Madras High Court
Harvey Nagar Welfare Association vs The Member Secretary on 7 December, 2017
Bench: M.Venugopal, R.Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.12.2017
CORAM
THE HON'BLE MR.JUSTICE M.VENUGOPAL
and
THE HON'BLE MRS.JUSTICE R.THARANI
W.P.(MD) No.17336 of 2017
and
W.M.P.(MD)Nos.13880 and 16235 of 2017
Harvey Nagar Welfare Association,
Rep. by its Secretary,
Jehan, Plot No.2,
Harvey Nager,
Madurai - 10 .. Petitioner
vs.
1.The Member Secretary,
Madurai Local Planning Authority,
Madurai.
2.The Commissioner,
Madurai Municipal Corporation,
Madurai.
3.J.Robert Raja .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus directing the respondents 1 and 2 to take
appropriate action against the Third Respondent for illegal construction of
building situated in Ward No.5, Block No.77, T.S.No.10, Old T.S.No.1309/2-1,
Plot No.83, at Harvey Nager, Arasaradi, Madurai, pursuant to the order passed
by the First Respondent in his proceedings Na.Ka.No.837/17/MaThe5, dated
21.07.2017, within a time frame to be fixed by this Court.
!For Petitioner : Mr.B.Saravanan
for
Mr.N.Satheesh Kumar
^For R1 : Mr.M.Govindan
Special Government Pleader
For R2 : Mr.R.Prabhu Ramachandran
For R3 : Mr.Isaac Mohanlal
Senior Counsel
for
Mr.B.Jeyakumar
:ORDER
Heard the Learned Counsel for the Petitioner; the Learned Special Government Pleader for the First Respondent; the Learned Counsel for the Second Respondent and the Learned Senior Counsel for the Third Respondent.
2.No counter is filed on behalf of the Respondents No.1 and 2.
3.According to the Petitioner/Association, the land originally belong to the Society and through conveyance deed, the plots were sold to the members of the Society, as per terms and conditions. One of the conditions for the members is to utilise the property conveyed only for the dwelling house. As a matter of fact, individual dwelling houses were constructed in Harvey Nagar and there is no multi storage building contrary to the object of creation of the said Harvey Nagar. The Third Respondent had purchased the property within Harvey Nagar in T.S.No.1309/2-1, Plot No.83, measuring an extent of 6727.03 sq.ft.
4.The Petitioner/Association was given to understand that the Third Respondent had applied for the building permission before the First Respondent/Member Secretary, Madurai Local Planning Authority, to construct a multi storage building with four floors, to construct as many as 20 flats for residential purpose. By virtue of the proceedings, dated 31.08.2016, with a specific condition that out of the total land space, 1103.20 sq.m. shall be left for FSI and 319.88 sq.m. shall be left for non-FSI construction area and 1423.08 sq.m. will be the total construction area.
5.In the instant Writ Petition, the prime grievance of the Petitioner is that the Third Respondent contrary to the building permission granted to the First Respondent//Member Secretary, Madurai Local Planning Authority, had made construction far beyond the permissible limit and therefore, a representation was made by the Petitioner/Association, dated 15.05.2017 before the First Respondent detailing the above facts with a further request to stop further construction activity in the afore stated site and for demolition of unauthorised construction after carrying out inspection of the site in question.
6.It transpires that the First Respondent/Member Secretary, Madurai Local Planning Authority, conducted a site inspection on 17.07.2017 to verify the allegations/averments containing in the representation, dated 15.05.2017 of the Petitioner and subsequently, passed an order on 21.05.2017, as per Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, 1971, stating that in all the four floors constructed by the Third Respondent, there is 50.69% violation on account of Additional construction measuring an extent of 141.49 sq.ft. beyond the permissible limit.
7.Besides the above, as per proceedings of the First Respondent/Member Secretary, Madurai Local Planning Authority, dated 21.07.2017, the Third Respondent was required to bring the property to the State of the plan approved by the First Respondent within thirty days and failure to comply with the same, would result in locking and sealing of the premises, as per Sections 56 and 57 of the Act and other materials utilised for construction would be seized.
8.At this stage, the Learned Counsel for the Petitioner points out that although the period of thirty days got expired from the date of service of the proceedings, dated 21.07.2017, no action to lock and seal the premises in question was forthcoming and the Third Respondent was allowed to continue with the construction activity and in fact, the proceedings, dated 21.07.2017, was furnished by the First Respondent under the provisions of the Right To Information Act for his petition, dated 03.08.2017. Added further, the plea taken on behalf of the Petitioner is that if the multi storage building is constructed in violation of building plan, the same would cause prejudice to the members interest of the Petitioner/Society and the peace and tranquility at Harvey Nagar would be jeoparadised.
9.The Petitioner in the present Writ Petition has sought for passing of an order by this Court in directing the Respondents Nos.1 and 2 to take appropriate action against the Third Respondent for an illegal construction of building situated in Ward No.5, Block No.77, T.S.No.10, Old T.S.No.1309/2- 1, Plot No.83, at Harvey Nager, Arasaradi, Madurai, pursuant to the order passed by the First Respondent in his proceedings Na.Ka.No.837/17/MaThe5, dated 21.07.2017, within a time to be determined by this Court.
