Madras High Court
Muthujothi vs The Empowered Committee on 27 July, 2018
Bench: M.Duraiswamy, Anita Sumanth
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 19.07.2018 DELIVERED ON : 27.07.2018 Dated: 27.07.2018 CORAM THE HONOURABLE MR.JUSTICE M.DURAISWAMY and THE HONOURABLE DR.JUSTICE ANITA SUMANTH W.P(MD)No.6027 of 2018 and W.M.P(MD)Nos.5900 to 5902 of 2018 Muthujothi ... Petitioner Vs. 1.The Empowered Committee, Represented by its Chairperson cum Principal Secretary to Govt. Housing and Urban Development Dept, Govt. of Tamilnadu. 2.The Deputy Director, Town and Country Planning, Sivagangai Zone, 430, Gandhi Street, Sivagangai. 3.Nirupa Rajan Life Care Hospitals, Represented by its Owner Dr.S.Anand ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records of the 1st respondent in impugned approval dated 07.02.2018 (Extract of minutes of the meeting dated 07.02.2018) and consequently directing the respondents to demolish the illegal construction made by the 3rd respondent in Melkarai By-pass Road, Manamadurai Town and Taluk, Sivagangai District within stipulated time. !For Petitioner :Mr.Elephant Rajendran for Mr.RM.Arun Swaminathan ^For R-1 & R-2 :Mr.A.K.Baskarapandian, Special Government Pleader For R-3 :Mr.T.Lajapathi Roy :ORDER
This writ petition challenges an approval of the first respondent dated 07.02.2018 and a consequential direction to the respondents to demolish the allegedly illegal construction made by the third respondent of a hospital constructed by it in Melkarai By-pass Road, Manamadurai Town and Taluk, Sivagangai District.
2. Mr.Elephant Rajendran, learned counsel appears for Mr.RM.Arun Swaminathan, learned counsel for the petitioner, Mr.Baskarapandian, learned Special Government Pleader appears for respondents 1 and 2 and Mr.Lajapathi Roy, learned counsel appears for the third respondent.
3. The petitioner is a resident of Melkarai by-pass in the vicinity of which the third respondent has constructed a hospital building. According to Mr.Rajendran, learned counsel appearing on behalf of the petitioner, the construction of the hospital is without required approvals and sanctions. The submissions of Mr.Rajendran are as set out below:
(i)He first states that the third respondent hospital is a ?multi-
storied? building. According to him, the construction of Ground plus five (5) floors is entirely illegal insofar as the sanction obtained in terms of Section 197 of the Tamilnadu District Municipalities Act, 1920 for construction of Ground plus two (G + 2) floors has been granted by the Executive Officer, Selection Grade Town Panchayat, who is not empowered to grant the same. All subsequent proceedings including the present approval of the Empowered Committee are consequently vitiated.
(ii) Our attention is then drawn to a counter said to be filed by the official respondent in W.P(MD)No.18594 of 2017, where at paragraph 3, there is reference by the District Collector and the Deputy Director, Town and country planning to the approval granted by the Executive Officer for construction of 5985 sq.ft in land admeasuring 13,952 sq ft in the following terms:
?..3.It is humbly submitted that this 4th respondent constructed G + 3 building in S.No.73/2D2. And the 4th respondent constructed the building by obtaining plan approval from Executive Officer, Selection Grade Town Panchayat as per building plan approval No.151/11-12 dated 16.11.2011 and the condition to construct the building on or before 15.12.2014. The above approval given to construct 5985 sq. ft. in the total land of 13952 sq. ft. In fact, the local authority is having power to grant approval for the building G +1 to the extent of 2000 sq. ft. all commercial building and 4000 sq. ft. residential building. And the Local Authority don?t have power to give approval to the public building. This subject matter of the building is a public building for which the Local Planning Authority is the competent authority to grant approval. Hence, the approval given by the Local Authority is not valid in the eye of law?.?
According to the counter, the subject matter of the plan that was sanctioned is a public building for which only the local planning authority is competent to grant approval. Thus, according to the petitioner, the official respondent has itself stated that the construction is illegal and unauthorized.
