Madras High Court
Mehraj Begum vs The Government Of Tamil Nadu on 16 October, 2018
Equivalent citations: AIRONLINE 2018 MAD 1550
Bench: S.Vaidyanathan, Krishnan Ramasamy
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.10.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MRS. JUSTICE KRISHNAN RAMASAMY
W.P.No.27499 of 2018
Mehraj Begum ... Petitioner
vs.
1. The Government of Tamil Nadu,
rep. By its Secretary to the Government,
Housing and Urban Development Department,
Fort St. George, Chennai 600 009.
2. The Executive Engineer,
Office of the Corporation, Zone – 5,
Basin Bridge Road, Old Washermanpet,
Chennai 600 021.
3. The Assistant Executive Engineer,
Office of the Corporation,
Unit – 13, Zone – 5, Basin Bridge Road,
Old Washermanpet,
Chennai 600 021.
4. The Assistant Engineer,
Office of the Corporation,
Division – 60, Zone – 5,
Basin Bridge Road,
Old Washermanpet,
Chennai 600 021.
5. The Commissioner,
Corporation of Chennai,
Ripon Buildings, Chennai. ... Respondents
(R5 suo-motu impleaded by this Court by order dated 16.10.2018 in
http://www.judis.nic.inW.P.No.27449 of 2018)
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Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Mandamus, directing the 1st Respondent
herein to consider the Petitioner's representation dated 17.09.2018 and to
pass orders within a stipulated time.
For Petitioner : Mr.D.ArulThumilan
For 1st Respondent : Mr.A.Zakir Hussain,
Government Advocate
For 2nd Respondent : Mr.A.Nagarajan
ORDER
(Order of the Court was made by KRISHNAN RAMASAMY,J.) Petitioner has come up with the present Writ Petition seeking a direction to the 1st Respondent herein to consider her representation dated 17.09.2018 within a stipulated period.
2. According to the Petitioner, she is the owner of the property in Door No.4/1, Mettu Street, Mannady, Chennai, consisting of Ground + 2 floors, which is let out for lease and occupied by tenants and the said property is mortgaged with a Finance Company viz. RELIGARE FINVEST LIMITED. She received a Stop Work Notice from the 2nd Respondent/Executive Engineer, Zone – 5, on 28.06.2018, wherein, it is stated that the construction of the building is in progress. While so, the Petitioner received a Lock and Seal and Demolition Notice, in which, it is stated that the construction has been put up unauthorizedly without Planning Permission.
http://www.judis.nic.in 3
3. The grievance of the Petitioner is that if any enforcement action is taken against her building without giving her an opportunity of hearing, then, she, her tenants and RELIGARE FINVEST Limited will be put to irreparable loss. However, it is the case of the Petitioner that if any mild deviation is found in her building, she is ready to pay the fine or costs to be ordered by the Housing and Urban Development Department, Chennai. In this regard, the Petitioner has made a representation dated 17.09.2018 to the Respondents herein and has sought a direction to consider the same within a time frame.
4. Heard the learned counsel on either side and perused the material documents available on record.
5. It is the case of the Petitioner that she obtained construction Plan approval for the building in question vide Approval No.D2/4447/2007, dated 18.08.2007 and constructed the building in the year 2007. Since there is violation in the construction of the building, the 2nd Respondent has issued Show Cause Notice to the Petitioner. As the Petitioner did not rectify the defects pointed out in the Show Cause Notice, the Respondents have issued Lock and Seal and Demolition Notice dated 23.08.2018, calling http://www.judis.nic.in upon the Petitioner to restore the building in compliance with the approved 4 Plan within 30 days from the date of receipt of the notice. Aggrieved by the same, the Petitioner is before this Court, however, seeking to consider her representation dated 17.09.2018.
6. It is pertinent to note that the First Bench of this Court (S.K.Kaul,C.J., and R.Mahadevan,J.) in Contempt Petition No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo motu) took up a matter pertaining to demolition of the violated portions of a building and insisted that the unauthorised constructions are decimated. Relevant portion of the said order reads thus:
''4. We have also perused the report of the Commissioner, who is present in Court. We have impressed upon him the importance of ensuring that there is atleast no continuing unauthorised construction by issuing stop work notices immediately when such unauthorised construction is detected rather than waiting for comparison of the plans. We have also emphasised the importance of:
(a) Checking the buildings from the basement, ground floor onwards, so that the set backs are adhered to;
(b) Ensure that the on-going construction complies with the norms;
(c) The delinquent officers are brought to book not by mere censure, stoppage of increment, but by more severe consequences like compulsory retirement and dismissal from service. We say so, as despite, mammoth amount of unauthorised construction, we are informed that not a single person has suffered the punishment of dismissal http://www.judis.nic.in from service or even compulsory retirement atleast 5 for the last five years.
(d) Not to let any unnecessary interference with his work by the persons, who have nothing to do with his job and that he should be able to do his task without fear or favour, for which necessary Court protection is available.''
