Madras High Court
Salahudeen Babu vs P.T.Prabhakar on 31 January, 2005
Equivalent citations: AIR 2005 MADRAS 243, (2006) 4 MAD LJ 22, (2005) 1 MAD LW 643, (2005) 1 CTC 385 (MAD)
Bench: Markandey Katju, D.Murugesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 31/1/2005
CORAM
THE HONOURABLE MR.MARKANDEY KATJU, THE CHIEF JUSTICE
AND
THE HONOURABLE MR. JUSTICE D.MURUGESAN
W.A. No. 73 of 2005
Salahudeen Babu Appellant
-Vs-
1. P.T.Prabhakar
2. Mrs.Nalini Prabhakar
3. Member Secretary,
CMDA, Chennai-8.
4. Commissioner,
Corporation of Chennai. Respondents
Prayer: Appeal under clause 15 of the Letters Patent against the
order of this Court in WVMP No.2555 of 2004 in WPMP No.42837 of 2004 in W.P.
No.35562 of 2004 dated 3.1.2005.
!For appellant :: Mr.T.R.Rajagopalan, senior
counsel for Mr.S.M.Deenadayalan
^For respondents :: Mr.R.Krishnamurthy, senior
1 and 2 counsel for Mr.B.T.Seshadri
For Respondent :: Mr.V.Perumal
No.3
:JUDGMENT
(Judgment of the Court was delivered by The Hon'ble Chief Justice.) Heard learned counsel for the parties. This writ appeal has been filed against the impugned order of the learned single Judge dated 3.1.2005.
2. The parties are referred in this judgment as per the array of parties in the writ petition. First and Second respondents are the writ petitioners and the appellant is the 3rd respondent in the writ petition.
3. The writ petitioners Mr.P.T.Prabhakar and Mrs.Nalini Prabhakar filed a writ petition for a mandamus directing the Member Secretary, CMDA, Chennai and the Commissioner, Corporation of Chennai to proceed against the appellant Mr.Salahudeen Babu and take immediate action by way of demolition of the construction pursuant to the notice dated 4 .11.2004 issued by the Member Secretary, CMDA, Chennai under sections 56 and 57 of the Tamilnadu Town & Country Planning Act, 1971 and also pursuant to the notice issued by the Commissioner, Corporation of Chennai under section 256 of the Chennai City Municipal Corporation Act.
4. The petitioners are the owners of the premises bearing old door No.14, New No.15 and presently bearing No.5, Sivasamy Street, Mylapore, Chennai-4 comprised in R.S.No.1146/2. The petitioners purchased the land measuring 4934 sq.ft. under a sale deed dated 8.6.1987 and after purchase of the land the petitioners constructed a bungalow on the land after getting permission from the Corporation of Chennai as per building permission No.438/1987 dated 14.7.1987 and planning permission No.330/1987 dated 14.7.1987. The petitioners constructed ground floor and first floor as per the sanctioned plan and the premises is being personally used by the petitioners.