(iii) His third submission is to the effect that the construction of the hospital is upon the banks of the River Vaigai and is adjacent to a cemetery. As such, he would question the sanction accorded for construction, both on the grounds of positioning of the hospital proximate to unhygienic surroundings as aforesaid as well as for the reason that it runs contrary to the provisions of law and all applicable rules and regulations
(iv) The unauthorized construction of ground plus five (5) floors cannot be regularized by the Empowered Committee, which only has the power under the Development Control Regulations to regularize violations in planning parameters.
4. Though not specifically argued, the following issues have also been raised in the writ petition:
(i) No proper set back of 6 metres maintained on all sides of the building.
(ii)The building is adjacent to ?Pasalai Kaalvai? a water body, and a 15 metres margin from the water body has not been maintained.
(iii)No parking space provided within the site
(iv)NOC has been obtained from the Sanitary Inspector, Manamadurai instead of the District Health and Family Welfare Officer, who is the proper authority to issue NOC.
(v)Proper corridor of a width of 2.44 metres has not been maintained.
(vi)The hospital is constructed on land classified as agricultural land.
(vii)Foundation laid will not withstand the load of the multi-storied building.
5.Though Mr.Baskarapandian, had entered appearance on behalf of both official respondents, the Empowered Committee (first respondent) as well as the Deputy Director of Town and Country Planning (second responfdent), no counter has been filed by the former and it is only the Deputy Director who has filed a counter to the writ petition. The third respondent hospital has also filed a counter. No reply has been filed by the petitioner to the counters filed.
6. The present writ petitioner sought information from the second respondent under the Right to Information Act on 13.04.2016 in relation to whether the third respondent had constructed a five storied building as a hospital. By proceedings dated 09.05.2017, the second respondent appears to have replied that the third respondent has not obtained permission for construction of a five floored hospital. This was followed by a representation by the petitioner to the District Collector on 17.07.2017 calling upon the District Collector to demolish the illegal construction.
7.The petitioner has earlier approached this Court in W.P(MD)No.18594 of 2017 seeking a direction from this Court for demolition of the third respondent hospital. During the pendency of the writ petition, the order impugned in this writ petition came to be passed by the Empowered Committee on 07.02.2018 and the writ petition in W.P.(MD)No.18594 2017 came to be disposed of by this Court in the following terms:
??2.In terms of the above, the committee decided to allow the building, subject to the condition to collect penalty at premium emphasized right, in the light of the subsequent development. If the petitioner is aggrieved, necessarily he has to challenge the approval granted by the committee. Though we could have closed the matter, we wish to express our reservation in the manner in which, the Empowered Committee had taken a decision. The most important aspect of any building, more particularly multi-storied building is fire safety. The rule requires No Objection Certificate to be obtained by the proposed developer.
3.Therefore, No Objection Certificate from the fire safety department can never be post facto (ie) after approval but it is a prerequisite.
Unfortunately, the Empowered Committee consisting of highly qualified I.A.S officer have lost sight of this important factor and has granted relief to the fourth respondent on condition to pay penalty at premium FSI rates.
4.The writ petition stands disposed of with aforesaid liberty. No Costs. Consequently, connected miscellaneous petition is closed??
8. Substantial reliance has been placed by the petitioner on the admissions of the official respondents in the aforesaid counter affidavit filed in earlier writ proceedings. Though the petitioner has circulated a signed affidavit styled as a counter affidavit filed by the first and second respondents in that writ petition, the District Collector and the Deputy Director of Town and Country Planning, we note that the document, placed at pages 42 to 46 of the typed set has neither been executed/attested. According to Mr.Baskarapandian, the document was never filed and appears only to be a draft. We thus called for the records of W.P.(MD)No.18594 of 2017 and do not find such counter on file. As such we eschew the aforesaid counter affidavit and consequently all reliance placed by the petitioner upon the same.
9. Mr.Baskarapandian, learned Special Government Pleader appearing for the official respondents highlights that the impugned order dated 17.02.2018 is in line with the applicable provisions of law and that there is nothing illegal or incorrect about the same.
10. The detailed counter has been filed by the Deputy Director, Town and Country Planning to the present writ petition sets out the process followed by the authorities in according sanction explaining and justifying the same.
11. According to Mr.Baskarapandian, the hospital building is categorized as a Special Building as per the Development Control Regulations (in short 'DCR'). It is not a Multi Storied Building as averred by the petitioner and thus, the Rules and Regulations as formulated for and made applicable to Special Buildings would only govern the same.
