Madras High Court
D.Ravikumar vs The Secretary on 12 August, 2022
Author: T.Raja
Bench: T.Raja
W.P. No.16354 of 2021 and
W.M.P. No.17327 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.08.2022
CORAM
THE HONOURABLE Mr.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
W.P. No.16354 of 2021 and
W.M.P. No.17327 of 2021
D.Ravikumar
Rep by his Power of Attorney
Mrs.D.Saradha .. Petitioner
Vs.
1.The Secretary
Government of Tamil Nadu
Housing & Urban Development Department
Secretariat, Fort St. George
Chennai - 600 009
2.The Addl. Secretary (Technical)
Government of Tamil Nadu
Housing & Urban Development Department
Secretariat, Fort St. George
Chennai - 600 009
3.The Commissioner
Greater Chennai Corporation
Ripon Buildings, Chennai - 600 003
4.The Zonal Officer, Zone-V
No.62, Basin Bridge Road
Old Washermenpet
Chennai - 600 021
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W.P. No.16354 of 2021 and
W.M.P. No.17327 of 2021
5.The Executive Engineer, Zone-V
No.62, Basin Bridge Road
Old Washermenpet
Chennai - 600 021
6.The Assistant Engineer
Division - 61
Greater Chennai Corporation
Egmore, Chennai
7.M/s.Venus Tailor
Rep by its Proprietor Mrs.Girija
w/o.Damodharan
Door No.31, Vengu Street
Egmore, Chennai - 600 008
8.M/s.Jayanthi Stores
Rep by its Proprietor Mr.Sundharajan
s/o.Venkatraman
Door No.31, Vengu Street
Egmore, Chennai - 600 008
9.Balaramamurthy .. Respondents
PRAYER : Writ petition filed under Article 226 of the Constitution of
India for a Writ of Certiorarified Mandamus to call for the records
pertaining to the impugned order dated 08.02.2021 in letter
No.24538/UDVI(2)/2019-4 passed by the 2nd respondent and quash the
same and consequently direct the respondents 3 to 6 to grant reasonable
time to restore the construction in the property situated at Door No.31,
Vengu Street, Egmore, Chennai admeasuring 1995 sq.ft.
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W.P. No.16354 of 2021 and
W.M.P. No.17327 of 2021
For Petitioner : M/s.Ilamuhil
For Respondents : Mr.V.Manoharan,
Spl. GP for R1 & R2
Mr.S.Gopinathan
Standing Counsel for R3 to R6
Mr.J.R.K.Bhavanantham
for R7 to R9
ORDER
(delivered by T.RAJA, J.) Petitioner through his power of attorney, has filed this writ petition challenging the correctness of the impugned order dated 08.02.2021 in letter No.24538/UDVI(2)/2019-4 passed by the Additional Secretary (Technical) rejecting the Special Revision filed under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971 (in short 'Act'), wherein, the petitioner had sought for only time to remove the deviated portions of the building so that he could restore the building back as per the planning permission.
2. The crux of the issue raised by the petitioner would show that, according to the petitioner, the building in question is 100 years old. Therefore, he sought for permission to demolish and reconstruct the same. He applied for planning permission to demolish the existing superstructure and for reconstruction at the above said property on __________ https://www.mhc.tn.gov.in/judis Page 3/10 W.P. No.16354 of 2021 and W.M.P. No.17327 of 2021 07.05.2012. Accepting the said request of the petitioner, the respondents had also granted planning permission vide Planning Permission No.PPA/WDC05/06215/2012 and Building Permission No.BA/CD05/6498/2012 to construct stilt + 2 floors and thereupon, the petitioner has put up the construction in the said property. However, there were slight deviations in the said construction and therefore, the Greater Chennai Corporation, had issued a Notice bearing No.Dn.61/113/2019 dated 24.01.2019 calling upon the petitioner to furnish the approved plan and subsequently the approved plan was also submitted by the petitioner and it was found that there were deviations in the front set back area and the side set back (right) area by 1.52 metre. Therefore, the sixth respondent had issued a Locking & Sealing and Demolition notice No.Dn.61/145/2019 dated 18.03.2019, directing the petitioner to restore the construction as per the original approved plan. Again, when another notice dated 15.06.2019 was issued to discontinue the occupation of the property, the petitioner requested time to comply with the deviations, as pointed out by the respondents.
3. It is also the additional grievance of the petitioner that the notice to discontinue the occupation of the petitioner was not issued to the occupiers of the property as contemplated under Section 56(2) of the __________ https://www.mhc.tn.gov.in/judis Page 4/10 W.P. No.16354 of 2021 and W.M.P. No.17327 of 2021 Act. Therefore, it was the claim of the petitioner to set aside the notice dated 15.06.2019 and to grant sufficient time to remove the deviations as pointed by the respondents.
