ORDER
Bakthavatsalam, J.
1. W.P. No. 1390 of 1989 is filed by the petitioner for the issuance of a Writ of certiorarified mandamus to call for the records of the first respondent Government in G.O. Ms. No. 1293, Housing and Urban Development Department dated 26.9.1988 and to quash the same and also to direct the respondents 1 and 2 herein to forbear from permitting the fourth respondent herein from putting up any construction in Door Nos. 10 and 11 Haddows Road, Madras-6 contrary to the Building Regulations now in force.
2. W.P. No. 1391 is filed by two other persons for the same relief asked by the petitioner in W.P. No. 1390 of 1989.
3. W.P. Nos. 5651 and 5652 of 1989 are filed for the issuance of a writ of a certiorarified mandamus to call for the records in letter No. 63680/U.D.I. (I)/88-1 dated 25.10.1988 and the consequential proceedings of the respondents 2 and 3 in Planning Permit No. 6157, dated 12.12.88 and the Building Permit No. 17153, dated 5.1.1989 respectively and to quash the same.
4. The petitioner in W.P. No. 1390 of 1989 and W.P. No. 5652 of 1989 owns a house at Plot No. 16, Pycrofts Garden Road, Madras-6. The petitioners in W.P. No. 1391 of 1989 and W.P. 5651/89 own house at Plot No. 9 in Haddows Road, Madras-6. and No. 12, Pycrofts Garden Road, Madras-6. The Plot at Door Nos. 10 and 11 Haddows Road, Madras-6. adjoins the plots belonging to the petitioner in W.P. Nos. 1390 and 5651 of 1989. The fourth respondent herein in all the writ petitions is the owner of Plot Nos. 10 and 11, Haddows Road, Madras-6. The facts are common in all these writ petitions.
5. On 10-12-1987, the fourth respondent herein submitted an application to the second respondent herein, the Madras Metropolitian Development Authority (hereinafter referred to as MMDA) for the construction of ground plus ten floors at Nos. 10 and 11, Haddows Road, Madras-5. under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the 'Planning Act, 1971). On 14.1.1988 the proposal given by the fourth respondent herein was rejected on the ground that the proposals are violative of Special Rules for Multi-storeyed building under Rules 17(a) of Development Control Rules. The fourth respondent herein submitted another petition on 20-1-1988 to the then Minister for Housing, to consider his prayer for relaxation of Rules with regard to height of the building, clear set back, FSI, and parking. On 22.2.1988, the petitioner was informed by the Deputy Secretary to Government to make further representation, if any, against the Development Control Rules violations and to file his objections, if any. In the said letter, the petitioner has been informed that the planning permission cannot be issued, and that the further representation, if any is not received on or before 22.3.1988, the appeal petition of the fourth respondent dated 20-1-1988, will be examined on merits and orders passed. The fourth respondent made a representation on 29-4-1988 stating that the building shall be constructed to ground plus 7 floors only so that the height will not exceed more than 24 Mts. and number of floors from ground plus ten floors to ground plus seven floors shall be reduced. On 11.5.1988, enclosing therewith two sets of drawings for the proposed ground plus seven floors at Nos. 10 and 11, Haddows Road, Madras-6, the fourth respondent herein made a further representation stating that the height of the building is restricted well within the permissible limit of 24 Mts. that the FSI is well with 2.25 and that the only relaxation is required for access and drive way which is very marginal, and as such it was requested by the fourth respondent to consider the case where the marginal relaxation is required. On 2-6-1988, the Deputy Secretary to Government asked the fourth respondent to submit the latest proposals to which the fourth respondent along with two revised sets of Plans for the ground plus seven floors restricting the height of the building to 24 Mts. and restricting the F.S.I of 2.25. It is further stated in that letter that they have earlier requested the Government for relaxation of driveway and vehicular access, that the proposed construction is purely for residential purpose, that there shall not be any heavy vehicular movement, that there shall be only medium and small vehicular movement, that the present 7.2 metres access given shall be sufficient for the movement, that they provided 24.32 ft open space all around the building and that there shall be no hindrance for vehicular drive around the building. In the said letter the fourth respondent requested to consider his plea sympathetically and issue necessary directions to M.M.D.A. for giving the Planning Permission for ground plus seven floors. On 19-7-1988, before the Government by letter addressed to the Secretary to Government, the fourth respondent undertook that he shall provide an access of 7.2. Mts. as per the Development Control Rules, before the completion of the proposed building and that there are two buildings in the front of his property and that the same shall be provided by demolishing part of any of the buildings. The reason for writing that letter is that the fourth respondent thought that the Government may not consider his appeal dated 20-1-1988 for relaxation. After considering the appeal and further representation of the fourth respondent herein, the Government by G.O. (Ms) No. 