12. Reliance in this regard was placed upon the definition of 'multi- storied building' in the Multistoried and Public Building Rules 1973, which includes a building with more than three stories or one whose height is more than 15 metres. However, as per Circular in ROC No.3228/2016/BA dated 16.02.2016 issued by the Director of Town and Country Planning, a building comprising Ground plus three (G + 3) floors, as in the present case, (or) stilt + 4 Floors (or) basement + stilt + 4 Floors with a total height of upto 17.25 metres would be considered as a Special Building. The applicable Regulations in this regard are the Development Control Regulations (in short ?DCR?) and connected Circulars.
13. The position thus appears clear to the effect that the third respondent hospital is a Special Building to which the DCR applies and we hold so. We may mention at this juncture that no specific objection or contra argument has been raised by the petitioner in this regard and it is only the affidavit filed in support of the writ petition that avers that the hospital is a multi-storied building placing reliance upon section 12.2.5.1 of the National Building Code, a general pan-India document.
14.According to the counter filed by the official respondents, building plan permission for G + 2 floors has been rightly obtained from the Executive Officer, Manamadurai vide approval dated 16.11.2011(the date of approval as per the document placed on record is 12.12.2011). The counter filed by the second respondent records that the third respondent hospital has obtained planning permission for the building comprising G + 3 floors from the Regional Director (i/c), Sivagangai on 12.03.2018. However, as admitted by Mr.Lajapathy Roy, the third respondent has constructed the third floor of the Hospital unauthorisedly and without any sanction in this regard and the entire construction of the hospital, G + 3 floors including the unauthorized floor has been completed by 2015. It was only thereafter on 27.09.2017 that the Hospital submitted an application for plan permission. The procedure followed by the third respondent in respect of the third floor is thus clearly topsy turvy in so far as the floor has been first constructed and the permission obtained thereafter.
15.The Regional Deputy Director thereafter is stated to have forwarded the violations to the Empowered Committee constituted under the DCR under cover of letter dated 03.01.2018 in Roc.No.2215/2017/SR-2 with her remarks and recommending exemption from violations. The extract of her recommendations as provided in the counter is set out below:
Section Parameter Min Max Provided Violation Violation Result Remarks 3.3.5 Floor Space N.A. 1.75 2.212 0.46 26.29 Not Satisfied The land in Survey No.73/2DI pt to an extent of 379 sq.m was acquired by National Highways, Appellant has submitetd the plan approval for the remaining site area. Hence exemption for violation may be considered 3.3.8 Side 1 set back 6.00 N.A. 1.12 4.88 81.33 Not Satisfied
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3.3.8 Side 2 set back 6.00 N.A. 0.24 5.76 96.00 Not Satisfied A Private Road 7M Wide lieing on the south side of the proposed site may be considered Schedule II Car parking 14 N.A. 2 Nos. 12 Nos. 85.71 10 Car space provided on the off site Survey No.73/2B1A. 2 Car space for the physically Challenged person is proposed in the proposed site.
Exemption for the 2 car space may be considered
16.Upon consideration of the reference made and the remarks of the referring officer, the first respondent proceeds to pass the impugned order, which is in challenge before us.
17. The provisions of section 197 of the Municipalities Act provide for the grant of planning permission for the construction of any building except a hut. Such permission is to be sought for and obtained from the Executive Officer. In the present case, the third respondent has obtained a plan sanction on 12.12.2011 from the Executive Officer for the construction of G + 2 floors. No specific infirmity or violation has been pointed out in regard to the same and we thus hold that the initial plan sanction dated 12.12.2011 for the construction of G + 2 floors is in order. We may point out that the petitioner proceeds on the basis that the building comprises of G + 5 floors which is not factually correct. The admitted position is that the hospital comprises G + 3 floors, of which all floors up to the second floor have been validly authorised and sanctioned.
18. As regards the location of the hospital, Mr.Lajapathi Roy, learned counsel appearing for the third respondent points out that the hospital has not been constructed in violation of any norms or Regulations, environmental or otherwise. Further, according to him, the allegation that the Hospital is built adjacent to a cemetery is factually incorrect as there is a road alongside the hospital, running between the hospital and the cemetery.
