Madras High Court
B.Ramesh vs The Secretary To Government on 18 December, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.12.2017
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.Nos.21239, 28140 to 28142,
35441 and 35442 of 2005 and 10364 of 2006
and
W.P.M.P.No.11709 of 2006
B.Ramesh .. Petitioner in W.P.No.21239 of 2005
Vs.
1. The Secretary to Government,
Housing and Urban Development Department,
Secretariat,
Chennai-600 009.
2. The Chennai Metropolitan Development Authority,
Rep. by its Member Secretary,
No.1, Gandhi Irwin Road,
Egmore, Chennai-600 008.
.. Respondents in W.P.No.21239 of 2005
Writ Petition No.21239 of 2005 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorariafied Mandamus to call for the records relating to G.O.(D).No.95, Housing and Urban Development (UB-VI) Department, dated 09.02.2005 on the file of the first respondent and quash it as illegal, unconstitutional and consequently direct the respondents to issue regularisation of the petitioner's land in Plot No.47, Survey No.250/3A (Old) New Survey No.250/16 of Kottivakkam Village, taking the date of execution 16.07.1982 after registration as the date of document.
For petitioners : Mr.K.R.A.Muthukirushnan
For respondents: Mr.S.Diwakar, Spl.G.P. for R-1
Mr.C.Johnson for R-2
COMMON ORDER
The petitioners have come forward with these Writ Petitions challenging the respective G.Os., rejecting the appeals filed by the petitioners on the ground that the registration of documents was actually made only on 12.07.2002 / 16.07.2002, i.e. after the cut-off date of 31.03.2002. In these Writ Petitions, the petitioners also pray for a direction to the respondents to consider regularisation of the petitioners' lands by taking the date of execution after registration, as the date of documents.
2. Since the issue involved in these Writ Petition is common, they are disposed of by this common order.
3. According to the petitioners, the settlement deeds were registered on 16.07.2002 / 12.07.2002, even though there was a decision to execute the said deeds earlier. The respondents rejected the request of the petitioners for regularisation of their lands, on the ground that the registration has not taken place before 31.03.2002, which is the cut-off date fixed and hence the petitioners are not entitled to the relief. According to the petitioners, the documents have already been made ready as early as in March 2002 and the same had been registered only in July 2002 and applying the cut-off date as 31.03.2002, is arbitrary and illegal.
4. In response, learned counsel appearing for the CMDA submitted that even though such contention of the petitioners may not be correct, taking note of the fact that in view of introduction of Section 113-C in the Tamil Nadu Town and Country Planning Act, 1971 and that the new scheme has been formed, the petitioners can apply before the authority concerned seeking regularisation of the lands. He further submitted that such regularisation will be applicable, provided there is original plan and the same is applicable only to the lands. That apart, the learned counsel for the CMDA further submitted that even with regard to the construction, there should be original plan and that the construction should have been made in accordance with the original plan and if any construction is made without leaving the set-backs and other conditions applicable prescribed under the Development Control Regulations of the CMDA, the request of the claimants with regard to the regularisation will not be considered.
5. Since the respondents have no objection for considering the request of the petitioners, provided the petitioners fulfill the conditions laid down under the guidelines/regulations and that if the petitioners make an application under Section 113-C of the said Act, within a period of one month from the date of receipt of a copy of this order, the same will be considered, as the period prescribed under the new scheme expires on 31.12.2017. Since the petitioners have already approached this Court and the matter is pending before this Court, the request of the petitioners shall be considered without taking into account the delay in seeking regularisation. This Court makes it clear that depending upon the outcome of the regularisation issue that has been filed by Mr.V.B.R.Menon, Advocate for the petitioner therein, that is pending before a Division Bench of this Court, the case of the petitioners may be considered expeditiously, preferably within one month from the date of disposal of the issue that is pending before the Division Bench as on date.
6. This Court makes it further clear that the regularisation proceedings shall be conducted by the respondents after hearing necessary parties who are likely to be affected and if there are complainants, they should also be heard. Whenever parties appear, the applicant(s) as well as the complainant(s) shall be heard and the conduct of the proceedings should be written down by the officer concerned who is hearing the matter, and he shall obtain signatures in the proceedings after recording the submissions if any made. It is like summary proceedings. The documents filed by the parties need to be given Exhibit numbers. A copy of the proceedings shall be furnished immediately thereafter to the parties concerned to avoid unnecessary allegation against the officials that the records have been manipulated. The authority concerned shall seek for written submissions from the petitioner(s)/applicant(s)/complainant(s) within a time frame and thereafter, the authority shall pass appropriate orders within thirty days in accordance with law. This Court makes it clear that the authority shall not advise any of the parties with regard to the issue that is being heard and that if there are no set-backs, and if there is violation with regard to the construction, the request of the applicants/petitioners has got to be rejected. It is further made clear that the set-backs shall not be regularised. It is open for the authorities concerned to go and inspect the sites in question and also take photographs and videographs in order to safeguard their interest. It is also open for the parties to submit the photographs and videographs in order to substantiate their respective stand. The party seeking an order under Section 80-A or Section 113-C of the Tamil Nadu Town and Country Planning Act, needs to file an affidavit/statement to the effect that the building is constructed in accordance with the plan and there are set-backs provided as per the plan. If the averment is false based on record or on inspection, the person is deemed to have approached the authority with unclean hands and no indulgence shall be shown to him. Last but not the least, the new 2017 Scheme is applicable only to unapproved layouts and unapproved plots. The cut-off date, if any, fixed earlier needs to be taken into account. As there should be lung space, the Open Space Reserve (OSR) and set-backs cannot be regularised or used for a different purpose.
7. The Chief Secretary to Government (Secretariat, Chennai) is directed to issue necessary instructions to the authorities to conduct summary proceedings in the manner mentioned above.
8. With the above observations and directions, the Writ Petitions are disposed of. No costs. Consequently, W.P.M.P. is closed.
18.12.2017 Index: Yes Internet: Yes Speaking Order cs Registry is directed to issue this order copy to the Chief Secretary to Government, Secretariat, Chennai-600 009 Issue order copy by 22.12.2017 S.VAIDYANATHAN, J cs W.P.Nos.21239, 28140 to 28142, 35441 and 35442 of 2005 and 10364 of 2006 18.12.2017