IN THE HIGH COURT OF MADRAS
Cont. A. No. 4 of 2021 and C.M.P. No. 18753 of 2021
Decided On: 22.12.2021
The Chief Secretary to Government, Government of Puducherry and Ors.
Vs.
Mahatma Gandhi Medical College & Research Institute and Ors.
Hon'ble Judges/Coram: P.N. Prakash and R. Hemalatha, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: T.P. Manoharan, Senior Advocate for N. Mala, Government Pleader
For Respondents/Defendant: Vijay Narayan, Senior Counsel for Menon, Karthik, Mukundan, Neelakantan and P. Neelakandan
JUDGMENT
P.N. Prakash, J.
1. This contempt appeal has been filed challenging the order dated 24.01.2018 passed by this Court in Contempt Petition No. 1483 of 2017 and to set aside the same.
2. The facts that are beyond any pale of controversy are as under:
2.1 Mahatma Gandhi Medical College and Research Institute (for brevity "the Medical College") started constructing a Medical College and Hospital sometime in the year 2000 within the limits of Bahoor Commune Panchayat in the Union Territory of Puducherry. The Medical College purchased lands for that purpose and after obtaining planning permission under the Puducherry Town and Country Planning Act, 1969, from the competent authority, constructed ten buildings between 12.11.2000 and 03.07.2008. As the institution started growing, they needed more space and so, they started eating into the adjacent lands and went on a construction spree and have constructed the following buildings without obtaining the permission of the Planning Authority:
2.2 When their encroachments and illegal constructions drew public attention, the Medical College gave an application dated 11.09.2014 to the Puducherry Planning Authority, for building plan approval for the aforesaid twelve buildings, which was rejected by the Puducherry Planning Authority by a detailed order dated 19.01.2015. In the said order, the Puducherry Planning Authority issued the following directions:
"Meanwhile, the buildings mentioned above at the said location have been constructed unauthorizedly, without obtaining valid permission from this Authority, is in contravention to the provisions of the sub-section (3) of section 47 of the Pondicherry Town and Country Planning Act 1969. Therefore, you are hereby instructed to demolish the said unauthorized constructions within one month from the date of issue of this notice. Failing which, further actions will be taken against you as per the Clause 20 of Part-I of the Puducherry Building Bye-laws & Zoning Regulations 2012 and as per the provisions contained in the Pondicherry Town and Country-Planning Act 1969."
2.3 In the meanwhile, the Medical College obtained clearances from the Fire Service Department, Puducherry, on 21.07.2015, Electricity Department, Puducherry, on 08.07.2015, NH Division/PWD, Puducherry, on 03.07.2015 and Public Health Division/PWD, Puducherry, on 26.06.2015.
2.4 The Medical College filed an appeal before the Puducherry Town and Country Planning Board (for brevity "the Board"), which considered the request of the Medical College and passed an order dated 03.03.2016, the operative portion of which, reads an under:
"The Board considered the fact that the above institution is in existence since 2001. The Board has taken cognizance of the letter dated 13.01.2016 of the Commissioner, Bahour Commune Panchayat, Puducherry, wherein it is stated that Boosthututhi Vaikkal and GP Vaikkal are running inside the premises of the institution. These "Vaikkals" terminates within the premises itself. At present there are no agricultural activities in the premises spread over about 44 acres. The Board also considered the suggestion of the Bahour Commune Panchayat, Puducherry to exchange equal area of land of the GP Vaikkals.In view of the above, the Board after detailed deliberation, decided that the appellant shall earmark lands in their premises equivalent to that of GP Vaikkal lands running inside their campus and shall maintain the same as waterbodies which will be helpful in collection of rainwater and recharging of ground water; the appellant shall submit a notarized affidavit to the effect that the lands earmarked for waterbodies shall not be diverted for any other use and it shall be properly maintained by them and will be open for inspection by Government officials concerned. The Puducherry Planning authority may issue building plan approval for the buildings which do not require Environmental Clearance after compounding for unauthorised construction and setback deviations with a condition that the provisions of Sustainable Environmental Management Plan, notified by the Ministry of Forest and Climate Change shall be followed. For remaining buildings, Puducherry Planning Authority may issue building plan approval after obtaining Environmental Clearance from the SEIAA, Department of Science and Technology and Environment and after compounding for unauthorized construction and setback deviations."
