A division bench of justice M Sathyanarayanan and justice N Seshasayee, passing orders on a PIL filed by Tamil Nadu Unaided Polytechnic Management Association and the TN Nursery, Primary, Matriculation and Higher Secondary Schools Association, explained the ‘compulsory consultation’ clause, and said: “It cannot be any different from the parameters that town planning authorities have hitherto adopted for granting permission under the Tamil Nadu Town and Country Planning Act or such other responsibilities assigned to them on the subject.”
Relying on a Supreme Court directive, the bench said such advice could not be ignored except on ‘grounds of weighty and justifiable reasons of greater quality’.
This apart, to ensure fairness and transparency in the consultation process, the court has directed that the same shall take place only in writing.
“Oral consultation is not permitted as it has the potential to hijack the object of self- governance for purposes that may not have been in the contemplation of the Parliament,” the court said.
Their advice or opinion will be found on that material which guided their decisions earlier under the Act. This is to mean that the core responsibility of the town planning under Act is retained, but at the functional level it is shifted from the TCP Act to the Panchayat Building Rules, the court added.
Noting that for a quarter of a century after the 73rd amendment to the Constitution, the court was now required to address one such conflict in the case, the judge said there could be more.
“The legislature, or the government, should now step in to resolve the areas of conflict in the operation of both the legislations, and to address the consequences that they may throw open. However, till this is done, the vacant space left by the absence of a legislation, including a subordinate or a delegated legislation, should not let to be exploited, leaving rule of law and the substantial justice involved stranded in helplessness.”