Important points
1. 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.
2. 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.

Headnote:(i) Tamil Nadu Town and Country Planning Act, 1971—Section 113—Exemption from provisions of Act—Governments power regarding—Validity of Section 113—Section 113 does not suffer from vice of excessive delegation of any legislative function—Power under Section 113 given to Government is neither unbridled nor without any guidelines—Section 113 is valid.
       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 guidelines 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 called 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. (Para 17)
       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. (Para 19)
       (ii) Interpretation of Statutes—Delegation of power—Excessive delegation—Test to validity of provision—Inspite of very wide power being conferred on delegatee a section would still not be ultra vires if guideline could be gathered from Preamble, Object and Reason and other provisions of the Act and Rules. (Para 17)
       (iii) Tamil Nadu Town and Country Planning Act, 1971—Section 113—Exemption of provision to any building or land—G.O.’s granting exemptions—Validity of—62 G.O.’s during period 1.7.1987 to 29.1.1988 —Exemption granted to large number of buildings in total disregard and in contravention of provisions of Act—Grant of exemption in mechanical manner—No reason recorded while granting exemption—Power exercised not only to regularise some irregularities but were passed to over reach even order of refusal passed by Member-Secretary of MMDA—Exercise of power arbitrary—G.O.’s in question unsustainable in law—Quashed.
       Held : The petitioner has annexed each of the aforesaid 62 GOs compositely an 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 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. 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 requirments 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 uncanalised 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. (Paras 23 and 26)
       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 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. (Para 27)
       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. We find in the present case, under the grab 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. (Paras 28 and 29)
       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 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. (Para 38)
       (iv) Tamil Nadu Town and Country Planning Act, 1971—Section 113A—Exemption in respect of development of certain lands and buildings—Validity of Section 113A—Legislature does not leave absolute discretion to delegatee—Section 113A cannot be challenged on ground that discretion of delegatee is unbridled or uncanalised—Section itself confers full guidelines—Section 113A as a one time measure brought in Statute is valid piece of legislation and not ultra vires.
       Held : Under Section 113A 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. (Para 33)
       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 Legislature’s 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. (Para 34)

JUDGMENT

Misra, J.— The petitioner challenges the constitutional validity of Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as ‘the Act’) as it being 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.

2. 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.

3. 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.

4. 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

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2000 Supreme(SC) 1367

Cases Referred (7)