2.5 From a reading of the above order, we are able to discern the following:
(a) a waterbody, viz., a stream belonging to the Bahoor Commune Panchayat was flowing in the lands that was encroached upon by the Medical College and buildings have been built over it;
(b) the Medical College should earmark an extent of land in their campus equivalent to the extent of encroachment made by them for creating a new waterbody;
(c) the Medical College should give a notarized affidavit to the effect that the lands earmarked for the new waterbody will not be diverted for any other use;
(d) thereafter, the Puducherry Planning Authority should issue building plan approval for the buildings, which do not require Environmental Clearance;
(e) the Puducherry Planning Authority should compound with the Medical College, in respect of the unauthorized construction and setback deviations by following the provisions of Sustainable Environmental Management Plan, notified by the Ministry of Forest and Climate Change;
(f) for the remaining buildings, the Puducherry Planning Authority may issue building plan approval after obtaining Environmental Clearance from the SEIAA, Department of Science and Technology and Environment and after compounding for unauthorized construction and setback deviations.
2.6 However, the Puducherry Planning Authority found the order passed by the Board unworkable and so, on 30.07.2016, the Puducherry Planning Authority, in exercise of the powers under Clause 20 of the Puducherry Building Bye-laws & Zoning Regulations, 2012, sealed three buildings, viz., Floor Nos. 4 to 7 in the Medical College annex block, auditorium and gents hostel. Since activities were going on in the other unauthorizedly constructed buildings, the Puducherry Planning Authority was unable to seal them.
2.7 The Medical College applied for exchange of lands, in that, it came forward to hand over some other land to Bahoor Commune Panchayat in lieu of the land, through which, the stream flowed, over which, they had constructed buildings unauthorizedly.
2.8 The Medical College filed W.P. No. 1660 of 2017 in the High Court seeking a writ of mandamus to the Commissioner, Bahoor Commune Panchayat, to issue No Objection Certificate and send the same to the Puducherry Planning Authority for issuance of building plan approval for the unauthorized buildings.
2.9 In the said writ petition, the Government Advocate for Puducherry appears to have stated that, if some reasonable time is granted, No Objection Certificate from the Bahoor Commune Panchayat could be issued. Recording the said submission, a learned Single Judge of this Court issued the following directions on 22.02.2017 in W.P. No. 1660 of 2017:
"3. This Court without going to the merits of the matter, considering the grant of no objection certificates by various authorities, namely, the Public Health Division, the National Highways, the Electricity Department, the Fire Service Department and the State Level Environment Impact Assessment Authority on 26.06.2015, 03.07.2015, 8.7.2015, 21.7.2015 & 17.6.2016 respectively, hereby directs the fourth respondent to consider the application of the petitioner on merits and do the needful in accordance with law within a period of eight weeks from the date of receipt of a copy of this order. The writ petition is disposed of accordingly. Consequently, W.M.P. No. 1630 of 2017 is closed. No costs."
2.10 The Medical College followed it up with a contempt petition in Cont.P. No. 1483 of 2017 arraying the Commissioner, Bahoor Commune Panchayat as the sole respondent, alleging that he has not complied with the directions issued by this Court vide order dated 22.02.2017 in W.P. No. 1660 of 2017. In the said contempt petition, the learned Single Judge passed the following order on 12.12.2017:
"When the matter is taken up for hearing, Mr. A. Gandhiraj, learned Government Pleader (Pondicherry) appearing for the respondent submitted that the request of the petitioner-college for exchange of land has been positively agreed and No Objection Certificate will also be issued shortly to the petitioner. However, he has sought for some time to pass final order as final decision has to come from the Union Government.
