No reason assigned by Government while granting exemption.

ORDER :- The writ petition has been filed to quash the order of the first respondent dated 13-12-1994 in G.O.D. No. 313 Local Administration and Water Supply Department where-under relaxation was granted to the fourth respondent’s building from the application of certain building rules.

2. The petitioner has filed O.S. No. 161 of 1992 on the file of the District Munsif, Pollachi seeking a decree for mandatory injunction directing the fourth respondent herein to demolish the superstructure put up by him on the ground that the same is in contravention of the building regulations and also without prior permission of the authorities. The said suit was dismissed on 17-8-1994 on the ground that the matter was pending before the Government for relaxation.

3. Against the same, the petitioner herein filed an appeal in A. S. No. 130 of 1994 on the file of the Subordinate Court, Udumalpet, which was also dismissed on 31-7-1998. After disposal of the suit by the trial Court, the first respondent seems to have passed the impugned order.

4. I perused the concerned file of the first respondent. I find that the fourth respondent made a representation for the relaxation of the rules by enclosing a copy of the judgment in the suit. When that be so, the first respondent ought to have heard the learned counsel for the petitioner.

5. Now, the main ground urged by the learned counsel for the petitioner is that when the civil suit was pending between the petitioner and the fourth respondent and the first respondent being a party to the said proceedings, the first respondent ought to have given an opportunity of hearing the petitioner and the failure to do so would violate the principles of natural justice.

6. Now, the other attack is that the impugned order does not reveal the application of mind by the concerned authority. Whenever any exemption is being granted, it is for that authority to consider as to the need for such exemption and state the reasons for granting such exemptions. In the absence of the same, the impugned order suffers from non-application of mind. Hence, the order is liable to be set aside.

7. Even though the writ petition was admitted on 16-8-1999, and listed twice before the Court, except the third respondent, none of the respondents filed any counter. The third respondent being only the municipality, they have nothing to do except to forward the requisition of the petitioner to the first respondent. The main concerned persons - the first and fourth respondents have not filed any counter. Hence, I called for the files from the first respondent. From the files also, I do not see any note to find out the reasons for granting the exemption. The fourth respondent appeared neither in person before this Court nor through counsel not only today, but also on the earlier occasions.

8. Admittedly, a civil litigation was pending against the petitioner and the fourth respondent. After the dismissal of the suit filed by the petitioner, the fourth respondent, enclosing a copy of the judgment of the civil Court, made a request to the first respondent for relaxation. The first respondent was also a party to the civil litigation. In such circumstances, it is but necessary for the first respondent to hear both the petitioner as well as the fourth respondent before ever any relaxation is being granted to the fourth respondent herein. The failure to do so naturally offends the principles of natural justice and on this short ground, the impugned order is liable to be set aside.

9. Apart from that, in the cases granting exemption, the Supreme Court laid down the principles as to how the authority should act, in a recent judgment in the case of Consumer Action Group v. State of Tamil Nadu, AIR 2000 SC 3060. It is also a case of dealing with the powers under S. 113 of the Town and Country Planning Act. The Apex Court has said that even if the section is silent about the recording of reason, it is obligatory on the part of the Government, while passing orders

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