Madras High Court
R.Usha vs The Principal Secretary To Government on 6 November, 2020
Author: R.Hemalatha
Bench: M. Sathyanarayanan, R.Hemalatha
WP.No.15839/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 06.11.2020
CORAM
THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
AND
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
WP.No.15839 of 2020
and W.M.P.No.19689 of 2020
R.Usha .. Petitioner
Versus
1.The Principal Secretary to Government,
Housing and Urban Development Department,
Fort St.George,
Chennai 600 009.
2.The Commissioner,
Greater Chennai Corporation,
Chennai 600 003.
3.The Member Secretary,
Chennai Metropolitan Development Authority,
Chennai 600 008.
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WP.No.15839/2020
4.The Executive Engineer,
Greater chennai Corporation,
Zonal Office VIII
2nd Cross Street (East)
Pulla Avenue, Shenoy Nagar,
Chennai 600 030. .. Respondents
Prayer:- Writ petition has been filed under Article 226 of the Constitution
of India praying for the issuance of Writ of Certiorari by calling for records
pertaining to the impugned notice in Zone VIII/TPENF/0198/2019 dated
09.10.2020 on the file of the 4th respondent and quash the same.
For Petitioner : Mr.T.V.Sarathi Kaushik
For Respondents : Mr.R.Vijayakumar
Additional Government Pleader for R1
Mr.S.Thiruvengadam
standing counsel for R3
Mr.K.Raja Srinivas, Standing counsel
for R2 & R4
ORDER
[Order of the Court was made by M.SATHYANARAYANAN,J.,] The petitioner is the owner of the premises at Door No.69/39-A, G1, Panchaliamman Koil Street, Arumbakkam, Chennai 600 106 and the said 2/22 http://www.judis.nic.in WP.No.15839/2020 premises is one of the seven flats in the apartment named ''AISHWARYAM'', constructed in the year 2014 and it was done in pursuance of approved plan dated 02.04.2013. In terms of the approved plan, M/s.Ashwar Builders and Promoters was permitted to construct the apartment with stilt floor, first floor and second floor. After completion of construction, stilt floor was retained by the promoter, who is the husband of the petitioner. The petitioner would further aver that in the Sanctioned Plan, the petitioner's shop is located, where she is running General and Provision Store and the total extent of the petitioner's shop is measuring about 800 sq.ft. The building developed have been sold and an Association also came to be found and on the basis of some unanimous complaint, the 4 th respondent had initiated action under the provisions of the Town and Country Planning Act, 1971 (in short 'the TCP Act') and the appeals preferred in that regard also came to be rejected.
2. The 3rd respondent had issued a Locking, Sealing and Demolition Notice dated 07.07.2017, stating among other things that the premises consist of stilt, first and second floors and noted the following deviation and unauthorized construction in the premises: 3/22
http://www.judis.nic.in WP.No.15839/2020 S.No Description As per plan As per site Deviated / unauthorized
1. Stilt floor 8.72 112.74 Deviated
2. First floor 238.06 296 Deviated
3. Second floor 238.06 296 deviated
3. The petitioner has also submitted a revised plan to the 3rd respondent and the same has been rejected on the following reasons:
SI.N Rule Description Required Provided Extent of violations o
1. DR-14 Land use Primary Shop cum Land use violation residential residential arises due to shop area 79.19 sq.m (as per DR only 40 sq.m is allowed for professional consulting office)
2. 26(2)(a) Road width 10.00m 9.10m Less by 0.90m
3. 26(3) Front set back 3.50M 0.69M LESS BY 2.81M (due table B to bldg.projection) 26(3) Side set back 2.50m S.W-0.43m Less by 2.07m & table B (south) S.E-0.5m 2.00m (due to bldg.projection) 26(3) Side set back 2.50m N.W-0.77m Less by 1.73m (due to table B (north) N.E-nil bldg.projection) less by 1.63m (due to bldg.projection) 26(3) Rear set back 2.50m N.W-0.26 m Less by 2.24m (due to table B (north) S.E-0.87m bldg.projection) Less by 1.63m (due to bldg.projection)
4. 26(3) FSI 1.50 1.93 Excess by 0.43 table B 4/22 http://www.judis.nic.in WP.No.15839/2020 SI.N Rule Description Required Provided Extent of violations o