1293, dated 26-9-1988 decided to allow the appeal of the fourth respondent and requested the Member Secretary, Madras Metropolitan Development Authority to issue planning permission to the fourth respondent for the proposed construction of ground floor plus seven floors building for residential purpose at Door Nos. 10 and 11 of Haddows Road, Madras-6, after the fourth respondent provides required 7.2 Mts. of Vehicular access way by demolishing the staircase portion on the northen side of the existing ground floor plus three floors building in front of the site and also after payment of Open space Reservation charges and security deposit amount to the Madras Metropolitan Development Authority by the fourth respondent herein. In the said Government Order, it is stated that the G.O. will not be deemed to be a planning permission and will not confer the right on the fourth respondent to proceed with the construction work straightway. This G.O. is attached in W.P. Nos. 1390, 1391 of 1989. The fourth respondent wrote a letter to the Secretary to Government stating that the proposed 7.2. Mts. Vehicular access is required for the proposed construction only after the construction is completed and as such it is requested the Government to inform the Member Secretary, M.M.D.A. to issue planning permission for the proposed construction of ground plus seven floors by taking an undertaking on the stamp paper to demolish the staircase portion before the completion of the proposed construction of the building. By letter dated 25.10.1988, the Secretary to the Government considered the request of the petitioner and modified its earlier order which is to the following effect..I am directed to state that the Government, after careful consideration of the further representation of Thiru. Abdul Khader Yunus first cited, have decided in partial modification of the order issued in G.O. Ms. No. 1293, Housing and Urban Development, dated 26.9.1988, to request you to issue planning permission to Thiru Abdul Khader Yunus for the proposed construction of Ground Floor + 7 floors building for residential purpose at door Nos. 10 and 11 of Haddows Road, Madras after obtaining an undertaking on stamped paper from Thiru Abdul Khader Yunus for demolition of the staircase portion of the norther side of the existing ground floor + 3 floors building in front of the site so as to provide 7.2 mts. vehicular access; before the completion of the proposed construction.
This is the subject matter impugned in W.P. Nos. 5651 and 5652 of 1989.
6. After this, the fourth respondent wrote a letter to M.M.D.A. on 26-10-1988 and the planning permission was granted on 12.12.1988. The fourth respondent gave an undertaking to the M.M.D.A. on 1.11.1988 to demolish the staircase portion on the northern side of the existing ground plus three floor building before the construction of the proposed ground plus seven floor is completed. The member Secretary, M.M.D.A. granted the permission to the fourth respondent on 18-11-1988, on certain conditions. One of the conditions is to remit a sum of Rs. 17,100 towards Development charges for land and building and a sum of Rs. 1,22,100 towards 10% open space reservation charges and Rs. 3,41, 000 towards security Deposit which is refundable without interest after two years from the completion and occupation of the building. Aggrieved by this, the present Writ Petitions have been filed.
7. Mrs. Nalini Chidambaram, herself being the petitioner in W.P. Nos. 1390 and 5652 of 1989 and appearing as counsel for the petitioners in W.P. Nos 1391 and 5651 of 1989 contends that this is a clear case of exemption from vehicular access and that this has to be done only at the time of grant of planning permission under the Tamil Nadu Town and Country Planning Act, 1971 and not after the completion of the building. The learned counsel further contends that no application under Section 113 of the Planning Act, 1971 has been filed in this case for exemption and that the fourth respondent has not at all asked for any exemption, and as such, the orders passed by the Government cannot be supported. The learned counsel also contends that the vehicular access should be 18 metres and not 7.2 metres according to Development Control Rules. The learned counsel contends that the fourth respondent herein has filed an appeal under Section 79 of the Planning Act against the rejection of his application under section 49 of the said Act and that the second order passed by the Government on 25-10-1988 which is impugned in W.P. Nos. 5651 and 5652 of 1989 is not valid in law. The learned counsel also contends that the conditions prescribed have to be put forth only at the time of starting the construction and the said conditions cannot be prescribed to be adhered to after the completion of the said building. Assuming for a moment 7.2 metres of vehicular access is to be provided under Development Control Rules, the order of the Government dated 25-10-1988 is impugned in W.P. Nos. 5651 and 5652 of 1989 cannot stand since virtually it is a review of the appeal under Section 79 of the Tamil Nadu Town and Country Planning Act, 1971. The learned counsel refers to Rule 5(4) of the Development Control Rules. The learned counsel further contends that the revised plan should have been submitted to M.M.D.A. and not to the Government and as such the entire procedure adopted by the