M.Rangasamy v. The Principal Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.11.2024 Coram THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE K.RAJASEKAR W.P.Nos.32071, 32458, 31829, 33080, 31832, 32068, 32201, 32444, 32451, 32641, 32642, 32643, 32737, 32740, 33114, 33283, 33325, 33516, 33746, 33749, 33752, 35685, 32754, 32755, 31834, 31921, 31912, 32193, 32198 of 2019 and 2463 of 2020 and W.M.P.Nos. 21390 & 2860 of 2020 W.P.No.32071 of 2019 M.Rangasamy S/o.Late Muthusamy .. Petitioner vs
1. The Principal Secretary to Government Housing and Urban Development Department Secretariat, Chennai - 600 009
2. The Chennai Metropolitan Development Authority Represented by its Member Secretary Thalamuthu Natarajan Maligai
No.8, Gandhi Irwin Road Chennai - 600 008
3. The Corporation of Chennai Represented by its Commissioner 113, Periyar EVR Salai Chennai- 600 003
4. The Regional Office- Central Corporation of Chennai Represented by Executive Engineer - TP Enforcement 2nd Cross Street (East) Pulla Avenue Shenoy Nagar, Chennai - 600 030
5. The Tamil Nadu Housing Board Rep. by its Chief Engineer City No.493, Anna Salai, Nandanam Chennai - 600 035
6. N.Sekar GALAXY APARTMENT II Avenue, Anna Nagar, Chennai - 600 040 .. Respondents {R5 impleaded as per order dated 19.02.2020 W.M.P.No.36558 of 2019 in W.P.No.32071 of 2019 & R6 impleaded as per order dated 19.02.2020 made in W.M.P.No.4317 of 2020 in W.P.No.32071 of 2019) Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of
the first respondent culminating letter No.16281/UDVI[2]/2016-5 dated 21.10.2019, quash the same and direct the first and second respondents to accept the application of the petitioner for regularization. For Petitioner :
Mr.S.Namasivayam in W.P.Nos.32071, 32458, 31829, 33080, 31832, 32068, 32201, 32444, 32451, 32641, 32642, 32643, 32737, 32740, 33114, 33283, 33325, 33516, 35685, 32754, 32755, 31834, 31921, 32193, 32198 of 2019 and Mr. C.P.Sivamohan in W.P.No.31912 of 2019 Mr.S.Ramesh W.P.Nos.33746, 33749 and 33752 of 2019 For Respondents :
Mr.V.Ravi Spl. Govt. Pleader for R1 in W.P.Nos.32071,32458, 31829, 33080, 31832, 32068, 32201, 32444, 32451, 32641, 32642, 32643, 32737, 32740, 33114, 33283, 33325, 33516, 33746, 33749, 33752, 35685, 32754, 32755, 31834, 31921, 31912,
32193, 32198 of 2019 & 2463 of Mr.Y.Bhuvanesh Kumar Standing Counsel for CMDA For R2 in W.P.Nos.32071, 32458, 31829,33080, 31832, 32068, 32201, 32444, 32451, 32641, 32642, 32643, 32737, 32740, 33114, 33283, 33325, 33516, 33746, 33749, 33752, 35685, 32754, 32755, 31834, 31921, 31912, 32193,32198/2019&2463 of 2020 Mr.D.B.R.Prabhu Standing counsel for Chennai Corporation For R3 and R4 in W.P.Nos.32071, 32458, 31829, 33080, 31832, 32068, 32201, 32444, 32451, 32641, 32642, 32643, 32737, 32740, 32755, 33114, 33283, 33516, 33746, 33749, 33752, 35685, 32754, 31834, 33325, 31921, 31912, 32193,32198/2019 & 2463 of For R6 to R8 in W.P.Nos.33325 and 35685 of 2019
Mr.D.Veerasekaran Standing counsel for TNHB For R5 in W.P.Nos.32071, 31829, 31832, 31834, 31912, 33325, 33516, 31921, 32068, 32193, 33283, 35685, 32198, 32201, 32444, 32451, 32458 of 2019 & 2463 of 2020 For R6 in W.P.Nos.32755, 32740, 33080, 33114, 32641, 32642, 32643, 32737, 32754 of 2019 Ms.Vasudha Thiyagarajan For R5 in W.P.Nos.32755, 32740, 33080, 33114, 32641, 32642, 32643, 32737, 32754 of 2019 For R6 in W.P.Nos.32071, 31829, 31832, 31834, 31912, 31921, 32068, 32193, 32198, 32201, 32444, 32451 of 2019 and 2463 of 2020 For R9 in W.P.Nos.33325 & 35685 / 2019 C O M M O N O R D E R (Order of the Court was made by M.SUNDAR, J.) This common order will now dispose of the captioned 30 'Writ Petitions' {'WPs' in plural and 'WP' in singular' for the sake of brevity}
and the captioned two 'Writ Miscellaneous Petitions' {'WMPs' in plural and 'WMP' in singular for the sake of brevity} thereat.
