http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18

PETITIONER:

THE CONSUMER ACTION GROUP & ANR.

Vs.

RESPONDENT:

STATE OF TAMIL NADU & ORS.!The Consumer Action GroupVs.State of Tamil Nadu & Anr.

DATE OF JUDGMENT: 18/08/2000

BENCH:

B.N. Kirpal J. & A. P. Misra J.

JUDGMENT:

MISRA, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

The petitioner challenges the constitutional validity of

Section 113 of the Tamil Nadu Town and Country Planning Act,@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

1971 (hereinafter referred to as the Act) as it being@@

JJJJ

ultra vires of Articles 14 and 21 of the Constitution of

India and also the validity of the orders passed under it,

granting exemptions by respondent no.1, viz., the

Government. We are drawn to consider an issue, more

appropriately expressed in the words of Chinnappa Reddy, J.

the perennial, nagging problem of delegated legislation

and the so-called Henry VIII clause have again come up for

decision... The petitioner - the consumer action group

which is a trust registered under the Indian Trust Act, has

raised similar issue before us.

The petitioner through this petition under Article 32 of

the Constitution of India has brought to the notice of this

Court, impunity with which the executive power of State of

Tamil Nadu is being exercised indiscriminately in granting

exemptions to the violators violating every conceivable

control, check including approved plan, in violation of the

public policy as laid down under the Act and the Development

Control Rules (hereinafter referred to as the Rules). The

submission is, granting of such exemptions is against the

public interest, safety, health and the environment. To

bring home this indiscriminate exercise of power, reference

is made to about sixty two such orders passed by the

Government between the period 1.7.1987 to 29.1.1988 which

have been annexed compositely as Annexure II to the

petition. Submission is, it is this indiscriminate exercise

of power which results in the shortage of water,

electricity, choked roads and ecological and environmental

imbalances. Mr. Dayan Krishnan, learned counsel for the

petitioner submits, such exercise of power is because there

are no guidelines or control under the Act. This is the

main plank of attack, for declaring Section 113 as ultra

vires as it can do or undo anything under the Act to wipe

out any development without any check which amounts to the

delegation by the Legislature of its essential legislative

power.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18

Mr. R. Mohan, learned senior counsel for the State has

denounced with vehemence these submissions. The power is

neither uncanalised nor without any guideline. This power

is controlled through the guidelines, which could be

gathered from the preamble, Objects and Reasons, including

various provisions of the Act and the Rules. So far

challenge to the orders passed under it by the State

Government, it is open for the Court to examine the same and

in case they are found to have been passed arbitrarily or

illegally the court may quash the same, but such exercise of

power would not lend support to a declaration of Section 113

as ultra vires.

In order to appreciate the submissions and to adjudicate

the issues involved, it is proper to scan through the

periphery, scope and object of the aforesaid Act and the

Rules. The preamble of the Act picturises that the Act is

for the planning the development of 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 this 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 for the development or re-

development or improvement of the area within the

jurisdiction of a planning authority and includes a regional

plan, master plan, detailed development plan and a new town

development plan prepared under this Act. This Act consists

of XIV Chapters containing 125 Sections. It provides for

the creation of the Metropolitan Development Authority for

the Metropolitan area. Under Chapter II-A, the Madras

Metropolitan Development Authority (MMDA) was formed. The

control and development plan of the Madras Metropolitan area

is listed with MMDA. Chapter III deals with the planning

authorities and its plan, Chapter IV deals with acquisition

and disposal of land, Chapter V contains special provisions

regarding new town development authority and Chapter VI

refers to the control of development and use of land. This

Chapter gives clear guidelines to the appropriate

authorities under which 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. Thus, this Section

empowers MMDA to revoke or modify any permission already

granted. This also provides as to when such an application

for modification could be made. This 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

is placed. This confers delegation of power on the State

Government and delegation of power to the Director under

Section 91 and to the appropriate planning authority under

Section 91-A. It is true both these later Sections are

hedged with restrictions contained therein. It is under

this setting, when there is no check, or restrictions in

Section 113 its vires is challenged. This contrast between

Section 91 and 91-A with Section 113 is submitted, is

indicative that the power with the Government is unguided

and uncontrolled. In Chapter XIII, Section 122 empowers the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18

Government to make rules to carry out the purposes of this

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 this Act and the

Rules. Significantly sub-section (3) of Section 124 gives

power to the Government to rescind any regulation made under

this section through notification. Similarly, rule 3 guides

and controls the authorities to exercise its powers within

the limitations of each such zone. The said rules further

guide the authorities to exercise its power within the

limitation as tabulated specifying the requirements relating

to floor space index, maximum height, minimum set-back,

front set back, side set back, rear set back etc. For

commercial zones further restrictions are in relation to the

horsepower rating of electric motors and steps to be taken

to regulate storage of explosives, to regulate effluents,

smoke, gas or other items likely to cause danger or nuisance

to public health. These rules sets out norms on which basis

specific standards are to be worked out, keeping in mind the

public interest, public health and their safety as well

development of that area, to cater to the need of its

citizens.

