Smt.R.Prema, v. The District Collector,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.08.2023
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN and THE HON'BLE MR. JUSTICE K. RAJASEKAR R. Prema Petitioner v The District Collector Kancheepuram District Kancheepuram The Tahsildar Chengalpet Taluk G.S.T. Road Chengelpet, Kancheepuram District The District Revenue Officer (DRO) O/o Collector Kancheepuram District - 631 501 The Revenue Divisional Officer (RDO) Chengalpet Region G.S.T. Road, Chengalpet Kancheepuram District 603 001 The Deputy Director Town & Country Planning R.D.M.A. Building Complex GST Road, Chengalpet The Director Town & Country Planning No.802, Anna Salai, Chennai 600 002 1/10
The Block Development Officer Kattankulathur Panchayat Union G.S.T. Road, Kattankulathur The Assistant Engineer Tamil Nadu Electricity Board G.S.T. Road Guduvanchery Chengalpet Taluk Kancheepuram District The Village Administrative Officer Kayarambedu Village Chengalpet Taluk Kancheepuram District The Director Directorate of Vigilance & Anti Corruption No.293, MKN Road Alandur Chennai 600 016 Urbanrise Project LLP Plot No.A, No.36/1 Gandhi Mandapam Road Kotturpuram, Chennai 600 085 (Cause title amended vide order dated 14.02.2019 made in W.M.P. No.4992 of 2019 in W.P. No.34820 of 2018) The Assistant Executive Engineer O/o the Assistant Executive Engineer Public Works Department Kancheepuram 601 501 Respondents (R12 impleaded vide order dated 08.04.2019 made in W.M.P.
No.10315 of 2019 in W.P. No.34820 of 2018) 2/10
Writ Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents 1 to 4 and 6 to 8 and 10 to take necessary action to remove the encroachments into the Periya Eri and its water channels, comprised in S.No.368 at No.27, Kayarambedu Village, Chengalpet Taluk, Kancheepuram District, on the basis of the petitioner's representation dated 23.07.2018.
For petitioner Mr. R. Thanjan For RR 1-7, 9 & 12 Mr. A. Selvendran Special Govt. Pleader RR 8 & 10 Given up vide Court order dated 04.01.19 For R11 Mr. V. Chandrasekaran
ORDER
(made by S. VAIDYANATHAN, J.) This writ petition has been filed seeking a writ of mandamus directing the official respondents to take necessary action to remove the encroachments found in Periya Eri and its water channels, comprised in S.No.368 at No.27, Kayarambedu Village, Chengalpet Taluk, Kancheepuram District, on the basis of the petitioner's representation dated 23.07.2018.
Today, when the matter was taken up for hearing, the learned counsel for the petitioner submitted that the eleventh respondent is attempting to encroach the Periya Eri and its water channels to construct houses there. 3/10
According to Mr. A. Selvendran, learned Special Government Pleader appearing for respondents 1-7, 9 and 12, it is true that the water body has been encroached and in fact, standing crops are there. He produced a communication dated 27.02.2023 addressed to him by the Tahsildar, Chengalpet, and the same is scanned below:
4/10
Based on the above communication, Mr. Selvendran submitted that there are 15 encroachers who have been cultivating paddy and vegetables in the encroached area, for nearly forty years, besides mango and coconut trees; there is no relief sought against the eleventh respondent and he has no comments to offer; 5/10
the authorities will ensure that the eleventh respondent does not encroach the Periya Eri and its water channels.
The eleventh respondent has filed a counter affidavit dated 26.02.2019 stating that there is no relief sought against them in the writ petition and that there is also planning permission obtained on 20.08.2018 for constructing flats to fulfil the Prime Minister's vision "Housing for all before 2022" The learned counsel for the eleventh respondent submitted that the Periya Eri is in S.No.368, whereas, the eleventh respondent constructs buildings only in S.Nos.122/1A, 122/1B, 122/1C, 122/1D, 122/1E, 122/1F, 122/1G,122/1H,122/2, 122/3, 126/1, 127, 117/1D, 117/1E and 117/1F and in fact, the eleventh respondent, in their counter affidavit dated 26.02.2019, have categorically stated that they will ensure free flow of water. Further, it is seen that while granting planning permission dated 20.08.2018, several conditions have been imposed and two of such conditions are as under:
"16.
The patta channel passing through the site i.e. S.No.122,126,127 and 117 should be maintained as it is without any obstruction of water flow.
17.
In the alignment of channel, proper structures should be constructed in the proposed site before commencement of work. It is to be ensured by Regional Deputy Director, Chengalpattu Region." 6/10
In view of the above, we direct that the encroachments made by 15 encroachers, as identified by the officials vide communication dated 27.02.2023 which is scanned above, need to be removed after harvest and not stopping with that, it should also be ensured that there is no further encroachment on the Periya Eri and its water channels. In case, the eleventh respondent complies with the condition and there are no encroachments made by him, he may be permitted to go ahead with the construction. In case, any encroachment is made by the eleventh respondent on the Periya Eri or its water channels, needless it is to state that construction shall not be permitted to be continued.
Before parting, apposite it is to point out that the Apex Court, in a catena of cases, has come down heavily on illegal constructions and encroachments and suffice to advert to the following two judgments. In Priyanka Estates International Pvt. Ltd. v State of Assam [(2010) 2 SCC 27], the Supreme Court declined the appellant's prayer for directing the respondents to regularize the illegal construction and observed as follows: "It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free.
Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
In yet another decision in Shanti Sports Club v Union of India 7/10
[(2009) 15 SCC 705] pertaining to buildings constructed in violation of rules, the Supreme Court held thus:
''This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus.
As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas.
It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."
With the above directions and observations, this writ petition stands disposed of. Costs made easy.
(S.V.N., J.) (K.R.S., J.) 08.08.2023 cad 8/10
To The District Collector Kancheepuram District Kancheepuram The Tahsildar Chengalpet Taluk G.S.T. Road Chengelpet Kancheepuram District The District Revenue Officer (DRO) O/o Collector Kancheepuram District - 631 501 The Revenue Divisional Officer (RDO) Chengalpet Region G.S.T. Road Chengalpet Kancheepuram District 603 001 The Deputy Director Town & Country Planning R.D.M.A. Building Complex GST Road Chengalpet The Director Town & Country Planning No.802, Anna Salai, Chennai 600 002 The Block Development Officer Kattankulathur Panchayat Union G.S.T. Road, Kattankulathur The Assistant Engineer Tamil Nadu Electricity Board G.S.T. Road Guduvanchery Chengalpet Taluk Kancheepuram District 9/10
S. VAIDYANATHAN, J.
and K. RAJASEKAR, J.
cad The Village Administrative Officer Kayarambedu Village Chengalpet Taluk Kancheepuram District The Director Directorate of Vigilance & Anti Corruption No.293, MKN Road Alandur Chennai 600 016 The Assistant Executive Engineer O/o the Assistant Executive Engineer Public Works Department Kancheepuram 601 501 08.08.2023 10/10