Madras High Court
… vs The Commissioner on 25 October, 2021
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.No.21390 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.10.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Writ Petition No.21390 of 2021
& W.M.P.No. 22637 of 2021
Jains Eden Park Flat Owners' Association
Rep by its Secretary V. Muralidharan,
Old No. 25 New No.4, Judge Jambulingam Road,
Mylapore, Chennai 600004
…. Petitioner
-Vs-
1.The Commissioner,
Greater Chennai Corporation,
Rippon Buildings,
Chennai 600003
2.The Superintending Engineer,
Zone-IX, Ward No.119,
Greater Chennai Corporation,
No.4, 4th Cross Street, Lake View Road,
Nungambakkam Chennai-600034
3.The Assistant Engineer,
Zone-IX, Ward No.119,
Greater Chennai Corporation,
No.4, 4th Cross Street, Lake View Road,
Nungambakkam, Chennai-600034.
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W.P.No.21390 of 2021
4.Mr.R.Dinesh,
Flat No.S1 and F1,
Jains Eden Park Apartment,
Old No. 25, New No.4,
Judge Jambulingam Road,
Mylapore, Chennai-600004.
…. Respondents
Prayer: Writ Petition under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, or any other appropriate
writ, directing the respondents 1 to 3 to take immediate and necessary
action against the 4th respondent under the Chennai City Municipal
Corporation Act 1919 for illegal demolition construction and alteration
of the super-structure at Flat No.F1 Jains Eden Park Apartment Old No.
25 New No.4 Judge Jambulingam Road, Mylapore Chennai-600004,
damaging the structural stability of the entire apartment and violating
the provisions of the Act.
For Petitioner : M/S.N.Jayakumar
For Respondents : Mr. P.T.Ramadevi
Standing Counsel for R1 to R3
Mr. V.K.Sathiamurthy for R4
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W.P.No.21390 of 2021
ORDER
This writ petition has been filed for a direction to respondents 1 to 3 to take immediate and necessary action against the 4th respondent under the Chennai City Municipality Corporation Act on the ground that the 4th respondent is making substantial alteration in the flat and thereby, is violating the initial plan sanction granted by the concerned authority.
2. When the matter came up for hearing on 20.10.2021, this Court passed the following order :-
The respondent 1, 2 and 3 have filed a counter affidavit. A specific stand has been taken in the counter affidavit to the effect that the planning permission was given by CMDA and hence, if at all any action has to be taken/ initiated, it can be done only by CMDA and not by Corporation of Chennai.
2. The learned counsel for the petitioner submitted that the 4th respondent is proceeding further to make structural alteration inside the flat which is resulting in developing cracks in the adjacent flats. The learned counsel further submitted that the 4th respondent is 3 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 admitting to convert a three Bed room flat in to a four bed room flat.
Therefore, according to the learned counsel for the petitioner, the 4th respondent cannot continue to make the alterations without getting proper permission from the concerned authority.
3. The 4th respondent who is a practicing Advocate, was present in the Court. This Court inquired the 4th respondent as to the nature of renovation / repairs carried out in the flat that is situated in the 1st floor. The 4th respondent explained as to what work is being done and he flatly refuted the allegations made by the petitioner association.
4. In order to understand the nature of repairs/renovations carried out by the 4th respondent, this Court directed the 4th respondent to file an affidavit before this Court. The 4th respondent readily accepted and sought for some time. The affidavit shall be filed before this Court before the next date of hearing after serving the copy of the same to the learned Counsel for the petitioner. The affidavit shall explain the nature of work carried out in the flat and also deal with the specific allegations made by the petitioner association.
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5. Post this case under the same caption on 25.10.2021.
3. Pursuant to the above order, the 4th respondent filed an affidavit along with the certificate issued by the structural engineer. The relevant portions in the affidavit are extracted hereunder :-
6. I state that in the joint venture with the builder I was given 5 Apartments and I have already sold 2 Apartments namely Apartment G-1 in the ground floor and T-2 in the third Floor. I state all the persons who had purchased the Apartments from the builder easier have already made suitable renovation to their respective Apartments and owners who had purchased from me have also made complete renovation work according to their convenience and style.
7. I state this building complex is 22 years old and due to the age some walls inside my Apartment F-1 had developed cracks and became weak, therefore I had to strengthen them. I state that in the month of September 2021, I had sent email communication to all owners of the association that I am renovating my Apartment and 5 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 regret for any inconvenience which may be caused to them. .
8. I had to rectify and strengthen the weak wall and rehabilitate with lighter Aercon blocks. I state that I am changing my marble flooring and also the tiles in all the rooms which were in bad condition after 22 years due to wear and tear and replacing them with modern vitrified tiles.
9. I had noticed that all the wooden doors and windows were infested with white ants and had to remove the complete doors and decided to replace them with new wooden doors and also removed the windows and intended to replace them with the modern UPVC windows.