It is in this background we now proceed to consider the

challenge to Section 113. For ready reference, the same is

quoted hereunder:-

113. Exemptions:- Notwithstanding anything contained

in this Act, the Government may, subject to such conditions

as they deem fit, by notification, exempt any land or

building or class of land or buildings from all or any of

the provisions of this Act or rules or regulations made

thereunder."

It cannot be doubted, mere reading literally its

language, the first impression is that power conferred upon

the Government displays one to be of the widest amplitude

with no in built check revealed from this Section. The

petitioners case is, such wide powers have led to its

exercise unscrupulously without consideration of its effect

on the public at large. On the other hand learned counsel

for the State denying this submits, the power is bridled and

controlled through the Preamble, Objects and Reasons and

various provisions of the Act and the Rules.

Challenging the vires of this section, counsel for the

petitioner referred to Premium Granites and Anr. V. State@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

of T.N. and Ors. 1994 (2) SCC 691. In this case, Rule of@@

JJJJJJJJJJJJJJJJJJJJJJJJ

granting exemption from other provisions of the statute of

the Tamil Nadu Minerals Concession Rules, 1959 was

challenged as being arbitrary and without any guidelines.

Same submission was made, as in the present case that this

gives wide discretionary power to the authority uncanalised.

This decision held:-

..In our view, in interpreting the validity of a

provision containing relaxation or exemption of another

provision of a statute, the purpose of such relaxation and

the scope and the effect of the same in the context of the

purpose of the statute should be taken into consideration

and if it appears that such exemption or relaxation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18

basically and intrinsically does not violate the purpose of

the statute, there will be no occasion to hold that such

provision of relaxation or exemption is illegal or the same

ultra vires other provisions of the statute. The question

of exemption or relaxation ex hypothesi indicates the

existence of some provisions in the statute in respect of

which exemption or relaxation is intended for some obvious

purpose.

This holds such a provision of regularisation or

exemption cannot be held to be illegal, if it is consistent

with the purpose of the statute. It further held:-

But we do not think that in the facts and circumstances

of the case, and the purpose sought to be achieved by Rule

39, such reading down is necessary so as to limit the

application of Rule 39 only for varying some terms and

conditions of a lease. If the State Government has an

authority to follow a particular policy in the matter of

quarrying of granite and it can change the provisions in the

Mineral Concession Rules from time to time either by

incorporating a particular rule or amending the same

according to its perception of the exigencies, it will not

be correct to hold that on each and every occasion when such

perception requires a change in the matter of policy of

quarrying a minor mineral in the State, particular provision

of the Mineral Concession Rules has got to be amended.

So, this Court upheld the validity of Rule 39 of the

Tamil Nadu Mineral Concession Rules, 1959. Strong reliance

is placed for the petitioner in the case of A.N.

Parasuraman and Ors. V. State of Tamil Nadu, 1989 (4) SCC

683, Section 22 of the Tamil Nadu Private Educational

Institutions (Regulation) Act, 1966 was challenged. This

conferred wide exemption power on the State Government to

exempt any private educational institution from all or any

provisions of the Act. This Court held:-

The provisions of the Act indicate that the State

Government has been vested with unrestricted discretion in

the matter of the choice of the competent authority under

Section 2(c) as also in picking and choosing the

institutions for exemption from the Act under Section 22.

Such an unguided power bestowed on the State Government was

struck down as offending. Article 14 in the case of the

State of West Bengal v. Anwar Ali Sarkar. A similar

situation arose in K.T. Moopil Nair v. State of Kerala

where, under Section 4 of the Travancore-Cochin Land Tax

Act, 1955, all lands were subjected to the burden of a tax

and Section 7 gave power to the government to grant

exemption from the operation of the Act. The section was

declared ultra vires on the ground that it gave uncanalised,

unlimited and arbitrary power, as the Act did not lay down

any principle or policy for the guidance of exercise of the

discretion in respect of the selection contemplated by

Section 7.

Section 22 was held to be ultra vires as the Act did not

lay down any principle or policy for the guidance to the

delegatee for exercising its discretion.

In Mahe Beach Trading Co. and Ors. V. Union Territory

of Pondicherry and Ors., 1996 (3) SCC 741, the Municipal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18

Council decided to levy a municipal tax of 5 paise on each

litre of petrol and diesel oil sold at the petrol pump.

This levy was challenged which was struck down by the

learned Single Judge. During the pendency of this appeal,

the Administrator of Pondicherry, promulgated Pondicherry

Municipal Decree (Levy and Validation of Taxes, Duties,

Cesses and Fees) Ordinance, 1973 and this was later replaced

by an Act. Sections 3 and 4 of the Validation Act were

challenged on the ground of excessive delegation of the

essential legislative power. This Court held:

The principle which emanates from the aforesaid

decisions relied upon by the appellants is very clear

namely: that if there is abdication of legislative power or

there is excessive delegation or if there is a total

surrender or transfer by the legislature of its legislative

functions to another body then that is not permissible.

There is, however, no abdication, surrender of legislative

functions or excessive delegation so long as the legislature

has expressed its will on a particular subject-matter,

indicated its policy and left the effectuation of the policy

to subordinate or subsidiary or ancillary legislation.

