Madras High Court
C. Prabhakaran vs Mr.Dharmendra Pratap Yadav on 6 February, 2019
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06.02.2019
Coram
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
AND
THE HONOURABLE Mr. JUSTICE S.VAIDYANATHAN
Contempt Petition No.1087 of 2017
and Writ Petition No.24705 of 2017
and Sub Appln No.210 of 2017
Contempt Petition No.1087 of 2017:
C. Prabhakaran ... Petitioner
-vs-
1. Mr.Dharmendra Pratap Yadav, IAS,
Secretary, Housing and Urban Development
Department,
Fort St. George,
Chennai – 9
2. Mr.Vijayaraj Kumar, IAS,
The Member Secretary,
Chennai Metropolitan Development Authority,
No.1. Gandhi Irwin Road,
Egmore,
Chennai – 600 008
3. Mr.Mujibur Rahman,
Commissioner,
Avadi Municipality.
4. J. Jothi ... Respondents
Prayer: Contempt Petition filed under Section 11 of the Contempt
of Courts Act, 1971 to punish all the Respondents for the violation
and disobedience of this Court in WP No.9756 of 2016 dated
23.03.2016.
http://www.judis.nic.in
2
For Petitioner : Mr.K.M. Vijayan
Senior Counsel for
Mr.N.V. Margandeyan
For R.1 : Mr.S.N. Parthasarathy
Govt. Advocate
For R.2 : Mr.Karthick Raja
For R.3 : Mr.P. Srinivas
For R.4 : Mr.S. Parthasarathy
Senior Counsel for
Mr.K.Mohanamurali
Writ Petition No.24705 of 2017:
Mrs.J. Jothi .... Petitioner
-vs-
1. The Secretary,
Housing and Urban Development Department,
Fort.St. George,
Chennai 600 009
2. The Member Secretary,
Chennai Metropolitan Development Authority,
No.1, Gandhi Irwin Road,
Egmore, Chennai 600 008
3. The Commissioner,
Avadi Municipality,
Avadi, Chennai 600 054
4. C. Prabhakaran ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of Writ of Mandamus directing the Second
Respondent to regularise the building at T.S.No.38, Block No.16,
Ward – G Avadi, New Survey No.122/2B1C2 of Villinjiambakkam
Village, Chennai – 600 054 under Section 113 of Tamil Nadu Town
and Country Planning Act, 1971 as amended upto date under the
Application dated 03.03.2017.
http://www.judis.nic.in
3
For Petitioner :Mr.S. Parthasarathy
Senior Counsel for
Mr.K. Mohanamurali
For R.1 : Mr.S.N. Parthasarathy
Govt. Advocate
For R.2 : Mr.Karthick Raja
For R.3 : Mr.P. Srinivas
For R.4 : Mr.Mr.K.M. Vijayan
Senior Counsel for
Mr.N.V. Margandeyan
*****
COMMONORDER
[Order of the Court was made by S.VAIDYANATHAN, J.] Pursuant to the order of this Court dated 10.01.2019, a Reply Affidavit has been filed by the Writ Petitioner on 21.01.2019 and the relevant Paragraph is extracted hereunder:
“3. I further submit that the Petitioner was granted building permission in P.P.No.21/2001/F1, dated 10.01.2001 issued by the 3rd Respondent for the construction of the ground and 1st floor in the property situated in Survey No.122/2Ba, of Vilinjiampakkam Village by the 3rd Respondent.
3.1. The Petitioner was granted building permission in Planning Approval No.1559/04/C, dated 07.10.2004 for the construction of the 2nd floor in the property situated in Survey No.122/2BA, of Vilinjiampallam Village by the Third Respondent. In pursuant of the order passed by the First Respondent in Letter No.10771/UDVI(2) dared 28.11.2014 I have removed the entire 3rd foor and the sane was also confirmed by the Third Respondent http://www.judis.nic.in 4 vide Letter No.EC/N/II/3425/2014 dated 29.06.2016.
3.2 In pursuant to the direction issued under Order dated 28.11.2018 I have re- submitted the plan to the 2nd respondent on 03.03.2017 and the same was taken on the regularisation scheme announced by the 1st respondent and the petitioner also paid a sum of Rs.2,52,359/- on 02.01.2018.