Government is irregular which culminated in the passing of the planning permission in this cases. The learned counsel also contends that the order dated 25-10-1988 has been passed by the Secretary to Government under President Rule when the rules of business are suspended. She also contends that an order under Section 113 of the Planning Act should be passed only by the Adviser and not by the Secretary to the Government during the President Rule and that assuming that it is an exemption under Section 113 of the Act it must be made only by way of notification: the learned counsel refers to the Development Control Rules and contends when there are existing buildings, the M.M.D.A. calculated contrary, to Annexure IX. (Special Rules for Multi-storeyed Buildings) The sum and substance of the contention of the learned counsel for the petitioner are that the plan submitted does not conform to the Development Control Rules and that it was submitted to a wrong Authority. She further argues that the Government cannot function as an Appellate Authority since it is involved in granting the permission earlier, that the direction of the Government that the vehicular access should be 7.2 mts is wrong and that it should be 27 metres. It is further argued that this is virtually an exemption under Section 113 of the Planning Act, that the power can be exercised only on an application to Government and not by Secretary to Government. It is further argued that the said order has been passed arbitrarily and it is mala fide exercise of power by the Government.
8. Mr. Doraisamy, the learned counsel for the fourth respondent who is the contesting respondent in the writ petitions, contends that the writ petitions are not filed as public interest litigation, that the writ petitions are filed by two neighbours, that unless they satisfy the Court that they are prejudiced by the Planning Permission in any way, the writ petition filed by them are not maintainable, that there is a distance of 24' between the residence of the fourth respondent and the writ petitioners buildings and as such the petitioners are not aggrieved persons and that the writ petitions are not maintainable. The learned counsel refers to Rule 17 of the Development Control Rules and Rule 19(b) of the said Rules. The learned Counsel referring to Rule 17(a) of the Development Rules, with regard to multi-storeyed building and submits that the entire site belongs to one person, that there are two old buildings and that it will not make the site not abutting the road and as such it cannot be said that 18 metre should be there as a passage. According to the learned counsel, under Rule 5(4) (Annexure IX of Development Control Rules, 7.2 meters is only for vehicular access. The learned counsel further argues that Section 79(3) of the Planning Act, 1971 empowers the Government to pass the present order and that at every point of time M.M.D.A. was consulted which is borne out by records. The learned counsel argues that no question of mala fide arise in this case. Referring to section 92 of the Planning Act, 1971, the learned counsel argues that the second order of the Government passed on 25.10.1988 is valid in law, that the records of deed are for the safeguard and that if the fourth respondent does not fulfil the condition before the completion of the building, it is open to M.M.D.A. to forefeit the deposit. He further argues that the planning permission was granted on certain conditions. The learned counsel refers to the decision of the Supreme Court in J.M. Desai v. Roshan Kumar : [1976]3SCR58 , in N.R. & F. Mills v. N.T.G. and Sons : [1970]3SCR846 and the decisions in M.L. Krishnamoorthy v. The District Revenue Officer Vellore N.A. District 1989 T.L.N.J. 200 and the Judgment of S. Natarajan, J. (as he then was) which is reported in Dr. P.G. Viswanathan v. Government of Tamil Nadu 1984 W.L.R. 257 and submits that the petitioners herein are not aggrieved persons. The learned counsel farther argues that after the President Rule was imposed G.O.Ms. No. 375 (Public) dated 20-4-1988 was amended and the file was circulated to the Adviser and he has signed and files. The learned counsel also argues that this is not an exemption under Section 113 of the Planning Act, that this is an order under Section 79 of the Planning Act, that though initially the fourth respondent wanted relaxation from the Development Control Rules. It is contended that since no injustice has been done to the petitioners, this Court should not exercise its extraordinary jurisdiction under Article 226 of the Constitution. The learned counsel further argues that this Court should interfere only if there is some manifest prejudice done to the petitioners and this is not the case where any manifest injustice is done to the petitioners herein. The learned counsel refers to the decision in B. W. Adisson v. B.L. Sen : (1957)ILLJ472SC in The Hindustan Construction v. G.K. Patankar : (1976)ILLJ460SC in Balvantari v. N.N. Nagarashna : (1959)IILLJ837SC in Khalia Hussian (Minor) v. Commissioner & Secretary to Government of Tamil Nadu : [1987]3SCR1049 to this effect. He further argues that the fourth respondent gives an undertaking that he is prepared to leave 7.2 metres before completing the third floor and he is even prepared to give an undertaking before this Court and will abide by any conditions put forth by this Court.
