Panchayats can give building approvals with DTCP nod: HC
Sureshkumar.K@timesgroup.com
Chennai:15.07.2018
In a significant ruling, the Madras high court has made it clear that panchayats can use their executive authority and sanction building approvals in their territory, after a compulsory consultative process with authorities of the the directorate of town and country planning (DTCP).
A division bench of justice M Sathyanarayanan and justice N Seshasayee, passing orders on a PIL filed by Tamil Nadu Unaided Polytechnic Management Association and the TN Nursery, Primary, Matriculation and Higher Secondary Schools Association, explained the ‘compulsory consultation’ clause, and said: “It cannot be any different from the parameters that town planning authorities have hitherto adopted for granting permission under the Tamil Nadu Town and Country Planning Act or such other responsibilities assigned to them on the subject.”
Relying on a Supreme Court directive, the bench said such advice could not be ignored except on ‘grounds of weighty and justifiable reasons of greater quality’, the bench added.
This apart, to ensure fairness and transparency in the consultation process, the court has directed that the same shall take place only in writing.
Oral consultation is not permitted, says Madras HC
The court said, “Oral consultation is not permitted as it has the potential to hijack the object of self- governance for purposes that may not have been in the contemplation of the Parliament.” Their advice or opinion will be found on that material which guided their decisions earlier under the act. This is to mean that the core responsibility of town planning under the act is retained, but at the functional level it is shifted from the TCP Act to the Panchayat Building Rules, the court added.
Noting that a quarter of a century after the 73rd amendment to the Constitution, the court was now required to address one such conflict in the case, the judge said there could be more. “The legislature, or the government, should now step in to resolve the areas of conflict in the operation of both the legislations, and to address the consequences that they may throw open. However, till this is done, the vacant space left by the absence of a legislation, including a subordinate or a delegated legislation, should not be exploited, leaving rule of law and the substantial justice involved stranded in helplessness.”
In their petitions, TN Unaided Polytechnic Management Association and the TN Nursery, Primary, Matriculation and Higher Secondary Schools Association assailed the constitutional validity of the building approval sanctioning powers under the TCP Act in view of the Panchayat Raj amendment to the Constitution and TN Panchayat Buildings Rules, 1997.
As for the veto, the bench said, “Technically, a sanctioning authority can override the opinions and advice of an advisory authority. However, the opinion that the town planning authorities would be offering to the executive authority of the panchayat will be on serious issues which may include legal compliances involved in granting permission for construction.” It is felt that the state legislature, in its anxiety to enact a law in terms of Article 243-G of the Constitution, and to integrate the inputs of the town planning authority in the process of decision making by the sanctioning authority under the Building Rules, appeared to have lost sight of the need to ensure that the TCP Act and Panchayat Building Rules complement each other.
Officials of the Directorate of Town and Country Planning said the order would usher in a minor change in the existing procedure, wherein the applications for constructing multistoried buildings would be routed through the village panchayats. “In the current scenrio, remarks are sought from the block development officer for the MSB applications filed with DTCP. In the future it would be the other way round,” an official told TOI.
Sureshkumar.K@timesgroup.com
Chennai:15.07.2018
In a significant ruling, the Madras high court has made it clear that panchayats can use their executive authority and sanction building approvals in their territory, after a compulsory consultative process with authorities of the the directorate of town and country planning (DTCP).
A division bench of justice M Sathyanarayanan and justice N Seshasayee, passing orders on a PIL filed by Tamil Nadu Unaided Polytechnic Management Association and the TN Nursery, Primary, Matriculation and Higher Secondary Schools Association, explained the ‘compulsory consultation’ clause, and said: “It cannot be any different from the parameters that town planning authorities have hitherto adopted for granting permission under the Tamil Nadu Town and Country Planning Act or such other responsibilities assigned to them on the subject.”
Relying on a Supreme Court directive, the bench said such advice could not be ignored except on ‘grounds of weighty and justifiable reasons of greater quality’, the bench added.
This apart, to ensure fairness and transparency in the consultation process, the court has directed that the same shall take place only in writing.
Oral consultation is not permitted, says Madras HC
The court said, “Oral consultation is not permitted as it has the potential to hijack the object of self- governance for purposes that may not have been in the contemplation of the Parliament.” Their advice or opinion will be found on that material which guided their decisions earlier under the act. This is to mean that the core responsibility of town planning under the act is retained, but at the functional level it is shifted from the TCP Act to the Panchayat Building Rules, the court added.
Noting that a quarter of a century after the 73rd amendment to the Constitution, the court was now required to address one such conflict in the case, the judge said there could be more. “The legislature, or the government, should now step in to resolve the areas of conflict in the operation of both the legislations, and to address the consequences that they may throw open. However, till this is done, the vacant space left by the absence of a legislation, including a subordinate or a delegated legislation, should not be exploited, leaving rule of law and the substantial justice involved stranded in helplessness.”
In their petitions, TN Unaided Polytechnic Management Association and the TN Nursery, Primary, Matriculation and Higher Secondary Schools Association assailed the constitutional validity of the building approval sanctioning powers under the TCP Act in view of the Panchayat Raj amendment to the Constitution and TN Panchayat Buildings Rules, 1997.
As for the veto, the bench said, “Technically, a sanctioning authority can override the opinions and advice of an advisory authority. However, the opinion that the town planning authorities would be offering to the executive authority of the panchayat will be on serious issues which may include legal compliances involved in granting permission for construction.” It is felt that the state legislature, in its anxiety to enact a law in terms of Article 243-G of the Constitution, and to integrate the inputs of the town planning authority in the process of decision making by the sanctioning authority under the Building Rules, appeared to have lost sight of the need to ensure that the TCP Act and Panchayat Building Rules complement each other.
Officials of the Directorate of Town and Country Planning said the order would usher in a minor change in the existing procedure, wherein the applications for constructing multistoried buildings would be routed through the village panchayats. “In the current scenrio, remarks are sought from the block development officer for the MSB applications filed with DTCP. In the future it would be the other way round,” an official told TOI.
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