Madras High Court
R.Mallika vs The Government Of Tamil Nadu on 15 April, 2021
Author: N.Kirubakaran
Bench: N.Kirubakaran, T.V.Thamilselvi
W.P.No.7247 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE T.V.THAMILSELVI
W.P.No.7247 of 2021
and W.M.P.7751 of 2021
R.Mallika
W/o.N.K.Ramakrishnan ... Petitioner
Vs
1.The Government of Tamil Nadu,
Represented by its Secretary,
Housing and Urban Development Department,
Secretariat,
Chennai-600 009.
2.The Commissioner,
Directorate of Town and Country Planning
Chengalvarayan Building
4th floor, 807 Anna Salai, Chennai-600 002.
3.The Deputy Director,
Directorate of Town and Country Planning,
Salem Region, 6, Sannadhi Street,
Subramania Nagar, Sooramangalam,
Salem-636 005.
4.The Commissioner,
Attur Municipality, Municipality Office,
Attur, Salem District-636 102. ... Respondents
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https://www.mhc.tn.gov.in/judis/
W.P.No.7247 of 2021
PRAYER : Petition filed under Article 226 of the Constitution of India
for issuance of Writ of Mandamus, directing the 1st respondent to
consider the representation dated 09.03.2021 on merits and pass suitable
orders for reconsideration and review of the application dated 18.08.2020
for revision of plans relating to the building constructed over the
property situated at Door No.1098, Block No.9, Ward D, Salem-
Cuddalore Main Road, Attur comprised in Survey No.35/3.
For Petitioner : Mr.OLV.Ganesan
For Respondents
For R1 to R3 : Mr.M.Elumalai
For R4 : Mr.B.Anand
ORDER
(Order of the Court was passed by N.KIRUBAKARAN, J) The Petitioner is the absolute owner of the property totally measuring an extent of 9283.50 sq.ft., situated at Door No.1098, Block No.9, Ward D, Salem -Cuddalore Main Road, attur, compraised in Survey No.35 /3, Attur Taluk and Attur Town, in Block 7 & 9, D ward. 2/9 https://www.mhc.tn.gov.in/judis/ W.P.No.7247 of 2021
2. The petitioner has applied for planning permission for the construction and the planning permission was granted by the 4th respondent on 16.09.2016. The petitioner put up the commercial construction though total permissible FSI of 18,567 Sq.ft. is available for construction. The petitioner availed 1949 sq.ft alone. Subsequently, .. Court approved additional construction has been made contrary to the approve plan and therefore, the petitioner submitted revised plan to the 4th respondent for necessary approval.
3. Thereafter, on 09.12.2017 the petitioner is said to have been filed an appeal to the 2nd respondent along with the supporting original documents, through the 3rd respondent. Again on 20.05.2019 submitted an additional application. Though application has been sent to the 2nd respondent the petitioner was asked to approach the 1st respondent by 26.02.2020.
4. Accordingly, the petitioner also filed an appeal on 18.08.2020. A communication has been received dated 26.02.2021 from the 1st respondent offering on-line hearing. However, no hearing has been 3/9 https://www.mhc.tn.gov.in/judis/ W.P.No.7247 of 2021 given, no order has been passed.
5. In the mean while, the 2nd respondent who already directed the petitioner to approach the 1st respondent rejected the petitioner's appeal by order dated 26.02.2021. Thereafter, the petitioner gave the detailed representation on 09.03.2021, stating that he has not deviated from the approved plan and his appeal deserves to be considered taking into following points:
“ The scope of reconsideration arises due to the fact that the earlier communication does not specify any specific reasons or findings. I sincerely submit that the appeal submitted by me deserves all necessary merits for allowing the same, more particularly for the reasons as stated below:
(a) There is no FSI violation for the subject construction and in fact majority of FSI is yet to be availed by me
(b) The details of the front set back, rear setback and side setback as available to the subject construction has been provided. More specifically the front set back is available to the subject construction as the land owned by me along with my husband and son in Survey No.35/4 is available. I can also submit the 4/9 https://www.mhc.tn.gov.in/judis/ W.P.No.7247 of 2021 necessary affidavit of declaration from my husband and son to confirm the availability of set back in the said area.