5. The third respondent in the writ petition (the present appellant) is the owner of the plot of land on the north of the petitioners' premises. It is alleged that the said third respondent for the purpose of construction of a building actually closed all sides with tin sheets giving a small opening for carrying construction materials. It is alleged that the third respondent was carrying on construction activity and only after erection of the concrete columns to a height of 30 ft. the petitioners found that the columns and pillars erected by the third respondent are very close to the petitioners' premises. The petitioners made enquiries and found that the Commissioner, Corporation of Chennai had granted permission to the third respondent ( appellant in this appeal) for construction of ground floor and first floor only wherein the third respondent is bound to provide on front and rear a setback of 3 meters. In the plan submitted to the Commissioner, Corporation of Chennai the third respondent had shown the necessary set back as per the rules and regulations provided by the CMDA and Corporation of Chennai and on that representation the Commissioner appears to have sanctioned the construction of the building and granted planning permission to the third respondent on 3.12.2003. However, it is alleged that during the process of actual construction it was found that the third respondent has violated the sanctioned plan and has not provided set back not only on the rear and front side but also on all four sides as per the planning permission and left only about 3'6" instead of 3 metros as set back. It is alleged that the entire construction of the building was in contravention of the planning permission granted by the Commissioner and by reason of this illegal construction the petitioners have been put to great hardship. The construction of the building of the third respondent came very close to the petitioners' building leaving only 3'6" instead of 3 meters as set back which is about 11 feet. As soon as the writ petitioners came to know about this illegal construction by the third respondent they contacted the third respondent and the builder pointing out that necessary set back had not been given, which is mandatory and requested them to remove the unauthorised construction. However, this has not been done. It is further alleged that not only ground floor and first floor have been built but also basement and second floor have been erected by the third respondent. The Commissioner informed the petitioners that the Corporation of Chennai had issued stop work notice to the third respondent twice, but inspite of this he has been continuing the construction vigorously. The writ petitioners met the Commissioner, Corporation of Chennai Mr.M.P.Vijayakumar, I.A.S. on 9.9.2004 and handed over a representation pointing out the unauthorised construction being made by the third respondent in contravention of the planning permission by not leaving three meters set back in front and rear side. The Commissioner said that he would instruct his subordinates to take necessary action in this connection. As the third respondent was proceeding with the construction, the petitioners filed a suit in O.S.No.463 6 of 2004 in City Civil Court, Chennai seeking permanent injunction. The learned Judge ordered status quo during the pendency of the injunction application and the third respondent stopped the construction by reason of that order. The Commissioner filed counter affidavit to the injunction application in the suit stating that the third respondent while putting up construction had deviated from the sanctioned plan specified in the plan and notice under section 236 of the City Municipal Corporation Act was served on the third respondent on 12.7.2004 directing him to stop illegal construction, but he did not comply with the notice and flouted the same. As no action was taken the petitioners made a representation to the Member Secretary, CMDA requesting him to take further action. Pursuant to that stop work notice dated 1 2.07.2004 was issued by the Corporation of Chennai. The petitioners received a communication from the Member Secretary, CMDA that notice under Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, 1971 had already been sent to the 3rd respondent on 04.11.2004. Even after the said notice no action was taken. Hence, petitioners approached this Court for a direction to demolish the offending construction pursuant to the notice dated 04.11.2004. Pending the writ petition, the petitioners also prayed for an interim injunction restraining the 3rd respondent from proceeding with illegal construction in the premises in question. By order dated 03.12.2004 the learned single Judge has granted an injunction. Challenging the said order of injunction the 3rd respondent has preferred the above appeal. It is further alleged by the petitioners that there is nothing to show in the sanctioned plan for construction of basement floor or the second floor, but the third respondent has made construction of the basement and second floor apart from not leaving the necessary set back.
6. We have heard the respective counsel. The 3rd respondent was granted sanction for construction of a building consisting of ground and first floor by Corporation of Chennai on 03.12.2003. One of the conditions of the sanction was that the 3rd respondent should leave 3 Meters on all sides of the building. On receipt of the complaint from the petitioners on 01.11.2004, the enforcement officials inspected the site on 04.11.2004 and found that the construction of the basement floor + ground floor + first floor part at North and ground floor + first floor + second floor part at South was going on. As there was no approval for the said construction, stop work notice dated 04.11.200 4 was issued. In fact, in the counter affidavit filed by the Member Secretary, CMDA the following deviations are noted:
S.No. Description As per approved plan As on Site Deviations 1 Set Back Spaces Front Set back Front Set back 3.00 meter 3.00 meter 2.37 meter 2.51 meter Less by 0.63m Less by 0.49m 2 Rear Set back Rear Set back 3.00 meter 3.00 meter 1.00 meter 0.91 meter Less by 2.00m Less by 2.09m 3 Side Set back (E) Side Set back (E) 1.50 meter 1.50 meter NIL 1.18 meter Less by 1.50m Less by 0.32m 4 Side Set back (W) 3.00 meter 3.00 meter 0.91 meter 0.60 meter Less by 2.09m Less by 2.40m 5 Length of the building 21.14 meter 23.24 meter Excess by 2.10m 6 Breadth of the Building 16.54 meter 16.54 meter 18.59 meter 20.12 meter Excess by 2.05m Excess by 3.58m It is also seen that as the stop work notice was not complied with by the 3rd respondent a further demolition notice dated 30.11.2004 was also issued. The said notice was acknowledged by the 3rd respondent on 18.11.2004.
