Holding

Section 113 of the 1971 Act and Section 113‑A of the 1998 Amendment are constitutionally valid, but the specific exemption orders passed under Section 113 are illegal and are quashed.

Summary

The Consumer Action Group filed writ petitions under Article 32 challenging the constitutional validity of Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 and the exemption orders issued under it, alleging ultra‑vires delegation of legislative power and arbitrary exercise without recorded reasons. The State argued that the power is guided by the Act’s preamble, objects and reasons, and that the orders could be struck down only if found illegal, not the provision itself. The Court held that Section 113 (and the later Section 113‑A introduced by the 1998 Amendment) are valid as they are bounded by clear legislative policy, but the 62 exemption orders were arbitrary, lacked reasons, and violated the Act’s purpose, thus they were quashed. Consequently, the petitions were partly allowed: the statutes stand, but the specific orders are set aside. The Court also emphasized the need for reasoned decisions when exercising wide discretionary powers.

Issues considered

The constitutional validity of Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 under Articles 14 and 21.
Whether the power conferred by Section 113 constitutes an excessive delegation of essential legislative functions.
Whether the exemption orders issued under Section 113 were exercised arbitrarily and without requisite reasons, rendering them illegal.
The validity of Section 113‑A introduced by the Tamil Nadu Town and Planning (Amendment) Act, 1998.

Legislation cited

Constitution of Indias. Article 14, s. Article 21, s. Article 32
Tamil Nadu Town and Country Planning Act, 1971s. 113, s. 113-A

Subjects

delegation of legislative powerultra viresSection 113exemption ordersadministrative lawreasoned orderpublic interestplanning legislationjudicial reviewArticle 32

Judgment

THE CONSUMER ACTION GROUP AND ANR. A
v.
STATE OF TAMIL NADU AND ORS.

AUGUST 18, 2000

[B.N. KIRPAL, A.P. MISRA AND RUMA PAL, JJ.] B

Tamil Nadu Town and Country Planning Act, 1971-Section 113-
Power to grant exemption-Whether ultra vires-Due to excessive delegation
of essential legislative functions-Held, no-Since the preamble, objects,
reasons and various provisions of the Act give clear-cut policy and guidelines C
to the Government-Constitution of lndia-Articles 14 & 21.

Government orders-Passed under the Section-In violation of the pro-
visions of the Act and Rules-Without recording any reasons-And setting aside
the orders, earlier passed by the Statutory Authorities in terms of the Act and
Rules-Legality of-Held, illc:gal. D
Power to exempt-Exercise of-It is obligatory on the Government to
record the reasons, while passing order under the Section, even if Section is
silent about recording the reason.

Tamil Nadu Town & Planning (Amendment) Act, 1998: E
Section I I 3-A-Regularisation of illegal construction-Plea that the Act
is ultra vires-Since it is against policy of the Statute and public interest and
is extension of the unbridled power of exemption granted under Section 113-
The Act cannot be challenged on the ground that the discretion of the delegatee
is unbridled-The Section r/w. statement of objects and reasons clearly indi- F
cates legislatures intent and policy and no discretion is left to the Govern-
ment-Section as a one time measure is a valid piece of legislation-In order
to stop s•Jch situations from recurring, State has to take effective measures-
Constitution of India-Articles 14 & 21.

Administrative Law-Delegation of power-Exercise of-Whenever any G
statute confers any power on any statutory authority including a delegatee
under a valid statute, howsoever wide the discretion may be, the same has to
be exercised reasonably within the sphere that statute confers and such exercise
of power must stand the test to judicial scrutiny which is one of the basic
features of our Constitution-The reason recorded truely discloses the H
523
524 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A justifiability of the exercise of such power-While exercising such a power the
authority has to keep in mind the purpose and the policy of the Act and while
granting relief has to equate the resultant effect of such a grant on both viz., the
public and the individual.

Rights-Fundamental and individual-Scope of-Every individual right
B including fundamental right is within reasonable limit-But if it inroads public
rights leading to public inconvenience, it has to be curtailed to that extent.

The petitioners filed the present writ petition under Article 32 of the
Constitution, challenging the constitutional validity of Section 113 of Tamil
Nadu Town and Country Planning Act, 1971 as ultra viresof Article 14 and
c 21 of the Constitution, and the validity of the orders passed under it by
respondent No. 1 granting exemptions. The petitioners contended that the
power under the section were being exercised indiscriminately in granting
exemption, in violation of public policy as laid down under the Act and the
Development Control Rules; and that section 113 is ultra vires, because
D there are no guidelines to control the power, and the same amounts to
delegation by the legislature of its essential legislative power. The State
contended that the power is controlled by the guidelines, which could be
gathered from the preamble, objects and reasons including various provi-
sions of the Act and the Rules, and hence Section 113 cannot be held ultra
E vires. The petitioner brought to the notice of the Court 62 orders passed
between 1.7.87 to ·29.1.88 under Section 113, and contended that these
orders are arbitrary and illegal as the same have been passed in disregard
of the provisions of the Act and Rules without assigning any reasons; and
that these orders override even the orders passed by the Development
Authority rejecting their plans as not being in conformity with the devel-
F opment Rules.

During pendency of the writ petitions, the State passed Tamil Nadu •
Town and Planning (Amendment) Act, 1998 through which Section 113-A
was introduced in 1971 Act. The petitioner also challenged the amending
Act, vide separate writ petition, and contended that Section 113-A is against
G
policy of the statute and against public interest, and the same suffers from
the same vice of it being unconstitutional as Section 113; and that the same
is only an extension to the unbridled exemption power conferred under
Section 113.

H Partly allowing the Writ Petitions, the Court
CONSUMER ACTION GROUP v. STATE 525
HELD : 1.1. Section 113 of the Tamil Nadu Town and Country A
Planning Act, 1971 is valid. It does not suffer from the vice of excessive
delegation of any essential legislative function. The Preamble, Objects and
Reasons and various provisions of the Act give clear-cut policy and guide-
lines to the Government for exercising its power. Hence it is neither unbri-
dled nor without any guidelines. [550-F]
B
1.2. Inspite of very wide power being conferred on delegatee that such
a section would still not be ultra vires, if guidelines could be gathered from
the Preamble, Object and Reasons and other provisions of the Acts and Rules,
in testing validity of such provision, the courts have to discover, whether
there is any legislative policy purpose of the statute or indication of any C
clear will through its various provisions, if there be any, then this by itself
would be a guiding factor to be exercised by the delegatee. [537-E; F; G]