More particularly the land in Survey No.35/4 abutting the subject construction is exclusively owned by me along with my husband and son. Alternatively if required I also agree to modify the entrance of the subject property towards the eastern side wherein 5.4 metre access road is available as well as 1.5 metre of front setback is available. The said front setback and access road in the eastern side is comprised in survey No.35/7 which is also exclusively owned by me along with my husband ans son.
(c) The afore said details was submitted by me more comprehensively vide my communication dated 23.02.2021 and the same establishes and confirms the availability of necessary front, side and rear setback areas to the subject construction as well as the availability of proper access from the Salem Cuddalore main road and also the availability of required car parking area. The details as provided thereof confirms that the subject construction satisfies necessary rules as per combined Development and Building Rules, 2019 as applicable.”
6. The said representation is pending before the 1st respondent. Since the said representation has not been disposed of. This 5/9 https://www.mhc.tn.gov.in/judis/ W.P.No.7247 of 2021 petition is directing the respondent to consider the representation dated 09.03.2021 by way of this Writ Petition.
7. Heard Mr.OLV.Ganesan, learned counsel appearing for the petitioner. Mr.M.Elumalai, learned Additional Government Pleader appearing for the Respondents 1 to 3 and Mr.B.Anand, learned counsel appearing for the 4th respondent.
8. ... is eventuate from the Writ Petition that the petitioner has deviated from the approved plan. In this regard he had already approached the 1st and 2nd respondent, all the documents to show that he has not made any massive violation and set back violation.
9. However, the order has been passed by the 2nd respondent rejecting the petitioner's appeal on 26.02.2021, though on perusal of the order would reveal that it is not a speaking order there is no reasons given as to who the application has been rejected. Be that as on may, the 2nd respondent only directed to approach the 1st respondent by communication dated 26.02.2020. Accordingly, the petitioner 6/9 https://www.mhc.tn.gov.in/judis/ W.P.No.7247 of 2021 approached the 1st respondent by appeal dated 18.08.2020 and submitted all the required documents. In fact a communication was issued by the 1 st respondent offering online herein. (20.01.2021).
10. The said appeal is still pending before the 1st respondent. Since this Court is of the view, the 2nd respondent passed a non-speaking order. It is appropriate to directed the 1 st respondent to consider the petitioner's appeal dated 18.08.2020 and also the representation given by the petitioner on 09.03.2021 along with the documents submitted by them. After giving an opportunity to the petitioner, within a period of eight weeks from the date of receipt of copy of the orders till the appeal is disposed of and copy is served upon the petitioner. No casual steps taken against the petitioner till. Consequentially, connected Miscellaneous petition is closed. No costs.
(NKKJ) (TVTSJ)
15.04.2021
rri/sai
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https://www.mhc.tn.gov.in/judis/
W.P.No.7247 of 2021
To
1.The Government of Tamil Nadu,
Represented by its Secretary,
Housing and Urban Development Department, Secretariat, Chennai-600 009.
2.The Commissioner, Directorate of Town and Country Planning Chengalvarayan Building 4th floor, 807 Anna Salai, Chennai-600 002.
3.The Deputy Director, Directorate of Town and Country Planning, Salem Region, 6, Sannadhi Street, Subramania Nagar, Sooramangalam, Salem-636 005.
4.The Commissioner, Attur Municipality, Municipality Office, Attur, Salem District-636 102.
8/9 https://www.mhc.tn.gov.in/judis/ W.P.No.7247 of 2021 N.KIRUBAKARAN, J.
and T.V.THAMILSELVI, J rri/sai W.P.No.7247 of 2021 and W.M.P.7751 of 2021 Dated : 15.04.2021 9/9 https://www.mhc.tn.gov.in/judis/