3.3 The Petitioner now undertakes to pout in use the said building as a Hall as per the plan approved by the 3rd respondent. In this regard I have also sent a letter to the 2nd respondent to consider the plan submitted by me dated 03.03.2017 as a Hall and not as Kalyana Mandapam which comes under special building."
2. Even though the Affidavit contains the clause 3.4, that has been deleted by the Learned Counsel before this Court and an endorsement to that effect has been made.
3. Admittedly, the Petitioner had an approved plan of the years 2001 and 2004 and that there was a construction in violation of the Plans and regularisation has been sought under Section 113 C of the Tamil Nadu Town and Country Planning Act, 1971.
4. After the Orders of this Court, the structures, said to be in violation, have been removed, which according to the Contempt http://www.judis.nic.in 5 Petitioner, have been maintained without any orders and sanction plan. Further, the Contempt Petitioner submits that the fresh plan was rejected.
5. When there is a rejection by the Authority, the Petitioner cannot retain any structure much less the one constructed and use as “Kalyana Mandapam”.
6. After the arguments, Mr.S.Parthasarathy, Learned Senior Counsel for the Writ Petitioner submits that the building, as approved by the Authorities, as per 2001 and 2004 Plans, would be maintained for the purpose of 'Tailoring Unit' and they will not use the same for “Kalyana Mandapam”, as the “Kalyana Mandapam” comes under 'Special Building'.
7. Even though it is stated by the Learned Senior Counsel for the Writ Petitioner that the petitioner is entitled to seek regularisation of the building, we are of the view that de hors pendency of the Writ Petition, challenging the provisions of Section 113-C of Tamil Nadu Town and Country Planning Act, 1971, since there is a rejection by the Authority with regard to the Special http://www.judis.nic.in 6 Building, it may not be feasible for them to retain the building, more particularly, when they have removed the structures in accordance with 2001 and 2004 plans, which have been refuted by the Contempt Petitioner.
8. It is seen that there is an anomaly with regard to the construction of the building and though it has been stated that the building has been brought in accordance with 2001 and 2004 plans, in the event of any violation in that plans and constructions after the year 2007, certainly, it has to be demolished. It is needless to mention that it is open to the Writ Petitioner to seek for demolition and reconstruction of the building and with the existing plans of the Years 2001 and 2004, they cannot seek any modification and construction of Special Building.
9. The Authorities need not dwell into any application, said to be pending under Section 113 C of the Tamil Nadu Town and Country Planning Act, 1971, as in the present case on hand, regularisation does not arise as the building construction has been demolished to the extent of violation in view of the order passed by the Authorities, pointing out the defects. http://www.judis.nic.in 7
10. It is pertinent to mention here that in order to maintain a legal construction, allowing an encroacher to file an application under Section 113-C of the Tamil Nadu Town and Country Planning Act, 1971 is highly deprecated and on the basis of the afore-stated Section, the Government has passed G.O.(Ms). Nos.110 & 111 dated 22.06.2017, giving exemption in respect of development of certain buildings. A close scrutiny of the Government Orders would reveal that the conditions laid down thereunder to regularize illegal constructions for the benefit of the exchequer and for their vested interest, will not sub-serve its purpose, as the intention to set back a building must be to ensure that in case of fire or any emergency, the Ambulance or any other rescue vehicle should easily pass through the passage so as to safeguard the affected persons and such stipulation is absent in the Government Orders. It was also brought to our knowledge that both the G.O.Ms.Nos.110 and 111 are under-challenge before this Court in W.P.No.23889 of 2017.
11. When the Government issued 62 GOs based on the insertion of Section 113-A of the Act, during the period 01.07.1987 till 29.01.1988, exempting large number of buildings in total disregard and in contravention of the provisions of the Act, all the http://www.judis.nic.in 8 62 Orders were quashed by the Hon'ble Supreme Court (though “one time measure” was held to be valid) in the case of Consumer Action Group vs. The State of Tamil Nadu and others, reported in (2000) 7 SCC 425, and thereafter, Section 113-C was introduced regarding exemption applicable throughout the State of Tamil Nadu, authorizing the encroachers to maintain the illegal construction by means of the above Government Orders without any set back.
12. The insertion of Section 113-C of the Act and the subsequent Government Orders appear to be a helping hand only to encroachers, who, at a later point of time, would daringly say that though they have encroached the land, park, Odai, OSR, etc., they are entitled to regularisation in terms of the above Section and the subsequent GOs. The Government, while issuing such guidelines, should ensure that the land, park, Odai, OSR, etc., are protected with utmost care and the Government should also take strict measures to curtail the encroachers with iron hand.
