Madras High Court
P.A. Rani vs K.G. Krishnan And Others on 10 March, 1994
Equivalent citations: AIR1994MAD323, AIR 1994 MADRAS 323, (1994) 2 MAD LJ 186
ORDER
K. A. Swamy, C. J.
1. These two appeals arise out of the order dated 2-3-1994 passed by the learned single Judge in WP No. 2146 of 1993 and Contempt Appln. No. 388 of 1993, W.A. No. 420 of 1994 is prefered by the owner of the premises, whereas W.A. No. 425 of 1994 is preferred by Hotel Saravana Bhavan, claiming to be the lessee of the premises.
2. The petitioner is an Ex-Member of the Madras Metropolitan Development Authority, for short, 'M.M.D.A.'. He sought for issue of a writ in the nature of mandamus, directing respondents 1 and 2, the M.M.D.A. and the Corporation of Madras, to take appropriate action against the third respondent owner of the premises, and stop the constructions that are being put up by her on the property bearing Door No. Y 209, II Avenue, Anna Nagar, Madras 600 040, and also to demolish the unauthorised constructions put up by her in the aforesaid property and pass such other orders as are deemed necessary. Learned single Judge has held that the construction put up on the land bearing Door No. Y 209, Avenue, Anna Nagar, Madras 600 040, hereinafter referred to as 'the land in question', comprising of the first, second and third floors is an unauthorised construction; therefore, action for demolition in accordance with law should be taken. Of course, the building standing on the land in question consists of, cellar, ground floor, first floor, second floor and third floor, The directions given by the learned single Judge appear to cover the cellar and the ground floor also. However, the averments in the affidavit filed in support of the writ petition filed by the petitioner do not include the cellar and the ground floor. The directions given by the learned single Judge are as follows :
"(1) The 1st respondent is directed to take action against the unauthorised construction by the 3rd respondent, subject to the vacation of the injunction order of the City Civil Court and subject to the other statutory provisions in the Tamil Nadu Town and Country Planning Act and the Development Control Rules.
(2) The 2nd respondent is directed to take action if there is any deviation in respect of the basement and the ground floor, subject to the vacation of the injunction order granted by the City Civil Court and subject to the other provisions of law and the City Municipal Corporation Act.
(3) Respondents 1 and 2 shall also take steps to have the orders of injunction vacated, because those orders seem to be directly in conflict with the statutory provisions. It is equally open to the petitioner to implead himself in the Civil suit and have the injunction vacated.
(4) The 3rd respondent is restrained by an order of injunction from leasing out the first, second and third floors of the property to any one, at Door No. Y 209, Second Avenue, Anna Nagar, Madras 40, until she gets proper sanction authorising the construction of the said floors by the 1st respondent.
3. As far as the order passed in Contempt Application No. 388 of 1993 is concerned, no grievance is made before us; therefore, we do not consider it necessary to go into the correctness of the order passed by the learned single Judge, dismissing C.A. No. 388 of 1993.
4. It is contended on behalf of the appellants that the directions given by the learned single Judge are quite contrary to Section 56 of the Tamil Nadu Town and Country Planning Act, 1971, hereinafter referred to as 'the Act'; that the learned single Judge has not taken into consideration the fact that the building, comprised of first, second and third floors, standing on the land in question, was leased to the appellant in W.A. No. 425 of 1994 on 24-9-1992 itself, as such, the direction that it should not be leased to anyone is not correct and cannot be considered to be in accordance with law; that, even in the case of unauthorised construction, the procedure prescribed in Section 56 of the Act has to be followed and, during the pendency of the proceeding initiated under Section 56 of the Act, it is open to the owner of the premises either to occupy or let it out until it is decided that the building should be demolished, therefore, the direction preventing the third respondent in the writ petition, who is the appellant in W.A. No. 420 of 1994, is not in accordance with the provisions of the Act; and that at any rate, in the absence of the appellant in W.A. No. 425 of 1994, such a direction should not have been issued, as the building had already been leased to it.