A.N. Parasuraman arul Ors. v. State of Tamil Nadu, [1989] 4 SCC 683
and Kunnathat Thathunni Moopil Nair v. The State of Kerala and Am:, [1961]
3 SCR 77, distinguished. D
Premium Granites and Am: v. State ofT.N. and Ors., [1994] 2 SCC 691;
Mahe Beach Trading Co. arul Ors. v. Union Territory of Pondicherry arul Ors.,
[1996] 3 SCC 741; State of Kera/a and Ors. v. Travancore Chemicals and
Manufacturing Company and Am:, [1998] 8 SCC 188; The State of Bombay
and Anr. v. State of Balsam, [1951] SCR 652; Harishankar Bag/a and Anr. v.
E
The State of Madhya Pradesh, [1995] SCR 380; Sardar lnder Singh v. State of
Rajasthan, [1957] SCR (Constitution Bench); P.J. Irani v. The State of Ma-
dras, [1962] 2 SCR 169 and Registrar of Co-operative Societies, Trivandrum
and Anr. v. K. Kunhambu and Ors., [1980] 2 SCR 260, referred to.
F
2.1. All the 62 GOs are not sustainable in law. The Government while
exercising its power of exemption has given a go-by to all the norms as laid
down under the Act and the Rules and has truly exercised its power
arbitrarily without following any principle which could be said to be in
furtherance of the objective of that. On scrutiny of each of the 62 GOs, it is
found that the grant of exemptions to the persons concerned has been in a G
set manner, almost identical except for typing different plot numbers and
the rules which have been exempted all other words are identical. Except
for this difference rest of the words in these orders are the same. Each of
these orders reveals non-application of mind by giving total go-by to the
rules relating to the restrictions and control in construction of a building, H
526 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A to the floor space index, the front set back, side set back, parking require-
ments including provision of stand by generator, transformer room and
meter room and floor space requirements, construction abutting road
width, corridor width, permissible floor area, limits of nursing homes,
height of the rear construction even from the provisions of prohibition on
the construction of multi storeyed buildings etc. While granting the ex-
B
emptions Government lias also not recorded any reason as to why such
power is being exercised and further such power was exercised not only to
regularise some irregularities but were passed to over reach the order of
refusal passed by the Member-Secretary, Madras Metropolitan Develop-
ment Authority. [540-H; 541-C; D-E]
c
2.2. Whenever any statute confers any power on any statutory au-
thority including a delegatee under a valid statute, howsoever wide the
discretion may be, the same has to be exercised reasonably within the
sphere the statute confers and such exercise of power must stand the test to
D judicial scrutiny. This judicial scrutiny is oue of the basic features of our
Constitution. The reason recorded truely discloses the justifiability of the
exercise of such power. When such a wide power is given to any statutory
authority including a delegatee then it is obligatory on the part of such
authority to clearly record its reason in the order itself for exercising such
a power. Application of mind of such authority at that point of time could
E only be revealed when order records its reason. Even if the Section is silent
about recording of reason, it is obligatory on the Government while pass-
ing orders under Section 113 to record the reason. [542-A-D]

2.3. When such a wide power is vested in the Government it has to be
exercised with greater circumspection. Greater is the power, greater should
F
be the caution. No power is absolute, it is hedged by the checks in the
statute itself. While exercising such a power the authority has to keep in
mind the purpose and the policy of the Act and while granting relief has to
equate the resultant effect of such a grant on both viz., the public and the
individual. So long it does not materially affect the public cause, the grant
G would be to eliminate individual hardship which would be within the
permissible limit of the exercise of power. But where it erodes the public
safety, public convenience, public health etc., the exercise of the power
could not be for the furtherance of the purpose of the Act. Minor abrasion
here and there to eliminate greater hardship, may be in a given case,
H be justified but in no case effecting the public at large. So every time
CONSUMER ACTION GROUP v. STATE 527
Government exercises its power it has to examine and balance this before A
exercising such a power. Even otherwise every individual right including
fundamental rig\,lt is within reasonable limit but if it inroads public rights
leading to public incortveniences it has to be curtailed to that extent. So no
exemption should be granted effecting public at large. [543-A-D; 542-H]

2.4. Another significant fact which makes these impugned orders B
illegal is that Section 113 empowers it to exempt but it obligates it to grant
subject to such condition as it deems fit. In other words, if any power is
exercised then Government must put such condition so as to keep in check
such person. In none of the sixty-two orders any condition is put by the
Government. [543-E-F] c
3.1. Section 113-A as a one time measure brought in through the
Tamil Nadu Town and Planning (Amendment) Act, 1998 is valid piece of
legislation and not ultra vires. Section 113-A read with the Statement of
Objects and Reasons clearly indicates Legislature's intent and policy, in-
stead of demolishing illegal constructions to regularise them by charging D
regularisation fees. Thus no similar attributable vice could be attached to
Section 113-A. [547-A; B]

Section 113-A legislature, itself lays down what is to be done by the
Government, while in Section 113 Government is conferred with wide dis-
E
cretion though to act within the channel of the policy. In Section 113-A hardly
any discretion is left on the Government while in Section 113 very large
discretion is left. Challenge to section 113 is unguided wide power to a
delegatee, but no such challenge could be made against Legislature. Section
113-A is mandate of the Legislature itself to grant exemption and realise
regularisation fees. There is no discretion on the delegatee. [547-B-C] F

3.2. The facts recorded in the Statement of Objects and Reason of
the Amending Act indicates matter of serious concern which requires
earnest consideration to salvage in future such recurring situation affect-
ing public right with resultant hazard of traffic, public health, security etc.
Before such pattern becoming cancerous to spread to all parts of this G
country, it is high time that remedial measure be taken by the State to
,
check this pattern. Unless the administration is toned up, the persons
)
entrusted to implement the scheme of the Act are made answerable to the
latches on their failure to perform their statutory obligations, it would
continue to result in wrongful gains to the violators of the law at the cost of H
528 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A public, and instead of development bring back cities into the hazards of
pollution, disorderly traffic, security risks, etc. Such a pattern retards the
development, jeopardises all purposeful plans of any city, and liquidates
the expenditure incurred in such development process. This inflow has to
be c~ecked at the very root. State must act effectively not to permit such
situation to develop in the wider interest of public at large. When there is
B
any provisjon to make illegal construction valid on ground of limitation,
then it must mean Statutory Authority in spite of knowledge has not taken
any action. The functionary of this infrastructure has to report such
illegalities within shortest period; if not, there should be stricter rules for
their non-compliance. [548-D; E-F; 549-C-D-E]
c
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 926of1988.

Under Article 32 of the Constitution of India.

WITH
D
Writ Petition (C) No. 237 of 1999.

R. Mohan, Dayan Krishnan, Nikhil Nayyar, B. Sunita Rao, M.A.
Krishnamoorthy, V.G. Pragasam, A. Mariarputham, Ms. Aruna Mathur, Anurag
D. Mathur, A.V. Rangam, Krishnamurthi Swami, S.R. Setia, Mrs. Shiel Seth,
E P.N. Likhyani, Ambrish Kumar, S. Muralidhar, Kailash Vasdev, Janaki
Ramachandran, K.K. Mani, Sudarsh Menon, K.R. Choudhary, V. Krishna Murthy
and R. Ayam Perumal for the appearing parties.

The Judgment of the Court was delivered by

F MISRA, J. The petitioner challenges the constitutional validity of Sec-
tion 113 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter
referred to as 'the Act') as it being ultra vires of Articles 14 and 21 of the
Constitution of India and also the validity of the orders passed under it,
granting exemptions by respondent no.1, viz., the Government. We are drawn
-
G to consider an issue, more appropriately expressed in the words of Chinnappa
Reddy, J. " ... the perennial, nagging problem of delegated legislation and the so-
called Henry VIII clause have again come up for decision ..... ". The petitioner
- the consumer action group which is a trust registered under the Indian Trust
Act, has raised similar issue before us.

H The petitioner through this petition under Article 32 of the Constitution
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 529
of India has brought to the notice of this Court, impunity with which the A
executive power of State of Tamil Nadu is being exercised indiscriminately in
granting exemptions to the violators violating every conceivable control, check
including approved plan, in violation of the public policy as laid down under
the Act and the Development Control Rules (hereinafter referred to as 'the
Rules'). The submission is, granting of such exemptions is against the public
B
interest, safety, health and the environment. To bring home this indiscriminate
exercise of power, reference is made to about sixty two such orders passed by
the Government between the period 1.7.1987 to 29.1.1988 which have been
annexed compositely as Annexure II to the petition. Submission is, it is this
indiscriminate exercise of power which results in the shortage of water,
electricity, choked roads and ecological and environmental imbalances. c
Mr. Dayan Krishnan, learned counsel for the petitioner submits, such exercise
of power is because there are no guidelines or control under the Act. This is
the main plank of attack, for declaring Section 113 as ultra vires as it can do
or undo anything under the Act to wipe out any development without any check
which amounts to the delegation by the Legislature of its essential legislative
D
power.

