Madras High Court
Mahavir Chand Kothari vs The Chairman on 18 September, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON:18/12/2014
DATED: 18/09/2015
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.11422 of 2014
Mahavir Chand Kothari ... Petitioner
Vs.
1.The Chairman,
Tamil Nadu Electricity Board,
Anna Salai, Chennai.
2.The Assistant Executive Engineer,
Tamil Nadu Electricity Board,
O & M / Oragadam,
Ambattur CEDC/West,
Ambattur, Chennai.
3.The Member Secretary,
State Level Environment Impact Assessment,
Panagal Maligai, 3rd Floor,
Jennis Road, Saidapet,
Chennai-600 015.
4.The Member Secretary,
Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Maligai,
Egmore, Chennai-600 008. ... Respondents
(R4 impleaded as per order dated 30.04.2014
in M.P.No.1 of 2014 in W.P.No.11422 of 2014)
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for a Writ of Mandamus, to direct the respondents 1 and 2 to provide electricity connection without insisting completing certificate from the CMDA for the Mangamal Moon Light, Residential Complex at Thirumullaivoyal, Ambattur, Thiruvallur District comprised in S.F.Nos.512/1A 4A, 512/1A 4B and 1A 47, 1A 48 etc.
For Petitioner : Mr.V.Udayakumar
For Respondents : Mr.P.R.Dilipkumar for R1 and R2
Ms.P.Mahalakshmi for R3
(No appearance for R4)
- - -
O R D E R
The petitioner submits that he has entered into a joined Development Agreement with one Mr.R.Mannappan on 30.10.2007, to construct residential complex in the name of Mangalam Moon Light comprised in S.F.Nos.512/1A 4A, 512/1A 4B and 1A 47, 1A 48 etc in Thirumullaivoyal, Ambattur, Thiruvallur District. The petitioner further submits that for the construction of the above said complex, he has proposed to invest amount in the ratio 38:62 ratio between landowner and the petitioner and they have paid refundable interest free advance of Rs.2 Crores to the landowner. The petitioner further submits that for the said constructions they have applied for Planning Permission before the CMDA on 17.09.2010, for which, the CMDA granted planning permission dated 22.12.2011 and the same is expired on on 22.12.2014. The petitioner further submits that for the above said planning permission, they have paid Rs.2,40,000/- to the CMDA vide challan No.3022, dated 08.11.2011. The petitioner further submits that they have paid land tax Rs.2,48,478/- for the assessment year 2009-2013 to the Avadi Municipality on behalf of R.Mannappan landowner, for which, the Avadi Municipality has issued an order in favour to the petitioner on 31.05.2012 and the same be expired on 21.12.2014.
2. The petitioner further submits that they have submitted an application to the third respondent on 02.12.2013 to issue environmental clearance for the construction of the said Residential complex. The petitioner further submits that to obtain environmental clearance for the proposed residential complex from the third respondent, they have paid Rs.2,00,000/- towards application and security fees on 18.11.2011. The petitioner further submits that they have paid a sum of Rs.29,10,350/- to the second respondent vide receipt dated 10.12.2013 and 19.12.2013 respectively towards electricity connection charges. The petitioner further submits that they have constructed the above said residential complex as per the order of CMDA plan approval without any deviation and within the permissible deviation. The petitioner further submits that they have obtained planning permission from CMDA, NOC from Fire Service and Avadi Municipality and they are awaiting NOC from Environmental Authority. The respondents 1 and 2 are insisting for the completion certificate to provide EB connection. The petitioner already completed water and sewerage plant. The petitioner further submits that he is ready to produce the Completion Certificate as soon as he receives it from the CMDA. If the EB Connection is not provided, the petitioner is unable to face and answer to the consumers, who already purchased the flats. Hence, the petitioner entreats the Court to allow the above writ petition.
3. The respondents 1 and 2 have filed a counter affidavit and resisted the above writ petition. The respondents submit that 197 applications were received from the residents of Mangalam Moon Light Residential Complex on 12.11.2013 and processed the application by sanctioning estimate to install two numbers of 250 KVA distribution transformer and one number of 500 KVA distribution transformer on 07.12.2013 and subsequently, the said dwellers of the said Mangalam Moon Light Residential Complex was issued notice to deposit the estimated amount and after the estimated amount was deposited, the said transformer was erected in the petition premises on 27.02.2014. The respondents 1 and 2 submit that since there was a statutory requirement of NOC / Completion Certificate from CMDA to effect the service connection in the petition premises through the above said distribution transformers, the second respondent herein issued notice to the said dwellers to produce the Completion Certificate from the CMDA so as to effect the service connection in the petition's premises through the said erected distribution transformers.