5. On the contrary, it is contended by learned counsel appearing for the first respondent in W, A. No. 420 of 1994, who is the writ petitioner, and learned counsel appearing for the Corporation of Madras and the M.M.D.A., that as per the provisions contained in Section 48 of the Act, it was impermissible for the appellant in W.A. No. 420 of 1994 to put up any construction without obtaining written permission from the Planning Authority. Admittedly no such permission had been obtained; as such, indisputably it is an unauthorised construction and the M.M.D.A. is justified in issuing notice of demolition as per the provisions contained in Section 56(1)(a)(i) which provides that, in the case of construction without permission required under the Act, the building must be demolished and the land restored to its condition before the said development took place. Therefore, it is submitted that the directions issued by the learned single Judge do not call for interference nor is it necessary to modify the directions. It is also submitted that, instead of following the procedure laid down in Section 56 of the Act, the appellant in W.A. No. 420 of 1994, the owner of the building has filed two suits and in one she has obtained an order of injunction preventing the M.M.D. A. from proceeding in the matter in accordance with the provisions contained in Section 56 of the Act. Lastly, it is contended by Mr. Vijay Shankar, learned counsel for appellant in W.A. No. 425 of 1994, that the appellant in W.A. No. 425 of 1994 was not aware of the fact that the building was put up without permission and as such it was a bona fide lessee and that, having invested several lakhs of rupees, it should not be made to suffer by keeping the building vacant.
6. In the light of these contentions, the following points arise for consideration :
(i) Whether the construction of the first, second and third floors put up on the land in question, over the cellar and the ground floor, by the appellant in W.A. No. 420 of 1994 can be considered to be in accordance with law?
(ii) Whether the appellant in W. A. No. 425 of 1994 can be considered to be a bona fide lessee?
(iii) Whether the directions contained in the order of the learned single Judge require to be modified ?
(iv) To what order the parties are entitled to?
7. As already pointed out, the cellar and the ground floor are not the subject matter of the writ petition. It is also not disputed before us that the cellar and the ground floor have been constructed after obtaining necessary permission from the Corporation of Madras. The question as to whether the cellar and the ground floor have been constructed in accordance with the permission obtained is not a matter for consideration in this proceeding. Therefore, the writ petition and this order concern only with the first, second and third floors put up on the land in question over the cellar and ground floor.
POINT No. (i)
8. It is not in dispute that there is a Master Plan for the City of Madras. When once the Master Plan is notified, no person is permitted to put up any construction without the written permission of appropriate authority. Section 48 of the Act specifically provides that, on or after the date of the publication of the resolution under sub-section (2) of Section 19 or the notice in the Tamil Nadu Government Gazette under Section 26, no person, other than any State Government or the Central Government or any local authority, shall, erect any building or make or extend any execavation or carry out any mining or other operation, in, on over or under any land or make any material change in the use of land or construct, form or lay out any work except with the written permission of the appropriate planning authority and in accordance with the conditions, if any, specified therein. Therefore, it was necessary to obtain written permission from the planning authority. The appellant in W.A. No. 420 of 1994, no doubt made an application before the M.M.D.A. on 11-5-1992 for permission to put up first, second and third floors on the ground floor of the existing building on the land in question. That application was returned in the month of August, 1992, on the ground that the applicant had not deposited the required amount. It was open to the applicant/owner to resubmit the application making the necessary deposits, but she did not do so until 29-11-1993. In the meanwhile, she went on putting up the construction in question. It is not now in dispute that the first, second and third floors have been completed. Thus, even to this day, no permission has been obtained. The owner did not resubmit the application seeking permission, but filed O.S. No. 11013 of 1992 in the City Civil Court, Madras, against the Corporation of Madras, for a permanent injunction, restraining the Corporation of Madras from preceding against her for demolition and also obtained an order of temporary injunction. As the construction consisted of first, second and third floors, it was the M.M.D.A. which was to take action in the matter; therefore, the M.M.D.A. issued notice of demolition under Section 56 of the Act, as the construction was put up without permission. At that stage also, she did not resubmit the application for permission, but filed O.S, No. 4140 of 1993 in the City Civil Court, Madras, in July, 1993, for a permanent injunction against the M.M.D.A. from proceeding with the demolition of the building and also obtained an order to temporary injunction. The writ petition in question came to be filed on 1-2-1993 for taking action against the unauthorised construction in accordance with law. These facts go to show that the owner was fully aware of the fact that no construction could be put up without the written permission of the planning Authority; therefore, she made an application for permission which Was returned for making the necessary deposit. Thereafter, she did not re-submit it with the deposit, however, went on putting up construction. In the light of the provision contained in of Section 48 of the Act which specifically states that no construction could be put up without the written permission of the appropriate authority, a mere making of an application did not enable the applicant to put up the construction, pending decision by the appropriate authority. Therefore, there is no doubt that the construction put up by the owner, comprising first, second and third floors, on the cellar and ground floor of the land in question, is clearly unauthorised. We accordingly, answer Question No. (i).