Mr. R. Mohan, learned senior counsel for the State has denounced with
vehemence these submissions. The power is neither uncanalised nor without
any guideline. This power is controlled through the guidelines, which could be'
gathered from the Preamble, Objects and Reasons, including various provisions E
of the Act and the Rules. So far challenge to the orders passed under it by the
State Government, it is open for the Court to examine the same and in case they
are found to have been passed arbitrarily or illegally the court may quash the
same, but such exercise of power would not lend support to a declaration of
Section 113 as ultra vires. F

In order to appreciate the submissions and to adjudicate the issues in-
volved, it is proper to scan through the periphery, scope and object of the
aforesaid Act and th\! Rules. The Preamble of the Act picturises that the Act
is for the planning the development of use of rural and urban land in the State
of Tamil Nadu and for the purposes connected therewith. Section 2(13) defines G
'development' to mean carrying out of all or any of the works contemplated
in a regional plan, master plan, detailed development plan or a n·ew town
development plan prepared under this Act, which includes the carrying out of
building, engineering, mining or other operations in, or over or under the land
and also includes making of any material change in the use of any building or H
530 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A land. Sub-section 15 of Section 2 defines 'development plan' to mean for the
development or re- development or improvement of the area within the juris-
diction of a planning authority and includes a regional plan, master plan, detailed
development plan and a m;w town development plan prepared under this Act.
This Act consists of XIV Chapters containing 125 Sections. It provides for the
creation of the Metropolitan Development Authority for the Metropolitan area.
B
Under Chapter II-A, the Madras Metropolitan Development Authority (MMDA)
was formed. The control and development plan of the Madras Metropolitan
area is listed with MMDA. Chapter III deals with the planning authorities and
its plan, Chapter IV deals with acquisition and disposal of land, Chapter V
contains special provisions regarding new town development authority and
c Chapter VI refers to the control of development and use of land. This Chapter
gives clear guidelines to the appropriate authorities under which it has to perform
its statutory functions. Sub-section (2) of Section 49 gives guidelines to enable
the appropriate planning authority to grant or refuse permission in respect of
an application made under Section 49(1) by any person intending to carry out c

D any development on any land or building. Thus, this Section empowers MMDA
to revoke or modify any permission already granted. This also provides as to
when such an application for modification could be made. This Act also pro-
vides for the constitution of a tribunal under Chapter IX and provisions under
Chapter X for an appeal, revision or review. It is under Chapter XII, the im-
pugned Section 113 is placed. This confers delegation of power on the State
E Government and delegation of power to the Director under Section 91 and to
the appropriate planning authority under Section 91-A. It is true both these later
Sections are hedged with restrictions contained therein. It is under this setting,
when there is no check, or restrictions in Section 113 its vires is challenged.
This contrast between Section 91 and
F 91-A with Section 113 is submitted, is indicative that the power with the Gov-
ernment is unguided and uncontrolled. In Chapter XIII, Section 122 empowers
the Government to make rules to carry out the purposes of this Act. Section
123 obligates the Government to place its Rules before the Legislature. Section
124 empowers the planning authority with the previous approval of the Gov-·
ernment to make regulations prospectively or retrospectively not inconsistent
G with this Act and the Rules. Significantly sub-section (3) of Section 124 gives
power to the Government to rescind any regulation made under this section
through notification. Similarly, Rule 3 guides and controls the authorities to
exercise its powers within the limitations of each such zone. The said Rules
further guide the authorities to exercise its power within the limitation as
H tabulated specifying the requirements relating to floor space index, maximum
CONSUMER ACTION GROUP v. STATE [MISRA, J.) 531
height, minimum set-back, front set back, side set back, rear set back etc. For A
commercial zones further restrictions are in relation to the horsepower rating
of electric motors and steps to be taken to regulate storage of explosives, to
regulate effluents, smoke, gas or other items likely to cause danger or nuisance
to public health. These rules set out norms on which basis specific standards
are to be worked out, keeping in mind the public interest, public health and
B
their safety as well development of that area, to cater to the need of its citizens.

It is in this background we now proceed to consider the challenge to
Section 113. For ready reference, the same is quoted hereunder:-

"ll3. Exemptions:- Notwithstanding anything contained in this Act, C
the Government may, subject to such conditions as they deem fit, by
notification, exempt any land or building or class of land or buildings
from all or any of the provisions of this Act or rules or regulations
made thereunder."

It cannot be doubted, mere reading literally its language, the first impression D
is that power conferred upon the Government displays one to be of the widest
amplitude with no in built check revealed from this Section. The petitioner's
case is, such wide powers have led to its exercise unscrupulously without
consideration of its effect on the public at large. On the other hand learned
counsel fer the State denying this submits, the power is bridled and controlled E
through the Preamble, Objects and Reasons and various provisions of the Act
and the Rules.

Challenging the vires of this section, counsel for the petitioner referred
to Premium Granites andAnr. v. State of'f.N. and Ors .. [1994] 2 SCC 691. In
this case, Rule of granting exempti'on 'rro!n other provisions of the statute of F
the Tamil Nadu Minerals Concession Rules, 1959 was challenged as being
arbitrary and without any guidelines. Same submission was made, as in the
present case that this gives wide discretionary power to the authority uncanalised.
This decision held:-
G
" .. In our view, in interpreting the validity of a provision containing
relaxation or exemption of another provision of a statute, the purpose
of such relaxation and the scope and the effect of the same in the
context of the purpose of the statute should be taken into consideration
and if it appears that such exemption or relaxation basically and
intrinsically does not violate the purpose of the statute, there will be H
532 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A no occasion to hold that such provision of relaxation or exemption is
illegal or the same ultra vires other provisions of the statute. The
question of exemption or relaxation ex hypothesi indicates the exist-
ence of some provisions in the statute in respect of which exemption
or relaxation is intended for some obvious purpose."

B This holds such a provision of regularisation or exemption cannot be
held to be illegal, if it is consistent with the purpose of the statute. It further
held:-

"But we do not think that in the facts and circumstances of the case,
c and the purpose sought to be achieved by Rule 39, such reading down
is necessary so as tc, limit the application of Rule 39 only for varying
some terms and conditions of a lease. If the State Government has an
authority to follow a particular policy in the matter of quarrying of
granite and it can change the provisions in the Mineral Concession
Rules from time to time either by incorporating a particular rule or
D amending the same according to its perception of the exigencies, it will
not be correct to hold that on each and every occasion when such
perception requires a change in the matter of policy of quarrying a
minor mineral in the State, particular provision of the Mineral Conces-
sion Rules has got to be amended."
E
So, this Court upheld the validity of Rule 39 of the Tamil Nadu Mineral
Concession Rules, 1959.

