Madras High Court
V.Ravishankar vs The Commissioner on 27 April, 2015
Author: M.Venugopal
Bench: Satish K. Agnihotri, M.Venugopal
In the High Court of Judicature at Madras
Dated: 27.04.2015
Coram:
The Hon'ble Mr.Justice SATISH K. AGNIHOTRI
and
The Hon'ble Mr.Justice M.VENUGOPAL
W.P.No.8962 of 2015 and
M.P.Nos.1 and 2 of 2015
V.Ravishankar ..Petitioner
Vs.
1. The Commissioner
Corporation of Chennai,
Rippon Building, Chennai
2. The Junior Engineer,
Corporation of Chennai,
Sector 10, K.K.Nagar,
Chennai 78.Div 137, Zone 10,
3. Malliga Sridhar
4. S.Rajalakshmi ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Mandamus, directing the 1st and 2nd Respondents to take action against the 3rd and 4th respondents in putting up construction in 860 sq. ft vacant site situated in between the house of the petitioner and his brother (late) Ramesh at Plot No.331 door no.15, Alagirisamy salai, K.K.Nagar, Chennai 78, being NOT in accordance with TN Town and Country Planning Act 1971 (as amended by act 61 of 2008) under Sections 56, 57 r/w Section 85 and consequently to direct the 1st and 2nd Respondents to inspect the site of the 3rd and 4th respondents and to seal the premises and property, directing to demolish the illegal and unapproved constructions and illegal deviations raised by the 3rd and 4th Respondents.
For Petitioner : Mr.Kalayanasundaram
Senior Counsel for
Mr R.Vasudevan
For Respondent
Nos.1 and 2 : Mr.G.Anantharangan
For Respondent
Nos.3 and 4 : Mr.K.Chandrasekaran
O R D E R
[Order of the Court was delivered by M.VENUGOPAL, J.] The petitioner has focused the present Writ Petition praying for passing of an Order by this Court in directing the Respondents No.1 and 2 to take action against the Respondents No.3 and 4 in accordance with the TN Town and Country Planning Act, 1971 (As amended by Act 61 of 2008) under Sections 56 and 57 r/w Section 85. Further, he has sought for consequential directions being issued to the Respondents to inspect the site of the Respondents No.3 and 4 and to seal the premises and property and to demolish the illegal, unapproved constructions and the illegal deviations.
2.According to the Petitioner, the entire property comprised in Survey No.284 part and 282 part situated in Virugambakkam at Plot No.331, Door No.15, measuring Two grounds and Five Hundred Sq.Ft. was purchased by one R.Venkatraman out of his earning through registered Sale Deed bearing Document No.2688 of 1987 on the file of Sub-Registrar, Virugambakkam. Further, on 27.08.1998, the said R.Venkatraman died intestate leaving behind his wife, Mrs.Mohans Venkatraman, his two sons, viz., V.Ravishankar, V.Ramesh and daughter Mrs. Malika Sridhar as his legal heirs.
3.Later, the legal heirs of R.Venkatraman filed a partition suit vide C.S.No.773 of 2007 on the file of this Court and ultimately the property was partitioned among the legal heirs by means of filing a compromise memo through Application No.4854 of 2010 and accordingly on 03.09.2010, in terms of the Compromise Decree, the Petitioner, the 3rd Respondent and other legal heirs had partitioned the property.
4.Subsequently, the entire property of 5,300 Sq.Ft. with building was later demolished in three plots and the Petitioner was allotted an extent of 2,150 Sq.Ft., V.Ramesh (Petitioner's elder brother) was allotted an extent of 1,590 Sq.Ft., and the 3rd Respondent was allotted an extent of 860 Sq.Ft with common passage of 700 Sq.Ft., exclusively for the Petitioner, 3rd Respondent and V.Ramesh as more fully mentioned as per the sketch submitted by the Advocate Commissioner.
5.The schedule of the property is an ancestral one and that the Petitioner and other legal heirs of deceased R.Venkatraman viz., V.Ramesh and the 3rd Respondent are in possession and enjoyment of the property proportionately allotted and that he and Ramesh had put up construction of residential house in accordance with Law.
6.Later, after negotiation between the Petitioner and the 3rd Respondent and upon oral instruction and understanding as recorded in the E-mail dated 10.06.2014 exchanged between the Petitioner and the 3rd Respondent's husband, viz., B.Sridhar, the vacant plot of 860 Sq.Ft., belonging to 3rd Respondent lying vacant in the middle portion of the property in between the Petitioner and V.Ramesh shall not be sold to any third party without giving an option and offer to buy either to the Petitioner or to V.Ramesh, as the 3rd Respondent had settled down at Bangalore and working in abroad.
7.It appears that on enquiry, the 4th Respondent informed the Petitioner's wife that she had obtained the Power of Attorney to develop the property and gave a copy of POA dated 22.08.2014 through Document No.15641 of 2014 registered on the file of SRO, Virugambakkam, Chennai in violation of undertaking by the 3rd Respondent's E-mail dated 10.06.2014 to sell 860 Sq.Ft. of land to the Petitioner, therefore, the Petitioner with leave of the Court filed a Suit in O.S.No.1368 of 2015 before the VII Assistant Judge, City Civil Court, Chennai seeking a direction not to encumber the suit property to any third party or put up any illegal construction pending disposal of the suit.