2. This litigation which commenced more than half a decade ago, to be precise in November of 2019, has seen multiple listings and has taken trajectories with many curves including reference to Mediation. It is really not necessary to advert to all that and it will suffice to set out the manner in which the captioned matters stand before us. This has been captured in the proceedings made in the listing on 04.10.2024 and the same reads as follows:
' W.P.Nos.32071, 32458, 31829, 33080, 31832, 32068, 32201, 32444, 32451, 32641, 32642, 32643, 32737, 32740, 33114, 33283, 33325, 33516, 33746, 33749, 33752, 35685, 32754, 32755, 31834, 31921, 31912, 32193, 32198 of 2019 and 2463 of 2020 and W.M.P.Nos. 21390 & 2860 of 2020 M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., [Order of the Court was made by M.SUNDAR. J.,] There are 30 writ petitions in all. In two writ petitions, namely W.P.No.33325 of 2019 and W.P.No.35685 of 2019, a 'notice
dated 08.11.2019 issued by R6 to R8' (hereinafter 'impugned notice' for the sake of brevity) has been called in question. In other writ petitions, an order made by R1 (The Principal Secretary to Government, Housing and Urban Development Department) being 'order dated 21.10.2019 bearing reference Letter No.16281/UDVI(2)/2016-5' (hereinafter 'impugned order' for the sake of brevity) has been called in question.
2. Out of 30 writ petitions, in 28 writ petitions, there are six respondents and they are as follows:
'1. The Principal Secretary to Government Housing and Urban Development Department Secretariat, Chennai - 600 009
2. The Chennai Metropolitan Development Authority Represented by its Member Secretary Thalamuthu Natarajan Maligai No.8, Gandhi Irwin Road Chennai - 600 008
3. The Corporation of Chennai Represented by its Commissioner 113, Periyar EVR Salai Chennai - 600 003
4. The Regional Office-Central Corporation of Chennai Represented by Executive Engineer -TP Enforcement 2nd Cross Street (East) Pulla Avenue
Shenoy Nagar, Chennai - 600 030
5. Tamil Nadu Housing Board Rep. by its Chief Engineer-City No.493 Anna Salai, Nandanam Chennai - 600 035
6. N.Sekar 333/1, Galaxy Apartment II Avenue, Anna Nagar Chennai - 600 040'
3. In afore-referred two writ petitions, namely W.P.No.33325 of 2019 and W.P.No.35685 of 2019, there are nine respondents and they are as follows:
'1. The Principal Secretary to Government Housing and Urban Development Department Secretariat, Chennai - 600 009
2. The Chennai Metropolitan Development Authority Represented by its Member Secretary Thalamuthu Natarajan Maligai No.8, Gandhi Irwin Road Chennai - 600 008
3. The Corporation of Chennai Represented by its Commissioner 113, Periyar EVR Salai Chennai - 600 003
4. The Regional Office-Central Corporation of Chennai Represented by Executive Engineer -TP Enforcement 2nd Cross Street (East) Pulla Avenue Shenoy Nagar, Chennai - 600 030
5. Tamil Nadu Housing Board Rep. by its Chief Engineer-City No.493 Anna Salai, Nandanam Chennai - 600 035
6. Assistant Engineer Greater Chennai Corporation, Zonal Office-VIII 2nd Cross Street (East) Pulla Avenue Shenoy Nagar Chennai - 600 030 7.The Assistant Executive Engineer Greater Chennai Corporation, Zonal Office-VIII 2nd Cross Street (East) Pulla Avenue Shenoy Nagar Chennai - 600 030
8. The Executive Engineer Greater Chennai Corporation, Zonal Office-VIII 2nd Cross Street (East) Pulla Avenue Shenoy Nagar Chennai - 600 030 9.N.Sekar 333/1, Galaxy Apartment II Avenue, Anna Nagar Chennai - 600 040'
3. Today, Mr.A.Muthusubramaniam, learned counsel for writ petitioners in 27 writ petitions is before us on the 'VC' ['Videoconferencing'] platform and Mr.S.Malar Mannan, learned counsel for writ petitioners in the remaining three writ petitions (W.P.Nos.33746, 33752 and 33749 of 2019) is before us in the physical Court. To be noted, this is a hybrid hearing, which is a regular/routine/daily feature in this Court.