4. When the petitioner came to this court with an earlier writ petition in W.P. No.2961 of 2020 for a direction to dispose of his Special Revision filed under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971, this court, by order dated 07.02.2020, gave a direction to the Revision Authority to dispose of the special revision, within a period of eight weeks from the date of receipt of the order, after affording an opportunity of personal hearing to the petitioner as well as to respondents 6 to 8 therein and with a further direction to the parties to maintain status quo till the disposal of the statutory appeal.
5. Learned counsel appearing for the petitioner would submit that the revisional authority, taking note of the wrong objection raised by the tenants/respondents 7 to 9 and also noting that a civil suit filed by the tenants is pending, refused to grant time sought for by the petitioner to rectify the deviations. Aggrieved thereby, the present writ petition has been filed.
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6. Heard both sides and perused the materials available on record.
7. As per the lock and seal notice dated 18.03.2019, the petitioner has made deviations in the first floor by 28.49 sq.m and in the second floor by 28.49 sq.m. The side setbacks deviations have also been noted by 1.52 metre. When the respondent issued a lock and seal notice calling upon the petitioner/owner of the building to rectify the deviations and the petitioner also agreeing to rectify the same, sought time to remove the deviations. However, the first respondent had rejected the application. The rejection of the application, in our mind, would show that the first respondent has not even considered the bona fide request of the petitioner and the purpose for which the lock and seal notice has been issued. The impugned rejection order clearly shows non-application of mind on the part of the first respondent.
8. Ordinarily, when there are deviations committed by the owner of the building, indicating the deviations to be rectified, a lock and seal notice and the discontinuation of occupation notices are issued granting time to rectify the deviated portion, failing which the authorities will have to initiate action. In the present case, the rejection order, neither talks about the onerous responsibility of the petitioner to rectify the __________ https://www.mhc.tn.gov.in/judis Page 6/10 W.P. No.16354 of 2021 and W.M.P. No.17327 of 2021 defect nor the consequential follow up action to be taken either proceeding further or to rectify the deviated area.
9. As we highlighted, the pendency of the suit is nothing to do with the removal or to demolish the portion of the building in the light of Section 101 of the Act, which specifically bars the jurisdiction of the court, which is extracted hereunder:
101. Bar of jurisdiction of Courts.- Any decision or order of the Tribunal or the Government or the planning authority or other authority or of any officer under this Act shall, subject to any appeal or revision or review provided under this Act, be final and shall not be liable to be questioned in any Court of law (and no injunction shall be granted by any court against the notices served to any person by the planning authority under section 56 or under section 57 of this Act).
When there is a deviation, the tenant cannot raise any objection that the deviation cannot be rectified as they would be dislodged. If such an argument is accepted, then neither the Greater Chennai Corporation nor CMDA can issue any lock and seal notice against any building occupied by any tenant. Therefore, anticipating this situation, Section 101 has been brought in to enforce the Rule of Law against the violator of the building. This has been completely overlooked by the first respondent.
10. The findings given by the first respondent that there are __________ https://www.mhc.tn.gov.in/judis Page 7/10 W.P. No.16354 of 2021 and W.M.P. No.17327 of 2021 pendency of the civil suits between the petitioner and his tenants and therefore, the deviation cannot be dealt with, apparently indicate the non-application of the mind of the first respondent.
11. Therefore, overlooking the objections raised by Mr.J.V.Bhavanandham, learned counsel appearing for the respondents 7 to 9/tenants, we grant three weeks time to the tenants to make suitable alternative arrangement and thereafter, the petitioner requires a reasonable time to comply with the rectification of deviations. Therefore, we grant another three weeks time to the petitioner to rectify the deviated portions, failing which, the respondents will initiate further action for demolishing the deviated portion.
12. With the above observations and direction, the writ petition is disposed of. However, there shall be no order as to costs. Consequently, the connected writ miscellaneous petition is closed.
[T.R., J.] [K.B., J.]
12.08.2022
Index : Yes / No
Internet : Yes / No
Asr
To
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W.P. No.16354 of 2021 and
W.M.P. No.17327 of 2021
1.The Secretary
Government of Tamil Nadu
Housing & Urban Development Department Secretariat, Fort St. George Chennai - 600 009
2.The Addl. Secretary (Technical) Government of Tamil Nadu Housing & Urban Development Department Secretariat, Fort St. George Chennai - 600 009
3.The Commissioner Greater Chennai Corporation Ripon Buildings, Chennai - 600 003
4.The Zonal Officer, Zone-V No.62, Basin Bridge Road Old Washermenpet Chennai - 600 021
5.The Executive Engineer, Zone-V No.62, Basin Bridge Road Old Washermenpet Chennai - 600 021
6.The Assistant Engineer Division - 61 Greater Chennai Corporation Egmore, Chennai T.RAJA, J.
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