hcservices/ public at large. Various development rules andrestrictions under it are made to ward off possible publicinconvenience and safety. Thus, whenever any power is tobe exercised, the Government must keep in mind, whethersuch a grant would recoil on the public or not and to whatextent. If it does then exemption is to be refused. Ifthe effect is marginal compared to the hardship of anindividual that may be considered for granting.”The aforesaid case also fell for consideration before the SupremeCourt in the case of Mahendra Baburao Mahadik - Vs – Subhash KrishnaKanitkar reported in 2005 (4) SCC 99, wherein the Supreme Court, followingthe decisions referred to above, held that the discretionary power must beexercised having regard to the larger public interest.8. The provision of Section 113-A of Tamil Nadu Town and CountryPlanning Act, 1971, fell for consideration before a Division Bench of thisCourt in Consumer Action Group – Vs – State of Tamil Nadu reported in 2006(4) CTC 483. The Constitutional validity of regularisation scheme forregularisation of unauthorised construction u/s 113-A having noticed, thisCourt held that offering priced amnesty to violators at the cost of publicinterest and scientific town planning reduces Statutes of such regulationto purchasable privilege from that of mandatory safeguards designed toensure orderly growth of the city. The amended Section 113-A and schememade thereunder were held to be in gross violation of Article 21 and 14 ofthe Constitution of India.9. In the present case, the petitioner has alleged that Section 3 ofthe Amendment and Validation Act, 1994, could be called as single personenactment, as it was enacted just to regularise the unauthorisedconstruction of the 3rd respondent, Pleasant Stay Hotels. On instructions,learned counsel for the State also accepted that except the 3rd respondent,in Kodaikanal no other person could derive advantage of amended Section 3i.e., construction, which were made in contravention of the rules between9th Dec., 1992 and 28th Nov., 1994.In the present case, we are concerned with validity of the Amendmentand Validation Act, 1994, particularly, amended Section 217-Q and Section3 as inserted therein. Similar provision like Section 217-Q, viz., Section 113 of the TamilNadu Town and Country Planning Act, 1971, fell for consideration beforethe Supreme Court in Consumer Action Group – Vs – State of Tamil Nadu,reported in 2000 (4) CTC 181. Under Section 113, provision of exemptionwas made to exempt any land or building or class of land or building fromall or any of the provisions of the Act or the rules or regulations madethereunder. In the said case, though Supreme Court noticed that in thegarb of its wide power, the State Government had exercised such power infavour of others illegally and arbitrarily beyond its power vested in thesaid provision without application of mind, held the order impugnedtherein as illegal and quashed them. However, Section 113 was upheld,with caution, as quoted hereunder :-“30. When such a wide power is vested in the Governmentit has to be exercised with greater circumspection.Greater is the power, greater should be the caution. Nopower is absolute, it is hedged by the checks in thestatute itself. Existence of power does not mean to give https://hcservices.ecourts.gov.in/hcservices/ one on his mere asking. The entrustment of such power isneither to act in benevolence nor in the extra statutoryfield. Entrustment of such a power is only for the publicgood and for the public cause. While exercising such apower the authority has to keep in mind the purpose and thepolicy of the Act and while granting relief has to equatethe resultant effect of such a grant on both viz., thepublic and the individual. So long as it does notmaterially affect the public cause, the grant would be toeliminate individual hardship which would be within thepermissible limit of the exercise of power. But where iterodes the public safety, public convenience, publichealth, etc., the exercise of power could not be fore thefurtherance of the purpose of the Act. Minor abrasion hereand there to eliminate greater hardship, may in a givencase, be justified but in no case affecting the public atlarge. So every time the Government exercises its power ithas to examine and balance this before exercising such apower. Even otherwise, every individual right includingfundamental right is within reasonable limit but if itmakes inroads into public rights leading to publicinconveniences it has to be curtailed to that extent. Sono exemption should be granted affecting the public atlarge. Various development rules and restrictions under itare made to ward off possible public inconvenience andsafety. Thus, whenever any power is to be exercised, theGovernment must keep in mind, whether such a grant wouldrecoil on the public or not and to what extent. If it doesthen exemption is to be refused. If the effect is marginalcompared to the hardship of an individual that may beconsidered for granting. Such an application of mind hasnot been made in any of these impugned orders. Anothersignificant fact which makes these impugned orders illegalis that Section 113 empowers it to exempt but it obligatesit to grant subject to such condition as it deems fit. Inother words, if any power is exercised then Government mustput such condition so as to keep in check such person. Wefind in none of these sixty-two orders any condition is putby the Government. If not this then what else would be theexercise of arbitrary power.”In the aforesaid case of Consumer Action Group (supra), Section 113-Aof the Tamil Nadu Town and Country Planning (Amendment) Act, 1998, alsofell for consideration. Having noticed that the Legislature had laid downeverything and did not leave it to the absolute direction of thedelegatee, upheld Section 113-A as a valid one time piece of legislation.10. The amended Section 217-Q deals with power to exempt or relax onlywhen the State Government is satisfied that it will not result in thedeterioration of the 'scenic beauty' or 'destruction of the environment'and 'eco system of the hill station'. Thus it will be evident that theState Government has not delegated unbridled or uncannalised discretionarypower to any of its officer, but the same is subject to the restrictionprescribed therein. https://hcservices.ecourts.gov.in/hcservices/