10. I state that I had consulted the Architect and a Licensed Structural Engineer before commencing the renovation work and the work is continuing under their professional guidance.
11. I state that I have not touched or meddled with the basic infra-structure of the building like the columns and beams. I state that I have not extended any of the exterior portion of the existing building o constructed any external structure which would affect the whole structure of the building.
12. I state that I am changing the complete plumbing line which was originally made up of GI pipes which had corroded due to rusting 6 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 and now replacing them with PVC pipelines and changing the closets which were cracked and damaged.
13. I state that I am changing the entire electrical wiring for the complete Apartment, where I have noticed that the wires in the pipe line have become weak and casing frequent voltage fluctuations.
14. I state that I have not carried out any development of land or building in the existing portion of the land area. I state that the apprehension of the other resident owners that I am building a 4 th bedroom inside my apartment is without any basis. I state that I am not constructing or intend to construct 4th bedroom inside my Apartment F-1 and as claimed by the Association there is no space for the construction of the 4th bedroom inside my apartment as claimed by them. This theory gets falsified by the report submitted by the respondents 1 to 3 in this case.
15. I state that I am doing the false ceiling/roofing for the entire Apartment which will give a better look to the 22 year old Apartment.
16. I state that I am also changing the main door of my Apartment due to wear in tear. I state that I am also replacing the existing damaged wood work like cupboards and lofts by replacing 7 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 with new wood work.
17. I state that I am replacing the rusted balcony grills by renovation work and replacing the same with UPVC windows.
18. I state that all the above work carried out by me are renovation of my Apartment F-1 and these renovations will not affect the structure and stability of the building.
19. I state I had also obtained a structural Engineer's certificate and guidance about the renovation work who had been inspecting while the work is in progress and the structural Engineer had also issued a certificate clearly stating that the building is strucrurally sound and its stability will not endanger the repair work carried out. I submit that the structural Engineer in his certificate dated 04.10.2021 has also mentioned that none of the structural elements like column, footings, and beams are disturbed. The copy of the same is attached for the kind perusal of this Hon'ble Court. The said copy has already been put up in the notice board for the kind attention of the all residents and a copy handed over to them.
20. I state I had taken all measures during renovation work that this building and its basic structure are not disbursed or altered and moreover I have been residing in the premises F-1 for the past 22 years and I am also owning 2 more Apartments in this same building 8 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 complex. I hereby assure and affirm that I will not take any steps to endanger the safety and structure of the existing building thereby endangering the life of the other residents occupying the flats.
4. The learned counsel for the petitioner submitted that the affidavit filed by the 4th respondent does not reflect the actual position on ground. The learned counsel submitted that the 4th respondent is making substantial changes in the flat and thereby, the adjacent flats are affected and are developing cracks.
5. Heard the learned counsel for the petitioner and learned counsel appearing on behalf of the respondents.
6. On a careful reading of the affidavit filed by the 4th respondent, it is seen that substantial renovation is being undertaken in the concerned flat. The issue is whether such renovation would require the sanction of CMDA or the Corporation of Chennai. It is specifically stated by the 4th respondent that he is not attempting to create an extra 9 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 room or change the very structure of the flat. Under such circumstances, this Court does not find any requirement for getting a sanction from the CMDA / Corporation of Chennai.
7. If the other residents in the flat are aggrieved by the substantial renovation done by the 4th respondent in his flat and it is causing nuisance to them, the petitioner association has to necessarily approach a competent Civil Court and work out their remedy. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot go into such factual disputes. That apart, this is a private dispute between the association and the 4th respondent and it should be necessarily worked out only before the competent Civil Court.
8. In view of the above, the relief sought for by the petitioner cannot be granted by this Court and if the petitioner association is aggrieved by the work carried out by the 4th respondent, it is left open to them to approach the competent Civil Court and work out their remedy in accordance with law.
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9. This writ petition is disposed of accordingly. No costs. Consequently the miscellaneous petition is also closed.
25.10.2021 sha/rka 11 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 To
1.The Commissioner, Greater Chennai Corporation, Rippon Buildings, Chennai 600003
2.The Superintending Engineer, Zone-IX, Ward No.119, Greater Chennai Corporation, No.4, 4th Cross Street, Lake View Road, Nungambakkam Chennai-600034
3.The Assistant Engineer, Zone-IX, Ward No.119, Greater Chennai Corporation, No.4, 4th Cross Street, Lake View Road, Nungambakkam, Chennai-600034.
4.Mr.R.Dinesh, Flat No.S1 and F1, Jains Eden Park Apartment, Old No. 25, New No.4, Judge Jambulingam Road, Mylapore, Chennai-600004.
12 / 13 https://www.mhc.tn.gov.in/judis/ W.P.No.21390 of 2021 N.ANAND VENKATESH, J.
rka Writ Petition No.21390 of 2021 & W.M.P.No. 22637 of2021 25.10.2021 13 / 13 https://www.mhc.tn.gov.in/judis/