8. While that being so, 4th Respondent, who is running a beauty parlour in K.K.Nagar, being the Power of Attorney attempted to construct a commercial building in the suit mentioned schedule property situated in the residential area and started for putting the pillar on 22.02.2015 by flouting all safety norms, rules and regulations. Soon, the Petitioner lodged the complaint before the K.K.Nagar Police to safeguard and protect the Petitioner and V.Ramesh's property, as it may cause serious damages to the adjacent property as well and also to the life and limbs of the Petitioner/Plaintiff and the 2nd Respondent/Defendant. The police after inspecting the site, issued the CSR to the Petitioner/Plaintiff, but, advised him to approach the Corporation of Chennai and the Court of Law for an appropriate remedy.
9.It is to be noted that the Petitioner lodged an objection before the Respondents No.1 and 2 (Statutory authorities) to grant planning permission for construction. Further, as per the Rules of the Corporation, the planning permission shall not be accorded if the property measures 860 Sq.Ft. area or less, thus the possibility of obtaining the planning permission is very remote. Also, in the present case, a 'No objection' from neighbours is mandatory.
10.The petitioner inspite of approaching the 1st and 2nd Respondents through letter dated 23.02.2015 seeking immediate action against the Respondents No.3 and 4 for the illegal construction of multi storied commercial building in 860 Sq.Ft of residential premises, the 4th Respondent in gross violation of law is continuously going on with the illegal constructions at a whims and fancies. As a matter of fact, the 4th Respondent on behalf of the 3rd Respondent is continuously raising the building and the work in under rapid progress.
11.The prime submission of the Learned Counsel for the Petitioner is that the construction of the Respondents No.3 and 4 are not in accordance with the Rules framed under the Tamilnadu Town and Country Planning Act, 1971 etc.,
12.The Learned Counsel for the Petitioner contends that the 3rd and 4th Respondents cannot be permitted to put up illegal constructions contrary to the Tamilnadu Town and Country Planning, Act, 1971 Rules of the Corporation of Chennai, Rules of CMDA and as such the illegal constructions are to be demolished.
13.On behalf of the Respondents No.1 and 2, the Learned Counsel submits that the 1st Respondent/Corporation of Chennai had already filed para-wise remarks in the suit in O.S.No.1368 of 2015 before the learned VII Assistant Judge, City Civil Court, Chennai and that the house owner had obtained a planning permission vide PPA 6652/2014 and B.A.no.410/2015 dated 09.02.2015 for construction of slit + 2 floors and work was started at Plot No.331, Door No.5, Alagirisamy Salai, K.K.Nagar, Chennai - 78 and completed up to basement level. As such, as on date, there is no deviation found on the construction.
14.The Learned Counsel for the 1st and 2nd Respondents contends that the building owner had obtained a valid planning permission vide PPA No.6652/2014 and B.A.No.410/2015 dated 09.02.2015 to construct slit + 2 floors and the work had begun and completed up to basement level. Further, it is represented on behalf of the Respondents No.1 and 2 that only after raising the construction the authorities are to watch it and find out any deviations are unauthorised. Moreover, it is the plea of the Respondents No.1 and 2 that as per DCR Rules, neighbours 'No Objection Certificate' is not a mandatory one.
15.In short, the argument of the Learned Counsel for the Respondents No.1 and 2 is that the 4th Respondent had obtained a valid sanction plan in PPA No.6652/2014 and B.A. 410/15 dated 09.02.2015 to construct stilt + 2 floors and the construction up to the basement level have been completed and the same is not an illegal construction.
16.In response, the Learned Counsel for the Respondents 3 and 4 contends that the Petitioner had happily put up residential house without any set back in the whole of the allotted area on 2150 Sq.Ft., without any setback whatsoever. Further, he had let out the 1st Floor portion to a commercial concern and thereby had violated the planning permit. That apart, it is also stated on behalf of the Respondents No.3 and 4 that the other sharer viz., V.Ramesh had put up residential house in the whole of the area without observing the Rules and Regulations.
17.The Learned Counsel for the Respondents 3 and 4 proceeds to contend that the 4th Respondent had obtained a planning permission in PPA No.6652 and BA No.410/2015 dated 09.02.2015 for construction of stilt (ground) + 2 floors and that the work had started on 22.02.2015 and had reached just above basement level with eight pillars. In short, there is no deviation and there are no illegal constructions also.
18.The Learned Counsel for the Respondents 3 and 4 emphatically submits that the 4th Respondent is having valid planning permit and unless the same is set aside or cancelled in the manner known to law, the filing of the present Writ Petition by the Petitioner is no per se maintainable in law.
19.On a careful consideration of the respective contentions and also this Court taking note of a very vital stand projected on the side of the Respondents No.1 and 2 to the effect that as on date there is no deviation found on the construction made by the 3rd Respondent and that so far the work, which was completed up to (basement) level is in order, comes to a resultant conclusion that at this stage, the Writ Petition filed by the Writ Petitioner is a premature and an otiose one. However, this Court bearing in mind the plea taken on behalf of the Respondents No.1 and 2 that only after the 3rd Respondent raising the construction, one has to find out the deviations/unauthorised construction if any, disposes of the present Writ Petition by granting liberty to the Petitioner to question the validity of approval granted by the Corporation of Chennai, to the Petitioner, in the manner known to law and in accordance with Law, if he so desires/advised. Consequently, connected miscellaneous petitions are closed. No costs.
[S.K.A., J.] [M.V., J.]
27.04.2015
Index:Yes/No
Internet:Yes/No.
ssd
SATISH K. AGNIHOTRI, J.
and
M.VENUGOPAL, J.
ssd
To
1. The Commissioner
Corporation of Chennai,
Rippon Building, Chennai
2. The Junior Engineer,
Corporation of Chennai, Div 137,
Zone 10, Sector 10, K.K.Nagar,
Chennai 78
W.P.No.8962 of 2015 and
M.P.Nos.1 and 2 of 2015
27.04.2015