4. As regards respondents, R1, which made the impugned order is represented by Ms.C.Meera Arumugam, learned Additional Government Pleader, CMDA is represented by Mr.Y.Bhuvanesh Kumar, Chennai Corporation and its Officers are represented by Mr.D.B.R.Prabhu, learned Standing Counsel, Tamil Nadu Housing Board is represented by Mr.D.Veerasekaran and R6 (private respondent) is represented by Ms.Vasudha Thiagarajan. This means that all the respondents in all the 30 writ petitions are represented.
5. Narrative thus far makes it clear that all the 30 matters are ready and ripe for being heard out. This Bench is ready to have 30 matters heard out but learned counsel for writ petitioners i.e., two counsel Mr.A.Muthusubramaniam, learned counsel on the VC and Mr.S.Malar Mannan, learned counsel in the physical Court request for an adjournment.
6. As there is a fervent plea for adjournment, we accede to the same.
Let this matter stand over by a fortnight but with a caveat that next listing shall be peremptory. List on 18.10.2024. [M.S., J] [K.G.T., J] 04.10.2024'
3. Today, Mr.C.P.Sivamohan, learned counsel for writ petitioner in W.P.No.31912 of 2019, Mr.S.Ramesh, learned counsel for writ petitioner in W.P.Nos. 33746, 33749 an 33752 of 2019, Mr.S.Namasivayam, learned counsel for writ petitioner in other writ petitions, Mr.V.Ravi, learned Special Government Pleader for R1 in all the writ petitions, Mr.Y.Bhuvanesh Kumar, learned Standing Counsel for CMDA, Mr.D.B.R.Prabhu, learned Standing Counsel for Chennai Corporation, Mr.D.Veerasekaran, learned Standing Counsel for TNHB and Mr.Vasudha Thiagarajan, learned counsel for private respondent in all the writ petitions are before us. This means that all the parties in all the
30 writ petitions are represented before us.
4. The subject matter of the writ petitions is an apartment complex which goes by the name 'Galaxy Apartment' and is situate at II Avenue, Anna Nagar, Chennai - 600 040 [hereinafter 'said Apartment Complex' for the sake of convenience]. This said Apartment Complex was originally constructed by 'Tamil Nadu Housing Board' ['TNHB' for the sake of brevity]. Various individuals purchased various Apartments from TNHB and there are 42 apartments in all. As regards the writ petitioners and private respondent, they are owners of various apartments qua 42 apartments in the said Apartment Complex. We are informed that owners of four apartments alone have not chosen to come before this Court in the captioned matters. This submission is recorded for the sake of completion of facts.
5. Considering the trajectory which the hearing took before us and in the light of the order which we propose to make, short facts shorn of
elaboration will suffice.
6. Factual matrix in a nutshell is that after purchase from TNHB, certain further constructions were put up and a regularization application was made on 12.02.2001, the same came to be rejected on 25.09.2014 by the authority concerned; that against such rejection, a statutory appeal under Section 80-A of 'the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972)' {hereinafter 'said Act' for the sake of brevity and convenience} was preferred on 16.10.2014 and this statutory appeal also came to be rejected by the Appellate Authority concerned on 11.01.2016; that thereafter, an application was made under Section 113-C of said Act and this is the crux and gravamen of the matter before us; that this application under Section 113-C of said Act also came to be rejected by R1 in and by 'proceedings dated 21.10.2019 bearing reference Letter No.16281/UDVI(2)/2016-5' (hereinafter 'impugned oder' for the sake of brevity and convenience); that assailing the impugned order,
captioned writ petitions have been filed by apartment owners; that it is to be noted that in the proceedings before R1, which culminated in the impugned order, private respondent (N.Sekar) was the objector; that while the burden of the song of the writ petitioners was regularization, R6 was playing a different tune and the reasons inter alia according to R6 is that access to his apartments has been severely constricted and that the constructions put up are being used for commercial activity; that the impugned order of R1 concluded that the applicants cannot take shelter under Section 113-C of said Act after obtaining a 'No Objection Certificate' ['NOC' for the sake of brevity] from TNHB by producing an orientation sketch, which has been described in the impugned order as 'bogus'; that the writ petitioners are before us.
