Amendment of section 113A of Act 1971 and Rules 1999 are ultra vires Articles 14 and 21 of constitution.

Common Order

A.P. Shah, J.

W.P.Nos.18898 of 2000, 19998 of 2001 and 24316 of 2002 have been filed by the Consumer Action Group challenging the constitutional validity of the amended provisions of Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971, hereinafter be referred to as 'the Act’ as also the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999, hereinafter be referred to as 'the Rules'.

2. Section 113-A was introduced through the Tamil Nadu Town and Country Planning (Amendment) Act, 1998 (Tamil Nadu Act 58 of 1998), whereby the Government is empowered, on an application being made by the person affected, to exempt any land or building developed immediately before the date of commencement of this Amending Act, from all or any of the provisions of the Act or Rules or Regulations made thereunder, by collecting regularisation fee at such rate not exceeding Rs.2,000/- per square metre. The constitutional validity of Section 113-A was upheld by the Supreme Court in Consumer Action Group -Vs- State Of Tamil Nadu ((2000) 7 Scc 425) as a one-time measure. By the Tamil Nadu Town and Country Planning (Amendment) Ordinance 7 of 2000 (Tamil Nadu Act 31 of 2000), Section 113-A was further amended, whereby all buildings constructed on or before 31st August 2000 were made eligible to be considered for such regularisation on payment of reduced regularisation fees. Thereafter, Tamil Nadu Town and Country Planning (Amendment) Ordinance 5 of 2001(Tamil Nadu Act 17 of 2001) was promulgated putting off the date for regularisation of the unauthorised constructions to 31st July 2001. Thereafter, the cut-off date for regularisation was again extended to 31st March 2002 by the Tamil Nadu Town and Country Planning (Amendment) Act, 2002 (Tamil Nadu Act 7 of 2002). The validity of these amending Acts is sought to be challenged as they being ultra vires Articles 14 and 21 of the Constitution of India.

3. W.P.No.17646 of 2006 is filed by the petitioner K.R. Ramaswamy, in public interest highlighting the violations of the Rules in construction of shopping complexes at T.Nagar and at N.S.C.Bose Road in Parrys area without allotting Car and Two Wheeler parking spaces in the multi-storied buildings. The petitioner is seeking a direction to the authorities to enforce the provisions of the Tamil Nadu Multi-storied Buildings Act, 1973 and Tamil Nadu Multi-storied Buildings Rules of 1973 as well as the Chennai City Municipal Corporation Act, 1919 and the Rules framed thereunder in respect of the buildings in the city of Chennai to ensure public safety and effective free flow of traffic.

4. In order to appreciate the challenge and to adjudicate the issues involved, it is necessary to scan through the periphery, scope and object of the Act and the Rules. The Preamble of the Act states that this is an Act to provide for planning, the development and use of rural and urban land in the State of Tamil Nadu and for the purposes connected therewith. Section 2 (13) defines ‘development’ to mean carrying out of all or any of the works contemplated in a regional plan, master plan, detailed development plan or a new town development plan prepared under the Act, which includes the carrying out of building, engineering, mining or other operations in, or over, or under the land and also includes making of any material change in the use of any building or land. Sub section 15 of Section 2 defines ‘development plan’ to mean the plan for the development or redevelopment or improvement of the area within the jurisdiction of a planning authority and includes a regional plan, master plan, detailed development plan and new town development plan prepared under the Act. The Act is an elaborate piece of legislation consisting of 14 Chapters, which contain 125 sections. The Act provides for incorporation of the Metropolitan Development Authority for the metropolitan area. In pursuance of the powers set out in C