7. Following the ratio laid down in the said decision, a Division Bench of this Court, in W.P.No.5862 of 2018, by an order dated 15.03.2018, held as under:
"12. Further, it is to be observed that while passing the order under Sections 6 and 10 of the Tamil Nadu Land Encroachment Act, the respective authorities must mention in the order that the aggrieved person has got right to Appeal/Revision and that the same has to be preferred within the time prescribed under the said Encroachment Act, 1905. This will enable the aggrieved person not to file Appeal/Revision before a different authority, as we come across several orders of return passed by the Government authorities that they are not the Appellate/Revisional authority. Till the Appeal time is over, without there being a delay, even though there is a provision to condone the delay, the aggrieved persons shall not be disturbed. If there is any delay in filing the Appeal or Revision, this will not preclude the authorities from proceeding further in the matter beyond the time prescribed under the Act, even though an Appeal can be entertained, till the delay is condoned, there is no Appeal/Revision in the eye of law and the authorities can bring the issue to a logical conclusion by removing the encroachment by using Police force, and disconnecting the electricity supply and water connection. Further, it has to be mentioned that if the complainant is not made a party, the Authorities shall throw the Appeal/Revision and the applicants who are http://www.judis.nic.in encroachers, shall not be shown any indulgence, as 6 there is a habit of those encroachers getting an order behind the back of the complainant and stay in the encroached place forever. Even though the principles of natural justice are not applicable to the encroachers, to enable their children/family members of the violator not to suffer for the mistake committed by the violator, the above observations are made to not to disturb them during the time meant for Appeal/Revision only if the Appeal/Revision is filed within time, without reference to Section 11 of the Tamil Nadu Land Encroachment Act.
8. In the case on hand, though the Petitioner was issued a Show Cause Notice to rectify the defects in the building in question, no efforts were taken by her to restore the building as per the Sanctioned Plan. The Petitioner has even admitted in her Affidavit that she is prepared to pay the fine or costs to be ordered by the Housing and Urban Development Department, Chennai, with regard to the deviation in the building.
9. The Petitioner herein has only sought a direction to the 1st Respondent to consider her representation and this Court can very well direct the Respondent concerned to consider the Petitioner's representation within a limited time frame and dispose of the matter. However, in matters pertaining to construction of buildings in violation of the Sanctioned Plan, this Court cannot take a lenient view. http://www.judis.nic.in
10. In most cases, after obtaining Sanctioned Plan, without 7 adhering to the same, many number of floors are constructed without proper set back on all sides and later, an Application is made to the Authority concerned seeking regularization. Even though the Tamil Nadu Town and Country Planning Act 1971 deals with regularization of buildings, the authorities cannot regularize a building, when the construction of the same is in violation of the Sanctioned Plan. Otherwise, the purpose of the Act will be defeated and the violators will enjoy by occupying the violated portions and law abiding citizens will be a laughing stock in the presence of the violators.
11. At this juncture, it is also worth referring to a Division Bench decision of this Court in W.P.No.25931 of 2017, wherein, by an order dated 12.02.2018, this Court has held that electricity connection to unauthorized constructions shall be disconnected and it can be restored only when the building is brought in accordance with the Sanctioned Plan. Relevant portion of the said decision reads thus:
"8. Since the building in question is in violation of the Approved Plan, Respondents 7 to 10 have no other option, but to demolish the violated portions and accordingly, they are directed to demolish the violated portions of the building in question, within a period of one week from the date of receipt of a copy of this order. We make it clear that electricity supply to the building in question, i.e. at Plot No.181, 'C' Block, Easwar Apartment, Kamaraj Nagar 4th Street, Choolaimedu, Chennai 600 094 shall not be http://www.judis.nic.in restored unless the defects pointed out by the Respondent/Corporation are rectified by the 8 contesting Respondents 7 to 10.
9. It is to be noted that in similar circumstances, the order dated 07.11.2017 passed by a Division Bench of this Court in W.M.P.No.30495 of 2017 in W.P.No.21639 of 2017, refusing to restore the electricity supply to the premises in question therein, was confirmed by the Supreme Court in Petition for Special Leave to Appeal (C).No.33863 of 2017, by order dated 05.01.2018. "
12. Since it is represented by the learned counsel for the Petitioner that many Appeals are pending, this Court suo motu impleads the Commissioner, Corporation of Chennai, Ripon Building, Chennai as necessary party to this Writ Petition and passes the following directions:
(a) Respondents are directed to de-seal the building constructed by the Petitioner for the purpose of rectifying the defects and the building shall not be occupied for any other purpose, much less residential purpose.
(b) If the respondents are unable to demolish the building, then it is left open to them to demolish / remove all the doors, windows, glasses, toilet seats and bidets, kitchen cooking platform, waterline pipes running into domicile from water tank or sump or any other mode to wash basins, kitchen and rest rooms, including the tap / shower.
