Madras High Court
P.Palaniammal vs The Commissioner on 27 December, 2018
Bench: S.Vaidyanathan, P.T. Asha
-1-
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MS.JUSTICE P.T. ASHA
W.P.No.34670 of 2018
P.Palaniammal ...Petitioner
Vs.
The Commissioner,
Corporation of Coimbatore,
Big Bazaar Street,
Coimbatore 641 001. ...Respondent
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Mandamus directing the respondent to
take action on the petitioner's representation dated 11.09.2018.
For Petitioner : Mr.M.Shreedhar
For Respondents : Mr.J.Kishore
for Mr.R.Sivakumar
ORDER
(Order of the Court was made by S.VAIDYANATHAN, J.) We have heard Mr.M.Shreedhar, learned counsel for the petitioner and Mr.J.Kishore, learned counsel representing Mr.R.Sivakumar, learned counsel appearing for the respondent. http://www.judis.nic.in -2-
2. The petitioner has come forward with an innocuous prayer of considering her representation, dated 11.09.2018. According to the petitioner, she is the co-owner of the commercial-cum-residential complex at Door No.139/1, West Sambandam road, R.S.Puram, Coimbatore. The authorities of the Respondent/Corporation have issued several notices to the Petitioner, stating that she should provide parking space inside the building for the owners of the residential flats to park their vehicles. In this regard, final notice was issued to the Petitioner by the Commissioner, Coimbatore Corporation on 29.08.2018, as the Cars of the house owners were parked on the street, thereby causing traffic congestion in that area.
3. As per the final notice dated 29.08.2018, it is clear that the petitioner has constructed a building to an extent of 25280 sq. ft., which is completely in violation of the sanctioned plan. It is seen that the petitioner was granted a sanctioned plan to construct a building to an extent of 7743 sq.ft. and no stilt floor was permitted. However, the petitioner has not only constructed stilt floor to an extent of 5556 sq. ft., but also constructed several floors, details of which are tabulated hereunder:
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4. It is not in dispute that the Petitioner has constructed the building in violation of the sanctioned plan. In the case on hand, the Petitioner has sought for a direction to the Respondent to consider her detailed representation dated 11.09.2018, rather than challenging the final Notice issued by the Respondent/Coimbatore Corporation.
http://www.judis.nic.in -4-
5. Heard the learned counsel on either side and perused all the material documents available on record.
6. In a similar circumstance, a Division Bench of this Court by an order dated 29.09.2016 in Writ Petition No.29985 of 2016 in the case of M/s.Aara Silk vs. The Principal Director, Southern Command, has held as under:
"15. The contention of the petitioner that the appeal has been rejected by the 2nd respondent, who has no jurisdiction does not sound merit, as it is only a consequential order. The petitioner having clandestinely constructed the building and played fraud, cannot be shown any indulgence. Further, the case of the petitioner that he has not been given any opportunity is also totally incorrect and it is a misleading and self- serving statement. Even Section 340(3) of the Cantonment Act is very clear that no appeal shall be admitted, if it is made after the expiry of the period specified in the V Schedule. Also, Section 340(4) will not support the case of the petitioner as it is clearly stated that the period specified shall be computed in accordance with the provisions of the Limitation Act. It nowhere says that the Limitation Act is made applicable to the appeal or any petition filed under the Act. Hence, this Court cannot extend the period of time, which is not granted/specified in the enactment.
16. Therefore, no purpose is going to be served in asking the appellate authority to decide the appeal, which is going to give only one more round of litigation. Courts are here to give a finality to the litigation. If we ask the appellate authority to decide the matter, it is a relief only to the Advocates, who are going to appear in the subsequent litigations and it is certainly not a relief to the litigants, more particularly to the http://www.judis.nic.in -5- Government in this case.
17. The conduct of the petitioner in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built-up area on the ground and first floors but also added additional second and third floors on the building apart from the basement, which are totally unauthorised. Probably he was under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong.
18. In Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2 SCC 27, the Supreme Court declined the appellant’s prayer for directing the respondents to regularize the illegal construction and observed as follows:
“It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.”
19. In yet another decision pertaining to http://www.judis.nic.in -6- buildings constructed in violation of rules, in the case of Shanti Sports Club v. Union of India (2009) 15 SCC 705, the Supreme Court has held as under:
''This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions http://www.judis.nic.in -7- and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.”
20. It is pertinent to note that recently, 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 from service or even compulsory retirement atleast for the last five years.
(d) Not to let any unnecessary http://www.judis.nic.in -8- 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.''