2. Mr. Anand Venkatesh, learned counsel appearing for the petitioner submitted that since UGC is going to conduct inspection from 14.12.2017 till 16.12.2017, the auditorium and hostel buildings already constructed by the petitioner-college may be made available for their occupation on the aforesaid dates of inspection and after the inspection, the same will be given back to them.3. In reply to the submission of the learned counsel for the petitioner, learned Government Pleader (Pondy) submitted that although the respondent had sealed the auditorium and hostel, they will de-seal these two places enabling the UGC inspection to take place during the aforesaid dates.4. The said statement is recorded. Since there will be an inspection by UGC team to the petitioner-college during the period from 14.12.2017 till 16.12.2017, the respondent is directed to de-seal the aforesaid two places, namely, Auditorium and Hostel and after the UGC's inspection, the respondent can take possession of the same. Post the matter after one month."
2.11 Again, in the same contempt petition, the learned Single Judge issued the following directions on 24.01.2018:
"5. Learned Government Pleader appearing for the respondent submitted that subject to conditions that this Court may impose, the request of the petitioner can be considered which will be subject to the result of the final order to be passed by the Government.6. Taking note of the fact that the auditorium and two hostels as mentioned above are merely lying vacant for a long time and that proposal has been sent by the respondent after receiving the necessary No Objection Certificates from the various departments, this Court finds no impediment to accept the request of the petitioner.7. Accordingly, the respondents are hereby directed to permit the petitioner to use the abovesaid buildings, subject to the result of the final decision that will be taken by the first respondent in the writ petition. With the above observation and direction, this contempt petition is closed."
2.12 While that being so, a Public Interest Litigation was filed by one Sridhar in W.P. No. 8203 of 2018 before this Court for a direction to the Puducherry authorities to remove the illegal constructions made by the Medical College. Apart from that, a Non-Governmental Organization gave a representation to the authorities alleging that the Medical College has been built on a waterbody unauthorizedly and therefore, the buildings so constructed should be removed.
2.13 The Medical College filed a fresh writ petition in W.P. No. 12998 of 2018 seeking a mandamus to de-seal the buildings, which were sealed by the Puducherry Planning Authority, in which, a learned Single Judge of this Court passed an order dated 31.05.2018, wherein, the following directions were given:
"5. There is already a direction passed by this court in the Contempt Petition No. 1483 of 2017 by order dated 24.01.2018. It is apparent that there is already a direction given by this court to de-seal the auditorium and hostel building to enable the petitioner to use them. The grievance of the Writ Petitioner is that subsequently representations dated 13.02.2018, 02.04.2018 and 12.04.2018 are given seeking to de-seal the building and the same was not considered till date and it will be suffice if a direction is issued to consider those representations. Therefore, considering the submission made by the learned counsel for the Petitioner, the respondents are directed to consider the representation dated 13.02.2018, 02.04.2018 and 12.04.2018 given by the Petitioner in this regard in the light of the above referred order dated 24.01.2018 passed by this court in Contempt Petition No. 1483 of 2017 and pass orders in accordance with law within a period of four weeks from the date of receipt of a copy of this order.6. The Writ Petition is disposed of, with the above observation. No costs. Consequently connected miscellaneous Petition is closed."