POINT No. (ii)
9. It is the case of the appellant in W.A. No. 425 of 1994 that it was not aware of the fact that the first, second and third floors were put up without permission. It is very difficult to accept this case of the appellant. It may be pointed out here that on 11-5-1992 when the owner made the application seeking permission for putting up first, second and third floors, there was no construction put up. That application was returned in August 1992. Thereafter, it was resubmitted only on 29-11-1993, whereas the unregistered lease deed in question for a period often years relied upon by the appellant in W.A. No. 425 of 1994, came into existence on 24-9-1992. It is not shown by producing acceptable material before us that the construction of the first, second and third floors was over by 24-9-1992, when the lease deed was said to have 6een executed. It is also relevant to notice that if, according to the appellant in W.A. No. 425 of 1994, the building comprising the first, second and third floors was ready on 24-9-1992 and it was put in possession of the same, no sensible businessman like the appellant in W.A. No. 425 of 1994 would wait for nearly five months to seek permission to run a restaurant after having paid more than 9 lakhs to the lessor. The material placed before us show that only in the month of February 1993, the appellant made the deposit for grant of licence for running a restaurant. If really the building was ready on the date the lease deed is supposed to have come into existence, it is not possible to comprehend why the appellant waited for over five months without using the building. Further, it is also doubtful whether the lease deed came into existence on 24-9-1992, because no business man will have a lease deed for ten years without registering the same, because in law it is not valid without registration. All these circumstances would go to show that the appellant in W.A. No. 425 of 1994 cannot be considered to be a bonafide lessee. We shall not, however, be taken to have expressed any opinion on the validity of the lease deed and we have stated this circumstances only for the purpose of adjudicating the issue as to whether the appellant in W.A. No. 425 of 1994 can be held to be a bona fide lessee. Therefore, the observation, as stated above, shall not be used by any of the parties against the lessee, that the lease is not a valid one. Thus, we are of the view that the appellant in W.A. No. 425 of 1994 cannot be considered to be a bona fide lessee. Point No. (ii) is answered accordingly.
POINT No. (iii).
10. During the course of the arguments, it is submitted by learned counsel appearing for the M. M. D. A. that the notice issued for demolition will be withdrawn, subject to the result of the proceedings under Section 56 of the Act, because the appellants in W. A. No. 420 of 1994 has now re-submitted the application for permission which is to be considered in accordance with the provisions of the Act, and further action would depend upon the decision that would be taken on the application for permission re-submitted now. It is also submitted by learned counsel for the appellant in W.A. No. 420 of 1994 that both the suits would be withdrawn by tomorrow. In that event, the injunction granted by the City Civil Court in both the suits would cease to be operative. Consequently, the M.M.D.A. would be free to proceed to consider the application for permission re-submitted by the appellant in W.A. No. 420 of 1994. Once the application for permission is on file, even in the case of unauthorised construction, the notice of demolition issued as per Section 56 of the Act will cease to have any effect, pending determination of such application, as provided in that very section. Therefore, the learned counsel for the M.M.D.A. is right in making a submission that such a notice will be withdrawn, subject to the result of the proceeding on the application filed for permission by the appellant in W.A. No. 420 of 1994, who is the owner of the building.
11. The next point for consideration is, whether the appellant in W.A. No. 425 of 1994, who claims to be the lessee, should be permitted to occupy the first, second and third floors of the building, pending decision on the application filed for permission by the owner. We have recorded a finding on point No. (i) that the building is an unauthorised one. Of course, the penal provisions of the Act for contravention of Sections 48, 49 and 56 do provide for penalty. The question to be decided is as to whether the fact that there is a penal provision for contravention of some of the provisions of the Act, by itself be a ground for the court to permit the unauthorised construction to be used as though it is constructed with authority. One of the objects of the Act is to ensure development of the city in accordance with the Master Plan, therefore, Section 48 specifically provides that no construction activity whatsoever shall be taken up in the area covered by the Master Plan from the date of its publication without the written permission of the appropriate planning authority. If the object of the Act is to be achieved and a proper implementation of the same is to be ensured, permitting the owner/lessee to occupy the unauthorised construction cannot be considered to be consistent or in conformity with the object and ensuring proper implementation of the provisions of the Act. If such an unauthorised construction is permitted to be occupied, every owner of a land would with impunity put up construction without obtaining permission and whenever action is taken, be would apply for permission with the result, the very object of the provisions contained in Section 48 of the Act would be defeated. Any such intrerpretation which gives rise to such a situation and thereby defeats the very purpose of the Act, should be avoided as it would undermine the provisions, and the object, of the Act. In these circumstances, we are of the view that the unautthorised construction should not be permitted to the occupied, pending consideration application for permission re-submitted by the owner. This will at least deter owners of lands not to take up any development activity on the land without the written permission from the Planning Authority. Normally, in such enactments, there will be a provision that, if the result of such an application is not communicated within the prescribed period, the permission sought for must be deemed to have been granted, but the Act in question does not contain any such provision. It only shows that the Legislature intended that the provisions of the Act should be strictly adhered to and no construction should be put up without the written permission. The intendment and the object of the Act can be ensured only by directing that the unauthorised construction should not be occupied until the application seeking permission filed for permission is considered.