However, the Court holds, the question of these Sections

being ultra vires would have been relevant if any delegatee

was to take any decision, which was not in that case.

In State of Kerala and Ors. V. Travancore Chemicals

and Manufacturing Co. and Anr. 1998 (8) SCC 188, the

validity of Section 59-A of the Kerala General Sales Tax Act

was challenged which was held to be violative of Article 14

and was thus struck down. Section 59-A of this Act is

quoted hereunder:

59-A. Power of Government to determine rate of tax.-If

any question arises to the rate of tax leviable under this

Act on the sale or purchase of any goods, such question

shall be referred to the Government for decision and the

decision of the Government thereon shall, notwithstanding

any other provision in this Act, be final.

Court held:

Section 59-A enables the Government to pass an

administrative order which has the effect of negating the

statutory provisions of appeal, revision etc. contained in

Chapter VII of the Act which would have enabled the

appellate or revisional authority to decide upon questions

in relation to which an order under Section 59-A is passed.

Quasi-judicial or judicial determination stands replaced by

the power to take an administrative decision. There is

nothing in Section 59-A which debars the Government from

exercising the power even after a dealer has succeeded on a

question relating to the rate of tax before an appellate

authority. The power under Section 59-A is so wide and

unbridled that it can be exercised at any time and the

decision so rendered shall be final.

In Kunnathat Thathunni Moopil Nair V. The State of

Kerala and Anr. 1961 (3) SCR 77, the constitutional

validity of the Travancore-Cochin Land Tax Act (Amendment

Act 10 of 1957) was challenged as it contravenes Article 14,

19(1)(f) and 31(1) of the Constitution of India. The

grounds of challenge were (a) the Act did not have any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18

regard to the quality of the land or its productive capacity

and the levy of tax at a flat rate is unreasonable

restriction on the right to hold property; (b) the Act did

not lay down any provision calling for a return from the

assessee for an enquiry or investigation of facts before the

assessment; (c) Section 7 gave arbitrary power to the

Government to pick and choose in the matter of grant of

total or partial exemption from the provisions of the Act;

and (d) the tax proposed to be levied had absolutely no

relation to the production capacity of the land sought to be

taxed or to the income they could arrive. This Court with

respect to Section 7 of the said Act held:-

Furthermore, Section 7 of the Act, quoted above,

particularly the latter part, which vests the Government

with the power wholly or partially to exempt any land from

the provisions of the Act, is clearly discriminatory in its

effect and, therefore, infringes Art. 14 of the

Constitution. The Act does not lay down any principle or

policy for the guidance of the exercise of discretion by the

Government in respect of the selection contemplated by s.7.

Section 7 was held to be ultra vires as the Act did not lay

down any principle or policy for the guidance.

For the State reliance is placed in the State of Bombay

and Anr. V. F.N. Balsara, 1951 SCR 682 (Constitution

Bench). With reference to the validity of Section 139(c) of

the Bombay Prohibition Act (XXV of 1949) the submission was

that power given to the Government to exempt any person or

institution or any class of persons or institutions from

observing whole or any of the provisions of the Act, rule or

regulation or order is too wide and unbridled. This section

is similar in the width of discretion to the section we are

considering. This Court while setting aside the High Court

decision upheld the provisions and held:-

This Court had to consider quite recently the question

as to how far delegated legislation is permissible, and a

reference to its final conclusion will show that delegation

of the character which these sections involve cannot on any

view be held to be invalid. (See Special Reference No.1 of

1951: In re The Delhi Laws Act, 1912, etc. ). A

legislature while legislating cannot foresee and provide for

all future contingencies, and section 52 does no more than

enable the duly authorized officer to meet contingencies and

deal with various situations as they arise. The same

considerations will apply to section 53 and 139(c). The

matter however need not be pursued further, as it has

already been dealt with elaborately in the case referred

to.

In Harishankar Bagla and Anr. V. The State of Madhya

Pradesh 1995 SCR 380 (Constitution Bench) this Court held:-

The next contention of Mr. Umrigar that section 3 of

the Essential Supplies (Temporary Powers0 Act, 1946, amounts

to delegation of Legislative power outside the permissible

limits is again without any merit. It was settled by the

majority judgment in the Delhi Laws Act case that essential

powers of legislature cannot be delegated. In other words,

the legislature cannot delegate its function of laying down

legislative policy in respect of a measure and its

formulation as a rule of conduct. The Legislature must

declare the policy of the law and the legal principles which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18

are to control any given cases and must provide a standard

to guide the officials or the body in power to execute the

law. The essential legislative function consists in the

determination or choice of the legislative policy and of

formally enacting that policy into a binding rule of

conduct. In the present case the legislature has laid down

such a principle and that principle is the maintenance or

increase in supply of essential commodities and of securing

equitable distribution and availability at fair prices.As

already pointed out, the preamble and the body of the

sections sufficiently formulate the legislative policy and

the ambit and character of the Act is such that the details

of that policy can only be worked out by delegating them to

a subordinate authority within the framework of that

policy.