19.According to him, this is the only hospital in the vicinity catering to the rural population in and around Manamadurai. Great prejudice and jeopardy would be caused to the public if it were demolished seeing as this is the only hospital in the vicinity that has various modern medical facilities including machines for dialysis.
20. In response, Mr.Rajendran points out the Sivagangai Medical College Hospital is only 25 kms away from the location of the third respondent hospital and the third respondent hospital cannot thus, claim to be the only savior of the people in that region to which Mr.Lajapathi Roy, would retort that there was no comparison in regard to the facilities and equipment available in both places. He argues that the facilities available at the third respondent hospital are far superior than the facilities available in the Sivagangai Medical College Hospital.
21.Learned counsel for the third respondent also raises an objection to the delay in filing the present writ petition pointing out that the same has been filed only in the year 2017, whereas approval was sought and obtained for the construction of Ground plus two floors by the third respondent in the year 2011. The construction of the entire building, G + 3 floors, was completed by the year 2015. Thus, the delay in approaching this Court on the part of the petitioner is fatal and it would vitiate the writ petition and the relief sought therein.
22.In this regard, he relies on three judgments of the Supreme Court in the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat, dated 03.09.1997, R & M Trust v. Koramangala Residents Vigilance Group and Others (2005) 3 Supreme Court Cases 91, D.N.Jeevaraj v. State of Karnataka and others (2016) 2 Supreme Court Cases 653.
23. As regards the legal contention regarding the approval obtained, we are of the view that the original plan approval dated 12.02.2011 issued by the Executive Officer has been properly obtained in view of the discussion above.
24. This does not however cover the construction of the third floor, which has been constructed without a sanction in 2015 and regularized by an order dated 16.03.2018. We will deal with this aspect of the matter presently. As such, there are two challenges in this writ petition - firstly, the challenge to the proceedings of the Empowered Committee dated 07.02.2018 and secondly, the prayer to demolish the unauthorized construction of the hospital.
25. Coming to the first aspect regarding the proceedings of the Empowered Committee, the same addresses violations in G + 2 floors, being the original construction. In this regard, we have found that the provisions of the Development Control Regulations are applicable. The Development Control Regulations were originally framed for the Salem Local Planning area and subsequently, extended to several other areas of the State of Tamil Nadu as well including the area in question. The DCR provides for the regulation of Special Buildings and we have held that the hospital in question is a Special Building.
26. As such, the planning parameters in regard to the third respondent hospital will be governed by Regulation 3 of the DCR. The parameters are eleven in number and relate to minimum plot extent, minimum plot width/frontage, minimum road, maximum height of building, maximum floor space index (FSI), maximum plot coverage, front setback, side setback, rear setback, open space reservation and parking space. In case of deviation in respect of the aforesaid parameters and where there are specific cases of demonstrable hardship, the matters may be referred by the Government to the Empowered Committee at the instance of the Government.
27. In respect of the violations in terms of setbacks to be provided and other conditions that had not been complied with, the third respondent, vide online application dated 02.01.2018, appears to have requested the Director of Town and Country Planning for relaxation of the said violations. The eDCR-Scrutiny Report sets out the following details in regard to the violations as well as those parametres that have been complied with in regard to the construction as per the DCR. As such, the petitioner filed the following application before the Department of Town and Country Planning on 02.01.2018 setting out the details of the parameters in relation to the hospital building and seeking relaxation of those violated:
(SCR-dd/mm/yyyy: Scrutiny no.): SCR-02/01/2018:58239 Application Ref No:201700802025089-32 Parameter list as per DCR Section Parameter Minimum Maximum Provided Violation Violation % Result
3.3.1 Site Extent 892 N.A. 1036 N.A. N.A. Satisfied 3.3.2 Plot Frontage 25 N.A. 33.39 N.A. N.A. Satisfied 3.3 Road Width 9 N.A. 60.00 N.A. N.A. Satisfied Road Type (NH/SH/Ordinary Road) N.A. N.A. National Highway N.A. N.A. N.A. 3.3.4.
