Two Writ Petitions of a similar nature were taken up together by the Court. It refers to both the petitioners challenging their renewal of the original application for construction. The matter was heard and decided upon by Hon’ble Justice N. Anand Venkatesh.
Facts of the Case
The petitioners in the case- M/s. Mistair Realty’s Private & Mrs. Jansi Kishore are the owners of a property categorized as ‘primary residential zone’ as per the master plan for Udhagamandalam municipality. Both the petitioners had applied for a building license for the construction of a residential building in the subject property. Both the petitioners claim that they could not commence the construction owing to financial restraints. However, they saved some money and utilized these funds for reapplying their license to construct. Their renewal applications were rejected by the respondent, The Commissioner of Udhagamandalam Municipality. The petitioners have challenged this same rejection of their renewal applications.
Arguments Before the Court
The counsel for the petitioners submitted that the land in question is a ‘primary residential zone’. According to the master plan, there is no bar under any sanctions to put up a residential dwelling house. This construction, however, could only start after obtaining the license from the respondent municipality. The counsel further maintained that the petitioners have not sought any change in the type of manner of construction but just the renewal of the license.
The counsel additionally submitted that the Commissioner (respondent) failed to consider Section 204 of the Tamil Nadu District Municipalities Act, 1920. Section 204 of the said Act refers to ‘Lapse of Permission’. The counsel placed reliance upon the order passed by this Court in WP No. 3946 of 2017, dated 17.04.2017, and also the reported judgment in AIR 1996 Madras 159. The Counsel also argued that the provisions of the Act in question are more regulatory in nature than prohibitory. The respondent ought to have considered the application in lieu of the nature of the act and regarded it as a fresh application.
The counsel for the respondent submitted that in both the petitions, the petitioners had approached the Commissioner, i.e., the respondent after 6 years and 10 years after the expiry of their license. This alone is a sufficient basis to reject their applications. The petitioners ought to present a fresh application that may be considered by the respondent in accordance with the law. The Counsel noted that Section 204 of the mentioned Act, is only applicable for the fresh applications and not a renewal of application. The counsel further submitted that the judgments relied upon by the learned counsel for the petitioners will not apply to the facts of the present case and in those cases, there was no delay in approaching the authorities seeking for renewal of the license.
Court’s Observations
The Court observed that once a property falls within the category of ‘primary residential zone’, the Development Control Rules will apply. The Court also noted that a plain reading of Section 204 of the Tamil Nadu District Municipalities Act, 1920 makes it clear that where construction has not been completed within the license period and the permission has lapsed, the fresh application should be made before the work is continued. The Court referred to [M/s Golden Homes Private Ltd. Vs. The Secretary to Government and others] in this regard.
The Court further observed that a conjoint reading of Section 204 along with Section 321(9-A) of the Act and has given beneficial construction by holding that an application seeking for renewal is nothing but a fresh application and it is not a new application specifically when it is sought for the same project without any change made to the earlier plan which was sanctioned and permission was granted.
The Court thus noted that the concerned municipal authority should have considered the renewal application submitted by the petitioners as a fresh application and dealt with the same under Section 204 of the Act. It should not have dismissed the application harshly on mere technicalities of the Act.
Court’s Order
The Court found that the impugned order passed by the Commissioner warranted an inference. The Court allowed both the petitions and quashed the impugned order. Further, the Court maintained that there shall be a consequential direction to the Commissioner to renew the building license in favor of the petitioners after collecting the requisite scrutiny fee and other applicable payments, within a period of 4 weeks.
Read the original judgment here.
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