9. Mrs. Nalini Chidambaram, the learned counsel replies to the arguments of Mr. Doraisamy, the learned counsel for the fourth respondent that the petitioners are aggrieved persons, referring to decisions in Re v. Hendon Rural District Council 1933 A E.R. (K.B.D.) 20 and in The King v . Hendon Rural District Council (1933) 2 K.B. 696, in Moares v. London County Council (1964) 2 QB. 362 in Ramdoss Shenoy v. Chief Officer, Town Municipal Council, Udipi : [1975]1SCR680 and the order of Ratnam, J in W.P. No. 12896 of 1984 dated 23.9.1985 The learned counsel argues that what is required according to Development Control Rule is 18 metres and not 7.2 metres in respect of vehicular access. The learned counsel further argues that if the second order dated 25.10.1988 is an order of appeal under S.79 of the Planning Act, it is not valid since the Government has no power of review and if it is an order of exemption under S.113 of the Planning Act, the said order is arbitrary, and illegal since it should have been made only by a Notification, by the State Government in Gazette. A look at the second order dated 25.10.1988 shows that it is not under a notification. It is contended that any order made under Article 166 of the Constitution should be in the name of Governor. Referring to the decision in Major E.G. Barsay v. The State of Bombay : 1961CriLJ828 for this proposition the learned counsel contends that the order passed on 25.10.1988 which is the subject matter of W.P. Nos. 5651 and 5652 of 1989 is without authority of law. The learned counsel further argues that even the original order is not valid as the State Government has participated in earlier proceedings of the M.M.D.A. and as such the Government cannot act as an appellate authority in this case.
10. Mr. G. Venugopal, the learned Government advocate appearing for the first respondent contends that the orders impugned are made only under section 79 of the Planning Act, 1979 and as such no question of S.113 of the said Act arises in this case. The Government advocate further states that the order dated 25.10.1988 is made under S.79 of the Act and as such the contention raised by the learned counsel for the petitioners that the said order is made under S.113 of the Planning Act is not relevant for the purpose of this case.
11. I have given careful consideration to the arguments of Mrs. Nalini Chidambaram, on behalf of herself and as counsel for other petitioners in W.P. Nos 1391 and 5651 of 1989, Mr. K. Doraisamy, the learned counsel for the fourth respondent and of Mr. G. Venugopal, the learned counsel appearing for the State and M.M.D.A.
12. An important point, that arises for consideration in these cases, in my view, is whether on the facts and circumstances of the cases the petitioners in all these cases can be said to be 'aggrieved persons' at all, to come before this Court and invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. As I have already narrated in the facts, the premises in which the proposed construction is to be done adjoins the houses of the petitioners herein. The Supreme Court had an occasion to consider the locus standi of a person to invoke certiorari jurisdiction in the case in J.M. Desai v. Roshan Kumar : [1976]3SCR58 in which the Supreme Court observed as follows (at P. 581):.In order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be ah 'aggrieved. Person' denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factor such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injuiry suffered by him....
In the said case, the Supreme Court further observed as follows:
It does not include a mere busy body who is interfering in things which do not concern him but it includes any person who has a genuine grievance because something has been done or may be done which affects him....
In the said case, the Supreme Court has considered the case of Attorney General of the Gambai v. N'Jie (1961) A.C.C., 617 and Maurice v. London County Council (1964) 2 Q.B. 362. In Maurice v. London County Council (1964) 2 Q.B.362 the case was concerned with regard to the consent to building over 100 feet. An objection was taken by the owner. The question raised in that case was whether the owner of the premises within 100 feet could be said to be a person aggrieved, and that whether grievances impinging on town planning considerations including loss of visual amenity may be considered, by tribunal of appeal under the London Building Act, 1930. The facts of that case seems to be that the owner of premises in London, situated within 100 yards of a proposed block of flats more than 100 ft. high, appealed under section 52(2) (a) of the London Building Act, 1930, as a person who deemed herself aggrieved, against a consent granted to themselves by the London County Council under Section 51 of the Act of 1930 as amended by section 5 of the London County Council (General Powers) Act, 1954. The appeal preferred by the owner was allowed holding that 'the owner was entitled to have the tribunal consider loss of amenities, including visual amenity, in so far as it affected her interest in her property.' In that case while considering the scope of Section 51 and 52(a) of London Act, 1930 Lord Denning discussed the meaning of the word 'aggrieved person' and observed as follows' (at 377)..It is quite clear that the person must be aggrieved in respect of his interest in a building or land within 100 yards. But there is no Limitation whatever as to the kind of grievance. I can see no reason whatever for excluding loss of amenities.
