Madras High Court
A.Sundaravelu vs The Member Secretary on 31 January, 2018
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:31.01.2018 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL AND THE HONOURABLE Mr. JUSTICE S.VAIDYANATHAN W.P.No.24376 of 2017 and W.M.P.No.25793 of 2017 A.Sundaravelu .. Petitioner Vs. 1.The Member Secretary, Town and Country Planning Authority, 33, 4th Street, Rajappa Nagar, Thanjavur. 2.The Commissioner, Thanjavur Municipal Corporation, Thanjavur. 3.Government of Tamil Nadu, Rep. By its Secretary, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai 600 009. 4.Shri. G.Srinivasan 5.The Assistant Engineer, Thanjavur TANGEDGO, Court Road, Thanjavur. ..Respondents [R5 suo motu impleaded by this Court on 31.01.2018] Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari calling for the records connected with Letter No.16667/UD4(1)/2017-1 dated 24.07.2017 passed by the 3rd respondent herein and quash the same. For Petitioner : Mr.B.Shruthan For RR 1 and 3 : Mr.A.N.Thambidurai Special Government Pleader For 2nd Respondent : Mr.N.K.Ponraj For Mr.P.Srinivas For 4th Respondent : Mr.R.Sivakumar For 5th Respondent : Mr.Gunaraj [Impleaded Respondent] ORDER
[Order of the Court was delivered by M.VENUGOPAL, J.] Heard the Learned Counsel for the Petitioner and the Learned Counsel for the Respondents 1 to 4.
2.At the outset, this Court suo motu impleads the Assistant Engineer of Thanjavur TANGEDGO, Court Road, Thanjavur as the 5th Respondent to the present Writ Petition.
3.According to the Petitioner, he is the owner of Door No.T.S.No.1426, Varagappaier Lane, South Main Street, Thanjavur Town having purchased it under registered sale deed on 24.04.1980 from one S.Gopalan, who was the erstwhile owner of the property. As a matter of fact, the description of the property shows that northern boundary described as North of Petitioners Salavakkam and lane. Salavakkam means drainage. Now this Salavakkam and lane runs to 43 feet South North and width about 6 = feet. Further, there is no ambiguity that the drainage and lane belong to the Petitioner and his vendor for a long time. Even from the sale deed, the property is with the Petitioner for 37 years.
4.The Learned Counsel for the Petitioner submits that the 4th Respondent had purchased the land adjacent to the Petitioner's land TS 1425 bearing Door No.1425, Varagappaier Lane, South Main Street, Thanjavur on 19.06.2008 and the southern portion of the boundary is the property TS 1426 which belong to him.
5.It appears that the 4th Respondent had obtained a planning permission, but, in total violation of the same, had put up the construction as per the plan submitted by him of 42.72 square meters that is 7.28 x 6.83 mts. In reality, he had constructed 11.65 x 8.90 meters measuring an extent of 103.68 square meters and since the total extent of the plot was only 1116 sq. ft. The case of the Petitioner is that the 4th Respondent cannot construct more than the sanctioned plan.
6.The version of the Petitioner is that he made several representations and lodged a police complaint and finally, the 1st Respondent/Member Secretary, Town and Country Planning Authority, Thanjavur passed a detailed order on 07.10.2014 exercising power under Sections 56 and 57 of the Town and Country Planning Act, 1971 to take immediate action by forwarding the complaint to the 2nd Respondent/Municipal Corporation. The Petitioner also made further representation to the District Collector, Thanjavur and thereafter, the 1st Respondent, after due inspection and measurement of the properties, came to the conclusion that there was a violation of planning permission given to the 4th Respondent for construction. The construction of the 4th Respondent was sealed to prevent further construction and the sealing was made on 10.06.2015 after granting time to the 4th Respondent to rectify the defects. However, the stand taken on behalf of the Petitioner is that the 4th Respondent had not rectified the defects as per order dated 10.06.2015 passed by the concerned authority.
7.The Learned Counsel for the Petitioner projects an argument that the planning permission given in favour of the 4th Respondent expired on 16.06.2014 and therefore, the construction made by the 4th Respondent cannot be said to be a valid one. Also that, the sale deed dated 24.04.1980 to and in favour of the 4th Respondent shows that the 4th Respondent had included in the sale deed, more extent than what his vendor himself had and in fact, the aforestated sale deed dated 24.04.1980 avers that though the 4th Respondent's vendor had only 1381 sq. ft. as per the original document of the title, he had chosen to register for 1433 sq. ft. which is apparently a wrong one.