Building Height N.A. 17.25 13.24 N.A. N.A. Satisfied 3.3.5 Floor Space Index N.A. 1.75 2.212 0.46 26.29 Not Satisfied 3.3.6 Plot Coverage percentage N.A. 60% 58.06% N.A. N.A. Satisfied 3.3.7 Front setback 7.00 N.A. 0.34 6.66 95.14 Not Satisfied 3.3.8 Side 1 setback 6.00 N.A. 1.12 4.88 81.33 Not Satisfied 3.3.8 Side 2 setback 6.00 N.A. 0.24 5.76 96.00 Not Satisfied 3.3.9 Rear setback 6.00 N.A. 6.00 N.A. N.A. Satisfied 4.5 Residential Corridor 1.5 N.A. Not Provided N.A. N.A. Commercial & Educational Corridor 2 N.A. Not Provided N.A. N.A. N.A. 4.5 Hospital Corridor 2.4 N.A. 2.66 N.A. N.A. Satisfied Schedule II Car Parking Stalls 14 Nos. N.A. 2 Nos. 12 Nos 85.71 Satisfied..2 Not provided..12 Schedule II.1 Two Wheeler Parking Stalls Not required N.A. Not provided N.A. N.A. N.A. Schedule IV (2) (ii) Physically Challenged Car Parking Stalls 2 Nos. N.A. 2 Nos. N.A. N.A. Satisfied..2 Schedule II Part III.2 Vehicular Ramp Slop-One way 1.8 N.A. Not Provided N.A. N.A. N.A. Schedule II Part III.6 Vehicular Ramp Width- One way 3.5 N.A. Not Provided N.A. N.A. N.A. Schedule II Part III.2 Vehicular Ramp Slope-Two Way 1.8 N.A. Not Provided N.A. N.A. N.A. Schedule II part III.6 Vehicular Ramp Width-Two Way 7.5 N.A. Not Provided N.A. N.A. N.A. Schedule IV.3 (i) (a) Physically Challenged Ramp Slope 1.12 N.A. 1.12 N.A. N.A. Satisfied..1 Schedule IV.3(i) (b) Physically Challenged Ramp Width 1.5 N.A. 2 N.A. N.A. Satisfied..1 Schedule IV.3(i) (b) Physically Challenged Ramp-Distance between landings N.A. 9 8.5 N.A. N.A Satisfied..1 Schedule IV.3 (i) (d) Physically Challenged Ramp landing dimension 2*1 N.A. 2.000005*2 0*0 0*0 Satisfied..1 Schedule IV.(2) (i) Physically Challenged Parking Travel Distance N.A. 30 4.38 N.A. N.A. Satisfied..2 Schedule V.1 (b) Rain Water Harvesting Required N.A. Provided N.A. N.A. Satisfied Schedule V.1 (b) RWH System 1.5*1 N.A. 1.50*1.00 N.A. N.A. Satisfied 4.9 Solar System Required N.A, Provided N.A. N.A. Satisfied Schedule I(1) Open Space Reservation Not Required N.A. Not Provided N.A, N.A. N.A. 4.12 Still Height 2.4 3 Not Provided N.A. N.A. N.A. 4.16 Transformer Yard (L*B) 5*5 or 10*4 N.A. 5.00*5.00 N.A. N.A. Satisfied 5.6.b(iii) Electrical Transformer Room (L*B*H) 6*4*2.75 N.A. Not Provided N.A. N.A. N.A. 5.11 Septic Tank Required if Sewerage System is not available N.A. 3.01*1.61 N.A. N.A. Satisfied 4.18 Sewege Treatment Plant Not Required N.A. Provided N.A. N.A. N.A. 4.20 EWS/LIG-Required Area N.A. N.A. Not Provided N.A. N.A. N.A. 4.20 EWS/ LIG ?Dwelling Unit Area N.A. N.A. Not Provided N.A. N.A. N.A. 4.24(a) Basement Height 2.4 N.A. Not Provided N.A. N.A. N.A. 4.24(a) Basement Height above GL N.A. 1.2 Not Provided N.A. N.A N.A.