It will be useful to refer to another passage of Lord Denning at this stage. In the Book 'The Discipline of Law' Lord Denning has written as follows: (at P. 115)
Person Aggrieved
In many statutes it is enacted that, in case of non-compliance, a 'person aggrieved' may complain to the Courts or to a tribunal. During the 19th century those words were construed very restrictively. It was said that a man was not a 'person aggrieved' unless he himself has suffered particular loss in that he had been injuriously affected in his money or property right. He was not 'aggrieved' simply because he has a grievance. That was laid down 1880 by a distinguished Judge, Lord Justice James, in the Sudebotham Case (1880) 14 C.D. 458 . But a case came before Lord Justice Parker and myself in 1957 when we departed from that old test. It is a case, which is only reported in the Local Government reports -R. Thames Magistrates' Court (1957) 5 L.G.R. 129. It was about a pitch in a street market in Bermondsey. The Magistrates had awarded the pitch to a seller of jelliedeels. But a newspaper seller thought that he ought to have had the pitch. He has no legal right to the pitch. But we held that he had a locus standi and quashed the order of the Magistrates. This was followed a few years later by the case of a rate payer who said that the valuation list of the whole area had not been properly prepared. He was not able to show that his own propery was rated wrongly. His only complaint was that the whole list was wrong. In this case, R. v. Paddinggon Valuation Officer, ex parte Peachey property Corporation Limited (1966) 1 Q.B. 380 I said:
The question is whether the Peachey Property Corporation are 'Persons aggrieved' so as to be entitled to ask for certiorari or mandamus. Mr. Blain contented that they are not persons aggrieved because, even if they succeeded in increasing all the gross values of other people in the Paddington area, it would not make a penny worth of difference to them...But I do not think grievances are to be measured in pounds, Shillings and pence. If a ratepayer or other person finds his name included in a valuation list which is invalid, he is entitled to come to the court and apply to have it quashed. He is not to be put off by the plea that he has suffered no damage, any more that the voters were in Ashby v. White. The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done...So here it will listen to any ratepayer who complains that the list is invalid.
This was afterwards approved by the House of Lords in Arsenal Football Club v. Ende (1977) 2 W.L.R. 974. In The King v. Hendon Rural District Council (1933) 2 K.B. 696 it has been held that 'a certiorari will lie to bring up a decision of a local authority to permit development pending the final approval by the Minister of Health of a town-planning scheme.' In the instant case, the petitioner's contention is that on account of the unauthorised construction in the plot adjoining their residences, there is great threat to sanitation in the area. The other contention of the petitioners is that since there will be only one passage for ingress and egress, the mandatory fire escape provisions have been dispensed with. The other complaint of the petitioners is that various regulations under the Town and Country Planning Act have been brought about to ensure proper sanitation in the area, prevent fire hazards, allow free ingress and egress of air and light for the neighbours, ensure easementary right and the population which the area can bear as well as the vehicular traffic which the area can accommodate. The further contention of the petitioners is that when these things are not considered by M.M.D.A. it is open to them to challenge the same by way of a writ of certiorari. This being the contention of the petitioners, that the impugned Government order is an abuse of power and they are aggrieved persons to challenge the Government Order, it cannot be said that their contention is untenable. A passage in 'An Introduction to Administrative Law' by Peter Cane at P. 613 can be usefully referred to:.neighbours have sufficient interest to challenge Planning decisions in respect of neighbouring lands ...Neighbours challenging Planning decisions would be held to have sufficient interest, unless other facts of the case provided very strong ground for denying the existence of such an interest....
