Madras High Court
Ebenezer vs The Government Of Tamil Nadu on 11 January, 2021
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
WP.No.487/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 11.01.2021
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
WP.No.487/2021
& WMP.No.566/2021
[Video Conferencing]
Ebenezer .. Petitioner
Versus
1.The Government of Tamil Nadu
rep.by Secretary to Government
Housing & Urban Development
Department, Fort ST. George
Secretariat, Chennai 600 009.
2.The Commissioner
Greater Chennai Corporation
Rippon Building
Chennai 600 003.
3.The Executive Engineer
Zone-7, Greater Chennai Corporation
Ambattur, Chennai 600 053.
4.The Assistant Executive Engineer
Unit 20, Zone-7,
Greater Chennai Corporation
https://www.mhc.tn.gov.in/judis/
1
WP.No.487/2021
Ambattur, Chennai 600 053.
5.The Assistant Engineer
Division-93, Zone-7
Greater Chennai Corporation
Ambattur, Chennai 600 053.
6.The Member Secretary
Chennai Metropolitan Development Authority
No.1, Thalamuthu Natarajan Building
Gandhi Irwin Road, Egmore
Chennai 600 008. .. Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of mandamus to direct the
respondents 3rd, 4th and 5th not to demolish the building situated at
No.239-A, Erode Jaganathan Street, Golden George Nagar, Chennai 600
107, comprised in Survey No.420 part, measuring to an extent of 990
sq.ft., pending disposal of the appeal under section 80-A of the Town and
Country Planning Act, 1971 before the 1st respondent.
For Petitioner : Mr.S.Santhan
For R1 : Mr.R.Vijayakumar
Additional Government Pleader
For R2 to R5 : Mr.K.Raja Srinivas
Standing counsel
For R6 : Mr.P.S.Ganesh
Standing counsel
ORDER
https://www.mhc.tn.gov.in/judis/ 2 WP.No.487/2021 [Order of the Court was made by M.SATHYANARAYANAN, J.] (1)By consent, the writ petition is taken up for final disposal and is disposed of by this order.
(2)Mr.R.Vijayakumar, learned Additional Government Pleader accepts notice on behalf of the 1st respondent ; Mr.K.Raja Srinivas, learned Standing counsel accepts notice on behalf of respondents 2 to 5 and Mr.P.S.Ganesh, learned Standing counsel accepts notice on behalf of the 6th respondent.
(3)The petitioner in the affidavit filed in support of this writ petition would aver among things that in the year 1987, a layout, viz., ''Golden Goerge Nagar'' came to be formed and one Mrs.Reeta Durairajan, had purchased the landed property admeasuring to an extent of 990 sq.ft., in S.No.420 [Part] of the said approved layout from one Mr.Durairajan who was Power of Attorney of the original owners through a registered Document bearing No.5892/2006 dated 04.12.2006, registered on the file of office of the Sub Registrar, Konnur. The original purchaser of the said property has put up a superstructure consisting Ground + First Floors, having a plinth area of 1700 sq.ft., [approx.]. The petitioner would further state that his parents, viz., https://www.mhc.tn.gov.in/judis/ 3 WP.No.487/2021 Mrs.Premabai and Mr.John Williams, had purchased the said property from Mrs.Reeta Durairajan, through a registered Doc.No.4382 of 2007 dated 07.09.2007 registered on the file of the office of the Sub Registrar, Konnur and started enjoying the same and the said property is also subject to statutory levies.
(4)The petitioner had succeded to the said property after the demise of his parents and since he was taking care of his paternal aunt, he kept the premises bearing Door No.239-A, Erode Jaganathan Street, Golden George Nagar, Chennai-107, vacant for more than five years. However, to his shock and surprise, he was issued with the De- Occupation Notice under Sections 56, 57 read with Section 85 of the Tamil Nadu Town and Country Planning Act, 1971 [in short ''TCP Act''] vide Notice dated 27.06.2018 by respondents 3 to 5 and challenging the same, he filed a statutory revision/appeal under Section 80A of the TCP Act.
(5)Since the said special revision/appeal has not been given disposal, the petitioner filed WP.No.16914/2018 on the file of this Court and a Division Bench of this Court, vide final order dated 09.07.2018, has directed the 1st respondent herein / the Government, to dispose of the appeal/special revision within a period of six weeks from the date of https://www.mhc.tn.gov.in/judis/ 4 WP.No.487/2021 receipt of a copy of the said order and till such time, indicated that the possession of the petitioner shall not be disturbed. Accordingly, the 1st respondent/appellate authority, had taken up the special revision/appeal and vide communication dated 20.09.2018 in Letter No.14397/UD-VII[1]/2018-4, and had taken note of the fact that in the Sale Deeds bearing Doc.Nos.4382/2007 and 5892/2006, the schedule of properties contains only the plots and not the superstructure and further noticed that the plot is an unapproved one and therefore, directed the appellant/petitioner herein to obtain regularisation of the plot first and thereafter, apply for Planning Permission within a period of one month and if the applicant has not filed within one month, granted liberty to the Greater Chennai Corporation to pursue further enforcement act.