It is also the case of the Corporation of Chennai that the application of the petitioner for sanction of the deviated portion was not considered and the application was returned by the Deputy Engineer of the Corporation on 03.11.2004. The fact remains that as on today the 3rd respondent has put up the construction in violation of the sanctioned plan as noted by the inspection team of the enforcement officials.
7. It is indeed lamentable that in our country building rules and regulations are being flouted left and right by persons who think that they are above the law because they have money or some high post. Time has come that a clear message must be given that the building rules do not exist merely on paper but will be strictly enforced to forthwith demolish any construction made in violation of the rules. Unless that is done a wrong impression will be created and a wrong message sent that the building rules exist only on paper and are not to be taken seriously.
8. Hence, we uphold the interim order of the learned single Judge, and we further direct that the appellant will forthwith remove any construction made in violation or deviation of the planning permission and also the Development Control Rules and the relevant building rules and regulations,and if he does not do so, the Corporation of Chennai will forthwith demolish these constructions, with aid of police.
9. We are fortified by the decision of the Supreme Court in Friends Colony Development Committee v. State of Orissa {(2004) 8 SCC 733} in giving these directions.
10. It may be mentioned that the appellant had applied for ratification of the deviation but that had been rejected by both the Corporation and the CMDA and both CMDA and Corporation have also filed counter affidavits pointing out the violation of the rules by the appellant. Moreover, in Friends Colony's case (supra), the Supreme Court has observed (vide paragraph-25): -
" Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum."
11. We are of the opinion that the deviations/unauthorised constructions made by the appellant (3rd respondent in the writ petition)are not of the nature which can be regularised as per the decision of the Supreme Court in Friends Colony's Case (supra).
12. In M.I. Builders Pvt.Ltd v. Radhey Shyam Sahu and others, 1999 (6) SCC 464,the Supreme Court observed (vide paragraph-73): -
" The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, it it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots."
13. In Ram Awatar Agarwal v. Corpn. Of Calcutta, 1999 (6) SCC 532, the Supreme Court directed demolition of a multi-storeyed building, which had been constructed in violation of the building rules, and had also granted police protection for carrying out compliance of the order.
14. In Dilip Bhandari v. The Commissioner, Corporation of Chennai, Rippon Buildings, 2004 (5) CTC 481, a Division Bench of this Court upheld the demolition order and observed that unauthorised construction should not be condoned even if the builder has invested considerable amount, as this dictum is bordering the rule of law.
15. In Palani Hills Conservation Council etc. v. The State of Tamil Nadu, etc., 1995 (2) Writ L.R 737, a Division Bench of this Court directed demolition of a building constructed by a hotel contrary to the plan sanctioned by the second respondent therein.
16. In Pratibha Co-operative Housing Society Ltd., and Another Vs. State of Maharashtra and Others, AIR 1991 SC 1453 while considering the un-authorised construction the Supreme Court had observed in paragraph-6 as follows:-
"We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents....... Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of the society at large. The rules, regulations and bylaws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits."
17. If there are rules, they have to be followed otherwise there is no use having rules at all, and the rule of law will collapse in this Country and the rule of the jungle will prevail. Time has come that every one must know that the building rules and bylaws will be strictly enforced by this Court and any deviations made therefrom shall result in orders of demolition forthwith.