A Passage in Administrative Law' by H.W.R. Wade (5th Edition P. 583) is referred to:.Every citizen has standing to invite the Court to prevent some abuse of power, and in doing so he may claim to be regarded not as a meddlesome busybody, but as a public benefactor. Parker, I.J. thus stated the law as to certiorari...any body can apply for it, a member of the public who has been inconvenienced, or a particular party or person who has a particular grievance of his own. If the application is made by what for convenience one may call a stranger, the remedy is purely discretionary. Where, however, it is made by a person who has a particular grievance of his own, whether as a party or otherwise, then the remedy lies ex debito justitiae...at p. 585...The broad principle which almost eliminates the requirement of standing for these remedies shows how far the law has gone in the direction of admitting an element of actio popularis on grounds of public interest just as it has done with mandamus and with the relator action. By such means, therefore, a remedy may be found for the citizen, who is genuinely aggrieved, but who has no grievance in the eye of the law. He may, for example, object strongly to a building for which his neighbour has been granted planning permission although legally this is no concern of his. If he can show that the permission is void, for example because the principles of natural justice have been violated, he may have it quashed by certiorari, even though he could not have obtained a declaratory judgment because of his lack of personal legal right...
at p. 621 it has been stated thus..Thus in a planning case, it should be possible to hold that a neighbour is a 'person aggrieved' even though he may be denied a remedy because of the implication of the planning legislation that a neighbour has no standing to challenge a grant of planning permission. By disentangling the two questions the court could avoid laying down a restrictive general rule.
As already observed in the case of other remedies, the current tendency is to relax requirements as to standing, and this is in accordance with an enlightened system of public law...In several cases, the Courts have already favoured a generous interpretation of 'person aggrieved' and it is now less likely that these words will be made an obstacle to any person who may reasonably consider himself aggrieved. Judicial Statements suggest that they are likely to cover any person who has a genuined grievance of whatever kind and that is tantamount to any person who reasonably wishes to bring proceedings.
A passage in 'De Smith's Judicial Review of Administrative Action (IV edition - J.M. Evans -at P. 413 with regard to the term 'aggrieved Person' runs as follows;.In other contexts a person aggrieved has been understood to mean one 'who has a genuine grievance because an order has been made which prejudicially affects his interests. Hence a householder anticipating a serious loss of amenity as a result of an administrative decision to permit the building of a high block of flats nearby was entitled to appeal against the decision as a person aggrieved....
In Attorney General of The Gambia v. Pierre Sam N'JIE 1961 A.C.617 it has been as follows:.Lord Esher N.R. pointed out that in Ex parte Official Receiver, In re Reed, Bowen & Co., (1937) 19 Q.B.D. 174, the words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an Order has been made which prejudicially affects his interests.
When considering this question, taking note of the law enunciated by the Supreme Court and also by the English cases mentioned above, I am of the view that the petitioners who are 'aggrieved' can invoke the extraordinary jurisdiction under Article 226 of the Constitution. I am not able to appreciate the contention that some manifest injustice should be shown by the petitioners before invoking the extraordinary jurisdiction of this Court. I think it is enough if the petitioners are able to show that they have got enough interest in the matter. It cannot be said that the petitioners herein are strangers or busy body or meddlesome inter-lopper persons. Their grievance is jusitified and it cannot be said that they have no locus standi to invoke the extraordinary jurisdiction of this Court. The decisions mentioned above in J.M. Desai v. Roshan Kumar : [1976]3SCR58 and in N.R. & F. Mills v. N.T.G. & Sons : [1970]3SCR846 relate to a competitor in a business. There are provisions in those acts in the above mentioned cases, to raise objections. The judgment of the Full Bench of this Court in Krishnamurthy v. The District Revenue Officer, Vellore North Arcot District 1989 T.N.L.J. 200 considered the question which arose out of locating a rice mill. The question of 'Aggrieved person' was not raised and considered by S. Natarajan, J. (as he then was) in Dr. P.G Viswanathan v. Government of Tamil Nadu 1984 W.L.R. 257. As such, these cases cannot apply to the facts of the present case.
13. In these days when there is mushroom growth of flats in urban areas, in my view, the courts should have to step in and see that the authorities concerned follow the Town Planning Act and Development Control Rules properly. Nowadays, planning as a Government function has assumed importance. We are able to see the lungs of the city get fouled up by relentless building activities to subserve various vested interests. Sometimes the Building Rules evolved by the planners are deliberately flouted, great structures are built even without getting the permission and ultimately they get regularised. In R.L. & E. Kendra, Dehradun v. State of Uttar Pradesh : [1985]3SCR169 the Supreme Court had an occasion to deal with imbalance to ecology and hazard to healthy environment due to working of limestone quarries. In the said decision, the Supreme Court upheld the right of the people to live in healthy environment and observed as follows: at.This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment....
