Madras High Court
The Chairman, Madras Metropolitan ... vs S. Radhakrishnan And Ors. on 13 December, 2005
Equivalent citations: 2006(1)CTC241, (2006)1MLJ181, AIR 2006 (NOC) 700 (MAD.) = (2006) 1 MAD LW 203(MAD)
Author: A.P. Shah
Bench: A.P. Shah, F.M. Ibrahim Kalifulla
JUDGMENT A.P. Shah, C.J.
Page 300
1. These writ appeals arise out of the common order by the learned single Judge in a batch of writ petitions, challenging the demolition notices issued by the Chennai Metropolitan Development Authority (hereinafter, for the sake of brevity, referred to as 'MMDA').
2. The writ-petitioners claim to be the purchasers of the offices/flats in the residential apartments, promoted and developed by M/s. R.R. Constructions, situate at Door No. 16, Saravana Mudali Street, T. Nagar, Madras. The promoter had applied to the appropriate planning authority for the planning permission for construction of a residential complex of ground plus three floors, with four flats each in the first, second and third floors and the ground floor for being used as parking space for the flat-owners. The planning permit was issued by the Corporation of Madras on 25-5-1981. In violation of the permit, the promoters had converted the ground floor, which was shown in the planning permission as parking space for the use of the flat-owners, for commercial purposes by putting up office-rooms and also put up unauthorised construction of four flats (Flat Nos.13, 14, 16 and 16-A) over and above the third floor. Irked by the act of unauthorised constructions by the promoter, the purchasers of the flats in the first, second and third floors of the apartment made a complaint to the MMDA about the unauthorised and illegal conversion of parking space and construction of four flats. Based on the complaint received, MMDA had issued demolition notices, dated 20-4-1988, under Sec.56 read with Sec.85 of the Tamil Nadu Town and Country Planning Act, 1971 (in short, for the sake of brevity referred to as 'the Act'), directing the owner/developer/occupiers to demolish the construction which had been carried out without permission of the MMDA. The said demand notices were challenged by the purchasers/tenants of the structures in parking area and flat Nos.13, 14, 16 and 16-A by filing writ petitions before this Court. During the pendency of the writ petitions, owners/occupiers of the sanctioned flats got themselves impleaded as respondents in the writ petitions.
3. Learned single Judge though recorded a categorical finding that the conversion of the ground floor parking space into commercial area and the construction of four flats over and above the third floor was unauthorised and illegal, however, quashed the impugned notices solely on the ground that the said notices were not issued within the period of three years of the offending construction as contemplated under Sec. 56(1)(d) of the Act and as such, the impugned notices were barred by limitation. Learned single Page 301 Judge observed that the newly added respondents 4 to 10 can take action under the common law for removing the offending construction. Aggrieved, MMDA as well as the impleaded respondents 4 to 10 have preferred these writ appeals.
4. The short question that falls for our consideration is whether the unauthorised construction would, by mere lapse of time, namely three years from the date of construction, stand legalised, if within this period, no notice is served upon the owner/promoter/developer to demolish it? In other words, whether the appropriate authority could take action against the unauthorised construction only within the period of three years of such offending development.
5. Now let us take a look at the scheme of the Act. The object of the Act is to regulate the development of buildings so as to secure to the inhabitants sanitary conditions, amenity and convenience. Sec.47 of the Act mandates that the use and development of land are to be in conformity with the development plan. Sec.48 puts restrictions on the erection of any building or making or extending any excavation or carrying out any mining or other operation, in, on, over or under any land except with the written permission of the appropriate planning authority. Sec.49 prescribes that any person who intends to carry out any development on any land or building shall make an application in writing to the appropriate planning authority for permission and the permission granted under Sec.49 is valid for a period of three years. Sec.56 of the Act, which is relevant for our consideration, reads inter alia as under:
56. Power to require removal of unauthorised development - (1) Where any development of land or building has been carried out -
(a) without permission required under this Act; or
(b) in contravention of any permission granted or of any condition to which permission has been granted; or
(c) after the permission for development of land or building has been duly revoked; or
(d) in contravention of any permission which has been duly modified, the appropriate authority may, within three years of such development serve on the owner a notice requiring him within such period, being not less than one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice.
(i) in cases specified in clause (a) or (c) above to restore the land to its condition before the said development took place;
(ii) in cases specified in clause (b) or (d) above to secure compliance with the permission or with the conditions of the permission, as the case may be. (2) ... (3) ... (4)...