12.(1)(a) Gate Width 5.00 N.A. 6.00 N.A. N.A. Satisfied 4.21 Waste Disposal Not Required N.A. Not Provided N.A. N.A. N.A. Parameter List as per Panchayat Rules Section Parameter Minimum Maximum Provided Result 9 Habitation Room Minimum Area 7.2 N.A. 7.33 Satisfied..36 12 Habitation Room Ventilation 20% N.A. 100.00% Mechanical Ventilation.36 11 Room Clear Height 2.4 N.A. 3.05 Satisfied
28. The Empowered Committee has been constituted as a Special Committee under the DCR in terms of Regulation 10 thereof which reads as follows:
??10.Empowered Committee ? Specific cases of demonstrable hardship shall be referred to Empowered Committee under the Chairmanship of Secretary, Housing and Urban Development with Secretary, Municipal Administration and Water Supply, Member Secretary, Chennai Metropolitan Development Authority as members and Director of Town and Country Planning as Convenor of this committee. This Empowered Committee may relax any of the planning parameters prescribed in these regulations on due consideration to merit on case to case basis. The Empowered Committee will also be the appellate authority as per section 79 of the Act. The Government may give directions on individual cases to be referred to Empowered Committee on specific issues??
29. In the present case, it is not in dispute that pursuant to the initial plan approval and in the course of construction activity there were measures initiated for acquisition of land in the subject premises. Ultimately, 379 sq. metres was required by the National Highways Authority of India for formation of Madurai ? Rameshwaram Road. There is thus demonstrable hardship that brings the application for relaxation within the zone of consideration of the Empowered Committee. The request came to be referred to the Empowered Committee by the second respondent in terms of Regulation 10 of the DCR and it is only pursuant thereto that the impugned order came to be passed. The impugned order dated 07.02.2018 states as follows:
29Building -Directorate of Town and Country Planning Sivagangai Region / District ? Manamadurai Taluk, Manamadurai Village S.R.No.73/2D2A, 2B1A ? Site area ? 1129 sqm ? Proposed construction of Hospital building (G + 3 Floors) violation of DCR relaxation requested ? regarding (File No.20901/2017/BA1)Dr.S.Anand The Committee discussed the subject in detail observed that the applicant's site 379 sqm was acquired by NHAI for formation of Madurai Rameswaram road, except north side, other three sides river and roads are thre which are open spaces. Fire Safety NOC has been obtained and therefore the movement of fire- tender and other vehicles can be achieved at case during any emergency. Hence the committee decided to allow the building subject to the condition to collect penalty at premium FSI rates.
30. A query was put to the learned counsels relating to the narration in the ?subject matter? of the aforesaid order, which states ?proposed construction of hospital building(G + 3 floors) violation of DCR relaxation requested - regarding?. Learned counsels are agreed on the factual position that the construction has, in fact, being concluded as early as in 2015 and that the use of the word 'proposed construction' by the authority is factually incorrect insofar as at the time when the impugned order was passed, all four floors of the hospital (G + 3) had been completed.
31. The Empowered Committee is specifically constituted with the discretion to consider and relax the specific planning parameters prescribed under the DCR. Admittedly all the violations in the hospital come within the ambit of those parameters dealt with under the DCR. The power of the authority of the Empowered Committee to have considered the application of the third respondent as referred to it by the Government cannot thus be called into question.
32. In fact, this position is accepted by the petitioner himself, where he states in the writ affidavit that the authority of the Empowered Committee extends to relaxing the specified violations but not approving unauthorized constructions. The condition imposed for payment of fine at premium FSI by the Committee has been complied with. We also find that the procedure set out in the DCR for redressal of the request for relation of violations has been properly followed and the averments in this regard the counter filed by the respondents are uncontroverted by the petitioner.
33. In the light of the discussion above, the specific statements in the counter of official respondents setting out the details of and circumstances behind the reference to the Empowered Committee and the relaxation sought coming within the parameters of the DCR we refrain from interfering with the proceedings dated 07.02.2018 of the Empowered Committee.
34. This brings us to the second part of the prayer, demolition of the hospital building. We have held that G + 2 floors have been accorded proper sanction and will stand. Admittedly the third floor is unauthorized. Separately, building permission appears to have been granted by the Regional Deputy Director, Sivagangai vide an order dated 12.03.2017.