2.14 The request of the Medical College for transfer of lands in lieu of the waterbody that has been encroached upon by them was accepted by the Council of Ministers of Puducherry on 12.03.2018. However, the then Lt. Governor of Puducherry, applied a solid brake to the whole scheme by putting a detailed note dated 09.01.2019, after referring to the various judgments of the Supreme Court on removal of encroachments from waterbodies and the operative portion of the said note reads as under:
"154. The present case for exchange of government land classified as pond/irrigation canals (that are vested with local bodies) with alternate lands to be offered by the encroacher, squarely falls within the ratio decidendi of Jagpal Singh case cited above.155. When a duty is fastened upon executives by the apex court for strict and prompt compliance of its order, no decision can be taken in contravention of the said order, and if such a decision is taken, it will not only be illegal but also contemptuous.156. It is noted with concern that the Government Pleader/Advocate appeared before Hon'ble Madras High Court in 1660/2017 miserably failed to bring to the notice of the Hon'ble Court about the above judgements. Instead, a unsustainable and illegal stand has been taken stating that the grant of No Objection is being considered by the concerned local body, viz., Commissioner, Bahour Commune Panchayat. Law Secretary be asked to examine the case details and come up with her recommendations regarding the desirability of continuing such a Law Officer in the services of Government of Puducherry.157. It is also noted that the authorities required to take action have failed to carry out their statutory duties to protect the Government land, more so the waterbodies from encroachment and in allowing unauthorized and illegal constructions put up on such waterbodies.158. In view of the above, the following directions are given:-a) Action should be taken to retrieve the encroached waterbodies from the encroachment, strictly as per the judgment rendered by the Apex Court in Jagbal Singh case.b) The unauthorized constructions over the waterbodies are to be removed without allowing any further delay, strictly as per the provisions of law.c) The legal position as laid down by Hon'ble Supreme Court should be placed before the Hon'ble Madras High Court which is hearing W.P. No. 1660/2017 so as to appraise the Court, the legal stand of U.T. Government including the Commune Panchayat.159. The Public Trust Doctrine requires that natural resources such as lakes, ponds, etc., are held by the State, as a Trustee of the Public and can be disposed of only in a manner that is consistent with the nature of such Trust, as noted by Hon'ble Supreme Court, in Indian Council for Enviro-Legal Action Vs. Union of India (1996 5 SCC 281).160. In view of the above unassailable legal position, I differ from the views taken by Council of Ministers in their meeting held on 12.03.2018.161. Chief Secretary is requested to make a reference to Central Government in terms of proviso to Section 44 of Government of Union Territories Act, 1963, read with Rule 51 and 52 of the Rules of Business of the Government of Puducherry, 1963 and also to carry out the directions given at para 157/nf."
2.15 The Medical College filed a fresh writ petition in W.P. No. 21128 of 2019 seeking a writ of mandamus directing the Puducherry Planning Authority to comply with the order dated 03.03.2016 that was passed by the Board. The said writ petition came up before a Division Bench of this Court, in which, the following order was passed on 04.09.2019:
"5. The 3rd respondent, while passing the order dated 03.03.2016 directed the 4th respondent to grant building plan approval to the petitioner subject only to the condition that the petitioner should earmark an equivalent extent of land as channel/vaikkal in the petitioner's premises and maintain the same as a Water-Body. However, the order passed by the 3rd respondent has been rejected by the Lieutenant Governor of Puducherry and the matter has been referred to the Central Government for taking a final decision. In these circumstances, since the matter is pending before the Government of India, mandamus cannot be issued to the 4th respondent to comply with the order dated 03.03.2016.6. In these circumstances, since the application submitted by the petitioner College is pending from 11.09.2014, the concerned authorities may take a decision as expeditiously as possible.7. With these observations, the Writ Petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed."
2.16 Since the matter has been referred to the Central Government for resolution, it has now become impossible for the Commissioner, Bahoor Commune Panchayat, to comply with the order dated 24.01.2018 passed by the learned Single Judge in Cont.Petn. No. 1483 of 2017.
2.17 As the Medical College started filing petitions after petitions in the Court and putting pressure on the Puducherry Government to regularise their encroachments and deviations, the Puducherry Government felt that they can remain idle no more and so, they have come forward to challenge the learned single Judge's order dated 24.01.2018 in Cont.P. No. 1483 of 2017.
2.18 The Chief Secretary to Government of Puducherry and other officials filed a petition in C.M.P. No. 17514 of 2021 for condonation of delay of 431 days in filing this contempt appeal and C.M.P. No. 10835 of 2021 seeking leave to appeal against the order dated 24.01.2018 passed in Cont.P. No. 1483 of 2017 by the learned Single Judge.
2.19 This Court heard both sides and by order dated 01.09.2021 in C.M.P. No. 10835 of 2021, granted leave to file an appeal and by order dated 12.11.2021 in C.M.P. No. 17514 of 2021, condoned the delay in filing the appeal and accordingly, this contempt appeal was numbered and taken on file.