7. The three learned counsel for 30 writ petitioners made common submissions and it is their common say that regularization originally had a cutoff date of constructions/development which were made prior to
28.02.1999 and after the advent of Section 113-C which kicked in on 16.07.2012 vide Tamil Nadu Act 36 of 2012, the cutoff date became 01.07.2007 and this has not been examined by R1 in the impugned order. It was also pointed out that TNHB does not really have a say in the matter and therefore, NOC of TNHB pales into insignificance.
8. Mr.V.Ravi, learned Special Government Pleader for the State, Mr.Y.Bhuvanesh Kumar, learned Standing Counsel for CMDA, Mr.D.B.R.Prabhu, learned Standing counsel for Chennai Corporation submitted to the contrary. Learned State counsel pointed out that the orientation sketch which had been furnished is clearly a matter of suppression as it suppresses the availability of common passage and open space. It was submitted by State counsel that this amounts to suppression of material facts and therefore, writ petitioners are not entitled to the benefit of Section 113-C of said Act which is purely a discretionary relief.
9. Ms.Vasudha Thiyagarajan, learned counsel for private respondent also submitted to the contrary. Learned counsel drew our attention to the sketch that was presented and pointed out that access to the apartments of private respondent have been severely afflicted and the entire proposed regularization is against the interest of private respondent, who is also a co-owner. It was also pointed out that proceedings of R1 being G.O (3D) No.70, Housing and Urban Development [UD-VI(1)] Department, dated 29.02.2016 pertaining to unauthorized additional construction without planning permission in said Apartment Complex has been manipulated and submitted before R1 for the purpose of getting benefit under Section 113-C of said Act.
10. Learned counsel for TNHB Mr.D.Veerasekaran submitted that after selling the apartments which were constructed by TNHB, TNHB does not have a say or right in this aspect of the matter.
11. By way of reply, three learned counsel for writ petitioners
submitted that 'NOC' obtained from TNHB really pales into insignificance and the question of whether the development had happened prior to 01.01.2007, which is the grundnorm of Section 113-C of said Act had not been looked into.
12. Before we consider the rival submissions it is necessary to notice that under Section 113-C, Rules were made on 22.06.2017 and published vide G.O (Ms.) No.110 and guidelines were made and published vide G.O.(Ms) No.111, Housing and Urban Development [UD4(3)]. The set of Rules and guidelines have since been struck down by a Division Bench of this Court in W.P.No.24705 of 2017 and in a contempt order vide Contempt Petition No.1087 of 2017, it was observed that insertion of Section 113-C itself is violative of the decision of Hon'ble Supreme Court. The matter has been carried to Hon'ble Supreme Court vide a Special Leave Petition being SLP (c) No.025175-025176/2019, leave have since been granted, SLP have become C.A.Nos.006847 -
006848 of 2022 and the same is under active consideration of Hon'ble Supreme Court. We are not going into this aspect of the matter but we have mentioned this only for completion of facts and for the purpose of making it clear that we have noticed this aspect of the matter also.
13. We now proceed to examine the rival contentions on merits.
14. There is no disputation or contestation that Section 113-C was operating on the date on which R1 made the impugned order. Therefore, the question is, whether the applicants had come to R1 with clean hands and had sought discretionary relief. We find from the plans circulated as well as the case file before us that all the facts have not been stated in its entire completeness as it should have been. This by itself is good enough ground to negative an application under Section 113-C of said Act and therefore, on this short point we find that the impugned order does not warrant any interference. We would be sustaining the impugned order. Nonetheless, taking into account the larger interest of the apartment
owners in the said Apartment Complex, we considered submissions made at the Bar regarding 'Tamil Nadu Apartment Ownership Act, 2022 (Tamil Nadu Act 44 of 2022)' {hereinafter 'Apartment Owners Act' for the sake of convenience}. Apartment Owners Act is a conditional legislation and this is clear from sub-section (3) of Section (1) Apartment Owners Act, which reads as follows:
'1. Short title, extent and commencement. _(1).....