13. Looking at any angle, it can be said that the insertion of Section 113-C is violative of the decision of the Hon'ble Apex Court http://www.judis.nic.in 9 in the case reported in (2000) 7 SCC 425 (referred to supra) and on that score, G.O.Ms.Nos.110 and 111 have to be struck down / scrapped, in view of the fact that those Government Orders are completely in violation of the decision of the Apex Court, which had considered the grant of regularisation as an one time measure only. The Government also seems to be encouraging illegal encroachments and unauthorized constructions, as a close reading of the Report No.8 of 2017 of the Comptroller and Auditor General of India would reveal that the Corporation is solely responsible for such encroachments in all places and in the report, it was stated as under:
“Rampant encroachment of road margins in Chennai, with an average of 3.4 incidences of encroachments per kilometre of road length, went largely unchecked due to inaction on the part of Greater Chennai Corporation.
Encroachments on water bodies accounted for 49 per cent of the total objectionable encroachments.
Jurisdictional issues and lack of coordination between Revenue and Water Resources Departments contributed to the rise in encroachments on water bodies.” Therefore, we are of the view that G.O.(Ms) Nos.110 & 111 dated http://www.judis.nic.in 10 22.06.2017 are not valid and cannot stand in the eye of law.
14. When the similar issue in respect of one time regularization came up before the Hon'ble Bombay High Court in the case of Rajiv Mohan Mishra vs. City and Industrial Development [PIL No.80 of 2013] decided on 02.11.2018, it was observed as under:
“(I) We hold that section 52-A of the MRTP Act (Maharashtra Regional and Town Planning Act, 1966) shall be read down to mean that non obstante clause in sub-section (1) of section 52-A does not enable the Planning Authorities or the State Government to compound unauthorized developments, which are contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framded under the MRTP Act. Hence, by exercising the power under Section 52-A, unauthorised development, which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure......
(II) to (IV)......
(V) We direct CIDCO, MIDC and Navi Mumbai Municipal Corporation to carry out a survey within their respective jurisdictions as Planning Authorities for identifying and locating the total number of illegal constructions......”
15. Similarly, when the issue regarding one time regularisation came up before the Hon'ble Karnataka High Court in http://www.judis.nic.in 11 the case of Namma Bengaluru Foundation vs. The State of Karnataka and others [Civil Appeal Nos.767 & 768 of 2017] reported in 2016 CJ (Kar) 1244, the Hon'ble High Court held the regularisation of illegal constructions and plots in Bangalore area to be non-violative of Article 14 and 21 of the Constitution of India. However, the interim stay granted against regularisation by the Hon'ble High Court of Karnataka has been extended by the Hon'ble Supreme Court in Special Leave to Appeal (C) Nos.956 and 957 of 2017 by order dated 13.01.2017.
16. The Petitioner in the Contempt Petition cannot have any objection for the Writ Petitioner in seeking for an order from the Authorities with regard to demolition and by making necessary fresh application for construction in accordance with recent Building Rules.
17. The Authorities will have to inspect the site and submit a Report to the Registry of this Court within a month after measuring the extent of land, i.e. East-West and North-South and ensure as to whether there is any set back and the building is in accordance with the sanctioned Plan of the years 2001 and 2004. http://www.judis.nic.in 12
18. For the foregoing discussions and observations, both the Contempt Petition and the Writ Petition are disposed of, with the above directions. No costs. Consequently, connected Sub- Application is closed.
19. List these matters 'for compliance' by the Authorities on 18.03.2019.
[M.V.,J.] [S.V.N.,J.] 06.02.2019 Index:Yes / No Internet:Yes / No Speaking Order/Non-Speaking Order sr/aeb/ar To:
1. The Secretary, Housing and Urban Development Department, Fort.St. George, Chennai 600 009
2. The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai 600 008
3. The Commissioner, Avadi Municipality, Avadi, Chennai 600 054 M.VENUGOPAL, J.
http://www.judis.nic.in 13 and S.VAIDYANATHAN, J.
sr/aeb/ar Contempt Petition No.1087 of 2017 and Writ Petition No.24705 of 2017 06.02.2019 http://www.judis.nic.in