3. Heard Mr. T.P. Manoharan, learned Senior Counsel representing Ms. N. Mala, learned Government Pleader appearing for the appellants and Mr. Vijay Narayan, learned Senior Counsel representing M/s. Menon, Karthik, Mukundan and Neelakantan, learned counsel on record for the first respondent/Medical College and Mr. P. Neelankandan, learned counsel for the second respondent Panchayat.
4. Mr. Vijay Narayan, learned Senior Counsel appearing for the Medical College submitted that the Medical College purchased 44 acres of lands from various farmers in the year 2000 and in the lands so purchased, a small water channel measuring 2' width and 300' length originated and culminated within the campus; planning permission was obtained for the buildings that were constructed between 2000 - 2007; as the Medical College started growing, they had constructed additional buildings and had applied for regularization in the year 2014; all the authorities, including the State Level Environment Impact Assessment Authority have granted the necessary clearances; the Commissioner, Bahoor Commune Panchayat had filed applications in W.P. No. 1660 of 2017 seeking extension of time for implementing the order dated 22.02.2017 passed in the said writ petition; likewise, even in the contempt proceedings in Cont. P. No. 1483 of 2017, the Commissioner, Bahoor Commune Panchayat had sought extension of time which was granted by the learned single Judge on 12.10.2017; again, the learned single Judge, by order dated 12.12.2017 in Cont. Petn. No. 1483 of 2017, had directed the authorities to de-seal the buildings that were sealed for the purpose of UGC inspection and ultimately, by order dated 24.01.2018 in Cont. Petn. No. 1483 of 2017, the learned single Judge had directed the Commissioner, Bahoor Commune Panchayat, to permit the Medical College to use the de-sealed buildings also, until final decision is taken by the Puducherry Government.
5. Therefore, it is Mr. Vijay Narayan's submission that when all along, the authorities were taking a stand that they would give the necessary clearances for regularizing the encroachments and the constructions in terms of the order of the Board dated 03.03.2016, it is not open to them to take a contrary stand now and seek to set aside the orders of the learned single Judge passed in Cont.Petn. No. 1483 of 2017 on 24.01.2018 in this contempt appeal.
6. Per contra, Mr. T.P. Manoharan, learned Senior Counsel for the appellants/Puducherry Government conceded that the Board had passed an order favourable to the Medical College on 03.03.2016, but, the directions in the order are per se violative of the provisions of the Puducherry Building Bye-laws and Zoning Regulations, 2012. He also placed reliance on various judgments of the Supreme Court in support of his contention that the Court should not condone encroachments into waterbodies. He further contended that in the contempt proceedings, only, the Commissioner, Bahoor Commune Panchayat was the party and he, on his own accord, cannot grant any clearance and even the Government of Union Territory of Puducherry cannot exchange lands without the approval of the Central Government in terms of Article 239 of the Constitution of India.
7. This Court gave its anxious consideration to the rival submissions.
8. The whole controversy can be succinctly summed up as under:
8.1 The Medical College has admittedly encroached upon a stream and has made 12 constructions thereon without obtaining planning permission from the Puducherry Planning Authority.
8.2 The Puducherry Planning Authority was firm in taking action against the Medical College. However, it is obviously seen that all the other authorities were bending backward and forward to regularise the illegal construction and the encroachments that were made by the Medical College. That is why, even the Government Advocates representing the Puducherry Government were singing the tune of the Medical College as and when the various cases filed by the Medical College came up before various learned single Judges. Things turned topsy-turvy when the then Lt. Governor refused to accept the recommendations of the Puducherry Cabinet by note dated 09.01.2019. Even in paragraph 156 of her note, which we have extracted above in paragraph 2.14, she has recorded her concern qua the representations that were made by the Government Pleader/Advocate in this Court supporting the Medical College. Now, the matter is pending with the Union Government.