Strong reliance is placed for the petitioner in the case of A.N. Parasuraman
and Ors. v. State of Tamil Nadu, [1989] 4 SCC 683, Section 22 of the Tamil
F Nadu Private Educational Institutions (Regulation) Act, 1966 was challenged.
This conferred wide exemption power on the State Government to exempt any
private educational institution from all or any provisions of the Act. This Court
held:-

"The provisions of the Act indicate that the State Government has been
G vested with unrestricted discretion in the matter of the choice of the
competent authority under Section 2(c) as also in picking and choosing
the institutions for exemption from the Act under Section 22. Such an
unguided power bestowed on the State Government was struck down
as offending. Article 14 in the case of the State qf West Bengal v.Anwar
H Ali Sarkar. A similar situation arose in K. T. Moopil Nair v. State of
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 533
Kera/a where, under Section 4 of the Travancore-Cochin Land Tax A
Act, 1955, all lands were subjected to the burden of a tax and Section
7 gave power to the government to grant exemption from the operation
of the Act. The section was declared ultra vires on the ground that it
gave uncanalised, unlimited and arbitrary power, as the Act did not lay
down any principle or policy for the guidance of exercise of the
B
discretion in respect of the selection contemplated by Section 7."

Section 22 was held to be ultra vires as the Act did not lay down any principle
or policy for the guidance to the delegatee for exercising its discretion.

In Mahe Beach Trading Co. and Ors. v. Union Territory of Pondicherry
and Ors., [1996] 3 SCC 741, the Municipal Council decided to levy a munici-
c
pal tax of 5 paise on each litre of petrol and diesel oil sold at the petrol pump.
This levy was challenged which was struck down by the learned Single Judge.
During the pendency of this appeal, the Administrator of Pondicherry, prom-
ulgated Pondicherry Municipal Decree (Levy and Validation of Taxes, Duties,
Cesses and Fees) Ordinance, 1973 and this was later replaced by an Act. D
Sections 3 and 4 of the Validation Act were challenged on the ground of
excessive delegation of the essential legislative power. This Court held:

"The principle which emanates from the aforesaid decisions relied
upon by the appellants is very clear namely: that if there is abdication
of legislative power or there is excessive delegation or if there is a total E
surrender or transfer by the legislature of its legislative functions to
another body then that is not permissible. There is, however, no
abdication, surrender of legislative functions or excessive delegation
so long as the legislature has expressed its will on a particular subject-
matter, indicated its policy and left the effectuation of the policy to F
subordinate or subsidiary or ancillary legislation."

However, the Court holds, the question .of these Sections being ultra vires
would have been relevant if any delegatee was to take any decision, which was
not in that case.
G
In State of Kera/a and Ors. v. Travancore Chemicals and Manufacturing
Co. and Anr., [1998] 8 SCC 188, the validity of Section 59-A of the Kerala
General Sales Tax Act was challenged which was held to be violative of Article
14 and was thus struck down. Section 59-A of this Act is quoted hereunder:

"59-A. Power of Government to de1ermine rate of tax-If any question H
534 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A arises to the rate of tax leviable under this Act on the sale or purchase
of any goods, such question shall be referred to the Government for
decision and the decision of the Government thereon shall, notwith-
standing any other provision in this Act, be final." -
Court held:
B
"Section 59-A enables the Government to pass an administrative order
which has the effect of negating the statutory provisions of appeal,
revision etc. contained in Chapter VII of the Act which would have
enabled the appellate or revisional authority to decide upon questions
in relation to which an order under Section 59-A is passed. Quasi-
c judicial or judicial determination stands replaced by the power to take
an administrative decision. There is nothing in Section 59-A which
debars the Government from exercising the power even after a dealer
has succeeded on a question relating to the rate of tax before an
appellate authority. The power under Section 59-A is so wide and
D unbridled that it can be exercised at any time and the decision so
rendered shall be final."

In Kunnathat Thathunni Moopil Nair v. The State of Kera/a and Anr.,
(1961] 3 SCR 77, the constitutional validity of the Travancore-Cochin Land
Tax Act (Amendment Act 10 of 1957) was challenged as it contravenes Ar-
E ticles 14, 19(l)(f) and 31(1) of the Constitution of India. The grounds of
challenge were (a) the Act did not have any regard to the quality of the land
or its productive capacity and the levy of tax at a flat rate is unreasonable
restriction on the right to hold property; (b) the Act did not lay down any
provision calling for a return from the assessee for an enquiry or investigation
F of facts before the assessment; (c) Section 7 gave arbitrary power to the
Government to pick and choose in the matter of grant of total or partial
exemption from the provisions of the Act; and (d) the tax proposed to be levied
had absolutely no relation to the production capacity of the land sought to be
taxed or to the income they could arrive. This Court with respect to Section
7 of the said Act held:-
G
"Furthermore, Section 7 of the Act, quoted above, particularly the
latter part, which vests the Government with the power wholly or
partially to exempt any land from the provisions of the Act, is clearly
discriminatory in its effect and, therefore, infringes Art. 14 of the
H Constitution. The Act does not lay down any principle or policy for
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 535
the guidance of the exercise of discretion by the Government in respect A
of the selection contemplated by s.7."

Section 7 was held to be ultra vires as the Act did not lay down any
principle or policy for the guidance.

For the State reliance is placed in the State of Bombay and Anr. v. F.N. B
Balsara, (1951] SCR 682 (Constitution Bench). With reference to the validity
of Section 139(c) of the Bombay Prohibition Act (XXV of 1949) the submis-
sion was that power given to the Government to exempt any person or insti-
tution or any class of persons or institutions from observing whole or any of
the provisions of the Act, rule or regulation or order is too wide and unbridled. C
This section is similar in the width of discretion to the section we are consid-
ering. This Court while setting aside the High Court decision upheld the
provisions and held:-

"This Court had to consider quite recently the question as to how far
"delegated legislation" is permissible, and a reference to its final D
conclusion will show that delegation of the character which these
sections involve cannot on any view be held to be invalid. (See Special
Reference No. 1 of 1951: In re The Delhi Laws Act, 1912, etc.). A
legislature while legislating cannot foresee and provide for all future
contingencies, and section 52 does no more than enable the duly
E
authorized officer to meet contingencies and deal with various situa-
tions as they arise. The same considerations will apply to section 53
and 139(c). The matter however need not be pursued further, as it has
already been dealt with elaborately in the case referred to."

In Harishankar Bag/a and Anr. v. The State of Madhya Pradesh, [ 1995] F
SCR 380 (Constitution Bench) this Court held:-

"The next contention of Mr. Umrigar that section 3 of the Essential
Supplies (Temporary Powers) Act, 1946, amounts to delegation of
Legislative power outside the permissible limits is again without any
merit. It was settled by the majority judgment in the Delhi Laws Act G
case that essential powers of legislature cannot be delegated. In other
words, the legislature cannot delegate its function of laying down
legislative policy in respect of a measure and its formulation as a rule
of conduct. The Legislature must declare the policy of the Jaw and the
legal principles which are to control any given cases and must provide H
536 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.

A a standard to guide the officials or the body in power to execute the
law. The essential legislative function consists in the determination or
choice of the legislative policy and of formally enacting that policy
into a binding rule of conduct. In. the present case the legislature
---
has laid down such a principle and that principle is the maintenance
or increase in supply of essential commodities and of securing
B
equitable distribution and availability at fair prices .... As already
pointed out, the preamble and the body of the sections sufficiently
formulate the legislative policy and the ambit and character of the Act
is such that the details of that policy can only be worked out by
delegating them to a subordinate authority within the framework of
c that policy."