I think this principle has to be applied when this Court considers about the right of the petitioners to question the planning permission given to a neighbour to construct high rise buildings. Take for instance, the area in which the petitioners residences are located. When houses were built by the petitioners herein for the residential purpose, certainly they should have submitted a plan to the Corporation and got them approved. There must be a planning for that area at that time according to which the Corporation would have granted the permission. By that time, the petitioners had the satisfaction of their residences in a locality to get air, light and proper sanitation. Suppose, if the very same area is going to be crowded by a bunch of flats, then what will happen? The very same infrastructure which remained when the houses of the petitioners were built continue, that is, the sewerage connection, water supply etc. the petitioners would naturally suffer from pollution of noise and air and traffic congestion and there will be diminition of the light and air if high rise buildings are built in that area. Considering all these aspects, one cannot say that the petitioners are not 'aggrieved persons'. In my view, certainly the petitioners have got a right to have their say before the authority concerned if they granted the permission wrongly. Considering the modern trend, in my view the courts also must give a wider meaning to the term 'aggrieved person'. It is not an answer to say that the petitioners are not inconvenienced by the construction of high rise buildings adjoining their residences belonging to them. For the reasons stated above, I hold that the petitioners herein are 'aggrieved persons'.
14. Coming to the next point with regard to the violation of rules, whether the order dated 25.10.1988 which is subject matter of Writ Petitions Nos. 5651 and 5652 of 1989 can be sustained. In my view, it cannot. Section 79 of the Planning Act runs as follows:
79. Appeal to prescribed authority:
(1) Any person aggrieved by any decision or order of the planning authority under section 49 or Sub-section (1) of section 54 may appeal to the prescribed authority.
(2) An appeal under Sub-section(1) shall be preferred within two months from the date on which the decision or order was communicated to him in the manner prescribed, but the prescribed authority may admit an appeal preferred after the said period of two months if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.
(3) In disposing of an appeal, the prescribed authority may, after giving the parties an opportunity of making their representations, pass such order thereon as the prescribed authority may deem fit.
(4) The decision or order of the prescribed authority on such appeal shall be final.
(5) The prescribed authority may pass such interlocutory order pending the decision on such appeal as the prescribed authority may deem fit.
(6) The prescribed authority may award costs in proceedings under this section to be paid either out of the Fund Account or by such party to such appeal as the prescribed authority may deem fit....
That is the appellate power of the Government against an order passed by the planning Authority under S.49 of the Planning Act. As such, when an order has been passed by the authority in G.O.Ms. No. 1293 Housing and Urban Development Department on 26.9.1988, the authority becomes functus officio I do not think the appellate authority can touch the order any more, after such orders have been passed in the appeal, on the ground that the fourth respondent herein has made representations. It is well settled that there is no inherent power of review for an authority. In this case, it is very clear that there is no power of review for the Government under the said-Act, for the orders passed under S.79 of the Planning Act. Section 81 of the Planning Act provides for a review and that Section specifically excludes Section 79 of the said Act. As such, by implication it has to be taken that the Government has not been given the power of review in such cases. As such, the second order dated 25.10.1988 passed by the Government, which is subject matter of Writ Petition Nos. 5651 and 5652 of 1989, cannot stand in the eye of law.
15. I am not able to agree with the arguments of Mr. Doraisamy, the learned counsel for the fourth respondent that by the second order dated 25.10.1988 which is impugned in Writ Petition Nos. 5651 and 5652 of 1989 the petitioners rights are protected. Suppose if the building is completed, third parties, that is the allottees or purchasers of the flats will come into picture. Surely the under taking given by the fourth respondent to the M.M.D.A. cannot be enforced against the purchasers who are third parties. As such, the order dated 25.10.1988 has to be set aside.
16. My view is strengthened more by the arguments of the Learned Government advocate that the order has been passed only under S.79 of the Planning Act and not under S.113 of the said Act. If it is so, certainly the order dated 25.10.1988 has to fall to ground. In this view of the matter, it is not necessary to consider the arguments of Mrs. Nalini Chidambaram, the learned counsel for the petitioners, based upon S.113 of the Planning Act, in so far as the facts of the present cases are concerned.
17. Then the question about the validity of the order passed on 26.9.1988, which is the subject matter of W.Ps. Nos. 1390 and 1391 of 1989 only remains to be considered. As per Rule 17(a) of the Development Control Rules, all the multi-storeyed building panel and the recommendations of the said panel must be sent to Government and then the Government has to pass orders upon the recommendations of the said panel. Rule 17(a) of the Development Control Rules reads as follows:.17 (a): Areas for buildings of Special character: (a) multi-storeyed building. Buildings exceeding 4 floors and or 15 metres in height shall not be permitted in areas specifically prohibited for construction of such buildings. They shall conform to the 'Special Rules for Multi Storeyed Building' given in Annexure IX. A description of the areas set apart for such construction is given in Annexure X....