8.In this connection, the Learned Counsel for the Petitioner draws the attention of this Court to the fact that the 4th Respondent had filed a petition before the 3rd Respondent/Secretary, Government of Tamil Nadu, Chennai passed an impugned order on 24.07.2017 ordering the desealing of the building of the 4th Respondent.
9.The Learned Counsel for the Petitioner vehemently contends that the 3rd Respondent's order dated 24.07.2017 is an invalid one because of the reason that even though the order of sealing was made and actually it was sealed on 10.06.2015 pursuant to the order of the Commissioner. Further, as per Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971, the limitation for filing an application before the Government to exercise special powers under Section 80-A of the Act is 30 days from the date of sealing and the 4th Respondent had filed the application almost two years later on 13.07.2017 and as such, it is wholly barred by Limitation. Apart from that, in any event, without notice to the affected party, viz., the Writ Petitioner, the delay could not have been condoned, by exercising the power under Section 80-A of the Act.
10.The core contention advanced on behalf of the Petitioner is that the whole action initiated against the illegal construction put up by the 4th Respondent (at the instance of the Petitioner - Being directly affected by it), as an adjacent owner of the property and therefore, the impugned order dated 24.07.2017 passed by the 3rd Respondent is liable to be set aside by this Court in the interest of Justice.
11.Lastly, it is the submission of the Learned Counsel for the Petitioner that the order of the 3rd Respondent dated 24.07.2017 cannot be construed as permitting another construction and in the instant case, the 4th Respondent had trespassed into the land of the Petitioner and thereby committed violation in question.
12.Per contra, it is the submission of the Learned Counsel for the 4th Respondent that by raising the public fund, the vacant land in T.S.No.1425, Thanjavur Town was purchased on 19.06.2008 as per registered sale deed Document No.3492/2008 and it was the proposal of the Trust to construct a residential building to accommodate the Trainees and Instructors and also to conduct the Yogo classes and training programs from the said premises itself. Therefore, an appropriate application was submitted before the 2nd Respondent/Commissioner, Thanjavur Municipal Corporation, Thanjavur seeking for planning permission to construct a residential building comprising of ground and 1st floor and by means of proceedings dated 17.06.2011, the 2nd Respondent granted planning permission as well as building licence for the construction. Although the planning permission was obtained by the 4th Respondent, the construction work could not be commenced immediately due to financial crunch and after mobilising necessary public funds only by June 2014, the construction activity commenced and the constructions were well within the plot of the 4th Respondent.
13.The Learned Counsel for the 4th Respondent points out that the Petitioner filed a police complaint before the Thanjavur West Police Station and the Assistant Commissioner of Police inspected the respective plots and he advised for the conduct of re-survey and on 20.08.2014 in the presence of Assistant Commissioner of Police, the 4th Respondent's Trustees, the Petitioner and his son and all other connected parties, the Town Surveyor of the 2nd Respondent/ Corporation surveyed the entire land and the 4th Respondent's boundary was earmarked. To the dismay of the 4th Respondent, the land left in their possession was found to be lesser than 1,433 sq. ft. then what they have purchased as per sale deed dated 19.06.2008. Therefore, the plea taken on behalf of the 4th Respondent is that the Petitioner had encroached their land. Later, the construction work commenced on 21.08.2014 and on the said date, the Petitioner along with his son, again created unwanted problems and the workmen engaged by the 4th Respondent were abused and they made an attempt to assault the workers and therefore, a police complaint was lodged on 21.08.2014 against the Petitioner. In fact, the Petitioner and his son were severely warned by the Assistant Commissioner of Police and they were advised not to interfere with the construction activities of the 4th Respondent.
14.It comes to be known that the Writ Petitioner had filed a Civil Suit in O.S.No.300 of 2014 on the file of the District Munsif Court, Thanjavur seeking the relief of permanent injunction restraining the 4th Respondent from threatening with his peaceful possession and enjoyment of Survey No.1426 and an I.A.No.746 of 2014 was filed seeking the relief of temporary injunction and after elaborate trial, the interim order was not granted, but, as on date, the said suit is pending.
15.Apart from that, the Writ Petitioner is an Encroacher and in fact, based on the complaints of the Petitioner, the 2nd Respondent issued a notice dated 26.08.2014 as per Sections 274(1) and 284 of the Tamil Nadu District Municipalities Act, 1920 on the ground that as if the construction of the 4th Respondent is without permission and that an appropriate reply was furnished by the 4th Respondent to the 2nd Respondent citing the original planning permission dated 17.06.2011 and a request was made for extension of building license for more than one year. However, the 2nd Respondent took a plea that the building license was issued on 17.06.2011, is only for a period of three years and as per the provisions of the Corporation Act, there is no scope for extension of building license and that the 4th Respondent is to apply once again afresh. In the meanwhile, the 2nd Respondent/Commissioner, Thanjavur Municipal Corporation issued a further notice dated 11.05.2014 under Section 56 of the Tamil Nadu Town and Country Planning Act, 1971 to lock and seal the premises on the ground that the construction of the 4th Respondent is an unauthorised one and there is no open space reservation violation. Under these circumstances, the 4th Respondent had filed a fresh application on 12.05.2015 and paid the requisite license fee and a request was made to the 2nd Respondent to grant the building license fresh. However, the 2nd Respondent, without considering the fresh application of the 4th Respondent dated 12.05.2015, had locked and sealed the premises of the 4th Respondent on 10.06.2015.