Page 302
6. Section 85 of the Act empowers the appropriate planning authority to take steps for restoration of property to original state where it is dealt with in contravention of Section 47 or 48. Sec.85 reads as under:
85. Restoration of property to original state where it is dealt with in contravention of Section 47 or 48.-
(1) Where any person-
(a) subject to the proviso to Section 47, uses or causes to be used any land or carry out any development in that area otherwise than in conformity with such development plan;
(b) has erected any building or made or extended any excavation or carried out any mining or other operations or made any material change in the use of land or constructed, formed or laid out any work in contravention of Section 48 or of any condition specified in any permission referred to in that section;
(c) the appropriate planning authority may, by order, require such person to restore the land or building to its original condition, or to bring the land or building in conformity with any condition specified in such permission within such period as may be specified in the order.
(2) If such person fails to comply with such order within the period specified in the order-
(a) the appropriate planning authority may itself take such measures as appears to it to be necessary to give effect to the order and recover the cost thereof from such person as an arrear of land revenue; and
(b) such person shall, without prejudice to the provisions of clause (a), be punishable-
(i) with fine which shall not be less than twenty-five rupees; and
(ii) in the case of continuing failure, with fine which shall not be less than five rupees and not more than one hundred rupees for every day during which such failure continues.
Sections 86 and 87 of the Act provide for punishment for the offences under the Act.
7. A bare reading of the aforesaid provisions of the Act would show that the contravention of the said provisions pertaining to the building can lead to three different and distinct consequences. First being the issuance of a notice to the person in terms of Sec.56(1)calling upon him to restore the land to its condition before the said development took place and secure compliance with the terms of permission, as the case may be. A time frame has, however, been fixed for such notice being given to the person namely within three years of the offending development. Secondly, in terms of Sec.85 of the Act the appropriate planning authority may require such a person to restore the land or building to its original condition or to bring the land or building in conformity with any such conditions specified in such permission within in such period as may be specified in the order. If such person fails to comply with such order within the period specified in the order, the appropriate planning authority may itself take such measure as appear to be necessary Page 303 to give effect to the order and to recover the costs thereof from such person as arrears of land revenue. Lastly, any person or a company who is found guilty of contravention of Sections 47 and 48 of the Act is liable for punishment under Sections 86 and 87 of the act.
8. In the thus seen that while clear and imperative prohibitions are contained in the provisions of the Act regarding erection and construction of buildings in contravention thereof, there is no provision which provides for or could be construed as given an enabling provision, tending to legalize any unauthorised construction by mere lapse of time. True it is that Sec.56(1) of the Act prescribes three years' time to issue notice against an unauthorised development. However, the mere fact that such notice was not issued within three years' of such unauthorised development does not mean that the development, which has been made in contravention of the planning permission issued by the appropriate planning authority, is automatically legalised. It is well settled that whenever there are two possible interpretations, the one which subserve to the intent of the legislature is to be accepted. The object of the Act is for planned development and therefore the interpretation which upholds any such scheme should be followed. Heyden's principles is now well recognised in interpreting any enactment. It lays down that the courts must see (a) what was the before making of the Act; (b) what was the mischief or defect for which the law did not provide?; (c) what is the remedy that the Act has provided? and (d) what is the reason of the remedy?. It states that the courts must adopt the construction which suppresses the mischief and advances the remedy. The remedy that the Act has provided is for smooth and planned development of the areas brought under the Act through the development schemes. In our opinion, the interpretation given by the learned single Judge not only impedes advancement of this remedy but it is contrary to the provisions of the Act.
9. A harmonious reading of the provisions in Sections 47, 48, 56 and 85 of the Act clearly reveals the intention of the legislature not to permit unauthorised and illegal development in contravention of the planning permission issued by the appropriate planning authority. The appropriate planning authority de hors the powers under Sec.56 of the Act has also got powers to order demolition of unauthorised development under Sec.85(1)(c) of the Act. Further, in matters of this nature, the offence committed is to be treated as continuing one till the offending structure is either demolished or altered. Therefore, we are of the view that the planning authority is perfectly within its right to issue a notice to proceed against unauthosied development even after expiry of three years and take appropriate steps for demolition of the development by the developer without obtaining permission from the appropriate planning authority.
10. Off late, the tendency of raising unalwful construction and unauthorised encroachment is increasing in almost all metropolitan cities and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multi storied buildings. In a recent decision of the Page 304 Apex Court in Friends Colony Development Committee v. State of Orissa and Ors. , Lahoti, C.J., speaking for the Bench, observed as under:
In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinate to the public good. It can be staterd in a way that power to plan development of city and to regulate the building activity therein flows from the police-power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
11. In the result, in view of the foregoing discussion, we are constrained to hold that the judgment of the learned single Judge does not lay down the correct law and is thus hereby set aside. Appeals stand allowed and the writ petitions are dismissed with costs