35. We express our deep displeasure of the manner in which the aforesaid approval appears to have been sought and granted. A copy of the building plan approval application dated 27.09.2017 has been placed on record. The application is almost entirely blank except for the printed matter. All details relating to the plan for which the approval is sought, the details of the property, location and all fields mentioned in the application are blank. This incomplete application, bereft of all material and even basic particulars, has been forwarded by the Executive Officer through the Deputy Director of Town and Country Planning, Sivagangai on 03.10.2017, to the second respondent, who issued a notice under sections 56 & 57 of the Town and Country Planning Act, dated 03.10.2017. A copy of the notice has not been placed on record. However reference is made to the same by the official respondents in their counter. As per the counter of the official respondents, the third respondent has obtained NOC from the Executive Engineer, Public Works Department vide his letter dated 09.06.2017 and NOC from the Deputy Director of Health Services vide letter dated 31.08.2017.
36. However, this brings us to the second part of the prayer which relates to demolition of the construction itself. Factually, the petitioner is wrong in stating that the third respondent has constructed G + 5 floors. Mr.Lajapathi Roy concedes that the third floor out of G + 3 floors constructed by the hospital is unauthorized. The point that now remains for consideration is as to whether the third floor should left to remain or not.
37. As rightly pointed out by the petitioner, the power of the Empowered Committee does not extend to relaxing unauthorized constructions. A question may arise as to whether the third floor is unauthorized at all seeing as the building plan permission dated 12.03.2018 has been produced by the third respondent purporting to have been the building permission granted by the Deputy Director, Town and Country Planning.
38. As indicated earlier, we have our reservations about the manner in which the said building permission has been obtained. Though the approval lists 13 documents, in the reference column, there is no reference to the application filed by the hospital dated 27.09.2017 which, as we have noted earlier, is almost blank when it comes to relevant particulars. Moreover, the planning permission dated 12.03.2018 refers to the proceedings of the Empowered Committee dated 07.02.2018 and also makes note of the FSI premium charges that were directed to be paid by the petitioner in regard to the violations that were relaxed by the Empowered Committee.
39. On a holistic appreciation, it appears that the second respondent has merely granted the building permission for construction of G + 3 floors + Terrance admeasuring, Ground Floor - 607.94 sq. mts., First Floor - 544.97 sq. mts., Second Floor ? 581.99 sq. mts., Third Floor ? 581.99 sq. mts., and Terrace Floor ? 16.77 sq. mts., without even referring to the skeleton application filed by the petitioner, and for the asking by the third respondent. Reference to the proceedings of the Empowered Committee also leads us to believe that the second respondent has proceeded on the basis that the entire construction of G + 3 floors and Terrace floor are to be granted building permission in the light of its proceedings dated 07.02.2018.
40. In any event, the question of building permission does not arise ex-post facto construction of a building. If at all, it is only a regularization that could have been sought. We hasten to add that the question of regularization of the third floor does not arise in the present case at this juncture, in the light of its conduct and the observations made in this order.
41. We are of the view that the Empowered Committee does not have the power to regularize the construction of the third floor, which is unauthorized to begin with. As on date when the proceedings of the Empowered Committee were passed, there was no approval for the third floor. Such building plan permission, if at all it can be called so, has been issued only on 12.03.2018 more than a month after the date of the impugned proceedings. In this light of the matter and particularly in the light of our observations on the building plan application and the building plan approval, we are of the view that the third floor of the building is liable to be demolished.
42. In the light of the aforesaid order, third floor of the building shall be demolished with immediate effect in any event, within a period of four (4) weeks from the date of pronouncement of this order.
43. This Court had, by order dated 02.04.2018 had directed that the third floor would be kept under lock and key. Thereafter, the third respondent has filed an additional affidavit to the effect that the terrace of the building is liable to be utilized for the placement of over head tank for the Reverse Osmosis Unit (R.O Unit) essential for the functioning of the dialysis machine for kidney patients. The third respondent is now, pursuant to this order, at liberty to utilize the terrace as it is, including for the aforesaid purpose.
44. As far as fire safety is concerned in respect of which a note of caution was supplied by an order of the earlier Bench dated 27.02.2018, Mr.Lajapathi Roy, points out that the reference to fire safety in the impugned order dated 07.02.2018 gives a wrong impression that fire safety NOC has been obtained belatedly . According to him, the NOC in regard to the fire safety has been obtained much prior to the impugned proceedings.