11. One may also look into the statement of objects and reasons forthe Amendment and Validation Act, 1994, which reads as follows :-“According to the proviso to Section 192 of the Tamil NaduDistrict Municipalities Act, 1920, the State Government mayin respect of all municipalities or with the consent of themunicipal council, in respect of any particularmunicipality or portion thereof, exempt all buildings orany class of buildings from all or any of provisions ofChapter X of the said Act or the rules made thereunder. Inthe new Chapter X-A incorporated by Tamil Nadu Act 58 of1992, which is applicable to hill stations, there are noprovisions enabling the Government to exempt any buildingor class of buildings from the provisions of the saidChapter X-A. The Government have therefore decided thatprovisions should be made in Chapter X-A of the Tamil NaduDistrict Municipalities Act, 1920 enabling the StateGovernment if they are satisfied that it will not result inthe deterioration of senic beauty or destruction of theenvironment and eco-system of the hill stations to exemptfrom the provisions of Chapter X or Chapter X-A of the saidAct or relax the rules made under Chapter X or Chapter X-Aof the said Act in respect of any building or class ofbuildings apart from the Central or State Government.”From the aforesaid discussions and the objects and reasons it will beevident that only when the State Government is satisfied that in aparticular case, grant of exemption or relaxation will not result in thedeterioration of scenic beauty or destruction of the environment or ecosystem of the hill stations, it may exempt or relax the provisions ofChapter X and Chapter X-A of the Act. 12. So far as amended Section 3 is concerned, there is nothing on therecord to suggest that any enquiry was made in respect of constructionsmade between 9th Dec., 1992 and 28th Nov., 1994, has affected scenic beautyor destruction of environment and/or eco-system of the hill station. Thatis the pre-requirement for grant of exemption or relaxation u/s 217-Q.In the case of Consumer Action Group reported in 2000 (4) CTC 181, theSupreme Court, while cautioned the Government to exercise suchdiscretionary wider power, has made it clear that no power is absolute andsuch power cannot be exercised where it erodes public safety, publicconvenience, public health, etc. No exemption could be granted affectingthe public at large.It has not been disputed by the State Government that Section 3 wasenacted to give benefit only to a single individual in the District ofKodaikanal, i.e., 3rd respondent of the present case.13. Having regard to the facts and circumstances and the discussion asmade above, while we hold that amended Section 217-Q of the Tamil NaduDistrict Municipalities Act, 1920, is valid and intra vires and do notsuffer from vice of excessive delegation, we further hold that amendedSection 3 of the Amendment and Validation Act, 1994, is ultra viresArticle 14 of the Constitution of India.Further, irrespective of Section 3 of the Amendment and ValidationAct, 1994, judgment having been passed by this Court in petitioner's casereported in 1995 (2) WLR 737, directing the 3rd respondent to demolish the https://hcservices.ecourts.gov.in/hcservices/ rest floors of the building except the ground and first floor, as affirmedby Supreme Court in the case of the 3rd respondent, Pleasant Stay Hotels,reported in 1995 (2) WLR 769, those judgments having been passed afteramendment and insertion of Section 3, the respondents are bound to complywith the Court's order, including the direction given by the Supreme Courtand noticed above.Counsel for the State informed that the building has not beendemolished as the 3rd respondent was expected to undertake demolition. Oninstructions, learned counsel for the State informed that the respondentswill demolish the structure of 3rd respondent in accordance with thedirections of this Court and the Supreme Court within six months and willrecover the cost from the 3rd respondent. We, accordingly, direct therespondents to remove the structure of the 3rd respondent by complying withthe directions given by this Court in the petitioner's case – Palani HillsConservation Council, reported in 1995 (2) WLR 737, as affirmed by SupremeCourt, within a period of six months with liberty to recover the cost ofdemolition and removal of garbage from the 3rd respondent, if it is notremoved by the 3rd respondent.14. The writ petition is allowed in part with the aforesaidobservations and directions. But there shall be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GLNTo1. The Secretary to Government Ministry of Environment and Forest Government of India Paryavaran Bhavan, CGO Complex Phase II, Lodhi Road New Delhi – 3.2. The Secretary to Government Municipal Administration and Water Supply Government of Tamil Nadu Fort St. George Madras 600 009. https://hcservices.ecourts.gov.in/hcservices/

3. Kodaikanal Township Committee C/o Collector, Dindigul Anna District. + 1 CC To Mr. K.Gunasekaran, Advocate SR NO.46644+ 1 CC To Mr. T.Mohan Advocate SR NO.46533+ 1 CC to the Government Pleader SR NO 46434+ 1 CC To Mr. P.Srnivas, Advocate SR NO.46091W.P. NO. 2504 OF 1995vc[co]gp/2.8.