5. Annexure Parking car 7 nos. Provided 5 Less by 7 nos.
XVI-1&2 nos. Of
parking is not
feasible at site
6. Annexure Driveway, Turning radius & Aisle width were not shown as per D.R XVI
7. Annexure Special Provision for P.H persons for shop not provided as per D.R XXII
8. Annexure Rain Water harvesting provision has not been provided as per D.R XIX
4. Challenging the refusal of Planning Permission, the said Association preferred an appeal under Sections 80-A and 79 of the TCP Act before the 1st respondent and the 1st respondent has considered the grounds of appeal as well as perused the records and rejected the appeal, vide G.O.(Ms) No.21 of 2020 dated 22.01.2020.
5. The Review preferred by the said Association before the 1st respondent also came to be rejected, vide letter No.4262/UD VI(1)/2020-1 dated 29.09.2020. The 4th respondent, after rejection of the Appeal and the Review by the 1st respondent has issued the impugned De-occupation notice dated 09.10.2020, under Sections 56 and 57 read with Section 85 of 5/22 http://www.judis.nic.in WP.No.15839/2020 the TCP Act, as amended by Act 61 of 2008, calling upon the petitioner herein to discontinue the occupation of the premises within a period of 7 days from the date of receipt of the notice, failing which action would be initiated under Section 56 (2a) and Clause 5 of the TCP Act to secure compliance of the deviated and unauthorized portions of the building and locking & sealing of the premises, without any further notice and challenging the legality of the same, came forward to file this Writ Petition.
6. The learned counsel appearing for the petitioner would submit that in the light of G.O.Ms.No.147 dated 26.10.2018 and G.O.Ms.No.152 dated 01.11.2018, issued by the 1st respondent with regard to the violation of development regulations and deviations pointed out, came to be set right and in the light of the fact that there is a thick spread of COVID-19 pandemic virus and ensuing monsoon, some breathing time may be given to the petitioner to work out their remedies in accordance with law.
7. This Court has carefully considered the rival submissions and also 6/22 http://www.judis.nic.in WP.No.15839/2020 perused the materials placed before it.
8. A Division Bench of this Court in which myself (M.SATHYANARAYANAN, J.) formed part of the Coram, vide order dated 30.08.2017 in W.P.No.23918 of 2007 (M/s.Krishna Builders Vs. The Secretary to Government of Tamil Nadu, Housing and Urban Development Department, Fort St.George, Chennai 600 009 and 2 others), considered the challenge made to the order of rejection passed by the 1st respondent under Section 80-A of the TCP Act and considered the decisions pertain to demolition of unauthorized constructions and it is relevant to extract paragraphs 33 to 36 of the said decision:
''33 In Friends Colony Development Committee Vs. State of Orissa and others reported in 2004 [8] SCC 733 the issue relating to the unauthorised construction and regularisation of the same by levying compounding fees, came up for consideration and it is relevant to extract the same:-
The material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned 7/22 http://www.judis.nic.in WP.No.15839/2020 building plans and indulge deviations. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in teh event of unauthorized constructions being detected or exposed and threatened with demolition. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations.he unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance.
In the present case, the builder added an additional fifth floor on the building which was totally unauthorised. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one.8/22
http://www.judis.nic.in WP.No.15839/2020 Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. The power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations.” 34 In Consumer Action Group rep.by its Trustee Vs. State of Tamil Nadu rep. by its Secretary to Government, Law Department, Secretariat, Chennai-9 and others reported in 2006 [4] CTC 483 [DB], it is held that water and electricity connection should be contingent on completion certificate.