45. We accept this argument solely for the reason that fire safety measures would mandatorily have been looked into by the authorities at the time of issuance of the respective approvals. No objection is also raised in this regard by the petitioner. However, by way of abundant caution and in the light of the seriousness of this matter, we direct the third respondent to obtain a certificate of compliance with all fire safety measures from the competent authority, within a period of four (4) weeks from the date of pronouncement of this order.
46. As far as the first contention of the learned counsel for the petitioner relating to the location of the property is itself concerned, the third respondent has objected to the allegations made in this regard. No legal bar has been pointed out or even raised for the location of the hospital in the present venue and we find that the allegations made in regard to the encroachment on water body have not been substantiated.
47. As far as the proximity to the cemetery is concerned, our attention is drawn by Mr.Rajendran to the fact that the road, said to be a buffer between the hospital and the cemetery, is in fact, a road, which runs within the graveyard itself. He draws attention to a donation made by the third respondent to the RC Diocese, Sivagangai of Rs.10,000/- on 20.11.2017 towards a formation of 23 feet road in the south side of the third respondent hospital ?inside the RC graveyard?.
48. Mr.Rajendran, appears to be correct in stating that the cemetery runs adjacent to the hospital. The stand of the third respondent certainly appears to be mischevious and a mere device to get over the fact that the hospital building is adjacent to the Christian cemetery. This is, in fact, clear from the documents filed by the third respondent itself which contain an encumbrance certificate dated 27.09.2017 issued by the Sub-Registrar, Manamadurai, containing a description of the property in question. The details of boundaries reveal that the south boundary of the hospital property in question is a ?compound wall of an old Christian graveyard?. The donation to the RC Diocese has been made on 20.11.2017 obviously to get over this position.
49. However, in the light of our order that the building to the extent of G + two floors will stand and also for the reason that the cemetery cannot, obviously, be shifted we direct that the proposed private ?road? be laid at the cost of the third respondent and all appropriate measures be taken, again at the cost of the third respondent, to put in place a suitable mechanism to insulate the hospital from the activities in the cemetery to ensure complete hygiene and protection.
50. On the question of laches, we find the judgments relied upon by the learned counsel for the petitioner distinguishable on facts. Though the plan approval has been obtained in December 2011 and construction of G + All three floors are said to have constructed by 2015 we see that the petitioner has been raising queries/objections from shortly thereafter. The application under the Right to Information Act was filed in April 2016 and the reply was received from the Deputy Director, Town and Country Planning on 09.05.2017. The petitioner has also earlier approached this Court seeking remedial action in respect of the very same hospital as in issue before us now. In the aforesaid circumstances we do not believe that the elapse of time between 2015 and 2017 when the present writ petition has been filed is fatal to the present proceedings. This argument of the third respondent is rejected.
51. As regard the other violations pointed out by the petitioner in the writ petition, detailed objections have been raised in the counter to all averments made. We find that the objections have been satisfactorily answered as noted and discussed by us in the earlier paragraphs of this order. With regard to the technical aspects such as sufficiency of load bearing capacity etc., neither the petitioner nor this Court are experts in this regard. For what it is worth. a geotechnical report and stability certificate have been filed by the petitioner to attest to the construction erected. While making it clear that we do not comment upon the same, since the petitioners? averment in this regard is not substantiated by any materials or evidence, we do not entertain this objection any further. We however make it clear that it is open to the petitioner to bring to the notice of the authorities or this Court in separate proceedings any concrete material or evidence received in support of its allegation that the construction is not technically feasible, in accordance with law. The objection regarding classification of the land as agricultural is also answered by the third respondent citing the classification in the land documents as ?Punjai?. This has not been controverted by way of a reply by the petitioner. This objection is also thus rejected.
52. In fine, we are not inclined to direct the demolition of the entire structure as we have noted earlier that the original plan dated 12.02.2011 issued by the Executive Officer, Town Panchayat, Manamadurai is in order. No doubt there have been violations in the construction, but these appear to have been taken into account and relaxed by the Empowered Committee.
53. This Writ Petition is partly allowed in the above terms. No costs. Consequently, connected Miscellaneous petitions are closed.
To
1.The Chairperson cum Principal Secretary to Govt.
Empowered Committee, Housing and Urban Development Dept,Govt. of Tamilnadu.
2.The Deputy Director, Town and Country Planning, Sivagangai Zone, 430, Gandhi Street,Sivagangai.
.