In Sardar Inder Singh V. The State of Rajasthan 1957

SCR (Constitution Bench), this Court was considering Section

15 of the Rajasthan (Protection and Tenants) Ordinance, 1949

which, with similar provision authorised the Government to

exempt any person from the operation of the Act. This Court

held:

A more substantial contention is the one based on s.

15, which authorises the Government to exempt any person or

class of persons from the operation of the Act. It is

argued that that section does not lay down the principles on

which exemption could be granted, and that the decision of

the matter is left to the unfettered and uncanalised

discretion of the Government, and is therefore repugnant to

Art. 14. It is true that that section does not itself

indicate the grounds on which exemption could be granted,

but the preamble to the Ordinance sets out with sufficient

clearness the policy of the Legislature; and as that

governs s. 15 of the Ordinance, the decision of the

Government thereunder cannot be said to be unguided. Vide

Harishanker Bagla v. The State of Madhya Pradesh.

P.J. Irani V. The State of Madras 1962 (2) SCR 169

(Constitution Bench). In this case Section 13 of Madras

Buildings (Lease and Rent Control) Act, 1949 is similar to

the provisions we are considering conferred power of

exemption. This Court held:

It was not possible for the statute itself to

contemplate every such contingency and make specific

provision therefor in the enactment. It was for this reason

that a power of exemption in general terms was conferred on

the State Government which, however, could be used not for

the purpose of discriminating between tenant and tenant, but

in order to further the policy and purpose of the Act which

was, in the context of the present case, to prevent

unreasonable eviction of tenants.

In Registrar of Co-operative Societies, Trivandrum and

Anr. V. K. Kunhambu and Ors. 1980 (2) SCR 260, this

Court was considering Section 60 of the Madras Cooperative

Societies Act 1932, which empowered the State Government to

exempt existing society from any of the provisions of the

Act or to direct that such provisions shall apply to such

society with specified modifications. This Court held:

The Legislature may guide the delegate by speaking

through the express provision empowering delegation or the

other provisions of the statute, the preamble, the scheme or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18

even the very subject matter of the statute. If guidance

there is, wherever it may be found, the delegation is

validSection 60 empowers the State Government to exempt a

registered society from any of the provisions of the Act or

to direct that such provision shall apply to such society

with specified modifications. The power given to the

Government under s. 60 of the Act is to be exercised so as

to advance the policy and objects of the Act, according to

the guidelines as may be gleaned from the preamble and other

provisions which we have already pointed out, are clear.

The catena of decisions referred to above concludes

unwaveringly in spite of very wide power being conferred on

delegatee that such a section would still not be ultra

vires, if guideline could be gathered from the Preamble,

Object and Reasons and other provisions of the Acts and

Rules. In testing validity of such provision, the courts

have to discover, whether there is any legislative policy

purpose of the statute or indication of any clear will

through its various provisions, if there be any, then this

by itself would be a guiding factor to be exercised by the

delegatee. In other words, then it cannot be held that such

a power is unbridled or uncanalised. The exercise of power

of such delegatee is controlled through such policy. In the

fast changing scenario of economic, social order with

scientific development spawns innumerable situations which

Legislature possibly could not foresee, so delegatee is

entrusted with power to meet such exigencies within the in

built check or guidance and in the present case to be within

the declared policy. So delegatee has to exercise its

powers within this controlled path to subserve the policy

and to achieve the objectives of the Act. A situation may

arise, in some cases where strict adherence to any provision

of the statute or rules may result in great hardship, in a

given situation, where exercise of such power of exemption

is to remove this hardship without materially effecting the

policy of the Act, viz., development in the present case

then such exercise of power would be covered under it. All

situation cannot be culled out which has to be judiciously

judged and exercised, to meet any such great hardship of any

individual or institution or conversely in the interest of

society at large. Such power is meant rarely to be used.

So far decisions relied by the petitioner, where the

provisions were held to be ultra vires, they are not cases

in which court found that there was any policy laid down

under the Act. In A.N. Parasuraman & Ors. (supra) Court

held Section 22 to be ultra vires as the Act did not lay

down any principle or policy. Similarly, in Kunnathat

Thathunni Moopil Nair (supra) Section 7 was held to be ultra

vires as there was no principle or policy laid down.

In this background we find the preamble of the Act laid

down:-

An Act to provide for planning the development and use

of rural and urban land in the State of Tamil Nadu and for

purposes connected therewith.

The preamble clearly spells out policy which is for

planning and development of the use of the rural and urban

land in the State. The Statement of Objects and Reasons

also indicates towards the same. The relevant portion of

which is quoted hereunder:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18

The Tamil Nadu Town Planning Act, 1920 (Tamil Nadu Act

VII of 1920) which is based on the British Town and Country

Planning and Housing Act, 1909, has been in force in the

State for nearly five decades. The said Act provides for

matters relating to the development of towns to secure to

their present and future inhabitants, sanitary conditions,

amenity and convenience. It was felt necessary to make

comprehensive amendments to the Act as the Act had several

shortcomings and defects.