In Sardar Imler Singh v. The State of Rc!iasthan, [1957] SCR (Consti-
tution Bench), this Court was considering Section 15 of the Rajasthan (Protec-
tion and Tenants) Ordinance, 1949 which, with similar provision authorised the
Government to exempt any person from the operation of the Act. This Court
D held:

"A more substantial contention is the one based on s.15, which author-
ises the Government to exempt any person or class of persons from the
operation of the Act. It is argued that that section does not lay down
the principles on which exemption could be granted, and that the
E
decision of the matter is left to the unfettered and uncanalised discre-
tion of the Government, and is therefore repugnant to Art. 14. It is true
that section does not itself indicate the grounds on which exemption
could be granted, but the preamble to the Ordinance sets out with
sufficient clearness the policy of the Legislature; and as that governs
F s.15 of the Ordinance, the decision of the Government thereunder
cannot be said to be unguided. Vide Harishanker Bag/a v. The State
of Madhya Pradesh."

P.J. Irani v. The State of Madras, [1962] 2 SCR 169 (Constitution
Bench). In this case Section 13 of Madras Buildings (Lease and Rent Control)
G Act, 1949 is similar to the provisions we are considering conferred power of
exemption. This Court held:

"It was not possible for the statute itself to contemplate every such
contingency and make specific provision therefor in the enactment. It
was for this reason that a power of exemption in general terms was
H
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 537

conferred on the State Government which, however, could be used not A
for the purpose of discriminating between tenant and tenant, but in
order to further the policy and purpose of the Act which was, in the
context of the present case, to prevent unreasonable eviction of ten-
ants."

In Registrar of Co-operative Societies, Trivandrum and Am: v. K. B
Kunhambu and Ors., [1980] 2 SCR 260, this Court was considering Section
60 of the Madras Cooperative Societies Act, 1932, which empowered the State
Government to exempt existing society from any of the provisions of the Act
or to direct that such provisions shall apply to such society with specified
modifications. This Court held: c
"The Legislature may guide the delegate by speaking through the
express provision empowering delegation or the other provisions of
the statute, the preamble, the scheme or even the very subject matter
of the statute. If guidance there is, wherever it may be found, the
delegation is valid ......... Section 60 empowers the State Government to D
exempt a registered society from any of the provisions of the Act or
to direct that such provision shall apply to such society with specified
modifications. The power given to the Government under s. 60 of the
Act is to be exercised so as to advance the policy and objects of the
Act, according to the guidelines as may be gleaned from the preamble E
and other provisions which we have already pointed out, are clear."

The catena of decisions referred to above concludes unwaveringly in
spite of very wide power being conferred on delegatee that such a section
would still not be ultra vires, if guideline could be gathered from the Preamble,
Object and Reasons and other provisions of the Acts and Rules. In testing F
validity of such provision, the courts have to discover, whether there is any
legislative policy purpose of the statute or indication of any clear will through
its various provisions, if there be any, then this by itself would be a guiding
factor to be exercised by the delegatee. In other words, then it cannot be held

- that such a power is unbridled or uncanalised. The exercise of power of such
delegatee is controlled through such policy. In the fast changing scenario of
economic, social order with scientific development spawns innumerable situ-
G

ations which Legislature possibly could not foresee, so delegatee is entrusted
with power to meet such exigencies within the in built check or guidance and
in the present case to be within the declared policy. So delegatee has to exercise
its powers within this controlled path to subserve the policy and to achieve the H
538 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.

A objectives of the Act. A situation may arise, in some cases where strict adher-
ence to any provision of the statute or rules may result in great hardship, in a
given situation, where exercise of such power of exemption is to remove this
hardship without materially effecting the policy of the Act, viz., development
in the present case then such exercise of power would be covered under it. All
situation cannot be culled out which has to be judiciously judged and exercised,
B
to meet any such great hardship of any individual or institution or conversely
in the interest of society at large. Such power is meant rarely to be used. So
far decisions relied by the petitioner, where the provisions were held to be ultra
vi res, they are not cases in which court found that there was any policy laid
down under the Act. In A.N. Parasuraman & Ors. (supra) Court held Section
c 22 to be ultra vires as the Act did not lay down any principle or policy.
Similarly, in Kunnathat Thathunni Moopil Nair (supra) Section 7 was held to
be ultra vires as there was no principle or policy laid down.

In this background we find the Preamble of the Act laid down:-

D "An Act to provide for planning the development and use of rural
and urban land in the State of Tamil Nadu and for purposes connected
therewith."

The Preamble clearly spells out policy which is for planning and devel-
opment of the use of the rural and urban land in the State. The Statement of
E
Objects and Reasons also indicates towards the same. The relevant portion of
which is quoted hereunder:

"The Tamil Nadu Town Planning Act, 1920 (Tamil Nadu Act VII
of 1920) which is based on the British Town and Country Planning and
F Housing Act, 1909, has been in force in the State for nearly five
decades. The said Act provides for matters relating to the development
of towns to secure to their present and future inhabitants, sanitary
conditions, amenity and convenience. It was felt necessary to make
comprehensive amendments to the Act as the Act had several short-
comings and defects."
G
Not only 'Preamble' and 'Objects and Reasons' of the Act clearly indi-
-
cate its policy but it is also revealed through various provisions of the enact-
ment. Sub-section ( 13) of Section 2 defines "development" for carrying out any
of the works contemplated in the regional and master plan etc., Section 9-C
H defines functions and powers of the Metropolitan Development Authority,
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 539
Section 12 refers to functions and powers of the Appropriate Planning Authori- A
ties, Section 15 refers to regional planning. Section 16 is for preparation of land
and building map, Section 17 refers to the Master plans, Section 18 refers to
new town development plan, Section 19 refers to the declaration of intention
to make or adopt a detailed development plan, Section 20 refers to the contents
of detailed development plan, Section 4 7 refers to use and development of land
B
to be in conformity with development plan, Section 48 refers to the restrictions
on building and lands in the area of the planning authority. Each of them
contributes for subserving the policy of the Act, and clearly declares the
purpose of the Act. Hence Section 113 cannot be held to be unbridled, as
Government has to exercise its power within this guideline. Hence we hold
Section 113 to be valid. c
There is a clear distinction between a provision to be ultra vires as
delegation of power being excessive and the exercise of power by such delegatee
to be arbitrary or illegal. Once the delegation of power is held to be valid the
only other question left for our consideration is, whether the power exercised
by the Government in passing the impugned sixty two G.O's under Section 113
D
could be sail.! to be arbitrary or illegal.

Submission is that the Government has exercised this power of exemp-
tion indiscriminately, contrary to the provisions of the Act and Rules. The fact
that Government issued 62 GOs during the period 1.7.1987 till 29.1.1988
E
exempting large number of buildings in total disregard and in contravention of
the provisions of the Act, speaks for itself. In fact, 36 such GOs were issued
on one day, namely, on 31.12.1987. The submission is that these GOs further
override even the orders passed by the development authority rejecting their
plan as not being in conformity to the Development Control Rules. In fact,
every essential restriction condition as laid down under the Act is in the interest F
of public at large, was set at naught without assigning any reasons. Even the
basic requirements of set-back, alignments, abutting road width, FSI, height of
building, corridor width, fire safety, staircase, transformer room, provision of
lift, parking requirement etc. were all given a go by.

We may record here the State Government has not filed any counter
G
affidavit against all these allegations made in the writ petition which was filed
in the year 1988.

The petitioner has annexed each of the aforesaid 62 GOs compositely as
Annexure II and a chart showing the details of these 62 GOs as Annexure I H
540 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A to the writ petition. A perusal of the exercise of power in each one of them by
the first respondent-Government shows a consistent and mechanical pattern in
granting the exemption, about which we shall be referring later.