8.3 In this background, would it be possible for the authorities to implement the order dated 03.03.2016 that was passed by the Board in favour of the Medical College which formed the anchor sheet of the order dated 22.02.2017 in W.P. No. 1660 of 2017 and the order dated 24.01.2018 in Cont. Petn. No. 1483 of 2017 is the moot question.
9. As rightly pointed out by Mr. Manoharan, waterbody regularization, even if the waterbody in question is small-sized as contended by Mr. Vijay Narayan, cannot be countenanced, in that, such regularization would clearly go against the rulings of the Supreme Court on this subject which are a legion. Likewise, can the illegal constructions be regularized by compounding with the planning authority? The answer to this question is available in paragraph 59 of a Division Bench judgment of this Court in Mariadassou Philomene Dominique Marie Anthoinette vs. Member Secretary, Town & Country Planning Board 2019 (1) CWC 669, which reads as follows:
"59. In the light of detailed qualitative and quantitative discussions aforesaid and notwithstanding the plea taken on behalf of the Respondents 1 and 2 that Section 70 (1) of the Puducherry Town and Country Planning Act, 1969 [Act 13 of 1970) permits 'Composition of Offences' either before or after the institution of the proceedings in respect of any offence made punishable by or under this Act etc., this Court is of the considered view that in Law, when an offence is compounded either by an arrangement or settlement, the same will result in an Acquittal of the offender/Accused and as per Section 70(2) of the Puducherry Town and Country Planning Act, 1969, when an offence was compounded and when an offender is in custody, he shall be discharged and that no further proceedings shall be taken against him in respect of an offence compounded. In other words, the Composition/Compounding of an Offence under the Puducherry Town and Country Planning Act, 1969 will restrain a person from being prosecuted, since he had paid the necessary charges. But, in the present case, as regards an Unauthorised Development/Building Violation made or committed by the 3rd Respondent, this Court keeping in mind of the dictum laid down by the Hon'ble Supreme Court between M.I. Builders (P) Ltd., V. Radhey Shayam Sahu in 999 (6) SCC 464 : AIR 1999 SC 2468, the unauthorised construction in the subject matter in issue being an illegal one cannot be compounded by any means whatsoever. Even the Puducherry Bye Law Zoning Regulations, 2012 issued under Section 47 of the Puducherry Town and Country Planning Act, 1969 cannot come to rescue of the Respondents 1 and 2 as well as the 3rd Respondent. If an unauthorised construction/development made by the 3rd Respondent is given the seal of approval by the Respondents 1 and 2 in passing the Impugned Order dated 25.10.2017 and the consequential order 21.11.2017 respectively, then, the same will result in encouraging an illegality or perpetuating illegality and the Court of Law cannot encourage the same in a Democratic Polity, based on the 'Principle of Rule of Law'. Looking at from any angle, the Impugned Order dated 25.10.2017 and the consequential order dated 21.11.2017 do not stand scrutiny in the eye of Law, since they are per se illegal...... "
(emphasis supplied)
10. We are in agreement with the above proposition of law propounded by the coordinate Bench of this Court and therefore, we hold that compounding of the offence with the planning authority can be, by no stretch of imagination, lead to the regularization of the illegal construction.
11. Exchange of land between the Medical College and the Bahour Commune Panchayat cannot be done in Puducherry without the approval of the Central Government. The matter is admittedly seized of by the Central Government pursuant to the reference made to it by the Lt. Governor of Puducherry.
12. We, therefore, have no hesitation in holding that the order dated 03.03.2016 passed by the Board in favour of the Medical College cannot be lawfully implemented and consequently, the impugned order dated 24.01.2018 passed in Cont. Petn. No. 1483 of 2017, which is essentially predicated on the order dated 03.03.2016 of the Board as well on the representations that were made by the Law Officers of the Puducherry Government from time to time, is incapable of being implemented. Ergo, the impugned order dated 24.01.2018 passed in Cont. Petn. No. 1483 of 2017 is set aside.
In the result, this contempt appeal stands allowed. Connected C.M.P. stands closed.
No comments:
Post a Comment