4. The respondents 1 and 2 further submit that pursuant to the order of the Hon'ble First Bench, a High Level Committee had been constituted and as per the recommendations of High Level Committee, the electricity service connection shall not be granted without the production of the Completion Certificate / No Objection Certificate from CMDA in case of a special building and multi storied building and consequent to the recommendation of the High Level Committee, the Development Control Rules has been amended and as per the amended provisions of the Development Control Rules, the electricity service connection shall not be granted without the production of Completion Certificate obtained from the CMDA in case of special building and multi-storied building and hence in the case of the above writ petitioner, the electricity service connection shall not be granted without the production of Completion Certificate obtained from the CMDA as the petitioner's building is multi storied building consisting of stilt + 4 floors with 197 dwelling units for which the writ petitioner had secured the planning permission from CMDA, the third respondent herein for the said residential buildings and hence, the writ petitioner was given notice to submit the Completion Certificate obtained from CMDA since the said building is categorized as special building and multi-storied residential buildings as per the Regulation 27(16)(a) of the Distribution Code 2004. The respondents further submit that without submitting proper application along with the necessary required documents and Completion Certificate from CMDA and as per the Regulation 27(16)(a) of the Distribution Code, there is no merits in the above writ petition. Hence, the first and second respondents entreat the Court to dismiss the above writ petition.
5. The third respondent has filed a counter affidavit and resisted the above writ petition. The third respondent submits that the petitioner has started the construction without obtaining Environmental Clearance from the State Level Environment Impact Assessment Authority (SEIAA) which attracts violation and punishable under the provisions of the Environmental (Protection Act) 1986, and moreover, the amount of Rs.2,00,000/- paid by the petitioner is only a processing fee towards processing the proposal and not for issuance of Environmental Clearance. The third respondent further submits that the site photographs furnished along with the application clearly shows, that the project proponent have almost completed the building construction. The State Level Environment Impact Assessment Authority while processing the said application had made out the violations and the third respondent issued proceedings herein in letter dated 04.12.2013 had stated that "wherein it has imposed certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the Schedule to the notification, being undertaken in any part of India, unless prior environmental clearance has been accorded in accordance with the objectives of National Environment Policy and further stated that activity towards the project implementation without obtaining prior Environmental Clearance is a cognizable offence under Section 19 of the Environmental (Protection Act) 1986 and it is also liable to punishment for contravention of provision of the said Act and the Rules or Orders and Directions under Sections 15, 16 and 17 of the said Act and issued directions to the proponent not to commence any activity other than cleaning the site, fencing the site and putting on temporary structure along with basic facilities like water and toilet supply made as temporary arrangements.
6. The third respondent further submits that the proponent also informed the Authority vide letter dated 18.06.2014 to withdraw the appeal, since the total built up area is less that 20000 m2, the Avadi Municipality also confirmed the total built up area of the proposal being 18699.96 m2 including FSI by non FSI area vide letter dated 14.08.2014. Based on this, the State Level Environment Impact Assessment Authority has issued a letter dated 27.08.2014 and informed that this proposal does not come in the purview of EIA Notification 2006 and its subsequent amendments. Since the built up area is reported as less than 20,000 m2, the same was also discussed vide subject No.5 in 114th Authority meeting held on 10.10.2014 and Authority decided to close and record this proposal.
7. The third respondent further submits that as per the Environmental (Protection) Act 1986, the authorities are vested with the powers to issue directions in case of violation under Section 5(b) of Environmental (Protection) Act 1986 "notwithstanding anything contained in any other Law, but subject to the provisions of this Act, the Central Government may in the exercise of its powers and performances of its functions under this Act, issuing directions to any person, officer or authority shall be bound to comply with such directions.
"(a) The closure, prohibition or regulation of any industry, operation or process; or
(b) Stoppage of regulation of the supply of electricity or water or any other service. Thus the action to prosecute the proponent for having violated the Environmental (Protection) Act 1986 is under process and therefore stoppage of power supply to the proponent without obtaining Environmental Clearance is valid and the proponent cannot claim for the power supply as a matter of right."
Hence, the third respondent entreats the Court to dismiss the above writ petition.