The allegation in the writ petition is that after the death of Thim M.G.
Ramachandra on 14th December, 1987, the Government, during the interim
B period passed large number of GOs under Section 113 recklessly and indis-
criminately and as per information of the petitioner about 73 GOs were passed
on one day, viz., on 31st December, 1987. However, the petitioner could only
obtain 36 GOs being passed on that day hence annexed only such G.Os. The
allegation is, further batch of large number of GOs were passed on the 29th
c January, 1988 by the successor Ministry.

We have before us the chart of 62 such GOs issued by the Government
under Section 113, which is between the period 1.7 .1987 to 29.1.1988. We have
examined each of these 62 GOs which is annexed compositely as Annexure II
to this writ petition. Through each of such G.O. exemptions were granted to
D all such buildings, which admittedly violated compliance under the various
rules. The aforesaid Act and the Rules have elaborately laid down the restric-
tions in the use of both the land and the building to regulate the development
of urban and rural land. The various norms have been laid down exhaustively
keeping in mind the public interest, the public health and public safety as well
-
E as interest of the builders and the landowners. Under Section 122 development
control rules have been framed for the Madras Metropolitan Area. For
developing of various zones, Rule 7 lays down for primary residential
zone, Rule 8 for mixed residential use zone and Rule 9 for commercial use
zone in the Madras Metropolitan Area which is divided into 9 zones. The
rules provide with elaborate details which buildings are normally to be
F permitted for what purpose and what not otherwise covered in that zone to what
extent they are permitted, e.g., schools and petty shops in the residential area,
subject to the limitations in each such zone. Each zone sets out in a tabular form
the requirements relating to the floor space index, (FS 1) maximum height,
minimum set back, front set back, side set back, rear set back etc. Similarly,
G for commercial zones restrictions are imposed in relation to the horsepower
rating of electric meters and to regulate storage of explosives as well as the
affluence smoke, gas or other items likely to cause danger or nuisance to public
safety.

In this background we scrutinized each of these 62 GOs. We find the
H
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 541
grant of exemptions to the persons concerned has been in a set manner, almost A
identically except one or two. When we are saying mechanically it is because
except for typing different plot numbers and the rules which have been ex-
empted all other words are identical. Except for this little difference rest of the
words in these orders are the same, which is reproduced below:

"In exercise of powers conferred by Section 113 of the Tamil Nadu B
Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972)
the Government of Tamil N adu hereby exempts the construction made
at.. .... from the provisions ofRule ...... ofthe Development Control Rules
relating to .... (Front set back, FSI etc .. ) requirements respectively to the
extent of violations as per plan refused by the Member Secretary, c
Madras Metropolitan Development."

Each of these orders reveals non-application of mind by giving total go-by to
•
the rules relating to the restrictions and control in construction of a building,
to the floor space index, the front set back, side set back, parking requirements
including provision of stand by generate, transformer room and meter room D
and floor space requirements construction abutting road width, corridor width,
permissible floor area, limits of nursing homes, height of the rear constf'1ction
even from the provisions of prohibition on the construction of multi storied
buildings etc. Not only this, while granting the exemptions Government has not
recorded any reasons as to why such power is being exercised and further such E
power was exercised not only to regularise some irregularities but were passed
to over reach even the order of refusal passed by the Member-Secretary,
Madras Metropolitan Development Authority. In other words, power of ex-
emptions was granted which set aside the orders earlier passed by the statutory
authorities in terms of the Act and the Rules. The submission on behalf of the
State for salvaging the validity of Section 113 being ultra vires was, Govern- F
ment does not possess uncanalised or unbridled power as it is controlled by the
policy of the Act. The question is, whether the impugned orders could be said
to have been passed for the furtherance of such policy or for achieving the
purpose for which it was enacted. So even as per submission it can only be
exercised in the aid of such policy and not contrary to it. We find, in the present G
case, the Government while exercising its powers of exemption has given a go-
by to all the norms as laid down under the Act and the Rules and has truly
exercised its powers arbitrarily without following any principle which could be
said to be in furtherance of the objective of that, nor learned counsel for the
State could point out any.
H
542 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A Whenever any statute confers any power on any statutory authority
including a delegatee under a valid statute, howsoever wide the discretion may
be, the same has to be exercised reasonably within the sphere that statute
confers and such exercise of power must stand the test to judicial scrutiny. This
judicial scrutiny is one of the basic features of our Constitution. The reason
recorded truly discloses the justifiability of the exercise of such power. The
B
question whether the power has been exercised validly by the delegatee, in the
present case, if yes, then it can only be for the furtherance of that policy. What
is that policy? The policy is the development and use of rural and urban land
including construction of, colonies, buildings etc. in accordance with the policy
of the planning as laid down under the Act and the Rules. When such a wide
C power is given to any statutory authority including a delegatee then it is
obligatory on the part of such authority to clearly record its reasons in the order
itself for exercising such a power. Application of mind of such authority at that
point of time could only be revealed when order records its reason. Even if
Section is silent about recording of reason, it is obligatory on the Government
D while passing orders under Section 113 to record the reason. The scheme of
the Act reveals, the Government is conferred with wide ranging power, includ-
ing power to appoint all important statutory authorities; appoints Director and
its members of Town and Country Planning under Section 4; constitutes Tamil
Nadu Town and Country Planning Board under Section 5; Board to perform
such functions as Government assigns under Section 6; appoints Madras
E Metropolitan Development Authority under Section 9-A; Government entrusted
for making master plan or any other new plan; any plant or modification is
subject to the approval of Government. In fact, every statutory Committee is
created by the Government and its planning is subject lo the approval by
the Government. It is because of this that very wide power is given to it
F under Section 113. In a given case, where a new development in rural or urban
area may be required urgently and provisions under the Act and Rules would
take long procedure, it may in exercise of its exemption power exempt some ..
of the provisions of the Act and Rules to achieve the development activity
faster or in a given case, if any hardship arises by following or having not
followed the procedure as prescribed, the power of exemption could be exer-
G cised but each of these cases would be for furtherance of the development of
that area.

When such a wide power is vested in the Government it has to be
exercised with greater circumspection. Greater is the power, greater should be
H the caution. No power is absolute, it is hedged by the checks in the statute itself.
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 543
Existence of power does not mean to give one on his mere asking. The A
entrustment of such power is neither to act in benevolence nor in the extra
statutory field. Entrustment of such a power is only for the public good and
for the public cause. While exercising such a power the authority has to keep
in mind the purpose and the policy of the Act and while granting relief has to
equate the resultant effect of such a grant on both viz., the public and the
B
indiv!dual. So long it does not materially affect the public cause, the grant
. would be to eliminate individual hardship which would be within the permis-
sible limit of the exercise of power. But where it erodes the public safety, public
convenience, public health etc., the exercise of power could not be for the
furtherance of the purpose of the Act. Minor abrasion here and there to elimi-
nate greater hardship, may be in a given case, be justified but in no case c
effecting the public at large. So every time Government exercises its power it
has to examine ar.d balance this before exercising such a power. Even other-
wise every individual right including fundamental right is within reasonable
limit but if it inroads public rights leading to public inconveniences it has to
be curtailed to that extent. So no exemption should be granted effecting public
D
at large. Various development rules and restrictions under it are made to ward
off possible public inconvenience and safety. Thus, whenever any power is to
be exercised, Government must keep in mind, whether such a grant would
recoil on public or not and to what extent. If it does then exemption is to be
refused. If the effect is marginal compared to the hardship of an individual that
may be considered for granting. Such an application of mind has not been made E
in any of these impugned orders. Another significant fact which makes these
impugned orders illegal is that Section 113 empowers it to exempt but it
obligates it to grant subject to such condition as it deems fit. In other words,
if any power is exercised then Government must put such condition so as to
keep in check such person. We find in none of these sixty-two orders any F
condition is put by the Government. If not this then what else would be the
exercise of arbitrary power.
..
We find in the present case, under the garb of its wide power, it has
exercised it illegally and arbitrarily beyond its power vested under the said
section without application of mind. We heard both learned counsel for the G
State and other affected respondents. They could not submit anything for us
to draw inference contrary to the above. Thus after examining each of said
GOs, in view of the finding recorded above, all these 62 GOs are not sustain-
able in law and are hereby quashed.