18. Learned senior counsel for the appellant has submitted that the appellant has a right to file an appeal. He has also submitted that respondents 1 and 2 have abused the legal process by filing the writ petition during the pendency of the suit, and have withdrawn the suit after obtaining interim orders in the writ petition. We are not prepared to entertain any such pleas by the appellant. Such technical pleas cannot come in the way of this Court under Article 226 of the Constitution of India to enforce the law of the land. Time has come where this Court has to come down with heavy hands on those who violate the building rules, and to send a clear message to all concerned that such violations will no longer be tolerated. Often such violations have been done in collusion with the authorities, and hence we also give a stern warning to the authorities that they will be taken to task if they permit, condone or tolerate violations of the building rules, as has been clearly done in this case. In almost every city in this Country, it is found that constructions are being made in violation of the building rules and bylaws, and this is usually done in collusion with the authorities concerned. The result has been that there has been large scale unauthorised encroachments and illegal constructions resulting in cities becoming like slums or jungles everywhere, and citizens are not able to live properly. The price of urbanisation is habitat discipline, failing which the result will be chaotic urban jungles. All these will no longer be tolerated by this Court. The Chennai Corporation, and the Commissioner, Corporation of Chennai are directed to issue notices and take action against all those who have violated the building rules and regulations, and they should not ratify/ regularise illegal constructions, except as permitted by the Supreme Court in Friends Colony's case (supra). This practice of first making illegal constructions and thereafter seeking ratification/ regularisation must be stopped forthwith, and such illegal constructions must be demolished, and no ratification/regularisation should be granted ( except as permitted in Friends Colony's case)
19. It may be mentioned that by Act 58 of 1998 the Tamil Nadu Town and Country Planning Act, 1971 was amended introducing Section 113-A. Section 113-A permits the Government or any officer or authority authorised by the Government, on application, to issue notification exempting any land or building or class of lands or buildings developed immediately before the date of commencement of the said Amendment Act of 1998 from the provisions of the Tamil Nadu Town and Country Planning Act, 1971 or any rules or regulations made thereunder, by collecting regularisation fee as prescribed. Thus, only deviations or unauthorised constructions made before the Amendment Act, 1998 can be regularised by the Government or the officer or the authority authorised by the Government on an application. Unauthorised constructions or deviations made after the commencement of the Amendment Act of 1998 cannot be regularised/rectified.
20. In Consumer Action Group Vs. State of Tamil Nadu, 2000 (IV) CTC 181 the Supreme Court upheld Sections 113 and 113-A of the Tamil Nadu Town and Country Planning Act, 1971, struck down 62 Governmental Orders, and gave directions that such of those persons who made unauthorised constructions/deviations prior to the Amendment Act of 1998 may make application for regularisation before the authorities concerned within 30 days from the date of publication made by the Government. Pursuant to the said direction of the Supreme Court a number of applications for regularisation of unauthorised constructions/deviations made prior to the Amendment Act of 1998 are pending. We therefore clarify that no unauthorised constructions/deviations made after the commencement of the 1998 Amendment Act can be regularised/rectified. Even in respect of unauthorised constructions/deviations made prior to the 1998 Amendment Act, only such applications for regularisation can be considered, which were made within 30 days of the publication of the Government as directed by the Supreme Court in Consumer Action Group's Case (Supra).
21. The above directions by us shall be strictly complied with by all the authorities concerned, and those authorities who flout the above directions are given stringent warning that severe action would be taken against them by this Court.
22. The writ appeal is dismissed. No costs. Consequently WAMP Nos.11 7 and 279 of 2005 are also dismissed.
Index: Yes Internet: Yes ns/pv/sm To
1. The Member Secretary, CMDA, Chennai-8.
2. The Commissioner, Corporation of Chennai.