Not only preamble and Objects and reasons of the Act

clearly indicate its policy but it is also revealed through

various provisions of the enactment. Sub-section (13) of

Section 2 defines development for carrying out any of the

works contemplated in the regional and master plan etc.,

Section 9-C defines functions and powers of the Metropolitan

Development Authority, Section 12 refers to functions and

powers of the Appropriate Planning Authorities, Section 15

refers to regional planning. Section 16 is for preparation

of land and building map, Section 17 refers to the Master

plans, Section 18 refers to new town development plan,

Section 19 refers to the declaration of intention to make or

adopt a detailed development plan, Section 20 refers to the

contents of detailed development plan, Section 47 refers to

use and development of land to be in conformity with

development plan, Section 48 refers to the restrictions on

building and lands in the area of the planning authority.

Each of them contributes for subserving the policy of the

Act, and clearly declares the purpose of the Act. Hence

Section 113 cannot be held to be unbridled, as Government

has to exercise its power within this guideline. Hence we

hold Section 113 to be valid.

There is a clear distinction between a provision to be

ultra vires as delegation of power being excessive and the

exercise of power by such delegatee to be arbitrary or

illegal. Once the delegation of power is held to be valid

the only other question left for our consideration is,

whether the power exercised by the Government in passing the

impugned sixty two G.Os under Section 113 could be said to

be arbitrary or illegal.

Submission is that the Government has exercised this

power of exemption indiscriminately, contrary to the

provisions of the Act and Rules. The fact that Government

issued 62 GOs during the period 1.7.1987 till 29.1.1988

exempting large number of buildings in total disregard and

in contravention of the provisions of the Act, speaks for

itself. In fact, 36 such GOs were issued on one day,

namely, on 31.12.1987. The submission is that these GOs

further override even the orders passed by the development

authority rejecting their plan as not being in conformity to

the Development Control Rules. In fact, every essential

restriction condition as laid down under the Act is in the

interest of public at large, was set at naught without

assigning any reasons. Even the basic requirements of

set-back, alignments, abutting road width, FSI, height of

building, corridor width, fire safety, staircase,

transformer room, provision of lift, parking requirement

etc. were all given a go by.

We may record here the State Government has not filed

any counter affidavit against all these allegations made in

the writ petition which was filed in the year 1988.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18

The petitioner has annexed each of the aforesaid 62 GOs

compositely as Annexure II and a chart showing the details

of these 62 GOs as Annexure I to the writ petition. A

perusal of the exercise of power in each one of them by the

first respondent-Government shows a consistent and

mechanical pattern in granting the exemption, about which we

shall be referring later.

The allegation in the writ petition is that after the

death of Thiru M.G. Ramachandra on 14th December, 1987, the

Government, during the interim period passed large number of

GOs under Section 113 recklessly and indiscriminately and as

per information of the petitioner about 73 GOs were passed

on one day, viz., on 31st December, 1987. However, the

petitioner could only obtain 36 GOs being passed on that day

hence annexed only such G.Os. The allegation is, further

batch of large number of GOs were passed on the 29th

January, 1988 by the successor Ministry.

We have before us the chart of 62 such GOs issued by the

Government under Section 113, which is between the period

1.7.1987 to 29.1.1988. We have examined each of these 62

GOs which is annexed compositely as Annexure II to this writ

petition. Through each of such G.O. exemptions were

granted to all such buildings, which admittedly violated

compliance under the various rules. The aforesaid Act and

the Rules have elaborately laid down the restrictions in the

use of both the land and the building to regulate the

development of urban and rural land. The various norms have

been laid down exhaustively keeping in mind the public

interest, the public health and public safety as well as

interest of the builders and the landowners. Under Section

122 development control rules have been framed for the

Madras Metropolitan Area. For developing of various zones,

Rule 7 lays down for primary residential zone, Rule 8 for

mixed residential use zone and Rule 9 for commercial use

zone in the Madras Metropolitan Area which is divided into 9

zones. The rules provide with elaborate details which

buildings are normally to be permitted for what purpose and

what not otherwise covered in that zone to what extent they

are permitted, e.g., schools and petty shops in the

residential area, subject to the limitations in each such

zone. Each zone sets out in a tabular form the requirements

relating to the floor space index, (FS1) maximum height,

minimum set back, front set back, side set back, rear set

back etc. Similarly, for commercial zones restrictions are

imposed in relation to the horsepower rating of electric

meters and to regulate storage of explosives as well as the

affluence smoke, gas or other items likely to cause danger

or nuisance to public safety.

In this background we scrutinized each of these 62 GOs.

We find the grant of exemptions to the persons concerned has

been in a set manner, almost identically except one or two.

When we are saying mechanically it is because except for

typing different plot numbers and the rules which have been

exempted all other words are identical. Except for this

little difference rest of the words in these orders are the

same, which is reproduced below:

In exercise of powers conferred by Section 113 of the

Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu

Act 35 of 1972) the Government of Tamil Nadu hereby exempts

the construction made atfrom the provisions of Ruleof

the Development Control Rules relating to.(Front set back,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18

FSI etc..) requirements respectively to the extend of

violations as per plan refused by the Member Secretary,

Madras Metropolitan Development."

