Special rules governing building permissions in hill stations prevail over general laws to ensure environmental protection, emphasizing legislative intent against construction near reserve forests.

JUDGMENT :

S.M.SUBRAMANIAM, J.

Under assail is writ order dated 04.09.2020 passed in W.P.No.10262 of 2012.

2. Commissioner, Udhagamandalam Municipality, Nilgiris District is the appellant. Respondent has instituted a writ proceedings seeking direction against the appellant to grant building plan permission/licence to respondent through Online Application dated 09.09.2019 in accordance with the Revised Master Plan 2011 issued vide G.O(Ms).No.50 Housing and Urban Development Department, dated 25.02.2011 and review approved master plan dated 01.04.2014 within a time frame fixed by High Court.

3. Since the application was not considered, writ of mandamus came to be instituted. Writ Court issued a direction to appellant to process the application in accordance with the Development Control Rules, prepared, sanctioned and notified along with Revised Master Plan 2011 that was issued in G.O(Ms).No. 50 dated 25.02.2011 and also review approved Master Plan dated 01.04.2014, and pass necessary orders within a period of eight weeks from the date of receipt of copy of order.

4. Mr.P.Srinivas, learned standing counsel for appellant would contend that writ Court has misapplied provisions of law and not considered the scope of Rule 7(2) of Tamil Nadu District Municipalities (Hill Station) Building Rules, 1993 (hereinafter referred to as 'Rules)'. Rule 7(2) in clear terms stipulates that no assignment of land shall be made for agricultural purpose or for any other purpose including residential purposes within 150 metres from the boundaries of reserve forest and wooded lands or areas of special interest as may be declared by Government from time to time. In the present case, an order, passed subsequently after writ order, by appellant/Commissioner would show that subject land is falling within the distance of 17 metres from the reserve forest. Therefore, building plan permission/licence cannot be granted under Rule 7(2) of Rules.

5. Mr.P.Srinivas would rely on judgment of Division bench of this Court in the case of Srikanth Badruka v The Commissioner, Ooty Municipality , [2010 (5) LW 845] , wherein scope of Rule 7(2) of Rules was considered by the Division bench and it was held that though the expression “assignment” has not been defined either under Act or Rules, it should not be given a restrictive meaning as if assignment is given by the Government but should be read to mean that assignment to include conveyance or transfer or part away with property etc., Thus, Rule 7(2) prohibits any residential activities within 150 metres from the boundaries of reserve forest and wooded land. In paragraph no.16 of judgment, Division Bench considered the spirit of Rule 7(2). Applying the ratio decidendi laid down by the Division Bench in the case cited supra, case of the respondent was not considered by appellant/Commissioner and therefore, writ order is liable to be set aside.

6. Learned Senior Counsel, Mr.M.K.Kabir appearing on behalf of respondent would oppose by stating that Rule 7(2) has no application since the revised master plan has been approved by the Government. Revised master plan was prepared under the Development Control Rules. Therefore, Rule 7(2) cannot be applied for the purpose of rejecting the application seeking building plan permission/licence. Mr.M.K.Kabir relied on the findings of writ Court regarding Master Plan Scheme approved by the Government. Therefore, respondent is entitled to secure building plan permi