This brings us to the next and the last consideration which is the matter H
544 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A of the connected writ petition. During the pendency of this appeal in this Court,
the State passed, Tamil Nadu Town and Planning (Amendment) Act, 1998
(hereinafter referred to as 'the amending Act') through which Section 113-A
was introduced in the aforesaid 1971 Act, which is reproduced below:

"113-A. Exemption in respect of development of certain lands or
B buildings -

(1) Notwithstanding anything contained in this Act or any other law
for the time being in force, the Government or any officer or
authority authorised by the Government, by notification, in this
behalf may, on application, by order, exempt any land or building
c or class of lands or buildings developed immediately before the
date of commencement of the Tamil Nadu Town and Country
Planning (Amendment) Act, 1998 (hereafter in this section re-
ferred to as the said date) in the Chennai Metropolitan Planning
Area, from all or any of the provisions of this Act or any rule or
D regulation made thereunder, by collecting regularisation fee at
such rate not exceeding twenty thousand rupees per square metre,
as may be prescribed. Different rates may be prescribed for
different planning para-metres and for different parts of the
Chennai Metropolitan Planning Area.

E (2) The application under sub-section (1) shall be made within
ninety days from the said date in such form containing such
particulars and with such documents and such application fee, as
may be prescribed.

(3) Upon the issue of the order under sub-section (1), permission
F shall be deemed to have been granted under this Act for such
development of land or building.

(4) Nothing contained in sub-section (1) shall apply to any applica- .
tion made by any person who does not have any right over the
land or building referred to in sub-section (1 ).
G
(5) Save as otherwise provided in this section, the provisions of this
Act, or other Jaws for the time being in force, and rules or
regulations made thereunder, shall apply· to the development of
land or building referred to in sub-section (l ).

H
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 545
(6) Any person aggrieved by any order passed under sub-section (I) A
by any Officer or authority may prefer an appeal to the Govern-
ment within thirty days from the date of receipt of the order".

It seems, situation developed to such an extent, that irregularity, violation
became order of the day and regularisation through power of exemption may
not be appropriate, this amendment was brought in to overcome this situation. B
By this, Government is empowered, on application being made by person
affected, to exempt any land or building developed immediately before the date
of the commencement of this amending Act from all or any of the provisions
of the Act, rules and regulations by collecting regularisation fees at such rate
not exceeding Rs. 20,000 per square meter. The aforesaid 1982 amendment C
also added clause (cc) to sub-section (2) of Section 122 of the 1971 Act. The
Governor in exercise of its power under this clause (cc) made Application,
Assessment and Collection of Regularisation Fees (Chennai Metropolitan Rural
Area) Rules, 1999 which prescribe the rates of regularisation fees with respect
to the various violation if one seeks to regularise it under Section 113A. The
petitioner has also challenged this amending Act, through writ petition Civil D
No. 237 of 1999, which we have heard along with the main writ petition.

The petitioner's challenge is that Section 113-A suffers from the same
vice of it being unconstitutional as Section 113. It is also not only against the
policy of the statute but it does not subserve to the public interest. The sub-
E
mission is, Section 113-A is merely an extension of the unbridled exemption
power conferred by the statute under Section 113 except that under this newly
introduced section Government could collect regularisation fees.

This amending Act seeks to legitimatize all violations under the Act,
Rules and Regulations and condones all executive acts which is the cause of F
reaching this situation by not taking appropriate action as against such illegal
construction which they were obliged to do under the Act. When the Govern-
ment and other statutory functionaries failed to work, to promote planned
development to this extent, the Legislature has to intervene to bring this
amendment.
G
The submission is this amending Act will greatly prejudice the public
safety, security, fresh air and light and convenience to the public at large. Under
Section 113-A The Government is empowered to grant exemption to such
person who makes any application for exempting any land or building devel-
oped prior to the date of the commencement of the amending Act from appli- H
546 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A cability of any of the provisions of this Act and Rules by collecting the
regularisation fees, as prescribed. So, this section not only infuses the Govern-
ment with power to exempt but also lays down the procedure and condition to
grant exemption. This covers all buildings or land developed immediately
before the date of the commencement of the aforesaid 1998 Act. Here Legis-
lature lays down everything and does not leave to the absolute direction of the
B
delegatee. So, Section 113-A cannot be challenged that discretion of the delegatee
is unbridled or uncanalised as section itself confers full guidelines in this
regard. It is significant also to reproduce the Objects and Reasons for the
introduction of this section which is quoted below :

c "The Statement of Objects and Reasons for the Amendment Act state
that:

As to today in Chennai as well as in other metropolitan cities of
India many aberrations in the urban development are noticed. Huge
disparities between people's income and property value, together tempt
D the builders to violate the rules and the buyers to opt for such properties
in the city of Chennai. A rough estimate of about three lakh buildings
(approximately 50% on total number of buildings) will be violative of
Development Control Rules or unauthorised structures. However,
according to the Tamil Nadu Town and Country Planning Act, 1971
E (Act 35 of 1972) the demolition action cannot be pursued on any of
them unless a notice issued within 3 years of completion. The Chennai
Metropolitan Development Authority has booked five thousand struc-
tures on which demolition action could be taken. Number of such cases
booked by the Chennai City Municipal Corporation within its jurisdic-
tion is nearly one thousand. Administratively also demolition of such
F
a large number of cases is neither.feasible nor desirable as it will result
in undue hardship to the owners and occupants. Considering this and
the practice followed in other metropolitan cities of the country to deal
with violated constructions, the State Government have taken a policy
to exempt the lands and buildings developed immediately before the
G date of commencement of the proposed legislation by collecting regu-
larisation fee provided that the development has been made by a
person who has right over such land or buildings".

(Emphasis supplied)

H
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 547
The Statement of Objects and Reason' exhibits the change of Legislative A
Policy to regularise all those buildings or lands developed in contravention of
the various provisions of the Act and the Rules. Section 113-A read with the
Statement of Objects and Reasons clearly indicates Legislature's intent and
policy, instead of demolishing illegal constructions to regularise them by charg-
ing regularisation fees. Thus no similar attributable vice could be attached to
B
Section 113-A which was submitted for Section 113. Section 113-A Legisla-
ture, itself lays down what is to be done by the Government, while in Section
113 Government is conferred with wide discretion though to act within the
channel of the policy. In Section 113-A hardly any discretion is left on the
Government while in Section 113 very large discretion is left. Challenge to
Section 113 is unguided wide power to a delegatee, but no such challenge could c
be made against Legislature. Section 113-A is mandate of the Legislature itself
to grant exemption and realise regularisation fees no discretion on the delegatee.
Hence we hold Section 113-A as a one time measure is valid piece of legislation
and challenge to its validity has no merit. It is interesting, though a matter of
concern, what is recorded in the Statement of Objects and Reasons. It records: D

(A) A Rough estimate of about three lakh buildings (Approximately
50% of the total numberof buildings) will be violative of Development
Control Rules or unauthorised structure.