(c) In the event of the building being found locked or closed by the occupants, the respondents shall drill the roof of the building and make a big hole http://www.judis.nic.in so that the building cannot be occupied any more.9
(d) Respondents shall ensure that proper set back is maintained in the building in question and also ensure as to whether the building in question has encroached the Road.
(e) If the violated portions are not rectified, Respondents are directed to demolish the same.
(f) Till the building is brought in accordance with the Sanctioned Plan, there shall not be electricity supply to the building in question. Though this Court is entitled to disconnect water supply to the building in question, taking note of the fact that the neighbours of the Petitioner will suffer, water supply is not disconnected.
(g) The Appellate Authority shall conduct the proceedings once in 15 days and ensure that the building in question is brought in accordance with the sanctioned Plan within six months.
(h) If the Officials concerned do not adhere to the procedures mentioned supra, the Government shall post the erring Official in a non-sensitive post.
(i) Wherever Appeals are pending before the authorities concerned as regards buildings constructed in violation of the Sanctioned Plan, there shall be an interim order by the Appellate Authority and there shall be disconnection of electricity supply to the said violated portion, if the building is not brought as per the Sanctioned Plan within the time limit.
(j) whenever an appeal or any petition is filed http://www.judis.nic.in under the Tamil Nadu Town and Country Planning Act, 10 1971, the said application should reflect the very same number and in case of appeal, the original number should also find place. That apart, the owner of the house / flat shall exhibit in a notice board outside the premises that appeal is pending before the authority, by giving necessary details/numbers, like original application, appeal, writ petition, if any and the authorities concerned shall also forward a copy of the same to the Metro Water and Tamil Nadu Electricity Board for appropriate action.
(k) The 1st Respondent/Secretary to the
Government of Tamil Nadu, Housing and Urban
Development Department and the 5th
Respondent/Commissioner, Corporation of Chennai, Chennai are directed to furnish the following particulars to this Court on or before 18.12.2018:
(i) Number of appeals pending before
the authorities;
(ii) Number of cases, wherein directions
have been issued by this Court.
13. It is needless to mention that the 1st respondent will have to follow the guidelines, while passing orders in all the applications filed under the Tamil Nadu Town and Country Planning Act, 1971. Even though the Act empowers to grant an interim order, the interim order cannot be absolute.
If there are any violations, as the Act is silent, the authority concerned is http://www.judis.nic.inbound to order disconnection of electricity till the building is altered in 11 accordance with the plan. That apart, the 1st respondent has to ask the occupier to rectify the defects and for that purpose alone, the building could be unlocked or unsealed and not for continuation of occupation in the violative portion. When the Court is empowered to inspect the site under Order XVIII Rule 18 of CPC, nothing prevents the authority to inspect the place, as the same will ensure removal of encroachment / violations of constructions and that Government lands are restored. The purpose of the Act is to ensure that the buildings are constructed in accordance with the plan and not in violation of the plan. The deviations could be permissible in accordance with Rules to some extent and not in its entirety. There cannot be any encroachments on roads, OSR, parks, lakes, Odai and other public places.
14. When there is a demand by the Applicant or Complainant that he/she has got to be heard with regard to violations / encroachments, it is the duty bound on the part of the authorities concerned to inspect the site so that different considerations by authorities may not arise. If any proceedings are started based on the application, the same should be conducted on day to-day basis without adjourning the matter beyond seven working days at any point of time.
15. The above directions shall be followed in all the pending appeals or in other matters pending before the 1st respondent or before the notified http://www.judis.nic.in authority under the Tamil Nadu Town and Country Planning Act, 1971. 12
16. With the above directions and observations, this Writ Petition stands disposed of. No costs. Consequently, connected W.M.P.No.32010 of 2018 is closed.
17. List this matter before us on 20.12.2018 for 'Reporting Compliance' by the respondents in respect of Paragraph Nos.12 to 15.
(S.V.N.,J.) (K.R,J.)
16.10.2018
Index : Yes/No
Speaking Order : Yes/No
Note to Registry : Issue copy of this order on or before 20.11.2018 (aeb) http://www.judis.nic.in 13 To:
1. The Secretary to the Government, Government of Tamil Nadu, Housing and Urban Development Department, Fort St. George, Chennai 600 009.
2. The Executive Engineer, Office of the Corporation, Zone – 5, Basin Bridge Road, Old Washermanpet, Chennai 600 021.
3. The Assistant Executive Engineer, Office of the Corporation, Unit – 13, Zone – 5, Basin Bridge Road, Old Washermanpet, Chennai 600 021.
4. The Assistant Engineer, Office of the Corporation, Division – 60, Zone – 5, Basin Bridge Road, Old Washermanpet, Chennai 600 021.
5. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai.
http://www.judis.nic.in 14 S.VAIDYANATHAN,J.
AND KRISHNAN RAMASAMY,J.
(aeb) Order in W.P.No.27499 of 2018 16.10.2018 http://www.judis.nic.in