Special Rules for multi-storeyed Buildings are given in Annexure IX. Clause 5(4) of Annexure IX speaks of vehicular access within the site, which runs as follows:.The vehicular access way within the site shall have a minimum width of 7.2 M and such vehicular access shall be available for every building block in the site....
Clause 16 explains how the plan should be scrutinised. It is seen that the Plan shall be scrutinised and forwarded to the Government with the recommendations of a Panel. In this case, originally the plan was sent to the Government and it was rejected. But, after appeal, another set of plans was sent when the fourth respondent reduces his to ground plus seven floors. A tabular from Rules as applied is extracted below.
S. No.
Rule
Decription
Requiredor permissible
Provided
Remarks
1
2
3
4
5
6
1.
17(a)(1)
Roadwidth
21.0 mt
24.1 mt
2.
17(a)1
Heightof the building
24.0mts
23.77mts
3.
17(a)1
Siteextent
2000 mt2
3533 mt2
4.
17(a)1
MinimumLength of shortest side
30.0mts.
31.4mts.
5.
17(a)3(b)
Setback alround
7.0 mtsfor proposal
7.32mts. for proposal
6.
17(a)3(b)
Distancebetween blocks
7.0 mts
7.32mts
7.
17(a)2
Plotcoverage
50%
39.16%
8.
17(a)2
Floorspace Index
2.25
2.25
9.
17(a)5
Parking
26 carscars feasible
26
10.
17(a)6
Vehicularaccess
7.2 mts
7.62mts. due to demolition of existing staircase
11.
17(a)10(b)
Lift
1 No.
4 Nos.
12.
17(a)10(b)
Generatorroom
Providedin ground floor
13.
17(a)10(b)
Transformerroom in Ground floor
60 mt x4.5 x 3.0 mt.
Providedin ground floor
14.
17(a)10(b)
Meterrooms
3 X 2.4mt x 2.4 mt
Providedin Ground floor
15.
17(a)12
FireSafety Staircase
2 Nos.
4 Nos.
A look at the above shows that the vehicular access alone is left out. Apart from that, every other Rule has been complied with fully. As such, the original order of the Government which is impugned in Writ Petitions Nos. 1390 and 1391 of 1980 cannot be said to be invalid on any ground. That order specifically speaks for providing of vehicular access and if it is provided, I do not think the petitioners herein can have a grievance on any ground. When the M.M.D.A. has filed a set of Rules under Development Control Rules showing the required position and the compliance with regard to the Rules, I do not think the order of the Government in G.O. Ms. No. 1293 Housing and Urban Development Department dated 26.9.1988, which is impugned in Writ Petition Nos. 1390 and 1391 can be said to be invalid in law. I am not able to appreciate the arguments of the learned counsel for the petitioners that once the Government rejected the planning permission or taken part in rejection, it cannot pass an order under S.79 of the Planning Act. The Order originally rejecting the planning permission was for ground plus ten floors. But, now we are concerned with the permission with regard to ground plus seven floors. As such, the objection taken on this ground by Mrs. Nalini Chidambaram, the learned counsel for the petitioners that the Government has no jurisdiction under section 79 of the Planning Act to entertain the appeal cannot be countenanced.
18. In the result, I hold that the writ petitioners herein are aggrieved persons, that the writ petitions are maintainable, that the order of the Government in G.O. Ms. No. 1293, Housing and Urban Development Department dated 26.9.1988 which is impugned in W.P. Nos 1390 and 1391 of 1980, is valid in law and that the order of the Government dated 25.10.1988 which is the subject matter of the Writ Petition Nos. 5651 and 5652 of 1989, purported to be passed on a representation made by the fourth respondent herein, is quashed. Accordingly, Writ Petition Nos. 1390 and 1391 of 1989 are dismissed. Writ Petition Nos. 5651 and 5652 of 1989 are allowed, quashing the order of the Government dated 25.10.1988. However, there will be no order as to costs.
19. Before parting with the cases on hand, I would like to observe that, considering the trend of construction of high rise buildings nowadays in cities, it is worthwhile for the Government to, consider whether any amendment can be brought to the Tamil Nadu Town and Country Planning Act, 1971 as found in English Law, calling for objections from the neighbours before granting planning permission, with regard to the high rise buildings, considering the right of the people to live in healthy environment with regard to light, air and proper sanitation etc.