(B) Under the Act demolition action against such structure cannot be E
pursued against any of them unless a notice was issued within 3 years
of its completion.

(C) Chennai Metropolitan Development Authority could book only
five thousand such structures and chennai City Municipal Corporation
could book only one thousand such buildings against which demoli- F
tion action could be taken.

(D) Administratively also demolition of such a large number of cases
are neither feasible nor desirable, as it will result in undue hardship to
the owners and the occupants.
G
(E) Considering practice followed in other metropolitan cities of the
country, the State Government took a policy decision to exempt build-
ings and lands by collecting regularisation fees.

Mere reading of this reveals, administrative failure, regulatory ineffi- H
548 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A ciency and laxity on the part of the concerned authorities being conceded which
has led to the result, that half of the city buildings are unauthorised, violating
the town planning legislation and with staring eyes Government feels helpless
to let it pass, as the period of limitation has gone, so no action could be taken.
This mess is the creation out of the inefficiency, callousness and the failure of
the statutory functionaries to perform their obligation under the Act. Because
B
of the largeness of the illegalities it has placed the Government in a situation
of helplessness as knowing illegalities, which is writ large no administratively
action of demolition of such a large number of cases is feasible. The serious-
ness of the situation does not stay here when it further records, this is the pattern
in other metropolitan cities of India. What is the reason? Does the Act and
c Rules not clearly lay down, what constructions are legal what not? Are con-
sequences of such illegal constructions not laid down? Does the statute not
provide for controlled development of cities and rural lands in the interest of
the welfare of the people to cater to public conveniences, safety, health etc.?
Why this inaction? The Government may have a gainful eye in this process of
regularisation to gain affluence by enriching coffers of the State resources but
D
this gain is insignificant to the loss to the public, which is State concern also
as it waters down all preceding developments. Before such pattern becoming
cancerous to spread to all parts of this country, it is high time that remedial
measure is taken by the State to check this pattern. Unless the administration
is toned up, the persons entrusted to implement the scheme of the Act are made
E answerable to the latches on their failure to perform their statutory obligations,
it would continue to result with wrongful gains to the violators of the law at
the cost of public, and instead of development bring back cities into the hazards
of pollution, disorderly traffic, security risks etc. Such a pattern retards the
development, jeopardises all purposeful plans of any city, and liquidates the
F expenditure incurred in such development process.

We may shortly refer to the possible consequences of the grant of such
exemption under Section 113-A by collecting regularisation fees. Regularisa-
tion in many cases, for the violation of, front set-back, will not make it easily
feasible for the corporation to widen the abutting road in future and bring the
G incumbent closer to the danger of the road. The waiver of requirements of side
set-back will deprive adjacent buildings and their occupants of light and air and
also make it impossible for a fire engine to be used to fight a fire in a high rise
building. The violation of floor space index will result in undue strain on the
civil amenities such as water, electricity, sewage collection and disposal. The
H waiver of requirements regarding fire staircase and other fire prevention and
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 549
fire fighting measures would seriously endanger the occupants resulting in the A
building becoming a veritable death trap. The waiver of car parking and
abutting road width requirements would inevitably lead to congestion on public
roads causing severe inconvenience to the public at large. Such grant of
exemption and the regularisation is likely to spell ruin of any city as it affects
the lives, health, safety and convenience of all its citizens. This provision, as
B
we have said, cannot be held to be invalid as it is within the competence of
State Legislature to legislate based on its policy decision, but it is a matter of
concern. Unless check at the nascent stage is made, for which it is for the State
to consider what administrative scheme is to be evolved, it may be difficult to
control this progressive illegality. If such illegalities stays for a long, wave of
political, humanitarian regional and other sympathies develop. Then to break C
it may become difficult. Thus this inflow has to be checked at the very
root. State must act effectively not to permit such situation to develop in the
wider interest of public at large. When there is any provision to make illegal
construction valid on ground of limitation, then it must mean Statutory Author-
ity in spite of knowledge has not taken any action. The functionary of this D
infrastructure has to report such illegalities within shortest period, if not, there
should be stricter rules for their non-compliance. We leave the matter here by
bringing this to the notice of the State Government to do the needful for
salvaging the cities and country from this wrath of these illegal colonies and
construction.
E
Another attack on belialf of the petitioner is, when procedure for planned
development takes place, the proposals are notified for public to file any
objection under the Act and Rules which are considered before finalising the
plan. But when regularisation takes place, which may affect the public, there
is no provision for any notice to such public. We feel on the facts of the present F
case, when regularisation covers all buildings made in contravention of the Act
and the Rules prior to the <:oming into force of the aforesaid Amending Act,
the number being very large and this being one time settlement, then giving
of public notice, in each of such cases, before deciding, may not be practicable.
However, we find under sub- section (6) of Section 113-A there is provision
for an appeal against such an order of regularisation by any person aggrieved. G
The appeal is to be filed within 30 days from the date of the receipt of the order
which would normally be to the person who has applied for regularisation.
It would be appropriate for the State to consider, in future, not this one
time settlement, to either provide for an opportunity to the public at the
first stage of consideration of the grant of exemption or at the stage of H
550 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A appeal, if any, provided. Where public right is affected, the person from public
will have a right to get redress of his grievance by placing such objection as
he deem fit, which may be considered only to the extent the public right is
affected.

As we have held the 62 GOs by the State Government granting
B exemptions to various persons under Section 113 of the Act cannot be
sustained, we quash each one of the 62 GOs annexed compositely as Annexure
.
II to the writ petition. In view of this such land or building under each such
GO would become unauthorised. In the absence of Section 113-A the
consequence of deP1olition would have been the only option. However, in
C view of Section 113-A, the person covered by the said 62 GOs, as a
consequence of quashing, would be the person affected, and would also be
persons entitled for regularisation under Section 113-A in terms of the afore-
said Rules 1999. Though all the affected 62 persons are parties, some of them
have chosen not to appear in spite of service, hence we feel it appropriate that
the Government will issue public notice including a notification that any person
D
desiring regularisation of the unauthorised construction as a consequence of the
orders passed by this Court may apply lo the concerned authorities within 30
days of such publication and on such application being made the authority
concerned will dispose it of in accordance with law treating them to be filed
within time.
E
In view of the aforesaid findings recorded, by us we conclude:-

(A) Section 113 of the Tamil Nadu Town and Country Planning Act,
1971 is valid. It does not suffer from the vice of excessive
delegation of any essential legislative function. The Preamble,
F Objects and Reasons and various provisions of the Act give
clear-cut policy and the guidelines to the Government for exer-
cising its power. Hence, it is neither unbridled nor without any
guidelines.

(B) So far the impugned 62 GOs, each one of them, which has been
G
annexed compositively under Annexure II to the writ petition,
cannot be sustained and are hereby quashed.

(C) Section 113-A as a one time measure brought in through the
Tamil Nadu Town and Planning (Amendment) Act, 1998 is valid
H piece of legislation and not ultra vi res.
CONSUMER ACTION GROUP v. STATE [MISRA, J.] 551
(D) The facts recorded in the Statement of Objects and Reasons of A
the Amending Act indicates matter of serious concern which
requires earnest consideration to salvage in future such recurring
situation affecting public right with resultant hazard of traffic,
public health, security etc.

(E) To take effective measures, to check at the root level, at the very
B
nascent stage and see that such situations does not recur.

In view of the aforesaid findings and our conclusions both the writ
petitions are partly allowed. Costs on the parties.

K.K.T. Petitions partly allowed. c