21. And, this Court (Huluvadi G.Ramesh, J. & M.V. Muralidaran,J.), while dealing with the removal of encroachments, in the case of A.Kumar vs. The Commissioner, Greater Corporation of Chennai vide judgment dated 13.06.2016, has held as under:
"17. In view of the act of the petitioner in making repeated representations, the Corporation could not remove the encroachment as directed by this Court. Therefore, the Corporation had to face contempt proceedings in Contempt Petition No.1391 of 2015, which was closed after recording the submission of the Corporation that they would remove the same within a period of two weeks. Again, since the the encroachment could not removed due to the attempts made by the petitioner and other encroachers, the Corporation faced another contempt proceedings in Contempt Petition No.13 of 2016. In that matter, the Corporation sought one week time to comply with the order and the same was granted on depositing a sum of Rs.20,000/- within a week.
18. In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan [(1997) 11 SCC 123], the Supreme Court after referring to the earlier decisions, has observed thus:
"The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the http://www.judis.nic.in -9- facilities or convenience for passing or re- passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment."
19. In view of the decision cited above, we are of the considered view that the encroachment has to be removed forthwith, since the petitioner and others were given notice and their objections were also heard and considered, in accordance with law. Therefore, this writ petition is disposed of, with a direction to the Corporation to demolish the encroachment, in the presence of the petitioner on 13.7.2016 and also with a direction to the petitioner to pay a fine of Rs.1,000/- (Rupees one thousand only) to the credit of the Tamil Nadu Mediation and Conciliation Centre, Chennai, within a period of one week from the date of receipt of a copy of this order. This order shall be treated as notice to the petitioner for demolishing the encroachment made in the land in question. There shall be no order as to costs. Consequently, WMP No.16456 of 2016 is closed.
22. In view of the decisions cited supra, this Court is of the view that the violated portions have got to be razed to the ground. In terms of the provisions of the Cantonment Act, the police shall give full protection for the demolition of the building and the petitioner is given a week's time from today, to remove the belongings in the building, otherwise, it will be construed that the belongings have been vacated by the petitioner."
7. It is also worth referring to a decision of a Division Bench http://www.judis.nic.in -10- of this Court rendered in the case of D.Rajappa vs. State of Tamil Nadu in W.P.No.22058 of 2017, wherein, by an order dated 03.01.2018, it is held as under:
"4. ... A Division Bench of this Court, by order dated 14.09.2016, dismissed the Writ Petition filed by the present writ petitioners in W.P.No.27623 of 2005. Further, in W.P.No.3248 of 2006, filed by the fifth respondent, a Division Bench of this Court, by order dated 22.09.2006, directed that the unauthorised construction put up by the present writ petitioners shall be demolished. The matter was taken up to the Supreme Court and the Supreme Court in Petitions(s) for Special Leave to Appeal (Civil) Nos.14415-14416 of 2008, by order dated 02.03.2012, rejected the request of the present petitioners and has categorically observed as follows:
"In our considered view, the special leave petitions are wholly meritless and deserve to be dismissed because the finding recorded by the competent authority and the State Government that the petitioners had not completed the structural construction till 31.03.2002 is based on correct evaluation of the documents produced by the first authority. The very fact that the petitioners had made application on 31.10.2000 for regularisation of the building despite the fact that as on that date the construction had not even commenced shows that by taking advantage of the Rules framed by the State Government under Section 122(2) of the Act (The Tamil Nadu Town and Country Planning Act), they wanted to have an advance certificate for future illegal construction of the commercial building and we have no hesitation to hold that the competent authority and the State Government did not commit any illegality by rejecting their application and the appeal and the High Court rightly declined their prayer for issue of a mandamus to the respondents to http://www.judis.nic.in -11- regularize the illegal construction of commercial building.
The special leave petitions are accordingly dismissed.
We hope and trust that in future the State Government will refrain from changing cut off date specified in Rule 3 (the Application, Assessment and Collection of Regularization Fee, Chennai Metropolitan Area) Rules) because that will only encourage those who make illegal/unauthorised constructions with the hope that in future they will succeed in persuading the Government to regularise the illegal constructions. Such an exercise has the pernicious effect of destroying the concept of planned development of the urban area which is the primary object of the Act."
8. The Petitioner herein has made an application seeking regularization of the construction and the same is pending. Even though the final notice dated 29.08.2018 refers only to the parking slot to an extent of 2581 sq.ft., it cannot be read in isolation, whereas, in the tabular column, it has been specifically mentioned that there is 90% violation in the construction.
9. It is pertinent to note that the Apex Court has repeatedly held that buildings have to be constructed without violation of the sanctioned Plan. This Court has also repeatedly held that if any application for regularization is entertained, the authorities concerned http://www.judis.nic.in -12- are bound to initiate disciplinary proceedings against the erring officials. Construction of a building in violation of the sanctioned Plan and thereafter making an application seeking regularization, would amount to putting the Cart before the Horse.