Each of these orders reveals non-application of mind by

giving total go-by to the rules relating to the restrictions

and control in construction of a building, to the floor

space index, the front set back, side set back, parking

requirements including provision of stand by generate,

transformer room and meter room and floor space requirements

construction abutting road width, corridor width,

permissible floor area, limits of nursing homes, height of

the rear construction even from the provisions of

prohibition on the construction of multi storied buildings

etc. Not only this, while granting the exemptions

Government has not recorded any reasons as to why such power

is being exercised and further such power was exercised not

only to regularise some irregularities but were passed to

over reach even the order of refusal passed by the

Member-Secretary, Madras Metropolitan Development Authority.

In other words, power of exemptions was granted which set

aside the orders earlier passed by the statutory authorities

in terms of the Act and the Rules. The submission on behalf

of the State for salvaging the validity of Section 113 being

ultra vires was, Government does not possess uncanalise or

unbridled power as it is controlled by the policy of the

Act. The question is, whether the impugned orders could be

said to have been passed for the furtherance of such policy

or for achieving the purpose for which it was enacted. So

even as per submission it can only be exercised in the aid

of such policy and not contrary to it. We find, in the

present case, the Government while exercising its powers of

exemption has given a go-by to all the norms as laid down

under the Act and the Rules and has truly exercised its

powers arbitrarily without following any principle which

could be said to be in furtherance of the objective of that,

nor learned counsel for the State could point out any.

Whenever any statute confers any power on any statutory

authority including a delegatee under a valid statute,

howsoever wide the discretion may be, the same has to be

exercised reasonably within the sphere that statute confers

and such exercise of power must stand the test to judicial

scrutiny. This judicial scrutiny is one of the basic

features of our Constitution. The reason recorded truly

discloses the justifiability of the exercise of such power.

The question whether the power has been exercised validly by

the delegatee, in the present case, if yes, then it can only

be for the furtherance of that policy. What is that policy?

The policy is the development and use of rural and urban

land including construction of, colonies, buildings etc. in

accordance with the policy of the planning as laid down

under the Act and the Rules. When such a wide power is

given to any statutory authority including a delegatee then

it is obligatory on the part of the such authority to

clearly record its reasons in the order itself for

exercising such a power. Application of mind of such

authority at that point of time could only be revealed when

order records its reason. Even if Section is silent about

recording of reason, it is obligatory on the Government

while passing orders under Section 113 to record the reason.

The scheme of the Act reveals, the Government is conferred

with wide ranging power, including power to appoint all

important statutory authorities; appoints Director and its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18

members of Town and Country Planning under Section 4;

constitutes Tamil Nadu Town and Country Planning Board under

Section 5; Board to perform such functions as Government

assigns under Section 6; appoints Madras Metropolitan

Development Authority under Section 9-A; Government

entrusted for making master plan or any other new plan; any

plant or modification is subject to the approval of

Government. In fact, every statutory Committee is created

by the Government and its planning is subject to the

approval by the Government. It is because of this that very

wide power is given to it under Section 113. In a given

case, where a new development in rural or urban area may be

required urgently and provisions under the Act and Rules

would take long procedure, it may in exercise of its

exemption power exempt some of the provisions of the Act and

Rules to achieve the development activity faster or in a

given case, if any hardship arises by following or having

not followed the procedure as prescribed, the power of

exemption could be exercised but each of these cases would

be for furtherance of the development of that area.

When such a wide power is vested in the Government it

has to be exercised with greater circumspection. Greater is

the power, greater should be the caution. No power is

absolute, it is hedged by the checks in the statute itself.

Existence of power does not mean to give one on his mere

asking. The entrustment of such power is neither to act in

benevolence nor in the extra statutory field. Entrustment

of such a power is only for the public good and for the

public cause. While exercising such a power the authority

has to keep in mind the purpose and the policy of the Act

and while granting relief has to equate the resultant effect

of such a grant on both viz., the public and the individual.

So long it does not materially effect the public cause, the

grant would be to eliminate individual hardship which would

be 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 be for

the furtherance of the purpose of the Act. Minor abrasion

here and there to eliminate greater hardship, may be in a

given case, be justified but in no case effecting the public

at large. So every time Government exercises its power it

has to examine and balance this before exercising such a

power. Even otherwise every individual right including

fundamental right is within reasonable limit but if it

inroads public rights leading to public inconveniences it

has to be curtailed to that extent. So no exemption should

be granted effecting public at large. Various development

rules and restrictions under it are made to ward off

possible public inconvenience and safety. Thus, whenever

any power is to be exercised, Government must keep in mind,

whether such a grant would recoil on public or not and to

what extent. If it does then exemption is to be refused.

If the effect is marginal compared to the hardship of an

individual that may be considered for granting. Such an

application of mind has not been made in any of these

impugned orders. Another significant fact which makes these

impugned orders illegal is that Section 113 empowers it to

exempt but it obligates it to grant subject to such

condition as it deems fit. In other words, if any power is

exercised then Government must put such condition so as to

keep in check such person. We find in none of these

sixty-two orders any condition is put by the Government. If

not this then what else would be the exercise of arbitrary

power.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18

We find in the present case, under the garb of its wide

power, it has exercised it illegally and arbitrarily beyond

its power vested under the said section without application

of mind. We heard both learned counsels for the State and

other affected respondents. They could not submit anything

for us to draw inference contrary to the above. Thus after

examining each of said GOs, in view of the finding recorded

above, all these 62 GOs are not sustainable in law and are

hereby quashed.