16.Questioning the action of the 2nd Respondent in locking and sealing of the 4th Respondent's premises, the 4th Respondent laid a Civil Suit in O.S.No.322 of 2015 on the file of the District Munsif Court, Thanjavur and also filed an Interlocutory Application I.A.No.788 of 2015 seeking for temporary injunction to remove the said lock and seal and after elaborate trial, the said I.A.No.788 of 2015 in O.S.No.322 of 2015 was dismissed by the trial Court on the basis that as per Section 101 of the Tamil Nadu Town and Country Planning Act, 1971, no Civil Suit is maintainable. However, the said Suit is pending as on date.
17.The Learned Counsel for the 4th Respondent submits that based on the legal advise, the 4th Respondent filed an Appeal under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971 and the 3rd Respondent, after due enquiry, came to the conclusion based on the undertaking of the 4th Respondent that the ground floor alone shall be used for yogo and meditation class and directed the 2nd Respondent to deseal the 4th Respondent's building for a period of six months to rectify the defects. Assailing the order dated 24.07.2017 passed by the 3rd Respondent, the Writ Petitioner has filed the present Writ Petition.
18.It may not be out of place for this Court to make a useful reference to paragraph 4 of the order dated 24.07.2017 passed by the 3rd Respondent/Secretary to Government, Housing and Urban Development Department, Chennai - 600 009 which runs as under:
4.After careful examination of the submission made by the appellant, it is observed that the building is complying with the residential building norms and the Ground Floor alone was being used for Yoga classes. The total built up area seems to be less than 1000 sq.ft. and yoga and mediation activities upto 300 sq.ft. are allowed in residential buildings. Hence, I am to request you to deseal the building for a period of six months to rectify the defects, with the condition that during the period of rectification, the building should not be used for occupation or habitation purpose.
19.In view of the fact that the 3rd Respondent in the impugned order had clearly mentioned that the total built up area of the 4th Respondent seems to be less than 1000 sq.ft. and yoga and meditation activities upto 300 sq.ft. are allowed in residential buildings, the 3rd Respondent had requested the Commissioner of Town and Country Planning, Chenani 2 to deseal the building for a period of six months to rectify the defects, with a condition that during the period of rectification, the building should not be used for occupation or habitation purpose.
20.In view of the above, this Court directs the 2nd Respondent /Commissioner, Thanjavur Municipal Corporation, Thanjavur to deseal the building of the 4th Respondent till 15.06.2018 and during the interregnum, the 4th Respondent shall not use the building in question for occupation or habitation purpose and it is abundantly made clear that the 4th Respondent/Trustee can only utilise the building for rectification purpose only, provided the 4th Respondent obtains a fresh plan duly approved by the 2nd Respondent/ Competent Authority. It is abundantly made clear that only after obtaining the building completion certificate from the 2nd Respondent/Commissioner, Thanjavur Municipal Corporation, Thanjavur, the 5th Respondent shall give permanent electricity connection to the 4th Respondent, of course, after payment of necessary charges.
21.That apart, this Court while disposing of the above Writ Petition, leaves open the issue in regard to the entertainment of an Appeal under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971.
22.With the aforesaid observations and directions, the Writ Petition stands disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
(M.V., J.) (S.V.N., J.)
31.01.2018
Speaking Order
Index :Yes / No
Internet :Yes / No
Sgl
To
1.The Member Secretary,
Town and Country Planning Authority,
33, 4th Street, Rajappa Nagar,
Thanjavur.
2.The Commissioner,
Thanjavur Municipal Corporation,
Thanjavur.
3.The Secretary,
Government of Tamil Nadu,
Housing and Urban Development Department,
Secretariat, Fort St. George,
Chennai 600 009.
4.The Assistant Engineer,
Thanjavur TANGEDGO,
Court Road, Thanjavur.
5.The Government Advocate,
High Court, Madras.
M.VENUGOPAL, J.
and
S.VAIDYANATHAN, J.
Sgl
W.P.No.24376 of 2017
31.01.2018