12. In support of the contention that the lessee must be permitted to occupy the building pending consideration of the application seeking permission, Mr. Vijay Shankar, learned Senior Counsel appearing for the appellant in W.A. No. 425 of 1994, has placed reliance on the decision of a learned single Judge of the Calcutta High Court in Calcutta Construction Investment Company v. Sekhar Chand, and, in particular he relied on the observations made in Paragraph 12 of the Judgment which are as follows at Page 329 :
"In view of the fact that the defendant No. 2, Manick Chandra Damani, has come into the picture and parted with large sum of money and in fact has taken possession of the property and party let out the said premises to the sub-lessees and also because of that fact there is no prima facie proof that Manick Chand Damani had any knowledge whatsoever of agreement entered into by and between the plaintiff and the defendant No. 1, there should be no order of injunction prejudicing the rights of the subsequent parties."
That was a case arising out of the contractual relationship between the parties. The same principle cannot at all be applied to a case, where there is a statutory violation. Hence the decision cannot be applied to the instant case. Having found that the appellant in W.A. No. 425/94 is not a bona fide lessee, to permit it to occupy the building would be putting a premium on the illegal act of the appellants. The appellants cannot be permitted to take advantage of their own illegal act. Hence, we are of the view that pending consideration of the application seeking permission, neither the owner nor the lessee should be permitted to use the first, second and third floors of the building in question. As far as the cellar and ground floor is concerned, the owner is free to use them in accordance with law.
13. At the same time, the Court must also ensure that the hardship that is going to be caused to the owner of the building, by not allowing him to occupy the unauthorised construction, should not be harsh or disproportionate to the act. Here is a case where the owner has invested several lakhs of rupees and at the same time the lessee has also advanced Rs. 9,50,000/-. The consideration of the application filed for permission, now resubmitted by the owner, should not take more than a month. Therefore, we are of the view that, if a time limit is imposed on the M.M.D.A. to consider the application re-submitted by the owner, and during that period the owner-and/or the lessee are not permitted to use the building, the hardship that would be caused to the owner and the lessee would be minimised. Accordingly, we are of the view that the directions issued by the learned single Judge require to be modified. Point No. (iii) is answered accordingly.
14. For the reasons staled above, these writ appeals are disposed of in the following terms :
The direction issued by the learned single Judge are modified and the following directions are issued :
(i) As per the undertaking given by the appellant in W.A. No. 420 of 1994, she shall make an application before the City Civil Court, Madras, by tomorrow, seeking with-drawl of O.S. Nos. 11013 of 1992 and 4140 of 1993. If such an application is filed, the City Civil Court shall take up the matter tomorrow itself and dispose it of.
(ii) The M.M.D.A., as per the undertaking given, shall withdraw the notice of demolition issued under Section 56 of the Act, without prejudice to its rights to proceed with the matter after a decision is taken on the application resubmitted by the owner seeking permission. It shall be so by tomorrow.
(iii) The M.M.D.A. shall decide the application resubmitted by the owner of the building in question for permission to put up construction, within one month from today.
(iv) In the event, the decision of the M.M.D.A. goes against the owner of the premises, it is open to her to go up in appeal and inform the M.M.D.A. accordingly.
(v) During consideration of the application seeking permission, the first, second and third floors in question shall not be occupied either by the owner or the lessee and it shall be kept vacant.
(vi) In the event, permission is granted subject to certain conditions, before occupation of the building, those conditions must be satisfied. If the application is rejected, as to whether the building should be kept vacant is a matter to be decided by the Appellate Authority under Section 79 of the Act, if an appeal is filed.
(vii) There will be no order as to costs.
15. Order accordingly.