10. The principle laid down by the Apex Court is that every citizen should be a law abiding person and no one shall violate the law. If the violators of law are permitted to violate, certainly, it will set a bad example to the law abiding citizens, as has been held by the Apex Court.
11. The conduct of the petitioner in the present case deserves to be noticed. She knew fully well what was the permissible construction as per the sanctioned building plan. However, she has not only constructed the ground, first and second floors, but, also constructed additional third, fourth and stilt floors on the building, which are totally unauthorized. She was probably under the impression that she would be able to escape from the clutches of the law, by way of manipulation.
12. It is seen that after obtaining permission for construction of stilt and particular number of floors, without giving open space as http://www.judis.nic.in -13- per the Plan, the entire rear portion has been constructed. The Government should think of amending the Regulations in such a way that once there is permission for construction of stilt floor, construction shall be made only at the rear side instead of front portion. This will enable the public to know as to whether there has been any illegal construction. Many illegal constructions are unnoticed, as although construction is permitted only on the front side, the rear portion of the house is constructed, as there cannot be any permission for the rear portion in cases of permission for construction of stilt Floors.
13. At this juncture, it is worth referring to the decision of the Apex Court in the case of M.I.Builders Private Ltd. Vs. Radhey Shyam Sahu reported in AIR 1999 SC 2468 at Special Page 2505, wherein at Paragraph 82, it is observed and held as under:
"82. 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 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 discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts http://www.judis.nic.in -14- are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing 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. ...."
14. In view of all the above, we are of the view that the innocuous prayer of the petitioner for disposing of her representation cannot be considered and the respondent authorities are directed to act as follows:
(a) Respondents are directed to de-seal the building constructed by the Petitioner for the purpose of rectifying the defects, for one month and the building shall not be occupied for any other purpose, much less residential purpose.
(b) Till the building is brought in accordance with the sanction Plan, Electricity charges shall be levied on the rates applicable for construction of buildings.
(c) If the defects are not rectified by the Petitioner within the stipulated period, and if the respondents are unable to demolish the building, then, the Respondents must remove all the doors, windows, glasses, toilet seats http://www.judis.nic.in -15- 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.
(d) If the officials concerned do not adhere to the above procedure, they shall be posted in a non-sensitive post and disciplinary proceedings shall be initiated against them for
(i) dereliction of duty (ii) dishonesty and (iii) not showing utmost faith in their duty and the authorities must ensure that they are shown the doors. The disobeying Officials should be brought under the purview of moral turpitude to deprive them the gratuity and terminal benefits.
15. Although illegal constructions and encroachments are brought to the notice of Authorities, they turn a blind eye for reasons best known to them and allow the illegal structures to stand. In such cases, if any illegal structure is not brought down by the Authorities, after such violation of construction and encroachments are brought to their attention, it should be presumed that they are keeping quiet for extraneous reasons, thus deeming such an act to attract misconduct of moral turpitude.
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16. It is made clear that if there is no rectification of defects by the Petitioner within the time stipulated, electricity connection and water supply shall be disconnected to the premises on 10.06.2018, emphasis to be given to the fact that the education of the children should not be compromised, as the Annual Exams of the children are scheduled till April/May 2019. This sympathy is shown, as the education of children should not be penalized for the sins of the parents.
17. In the result, the Writ Petition fails and accordingly, the same is dismissed. No costs.
18. List this matter on 17.06.2019 for the Respondent to report compliance of the direction of this Court in paragraph Nos.14 to 16.
19. We make it clear that there is no need for issuance of another notice to the violator, as that would give a fresh cause of action, thereby deeming this order to be ineffective. The tenements/occupiers shall vacate the premises before 7th June 2019, failing which, they are deemed to have vacated and the demolition shall commence; during the process of demolition if their properties http://www.judis.nic.in -17- are damaged, the Officials will not be held responsible.
20. The Commissioner of Police is directed to send Police force to enable the Officials to carry out the demolition.
[S.V.N.,J.] [P.T. A.,J.]
27.12.2018
Index : Yes/No
Speaking Order : Yes/No
kj/jv/aeb
Note to Registry:
Mark a copy of this order to the Commissioner of Police, Coimbatore. To :
The Commissioner Corporation of Coimbatore, Big Bazaar Street, Coimbatore 641 001.
http://www.judis.nic.in -18- S.VAIDYANATHAN, J.
and P.T. ASHA , J.
(kj/jv/aeb) W.P.No.34670 of 2018 27.12.2018 http://www.judis.nic.in