(6)The petitioner had applied for regularisation of the unapproved plot and layout before the 6th respondent vide Registration No.CMDA/P/0065924/2017 dated 03.11.2018 and the said application is said to be pending. The respondents 3 and 4, in the light of the fact that the petitioner did not take any steps within the said time line, has issued the Show Cause Notice / final De-Occupation Notice dated 13.11.2018 and it was put to challenge by the petitioner by filing https://www.mhc.tn.gov.in/judis/ 5 WP.No.487/2021 WP.No.32502/2018. The Hon'ble First Bench of this Court, vide order dated 25.02.2019, having noted about the availability of an efficacious alternative remedy, by preferring an appeal/special revision u/s.80-A of the TCP Act, has disposed of the same by giving liberty to the petitioner to work out his remedy and accordingly, the petitioner has filed the special reivision u/s.80-A of the TCP Act before the 1st respondent on 22.04.2019 along with the prayer for interim relief. (7)The learned counsel for the petitioner would submit that in all fairness, respondents 3 to 5 should have laid off their hands in the light of the entertainment and pendency of the said reivison before the 1 st respondent and since they are taking emergent steps to go for demolition of the alleged offending construction, prays for appropriate orders.
(8) Per contra, Mr.R.Vijayakumar, learned Additional Government Pleader appearing for the 1st respondent, on instructions, would submit that the earlier order/proceedings of the 1st respondent dated 20.09.2018 [referred to supra], have not been put to challenge and it has become final.
(9)Mr.K.Raja Srinivas, learned standing counsel appearing for the https://www.mhc.tn.gov.in/judis/ 6 WP.No.487/2021 respondents 2 to 5, on instructions, would submit that the superstructure in question has been demolished on 12.12.2020 and in the light of the said development, nothing remains for further adjudication in this writ petition and it is open to the petitioner to comply with the order of the 1st respondent dated 20.09.2018 [cited supra] and work out his remedy.
(10)This Court has considered the rival submissions and also perused the materials placed before it.
(11)A perusal and consideration of the materials would disclose that the predecessor in title of the petitioner alleged to have purchased the unapproved plot and thereafter, put up a superstructure without any Planning permission and the parents of the petitioner, in turn, had purchased the property, vide registered Sale Deed dated 07.09.2007 bearing Doc.No.4382/2007 registered on the file of the office of the Sub Registrar, Konnur. The earlier proceedings of the 1st respondent dated 20.09.2018 passed under Section 80-A of the TCP Act [referred to supra], would disclose that in the Sale Deed executed in favour of the parents of the petitioner herein, the existence of the superstructure, has not been indicated and thus, it appears that not only the plot is an unapproved one, but putting up of the superstructure, is also https://www.mhc.tn.gov.in/judis/ 7 WP.No.487/2021 unauthorised, as it has been done without obtaining any planning permission. The 1st respondent, by exhibiting benevolence, while disposing of the special revision vide order dated 20.09.2018 [cited supra], has granted liberty to the petitioner to obtain regularisation of the plot first and thereafter, apply for planning permission within a period of one month and the petitioner has applied for regularisation of the unapproved plot / layout before the 6th respondent vide Application dated 13.11.2018 and the same is said to be pending. In the absence of challenge to the order/proceedings dated 20.09.2018 [referred to supra], the consequential show cause notice / final De-Occupation Notice dated 13.11.2018 issued by respondents 3 to 5, cannot be faulted with.
(12)It also appears that the superstructure consisting of Ground+First Floors with the built up area of 1700 sq.ft., appears to be an unauthorised one and since respondents 3 to 5 had taken action strictly in accordance with law, it cannot be faulted with. (13)The primordial submission made by the learned counsel for the petitioner is that in the light of the pendency of the special revision along with the petition for stay dated 22.04.2019, respondents 3 to 5 ought not to have proceeded further. It is a well settled position of law https://www.mhc.tn.gov.in/judis/ 8 WP.No.487/2021 that mere pendency of the revision/appeal without any interim orders, cannot operate as stay of all further proceedings and therefore, initiation of action in accordance with law on the part of respondents 3 to 5, is sustainable.
(14)This Court finds no merit in this writ petition. However, it is open to the petitioner to pursue the Application dated 13.11.2018 filed before the 6th respondent and depending upon the result of the same, shall take appropriate action in accordance with law. (15)In the result, the writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
[MSNJ] [AANJ]
11.01.2021
AP
Internet:Yes
To
https://www.mhc.tn.gov.in/judis/
9
WP.No.487/2021
1.The Secretary to Government
Government of Tamil Nadu
Housing & Urban Development
Department, Fort ST. George
Secretariat, Chennai 600 009.
2.The Commissioner
Greater Chennai Corporation
Rippon Building
Chennai 600 003.
3.The Executive Engineer
Zone-7, Greater Chennai Corporation
Ambattur, Chennai 600 053.
4.The Assistant Executive Engineer
Unit 20, Zone-7,
Greater Chennai Corporation
Ambattur, Chennai 600 053.
5.The Assistant Engineer
Division-93, Zone-7
Greater Chennai Corporation
Ambattur, Chennai 600 053.
6.The Member Secretary
Chennai Metropolitan Development Authority No.1, Thalamuthu Natarajan Building Gandhi Irwin Road, Egmore Chennai 600 008.
https://www.mhc.tn.gov.in/judis/ 10 WP.No.487/2021 M.SATHYANARAYANAN, J., AND A.A.NAKKIRAN, J., AP WP.No.487/2021 11.01.2021 https://www.mhc.tn.gov.in/judis/ 11