Madras High Court
J.K. Towers Flat Owners Association ... vs The Commissioner And Secretary To The ... on 20 July, 2001
Author: D. Murugesan
Bench: D. Murugesan
ORDER
1. The petitioner is J.K.Towers Flat Owners Association represented by its Secretary, Chennai. According to the petitioner association, the 2nd and 3rd respondents were the owners of the land wherein the premises M/s J.K.Towers, 77, 7th Avenue, Ashok Nagar, Madras which consists of land, ground floor for car parking area with three floors totalling 33 flats is constructed. The petitioner and the 2nd respondent entered into an agreement wherein the 2nd respondent was styled as promoter. The 2nd respondent was given the power of attorney on 3.11.89 to develop and deal with the above said property and to convey undivided interest to the third parties. The said agreement also disclosed the sanction by the 4th respondent for construction. Accordingly, 33 flats' were constructed in the first, second and third floors leaving ground floor car parking space and fourth floor open space. Contrary to the planning permission, the 2nd and 3rd respondents put up construction of four flats each approximately measuring 1,100 sq.ft. in the ground floor thereby depriving the car parking area to the purchasers of the flats. The 2nd and 3rd respondents also started putting up construction of two flats on the top floor each approximately measuring 1000 sq.ft. area. Since the said constructions were in violation of the building permission granted by the 4th respondent, the members of the petitioner association filed O.S.No.7976 of 1991 against the respondents 2 to 4 for a declaration that the conversion of the ground floor into office and flats and also additional construction of two flats on the terrace in the top floor are in contravention of the sanctioned plan and also for mandatory injunction directing the respondents 2 to 4 to demolish the unauthorized construction in the ground floor and the two floors put up on the top floor: In the meantime, the 2nd and 3rd respondents also filed a suit in O.S.No.7921 of 1991 against the 4th-respondent for a declaration that the notice issued by the 4th respondent on 4.11.91 for demolition of the portion constructed by the 2nd and 3rd respondents without planning permission and also for permanent injunction restraining the 4th respondent from taking any further action pursuant to the said notice of demolition. In the said suit, the members of the petitioner association also impleaded themselves as parties. In the suit in O.S.No. 7976 of 1991 filed by the members of the petitioner association, by common judgment dated 30.4.2001 it was decreed with a direction for demolition of the additional construction put up in the car parking area in the ground floor by the respondents 2 and 3. However, the mandatory injunction for demolition of the two floors put up in the top floor was not granted. The suit filed by the 2nd and 3rd respondents in O.S.No.7921 of 1991 was dismissed by the common judgment and decree. Even when the suits were pending, the 2nd and 3rd respondents applied to the 4th respondent for planning permission for additional construction in the top floor and the same was refused by the 4th respondent on 26.2.92. As against the said order, the 2nd and 3rd respondents preferred an appeal on 1.3.92 to the 1st respondent. The 1st respondent in G.O.Ms.No.526/II(2)/HOU/3054/94 dated 26.7.94 exempted the additional construction in the top floor from the provisions of the development control Rules. Challenging the said order of the 1st respondent, the present writ petition has been filed.
