V.Bhuvaneswari v. The Secretary To Government Of
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :: 1.3.2016
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P. Nos.7362 and 7363 and 7438 to 7444 of 2016 1.V.Bhuvaneswari ...
petitioner in W.P.No.7362/2016 2.Gigie A. Verghese ...
petitioner in W.P.No.7363/2016 3.Mr.G.Soundari ...
petitioner in W.P.No.7438/2016 4.R.Ganapathy ...
petitioner in W.P.No.7439/2016 5.Mr.D.Mangalam ...
petitioner in W.P.No.7440/2016 6.Mr.N.K.Narajan ...
petitioner in W.P.No.7441/2016 7.Sumathi Dora Manoranjini ...
petitioner in W.P.No.7442/2016 8.T.Venkatesan ...
petitioner in W.P.No.7443/2016 9.G.Appakudam ...
petitioner in WP.No.7444/2016 versus 1 The Secretary to Government Tamil Nadu Housing and Urban Development Department Fort St. George Chennai-600 009. 2 The Member Secretary Chennai Metropolitan Development Authority Talamuthu Natarajar Building No.1 Gandi-Irwin Road Egmore Chennai-8.
3 The Commissioner Corporation of Chennai Ripon Building No.
113 Periyar EVR Salai Park Town Chennai- 600 003.
4 The Executive Engineer TP-Enforcement Central Regional Office 2nd Cross Street (East) Pulla Avenue Shenoy Nagar Chennai-600 030.
5 The Tamil Nadu Housing Board Represented by its Secretary No.331 Anna Salai Nandanam Chennai-600 035.
..Respondents in all WPs
Prayer in All Wps:
Writ Petitions filed under Art.226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the impugned rejection order passed by the 1st respondent in G.O.(3D) No.6 dated 11/01/2016 and QUASH the same and further direct the respondents to reconsider the Regularisation Application submitted by the Petitioner on merits with reference to Building Rules prescribed under Development Regulations and Section 113-C Tamil Nadu Town and Country Planning (Amendment) Act 2012.
For petitioner : Mr.S.J.Jagadev COMMON ORDER (made by K.K.SASIDHARAN, J.) The practice of construction after obtaining planning permission appears to have been given a go-bye in the State of Tamil Nadu and the present trend is to complete the construction somehow and thereafter, apply for building permit. The case on hand gives such an impression on account of the additional construction put up by 22 flat owners, without taking planning permission and letting out the newly constructed residential portion for commercial purpose by some of the petitioners, without the association of other flat owners who have got a right to use the open space reserved for public purpose. Summary of facts:-
2. The Tamil Nadu Housing Board after acquisition of land, developed a housing colony at D.No.334/4, 2nd avenue, Anna Nagar, Chennai. Some of the petitioners were given allotment of residential flats in 1983. Certain others have purchased flats from the original allottees.
3. The petitioners through association of flat owners, submitted applications for additional construction. The Chennai Metropolitan Development Authority (hereinafter referred to as "CMDA") vide order dated 13 March 2001, called upon the association to pay the development charges. Though necessary charges were paid, planning permission was not granted on account of the objection raised by some of the flat owners. The petitioners, in anticipation of permission, constructed the additional building. Thereafter, regularization applications were filed by the individual flat owners. The applications were rejected by order dated 11 January 2015. Feeling aggrieved, the petitioners are before us.
Submissions:-
4. The learned counsel for the petitioners contended that since there was sufficient space for putting up additional
construction, the petitioners have constructed additional building and annexed with their flats. Similar action was undertaken by other flat owners also. The statutory authorities took action only on account of the Writ Petition filed by two neighbouring owners. According to the learned counsel, the first respondent erred in rejecting the regularization applications, notwithstanding the availability of land for additional construction. It was further contended that the construction was completed before the cut off date and as such, the first respondent erred in passing the impugned order. Discussion:-
5. There is no dispute that the petitioners have put up additional construction without obtaining planning permission. Even as per the affidavit filed in support of the Writ Petitions, the petitioners have no case that additional construction was completed on or before 28 February 1999. The dates and events would indicate that the application for planning permission was resubmitted on 12 February 2001. Thereafter, without waiting for the grant of permission, the petitioners have started the work and completed the construction. The CMDA therefore issued a notice on 24 July 2001, calling upon the petitioners to demolish the illegal construction and restore the original position. Thereafter, CMDA returned the applications for building permit on 28 September 2001.