8. The highly competent counsel Mr.V.Udayakumar appearing for the petitioner submits that the petitioner has constructed residential complex in the name of Mangalam Moon Light comprised in S.F.Nos.512/1A 4A, 512/1A 4B and 1A 47, 1A 48 etc. at Tirumullaivoyal, Ambattur. The petitioner has applied for planning permission with the CMDA and the same was granted by their proceedings dated 22.12.2011. The petitioner also remitted tax to the Avadi Municipality. The petitioner has submitted an application to the State Environment Department and the same was processed. Further, the petitioner also has paid a sum of Rs.29,10,350/- towards electricity connection charges to the second respondent. The petitioner has constructed the residential complex as per the plan sanctioned by the CMDA. Further, the petitioner had remitted necessary mandatory taxes to the statutory authorities. After completing the construction, the residential portions have not been delivered to the customers. The first and second respondents are insisting to produce no objection certificate from fire station, Avadi Municipality and CMDA to provide electricity service connection. Hence, the highly competent counsel entreats the Court to give directions to the first and second respondents to provide electricity service connection without insisting on completion certificate from the CMDA for his residential complex.
9. The highly competent counsel Mr.P.R.Dilipkumar appearing for the first and second respondents submits that 197 applications were received from the residents of Mangalam Moon Lights Residential Complex on 12.11.2013 and the applications were processed by sanctioning estimate to install two numbers of 250 KVA distribution transformer and one number of 500 KVA distribution transformer on 07.12.2013. Subsequently, notice was issued to the dwellers, to deposit the estimate amount and the same was deposited. Thereafter, transformer was erected in the petitioner premises on 27.02.2014 The highly competent counsel further submits that to effect the service connection in the petitioner premises, there was a statutory requirement of production of no objection certificate / completion certificate. The second respondent, who is the competent authority has issued notice to the said dwellers to produce the completion certificate from the CDMA, so as to effect the service connection in the petitioner premises through the erected distribution transformers. Further, as per the order of the Hon'ble Division Bench of this Court, a High Level Committee has been constituted and the said committee recommended that the electricity service connection shall not be granted without the production of completion certificate from the CMDA in case of Special Building and multi storied building. The petitioner's building is a multi storied building and therefore, he has to produce completion certificate from the CMDA. Hence, notice was issued to the petitioner to produce completion certificate. The said building consists of Stilt + 4 floors and there are 197 dwelling units. Hence, the highly competent counsel entreats the Court to treat the notice issued to the petitioner as valid.
10. The highly competent counsel Ms.P.Mahalakshmi appearing for the third respondent submits that the petitioner had not obtained prior environmental clearance, which is mandatory, whereas the petitioner has completed the construction without environmental clearance. After completion of the construction, the petitioner submitted an application to the third respondent for issuance of environmental clearance. The petitioner has remitted a sum of Rs.2 Lakhs as processing fee. The highly competent counsel further submitted that the petitioner had started the construction without obtaining environmental clearance. As such, he is violating the provision of the Environmental (Protection Act) 1986. The petitioner has committed an offence of constructing a building without obtaining prior environmental clearance. Therefore, he is not entitled to get any relief from the Government, for getting electricity service connection. Therefore, the non providing of electricity supply without obtaining environmental clearance is valid. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition.
11. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on all sides and on perusing the typed-set of papers, it is seen from the counter statement filed by the third respondent / Environmental Department that the petitioner has constructed multi-storied building without getting prior environmental clearance which is mandatory under the Environmental (Protection Act) 1986. As such, the petitioner has not followed the Rules. Further, the building is a multi-storied building and therefore, the second respondent had issued notice to the dwellers to produce no objection certificate from the CMDA. The said notice is valid under law and it is under process. Under the circumstances, this Court does not find any merits in the above writ petition to allow it and hence, the above writ petition is dismissed. There is no order as to costs.
18/09/ 2015
Index : Yes.
Internet : Yes.
r n s
To
1.The Chairman,
Tamil Nadu Electricity Board,
Anna Salai, Chennai.
2.The Assistant Executive Engineer,
Tamil Nadu Electricity Board,
O & M / Oragadam,
Ambattur CEDC/West,
Ambattur, Chennai.
3.The Member Secretary,
State Level Environment Impact Assessment,
Panagal Maligai, 3rd Floor,
Jennis Road, Saidapet,
Chennai-600 015.
4.The Member Secretary,
Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Maligai,
Egmore, Chennai-600 008.
C.S.KARNAN, J.
r n s
Pre Delivery Order made in
W.P.No.11422 of 2014
18/09/2015