Sl.No.(ix) of the direction reads thus:-
"(ix)To avoid future violations, buildings should be certified as having been constructed in compliance of planning permit and other applicable laws. The Certifying Officer will be personally responsible if any illegal building is 9/22 http://www.judis.nic.in WP.No.15839/2020 certified. Electricity, water connection and occupation should be contingent on such certificate. In respect of the builders who have been identified by the Monitoring Committee as having put up illegal buildings, constructions by such builders should be certified for compliance only by the Chief Planner, who shall bear personal responsibility.
30 The Development Control Rules prohibit use of building without obtaining completion certificate. The direction to provide electricity, water and sewerage connection without insisting Completion Certificate from CMDA would amount to permission to put the building to use which is prohibited by statute. The Electricity, Water and Sewerage Boards are not bound to entertain application for such amenities without submitting the Completion Certificate issued by CMDA.
31 The authorities exercising statutory functions under various enactments must assist CMDA to implement the Development Control Rules. If such authorities entertain request and provide electricity, water and sewerage connection, it would help the builder to bypass the mandatory requirement of the 10/22 http://www.judis.nic.in WP.No.15839/2020 Statute, requiring completion certificate to occupy the building. We therefore hold that the Chennai Metro Water Supply and Sewerage Board and Tamil Nadu Electricity Board, have no authority to issue electricity, water and sewerage connection without producing of the Completion Certificate from CMDA. We are therefore of the view that the builders have no right to approach the Court for mandamus to provide electricity, water and Sewerage connections, without insisting Completion Certificate from CMDA.” 35 In Santhi Sports Club Vs Union of India, reported in 2009 [15] SCC 704 : AIR 2010 SC 433, the Hon'ble Apex Court observed that the Executive must take stringent action to curtail the menace of illegal construction and in paragraph 75 observed as follows:-
“75 Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed 11/22 http://www.judis.nic.in WP.No.15839/2020 orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.”
36 In yet another decision reported in 2010 [2] SCC 27 :
AIR 2010 SC 1030 [Priyanka Estates International Private Limited V. State of Assam], the Hon'ble Apex Court, once again sounded a note of caution by taking into consideration large scale unauthorised construction and in paragraphs 55 and 56, has observed as follows:-12/22
http://www.judis.nic.in WP.No.15839/2020 “55 It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot- free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder.
56 Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed to it has been given by the builders. Rules, regulations and bye-laws are made by 13/22 http://www.judis.nic.in WP.No.15839/2020 Corporation or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent.”
9. The Hon'ble Supreme Court of India in the decision reported in 2019 Manu SC 1467 (Municipal Corporation of Greater Mumbai and Others Vs. Sunbeam High Tech Developers Private Limited) had considered the issue whether if a municipal Corporation demolishes a structure in exercise of powers vested in it, but in violation of the procedure prescribed, can the High Court direct the owner/occupier of the building to reconstruct the demolished structure? and it is relevant to extract paragraph nos.16 & 17 of the same:
''16. We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure 14/22 http://www.judis.nic.in WP.No.15839/2020 prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law. However, we again reiterate that the illegal structure cannot be permitted to be re-erected.
17. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-
cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the 15/22 http://www.judis.nic.in WP.No.15839/2020 doors and windows face; how many number of storeys are permitted etc. We feel that in most cases the writ court may be unable to answer all these questions. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built.''
10. The Hon'ble Supreme Court of India also found out a solution as to the repeated acts of unauthorized construction and it is relevant to extract paragraphs no.21 and 22 of the above cited decision:
“21.There is no difficulty to find a solution to this problem if the State is inclined to do so. Till the State frames any laws in this regard, we direct that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/ occupier/ builder/ contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. This map can be taken on record and, thereafter, the construction can be permitted. In such an eventuality even if the demolition is illegal it will be easy to know what were the dimensions of the building. This information should not only be in paper form in 16/22 http://www.judis.nic.in WP.No.15839/2020 the nature of a plan, but should also be in the form of 3D visual information, in the nature of photographs, videos etc.