Since the petitioners failed to respond to the demolition notice, fresh notice initiating enforcement action was issued on 20 September 2005. The petitioners filed Writ Petitions in W.P.Nos.33488 to 33503 of 2005. The learned Single Judge restrained CMDA from taking enforcement action till the disposal of regularization applications.
6. The Government considered the regularization applications taking into account the cut off date prescribed for regularization of unauthorized construction. Since the petitioners failed to prove that the constructions were completed before 28 February 1999, Government rejected the regularization applications. Even before us, materials were not furnished to prove that the petitioners are entitled to the benefits of regularization scheme.
7. Illegal construction is no more an affair between the developer and the Planning Authority. The unauthorized constructions, without adherence to the Planning regulations, would affect the planning development of the city. The mushroom growth of illegal and unauthorized structures would cause an adverse impact on the ecology. This would also affect the overall development, besides sewerage and sanitation system of the city. The Courts must be sensitive to such issues. The developers like the petitioners who have no concern to the building laws are not entitled to equitable relief from Courts.
8 . The Supreme Court in Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC 357, expressed its concern with regard to large scale violation of Planning regulations. The Supreme Court said: "In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise."
9. There is no basis for the argument that there was sufficient open space available and construction was made by making use of the said land. The open space was earmarked for the benefit of all the flat owners. It would not be legally permissible to allow some of the flat owners to make construction on the open space without the consent of others who have got equal right, even if such constructions are permitted by the building regulations.
10. The petitioners now seek judicial review of the order passed by the Government. The jurisdiction under Article 226 in a case of this nature is very limited.
11. The city of Chennai and its residents suffered considerably on account of the recent flood. The constructions made without adhering to the building laws and that too in places earmarked as open place and near water bodies contributed considerably for the disaster and the resultant loss of life and property. The Court cannot shut its eyes and condone the act of unauthorized and illegal construction. Time has come to act swiftly to protect the building laws and thereby to avoid such calamities.
12. We do not find any illegality or irregularity in the order passed by the Government, for exercising the power of judicial review.
13. The Writ Petitions are dismissed without liability to pay costs. Consequently, W.M.P.Nos.6570 and 6571 of 2016, 6658 to 6664 of 2016 are also dismissed.
-s/dAssistant Registrar True Copy Sub-Assistant Registrar To 1 The Secretary to Government Tamil Nadu Housing and Urban Development Department Fort St. George Chennai-600 009. 2 The Member Secretary Chennai Metropolitan Development Authority Talamuthu Natarajar Building No.1 Gandi-Irwin Road Egmore Chennai-8.
3 The Commissioner Corporation of Chennai Ripon Building No.113 Periyar EVR Salai Chennai- 600 003.
4 The Executive Engineer TP-Enforcement Central Regional Office 2nd Cross Street (East) Pulla Avenue Shenoy Nagar Chennai-600 030.
5 The Secretary, Tamil Nadu Housing Board No.331 Anna Salai Nandanam Chennai-600 035.
+1 cc to Government Pleader High Court Madras sr.14027 & 14028 +9 ccs to M/s.S.T.Jagadev Advocate sr.12867 to 12875 +1 cc to M/S.R.Arun Mozhi, Advocate sr.12936 +2 ccs to M/s.V.Anandamurthy Advocate sr.13139&13140 +1 cc to M/s.N.Sampath, Advocate sr.13791 W.P. Nos.7362 and 7363 of 2016 and WP.7438 to 7444/2016 aa09/03/2016