This brings us to the next and the last consideration

which is the matter of the connected writ petition. During

the pendency of this appeal in this Court, the State passed,

Tamil Nadu Town and Planning (Amendment) Act, 1998

(hereinafter referred to as the amending Act) through which

Section 113-A was introduced in the aforesaid 1971 Act,

which is reproduced below:

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 para- metres 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 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.

It seems, situation developed to such an extent, that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18

irregularity, violation became order of the day and

regularisation through power of exemption may not be

appropriate, this amendment was brought in to overcome this

situation. By this, Government is empowered, on application

being made by person affected, to exempt any land or

building developed immediately before the date of the

commencement of this amending Act from all or any of the

provisions of the Act, rules and regulations by collecting

regularisation fees at such rate not exceeding Rs.20,000/-

per square meter. The aforesaid 1982 amendment also added

clause (cc) to sub-section (2) of Section 122 of the 1971

Act. The Governor in exercise of its power under this

clause (cc) made Application, Assessment and Collection of

Regularisation Fees (Chennai Metropolitan Rural Area) Rules,

1999 which prescribe the rates of regularisation fees with

respect to the various violation if one seeks to regularise

it under Section 113-A. The petitioner has also challenged

this amending Act, through writ petition Civil No. 237 of

1999, which we have heard along with the main writ petition.

The petitioners challenge is that Section 113-A suffers

from the same vice of it being unconstitutional as Section

113. It is also not only against the policy of the statute

but it does not subserve to the public interest. The

submission is, Section 113-A is merely an extension of the

unbridled exemption power conferred by the statute under

Section 113 except that under this newly introduced section

Government could collect regularisation fees.

This amending Act seeks to legitimatize all violations

under the Act, Rules and Regulations and condones all

executive acts which is the cause of reaching this situation

by not taking appropriate action as against such illegal

construction which they were obliged to do under the Act.

When the Government and other statutory functionaries failed

to work, to promote planned development to this extent, the

Legislature has to intervene to bring this amendment.

The submission is this amending Act will greatly

prejudice the public safety, security, fresh air and light

and convenience to the public at large. Under Section 113-A

the Government is empowered to grant exemption to such

person who makes any application for exempting any land or

building developed prior to the date of the commencement of

the amending Act from applicability of any of the provisions

of this Act and Rules by collecting the regularisation fees,

as prescribed. So, this section not only infuses the

Government with power to exempt but also lays down the

procedure and condition to grant exemption. This covers all

buildings or land developed immediately before the date of

the commencement of the aforesaid 1998 Act. Here

Legislature lays down everything and does not leave to the

absolute direction of the delegatee. So, Section 113-A

cannot be challenged that discretion of the delegatee is

unbridled or uncanalised as section itself confers full

guidelines in this regard. It is significant also to

reproduce the Objects and Reasons for the introduction of

this section which is quoted below:

The Statement of Objects and Reasons for the Amendment

Act state that:

As to today in Chennai as well as in other metropolitan

cities of India many aberrations in the urban development

are noticed. Huge disparities between peoples income and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18

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 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 buildings.

(Emphasis supplied)

The Statement of Objects and Reasons exhibits the change

of Legislative policy to regularise all those building or

land developed in contravention of the various provisions of

the Act and the Rules. Section 113-A read with the

Statement of Objects and Reasons clearly indicates

Legislatures intent and policy, instead of demolishing

illegal constructions to regularise them by charging

regularisation fees. Thus no similar attributable vice

could be attached to Section 113-A which was submitted for

Section 113. Section 113-A Legislature, itself lays down

what is to do be done by the Government, while in Section

113 Government is conferred with wide discretion though to

act within the channel of the policy. In Section 113-A

hardly any discretion is left on the Government while in

Section 113 very large discretion is left. Challenge to

Section 113 is unguided wide power to a delegatee, but no

such challenge could be made against Legislature. Section

113-A is mandate of the Legislature itself to grant

exemption and realise regularisation fees no discretion on

the delegatee. Hence we hold Section 113-A as a one time

measure is valid piece of legislation and challenge to its

validity has no merit. It is interesting, though a matter

of concern, what is recorded in the Statement of Objects and

Reasons. It records; (A) A Rough estimate of about three

lakh buildings (Approximately 50% of the total number of

buildings) will be violative of Development Control Rules or

unauthorised structure. (B) Under the Act demolition action

against such structure cannot be pursued against any of them

unless a notice was issued within 3 years of its completion.

(C) Chennai Metropolitan Development Authority could book

only five thousand such structures and Chennai City

Municipal Corporation could book only one thousand such

buildings against which demolition action could be taken.

(D) Administratively also demolition of such a large number

of cases are neither feasible nor desirable, as it will

result in undue hardship to the owners and the occupants.

(E) Considering practice followed in other metropolitan

cities of the country, the State Government took a policy

decision to exempt buildings and lands by collecting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18

regularisation fees.