10.Conversely, it is the submission of the Learned Senior Counsel for the Third Respondent that the Third Respondent is a Class-I Contractor and intending to construct a residential apartment (housing 20 plots) has submitted a necessary building plan approval before the First Respondent/Member Secretary, Madurai Local Planning Authority, by filing an application, dated 25.07.2016 for construction of stilt and four floors and after considering the application, the First Respondent granted building plan approval for construction of the residential apartment housing 20 plots, as per proceedings, dated 31.08.2016. Further, it is represented that following the First Respondent's order, dated 31.08.2016, the Second Respondent/Madurai Municipal Corporation, granted permit order for the construction, as per proceedings, dated 28.09.2016. As per plan approval, the stilt floor was constructed as car parking. However, at the time of construction, for the safety and convenience of residents, it is projected on the side of the Third Respondent that the Engineer had advised some modification and it was determined to reduce the number of flats into 19 instead of 20 and one flat was reduced in the third floor. Besides this, the Third Respondent was advised for providing balcony and wardrobes to each house, by extending it by providing cantilever. The cantilever was provided in the open space left in four sides which is permitted under the Tamil Nadu Town and Country Planning Act, 1971.
11.It is the version of the Third Respondent that the construction of the entire building was completed by June, 2017 and only the interior work is to be carried out. The open space in the four sides was reduced from the first floor level for providing cantilever for setting up balcony, wardrobes and Architectural Projections. Also, the Third Respondent comes out with a plea that the said modification was only made for the safety and convenience of residents, but no floor violation was made.
12.The Learned Senior Counsel for the Third Respondent proceeds to point out that under the instigation of the Petitioner/Association, the First Respondent/Member Secretary, Madurai Local Planning Authority, inspected the construction on 21.07.2017 and issued proceedings in Na.Ka.No.837/17/MaThe5, stating that there is deviation in the building and directed him to take immediate steps to restore the construction as per the building plan approval within thirty days. Further, the Third Respondent had submitted a reply before the First Respondent on 21.08.2017, stating that the measurements pointed out in the said notice was not proper and necessary application will be submitted for revising the planning permission.
12.It comes to be known that the Third Respondent filed necessary application before the Director of Town and Country Planning for approval of revised building plan on 14.09.2017 and this was submitted through proper channel viz., the First Respondent/Member Secretary, Madurai Local Planning Authority and that the First Respondent sought for additional details and the same was submitted on 25.09.2017. The First Respondent once again sought for certain particulars through proceedings dated 06.10.2017, which was furnished by the Third Respondent on 07.10.2017. Subsequently, the First Respondent had forwarded the same to the Director of Town and Country Planning, Chennai and the same is pending as on date, which fact was intimated to the Third Respondent on 23.10.2017.
13.The Learned Senior Counsel for the Third Respondent contends that there is no encroachment to any public properties, as alleged by the Petitioner/Association and that the entire building was constructed only within his own land etc. Besides these, the Third Respondent takes a stand that the extension of balcony, Wardrobe and Architectural Projections by providing cantilever are all very much permitted under the Act and necessary application for approval of the same is pending before the Director of Town and Country Planning, Chennai. As such, the Petitioner/Association has no lucus standi to file the present Writ Petition, since he is not an aggrieved/affected party in any manner.
14.At this stage, the Learned Special Government Pleader for the First Respondent submits that on 23.10.2009, the Third Respondent had submitted a revised plan before the First Respondent/Member Secretary, Madurai Local Planning Authority and the same was forwarded to the Director of Town and Country Planning, Chennai/appropriate authority, and as on date, the said application is pending.
15.In this connection, it is represented on behalf of the First Respondent that the Director of Town and Country Planning will act on the revised plan submitted by the Third Respondent in accordance with law.
16.Insofar as the present case is concerned, there is no quarrel in regard to the fact that on 21.07.2017, notice was issued by the First Respondent to the Third Respondent pointing out that the construction was carried out contrary to the plan approval, for which, a reply was submitted by the Third Respondent on 21.08.2017. On 14.09.2017, the Third Respondent had submitted an application seeking approval for the revised plan, before the Director of Town and Country Planning, Chennai (through proper channel). The rectification and revised plan was also submitted by the Third Respondent, on 25.09.2017 before the First Respondent. Ultimately, on 23.10.2017, the First Respondent had intimated the Third Respondent in regard to the forwarding of the revised plan to the Director of Town and Country Planning, Chennai.
17.As far as the present case is concerned, the revised plan submitted by the Third Respondent, is pending on the file of the Director of Town and Country Planning, Chennai, Till date, no orders have been passed by the Director of Town and Country Planning, Chennai, in regard to the revised plan submitted by the Third Respondent. Inasmuch as the revised plan is pending for passing necessary orders on the file of the Director of Town and Country Planning, Chennai, this Court, in the interest of justice, fair play, equity, good conscience and even as a matter of prudence, directs the Director of Town and Country Planning, Chennai, although he is not a party to the present Writ Petition, to look into the pending revised application submitted by the Third Respondent and to pass necessary orders in the subject matter in issue within a period of six weeks from the date of receipt of a copy of this order. It cannot be gainsaid that the Director of Town and Country Planning, is to pass necessary orders in the subject matter in issue, by providing adequate opportunity to the Third Respondent, after adhering to the principles of natural justice. It is open to the Third Respondent to raise all factual and legal pleas before the Director of Town and Country Planning, at the time of passing necessary orders, in the subject matter in issue, is to deal with every aspect of the matter (both factual and legal pleas) referred to by the Third Respondent with a view to resolve the problems in a complete and comprehensive manner. Needless to say that the Director of Town and Country Planning, is to pass necessary orders in the subject matter in issue in a free, fair, impartial/unbiased with an open mind and that too in a dispassionate manner within the time adumbrated by this Court, as afore stated.
18.With the aforesaid Direction(s) and Observation(s), this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
To:
1.The Member Secretary, Madurai Local Planning Authority, Madurai.
2.The Commissioner, Madurai Municipal Corporation, Madurai.
.