2. Mr.V. Rangarajan, learned counsel for the petitioner would contend that the 1st respondent has, granted exemption by virtue of the powers conferred under Section 113 of the . Such powers are not conferred on the 1st respondent for grant of exemption to the 2nd and 3rd respondents to put up additional constructions. In this regard, the learned counsel relied upon a judgment of the Supreme Court reported in Consumer Action Group and another v. State of Tamil Nadu and others, and contended that whenever any statute confers any power on statutory authority, the same has to be exercised reasonably within the powers the statute confers and such exercise of power must stand the test of judicial scrutiny. The learned counsel, would also submit that when such power is vested in the Government, it has to be exercised with greater circumspection. The learned counsel would also rely upon a judgment of the Supreme Court reported in V.M. Kurian v. State of Kerala, to contend that the power of exemption can be exercised only for minor deviation. In this case, the 2nd and 3rd respondents have put up construction of two flats in the top floor which cannot be considered as minor deviation. The learned counsel also submitted that when the Association came to know of the appeal filed by the 2nd and 3rd respondents before the 1st respondent, it made a representation to the 1st respondent for an opportunity. Without giving any opportunity the 1st respondent has passed the impugned order. The learned counsel further submitted that in the event if any opportunity had been given to the petitioner by the 1st respondent before the 1st respondent exercised its powers under Section 113 of the Act, the petitioner would have explained all these positions to the 1st respondent that the exemption sought for is not for minor deviation and on facts of the case such exemption is not warranted. The learned counsel relied upon a Division Bench judgment of this Court reported in Palani Hills Conservation Council rep. by its President Navroz Mody v. The State of Tamil Nadu rep. by its Secretary to Government, Rural Development and Local Admn. Department, Madras and 3 others, 1995 WLR 737 and contended that exemptions can be granted only when the deviation is minor in nature. Secondly, the exemption granted by the 1st respondent is only in respect of two floors put up in the top floor and there is no exemption for putting up any construction in the car parking area in ground floor. However, the 4th respondent has sanctioned the revised plans to put up construction in the car parking area.
3. Per contra, Mr.P. Subba Reddy, learned counsel for the 2nd and 3rd respondents would submit that admittedly, in respect of the same issue, the suits are pending before the civil Court. In fact in the suit filed by the members of the petitioner association in O.S.No.7976 of 1991, the members of the petitioner association have prayed for a mandatory injunction directing the defendants therein to demolish the additional construction put up by the 2nd and 3rd respondents in the ground floor and top floor. The members of the petitioner association have impleaded the 2nd and 3rd respondents as well. The civil Court has decreed the suit for demolition of the construction put up in the car parking area and did not grant such a prayer for demolition of construction put up in the top floor. The said issue can be agitated by way of filing appeal before the appellate Court. The members of the petitioner association having resorted to file the suit also filed a complaint before the consumer forum for damages for putting up construction and also filed the writ petition wherein the petitioner has challenged the exemption granted by the 1st respondent to the 2nd and 3rd respondents to put up two flats in the top floor. In so far as the second relief is concerned seeking for a direction to the 4th respondent not to sanction revised plan, the plan has been already revised by the 4th respondent as per the exemption granted by the 1st respondent. The said prayer does not survive as on today. Further, the learned counsel submitted that the very same issue that has been raised before this Court has been raised by the petitioner in the civilsuit. In so far as the construction in the top floor is concerned, the members of the petitioner association have entered into an agreement with the 2nd and 3rd respondents wherein clause 15 of the agreement reads as under:
"No allottee shall object at the raising of any further storey(s) on the complex by the Promoter in future, when further sanction is obtained by the Promoter from the Government or the Statutory Authorities concerned in this respect."
Having entered into the agreement, it is not now open to the petitioner to challenge the exemption granted by the 1st respondent in respect of the construction put up by the 2nd and 3rd respondents in the top floor. The learned counsel would further submit that the writ petition is mainly on the ground of breach of the conditions of the agreement and such breach of conditions of the agreement cannot be a ground to sustain the writ petition. The learned counsel would rely upon a Division Bench judgment of this Court reported in Dr.P.G. Viswanathan v. Government of Tamilnadu, Madras and others, to contend that even when the order of exemption was obtained without specifically bringing to the notice of the Government that the building has become fair accompli, the validity of the order cannot be challenged on that ground. The learned counsel would also submit that pursuant to the order of this Court dated 21.7.97 in W.M.P.No. 16625 of 1997 permitting the 2nd and 3rd respondents to sell the two flats put up in the top floor, the 2nd and 3rd respondents have already sold the two flats and therefore the third parties interest also have come in. Hence, the learned counsel submitted that the writ petition is liable to be rejected.