(2) .......
(3) It shall come into force on such date as the State Government may, by notification, appoint and different dates may be appointed for different areas.'
15. Apartment Owners Act received the assent of President on 15.12.2022. However, as it is a conditional legislation, it had to await notification by the State Government for kicking in. This notification by the State Government was made on 06.03.2024 vide G.O.Ms.No.62, Housing and Urban Development [HB3(1)] Department and scanned reproduction of the GO is as follows:
16. It is clear from G.O.Ms.No.62 that Government of Tamil Nadu has appointed 06.03.2024 as the date for coming into force of Apartment Owners Act and it has come into force for the entire State. Thereafter, the competent authorities under the Apartment Owners Act has also been notified in exercise of powers under Section 2(l) of the Apartment Owners Act. 'Appellate Authority' has also been notified in exercise of powers under Section 11 of Apartment Owner Act. These two are G.O.Ms.Nos.172 and 173, both dated 24.09.2024, which read as follows:
17. Equally important is, Rules have been made in exercise of Rule making power vide Section 31 of Apartment Owners Act and these Rules made in exercise of rule making power vide Section 31 of Apartment Owners Act also kicked in on 24.09.2024 and the Rules go by the title 'Tamil Nadu Apartment Ownership Rules, 2024' {hereinafter 'Apartment Owners Rules' for the sake of convenience}.
18. This Court having captured the statutory trajectory which the Apartment Owners Act and Apartment Owners Rules have taken, now finds that there is a detailed and elaborate scheme set out both in the Act and Rules thereunder for re-development. Suffice to say that the crux and gravamen is, for re-development of apartments such as said Apartment Complex, more than 2/3rd of the owners should agree for re-development and re-development plan should be approved by the Competent Authorities. This means that the Apartment Owners Act and Apartment Owners Rules have kicked in during the half a decade period when the
captioned writ petitions were pending in this Court. This also means that the writ petitioners as well as private respondent now have a right to approach the authorities under the Apartment Owners Act and Apartment Owners Rules and seek re-development, if so desired and if so advised but this will be by submitting a new plan and all the procedures as well as development control requirements have to be met, if the project has to go through. Though this is stating the obvious, we are making it clear that we are not directing re-development to be cleared and we are only saying that if the apartment owners qua said Apartment Complex approach the authorities concerned for re-development, the same can be considered on its own merits and in accordance with law untrammeled by the dismissal of captioned writ petitions. This preservation of rights is qua for Apartment owners who are not before us also. We also deem it appropriate to capture the submission made that it (said Apartment Complex) is now a 40 years old superstructure and majority of the
owners are senior citizens.
19. In the light of the narrative, discussion and dispositive reasoning thus far, captioned writ petitions are dismissed sustaining the order of R1 but with a clear window to the writ petitioners/owners of said Apartment Complex to approach the authorities concerned under Apartment Owners Act, 2022 and Tamil Nadu Apartment Ownership Rules, 2024 and an observation that it is open to the authorities to consider such application in accordance with Tamil Nadu Apartment Ownership Act, 2022 and Apartment Owners Rules de hors the dismissal of captioned writ petitions. Consequently, W.M.P No.2860 of 2020 also perishes with main WP and the same is also dismissed and W.M.P.No.21390 of 2020 is disposed of as unnecessary. There shall be no order as to costs.
[M.S.,J] [K.R.S.,J] 06.11.2024 gpa
To
1. The Principal Secretary to Government Housing and Urban Development Department Secretariat, Chennai - 600 009
2. The Member Secretary Chennai Metropolitan Development Authority Thalamuthu Natarajan Maligai No.8, Gandhi Irwin Road Chennai - 600 008
3. The Commissioner Corporation of Chennai 113, Periyar EVR Salai Chennai- 600 003
4. Executive Engineer - TP Enforcement Regional Office- Central Corporation of Chennai 2nd Cross Street (East) Pulla Avenue Shenoy Nagar, Chennai - 600 030
5. The Chief Engineer Tamil Nadu Housing Board City No.493, Anna Salai, Nandanam Chennai - 600 035
M.SUNDAR,J., and K.RAJASEKAR, J., gpa 06.11.2024