22. All over the country we find that when people raise illegal constructions it is claimed that the said construction has been existing for long. The answer is to get Geomapping done. The relevant technology is Geographic Information System (GIS). If on Google Maps one can get a road view, we see no reason as to why this technology cannot be used by the municipal corporations. At the first stage we direct that all the cities in Maharashtra where the population is 50 lakhs or more the municipal authorities will get Geomapping done not only of the municipal areas but also of areas 10 Kms. from the outer boundary. This can be done by satellite, drones or vehicles. Once one has the whole city geomapped it would be easy to control illegal constructions. We further direct the State of Maharashtra to ensure that sufficient funds are made available to the municipal corporations concerned and this exercise should be completed within a period of one year from the date of this order”.
11. It is pertinent to point out at this juncture that once a Planning Permission is obtained, it is mandate cast upon the developer / builder to strictly adhere to the Planning Permission and unfortunately in almost all 17/22 http://www.judis.nic.in WP.No.15839/2020 cases, the Planning Permissions are violated with utmost impunity. The violators are getting emboldened, on account of lack of implementation of provisions on the part of the enforcement agencies.
12. In the decision of S.Prakash Chand Jain Vs. The State of Tamil Nadu rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai and Others reported in 2014 (2) MLJ 551, a Division Bench of this Court, after placing reliance upon several decisions rendered by the Hon'ble Supreme Court of India, has observed that '' the unholy nexus between the builder and certain officials of the CMDA, Corporation (Corporation of Chennai) gives encroachment to more and more people, to violate building laws with impunity'. Despite the said observation came to be made about six years back, the same thing continues to happen even today. The Enforcing authority, namely, CMDA and the Greater Corporation of Chennai would take action, only if somebody approaches the Court and obtains positive orders.
13. In the case on hand, violations are major in nature and the 1st 18/22 http://www.judis.nic.in WP.No.15839/2020 respondent after due and proper application of mind to the entire materials placed, found that it is not a fit case to interfere with the impugned Locking, Sealing and Demolition notice issued by the 4th respondent and the Review filed by the petitioner to review the said order dated 22.01.2020 also came to be rejected by the 1st respondent on 29.09.2020 and what was challenge before this Court is only a consequential order.
14. In the considered opinion of this Court, the Statutory Appellate Authority, namely, the 1st respondent, had assigned proper and tenable reasons for rejecting the statutory appeal as well as the review filed by the petitioner and in the absence of any error apparent on the face of the record, or infirmity, those kind of orders will not be normally interfered by this Court and it cannot be the subject matter of judicial review in the Writ Petition, in exercise of power under Article 226 of the Constitution of India. This Court finds no merit in this Writ Petition.
15. In the result, the Writ Petition is dismissed. At this juncture, the 19/22 http://www.judis.nic.in WP.No.15839/2020 learned counsel appearing for the petitioner prays for some accommodation to vacate the premises in question and also undertakes to file an Affidavit of Undertaking.
Call on 09.11.2020 under the caption for filing 'Affidavit of Undertaking'.
[M.S.N.,J] [R.H., J]
06.11.2020
sk
Internet : Yes/No
Index : Yes/No
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To
1.The Principal Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai 600 009.
2.The Commissioner, Greater Chennai Corporation, Chennai 600 003.
3.The Member Secretary, Chennai Metropolitan Development Authority, Chennai 600 008.
4.The Executive Engineer, Greater chennai Corporation, Zonal Office VIII 2nd Cross Street (East) Pulla Avenue, Shenoy Nagar, Chennai 600 030.
21/22 http://www.judis.nic.in WP.No.15839/2020 M.SATHYANARAYANAN, J., AND R.HEMALATHA.,J sk W.P.No.15839 of 2020 06.11.2020 22/22 http://www.judis.nic.in