4. Admittedly, the members of the petitioner association have filed a suit in O.S.No.7976 of 1991 for a judgment and decree for a declaration that the conversion of the car parking area in ground floor into office and flats and also additional construction on the terrace of the top floor as illegal, violative of the sanctioned plan and also for a consequential mandatory injunction directing the respondents 2 to 4 to demolish the unauthorized construction in the ground floor and two flats on the terrace of the top floor. The 2nd and 3rd respondents have also filed a suit in O.S.No.7921 of 1991 against the 4th respondent for declaration that the notice issued on 4.11.94 seeking for demolition of the portion construction. Both the suits were tried by a common judgment and decree dated 30.4.2001. The civil Court has directed the demolition of the construction in the ground floor. In so far as the construction put up in the ground floor i.e. parking area is concerned, there is no exemption granted by the 1st respondent in the impugned order and the petitioner has also obtained an order of demolition of the construction put up in the ground floor from the civil Court. Hence, I need not go into the question of the construction put up in the ground floor by the 2nd and 3rd respondents as there was no exemption granted in respect of that portion of the construction in the ground floor and the 2nd and 3rd respondents cannot put up any construction in the open space provided for car parking. However, in so far as the two flats put up on the terrace in the top floor, the 1st respondent by the impugned order had granted exemption. The contention of the learned counsel for the petitioner is that such a deviation of construction of two flats cannot be called as a minor deviation and the impugned order granting exemption cannot be made under Section 113 of the Act. The further submission of the learned counsel is that when the suit was filed, the impugned order of exemption was not granted and therefore the validity of the impugned order of exemption was not a subject matter of the suit and therefore it can be decided only in the writ petition. I am unable to accept the said submission of the learned counsel for the petitioner for the simple reason that for the same issue, there cannot be two parallel adjudication. Even though the impugned order in the writ petition is not the subject matter of the suit filed by the petitioner in O.S.No.7976 of 1991, the relief sought for in the suit is as to whether the 2nd and 3rd respondents are entitled to put up two flats in the top floor which was left for open space. As rightly pointed out by the learned counsel for the 2nd and 3rd respondents that under clause 15 of the agreement, the petitioner association has accepted the right of the 2nd and 3rd respondents to put up any additional construction provided the 2nd respondent obtains any order of exemption or revised sanction plan. Therefore, whether the petitioner can question the flats put up by the 2nd and 3rd respondents on the top floor could be decided only by letting in evidence before the competent civil Court as the scope of the powers under Article 226 of the Constitution of India is very limited as this Court cannot go into the disputed questions and also decide the rights of the parties governed as per the agreement. I am also unable to agree with the contention of the learned counsel for the petitioner that since the impugned order of the Government granting exemption is not the subject matter of the suit and the issue cannot be settled in the civil Court for the reason that when the prayer of the petitioner in the civil suit is for a declaration that the construction put up in the top floor as violative of the building plan and consequently for a declaration, the subsequent exemption can also be considered by the civil Court as the same is incidental to the main relief. When once the petitioner has approached the civil Court seeking for a declaration that the construction put up in the top floor as unauthorized, the petitioner can very well establish that the exemption granted by the 1st respondent cannot be taken as the basis for 2nd and 3rd respondents to put up two flats in the fourth floor before the civil Court as an incidental question. In that view of the matter, I do not propose to venture to decide as to the power of Government to grant exemption under Section 113 of the Act in this writ petition. The issue is left open to both the parties to be agitated before the civil Court as admittedly both the parties have already approached the civil Court and have also visited with the judgment and decree. The rights of the parties to challenge the said judgment and decree are very much available to them and both the petitioner and the 2nd and 3rd respondents can get redressal of their grievance in the civil Court which I consider would be appropriate. In that view of the matter, without going to the merits of the impugned order of exemption granted, the writ petition is dismissed giving liberty to the parties to agitate their claims before the civil Court. It is also made clear that both the petitioner and the 2nd and 3rd respondents are at liberty to raise all the points that are available to them in the civil Court in the event if they are advised to file appeals. With the above observations, the writ petition is dismissed. No costs.