Mere reading of this reveals, administrative failure,

regulatory inefficiency and laxity on the part of the

concerned authorities 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 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 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 illegalities, which is writ large

no administratively 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 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 conveniences, 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 to the loss to the public, which is State

concern also as it waters down all preceding developments.

Before such pattern becoming cancerous to spread to all part

of this country, it is high time that remedial measure is

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

latches 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 public, and

instead of development bring back cities into the hazards of

pollution, disorderly traffic, security risks etc. Such a

pattern retards the development, jeopardises all purposeful

plans of any city, and liquidates the expenditure incurred

in such development process.

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 set-back, 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 set-back 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 space index will result in undue strain on the civil

amenities such as water, electricity, sewage collection and

disposal. The waiver of requirements regarding fire

staircase and other fire prevention and fire fighting

measures would seriously endanger the occupants resulting in

the building becoming a veritable death trap. The waiver of

car parking and abutting road width requirements would

inevitably lead to congestion on public roads causing severe

inconvenience to the public at large. Such grant of

exemption and the regularisation is likely to spell ruin of

any city as it affects the lives, health, safety and

convenience of all its citizens. This provision, as we have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18

said, cannot be held to be invalid as it is within the

competence of State Legislature to legislate based on its

policy decision, but it is a matter of concern. Unless

check at the nascent stage is made, for which it is for the

State to consider what administrative scheme is to be

evolved, it may be difficult to control this progressive

illegality. If such illegalities stays for a long, wave of

political, humanitarian regional and other sympathies

develop. Then to break it may become difficult. Thus this

inflow has to be checked at the very root. State must act

effectively not to permit such situation to develop in the

wider interest of public at large. When there is any

provision to make illegal construction valid on ground of

limitation, then it must mean Statutory Authority in spite

of knowledge has not taken any action. The functionary of

this infrastructure has to report such illegalities within

shortest period, if not, there should be stricter rules for

their non-compliance. We leave the matter here by bringing

this to the notice of the State Government to do the needful

for salvaging the cities and country from this wrath of

these illegal colonies and construction.

Another attack on behalf of the petitioner is, when

procedure for planned development takes place, the proposals

are notified for public to file any objection under the Act

and Rules which are considered before finalising the plan.

But when regularisation takes place, which may affect the

public, there is no provision for any notice to such public.

We feel on the facts of the present case, when

regularisation covers all buildings made in contravention of

the Act and the Rules prior to the coming into force of the

aforesaid Amending Act, the number being very large and this

being one time settlement, then giving of public notice, in

each of such cases, before deciding, may not be practicable.

However, we find under sub- section (6) of Section 113-A

there is provision for an appeal against such an order of

regularisation by any person aggrieved. The appeal is to be

filed within 30 days from the date of the receipt of the

order which would normally be to the person who has applied

for regularisation. It would be appropriate for the State

to consider, in future, not this one time settlement, to

either provide for an opportunity to the public at the first

stage of consideration of the grant of exemption or at the

stage of appeal, if any, provided. Where public right is

affected, the person from public will have a right to get

redress of his grievance by placing such objection as he

deem fit, which may be considered only to the extent the

public right is affected.

As we have held the 62 GOs by the State Government

granting exemptions to various persons under Section 113 of

the Act cannot be sustained, we quash each one of the 62 GOs

annexed compositely as Annexure II to the writ petition. In

view of this such land or building under each such GO would

become unauthorised. In the absence of Section 113-A the

consequence of demolition would have been the only option.

However, in view of Section 113-A, the person covered by the

said 62 GOs, as a consequence of quashing, would be the

person affected, and would also be persons entitled for

regularisation under Section 113-A in terms of the aforesaid

Rules 1999. Though all the affected 62 persons are parties,

some of them have chosen not to appear in spite of service,

hence we feel it appropriate that the Government will issue

public notice including a notification that any person

desiring regularisation of the unauthorised construction as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18

a consequence of the orders passed by this Court may apply

to the concerned authorities within 30 days of such

publication and on such application being made the authority

concerned will dispose it of in accordance with law treating

them to be filed within time.

In view of the aforesaid findings recorded, by us we

conclude:- (A) Section 113 of the Tamil Nadu Town and

Country Planning Act, 1971 is valid. It does not suffer

from the vice of excessive delegation of any essential

legislative function. The preamble, Objects and Reasons and

various provisions of the Act give clear-cut policy and the

guidelines to the Government for exercising its power.

Hence it is neither unbridled nor without any guidelines.

(B) So far the impugned 62 GOs, each one of them, which

has been annexed compositively under Annexure II to the writ

petition, cannot be sustained and are hereby quashed.

(C) Section 113-A as a one time measure brought in

through the Tamil Nadu Town and Planning (Amendment) Act,

1998 is valid piece of legislation and not ultra vires.

(D) The facts recorded in the Statement of Objects and

Reasons of the Amending Act indicates matter of serious

concern which requires earnest consideration to salvage in

future such recurring situation affecting public right with

resultant hazard of traffic, public health, security etc.

(E) To take effective measures, to check at the root

level, at the very nascent stage and see that such

situations does not recur.

In view of the aforesaid findings and our conclusions

both the writ petitions are partly allowed. Costs on the

parties.