ii)On such surrender, the respondent authorities shall take steps to demolish the unauthorised portion of the subject building, within a period of two weeks therefrom. THE HONOURABLE MR. JUSTICE R. MAHADEVAN and THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ Writ Petition No.407 of 2022 and WMP.Nos.463 and 1119 of 2022. Petitioners : Ms.B.Kavya for Mr. C.S. Srinivasan For Respondents 1 & 2 : Mr. J. Ravindran Additional Advocate General assisted by Mr. K. Raja Srinivas For 3rd respondent : Mrs.P.Kavitha ORDER MAHADEVAN, J.

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :   29.07.2022

CORAM :

THE HONOURABLE MR. JUSTICE R. MAHADEVAN and

THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ

Writ Petition No.407 of 2022 and

WMP.Nos.463 and 1119 of 2022

  1. Rahamathunisha
  2. Ramachandran
  3. Asraf
  4. Madhan
  5. Jayath Mohammed
  6. Rafia Pangin
  7. Sathya
  8. Padmavathy
  9. Mohammed Iliyas .. Petitioners

Versus

  1. The Commissioner, Greater Chennai Corporation,     Ripon Buildings, Chennai.
  2. The Executive Engineer, Zone-VI,

Greater Chennai Corporation,     Ripon Buildings, Chennai.

3.M/s.New Venus Developers Private Limited,

Rep. by its Managing Director,

No.19, Thacker Street, Purasaiwalkam,

Chennai – 84.  .. Respondents

(R-3 impleaded vide order dated 31.03.2022 in

W.M.P.Nos.5672 & 8017 of 2022 in W.A.No.407 of 2022)

Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus directing the respondents to forbear all further proceedings of the respondents from initiating any coercive action of Locking and Sealing of the Petitioners’ premises pursuant to the

De-Occupation notice dated 15.12.2021 bearing Notice No. ZONE VI/TPENF/2021 issued by the second respondent herein under Section 56, 57 read with Section 85 of Town and Country Planning Act, 1971 pertaining to the petitioners’ premises situated at Door No.132/6, Sachidanantham Street, Kosapet, Chennai – 600 012, so as to enable the petitioners to rectify and restore the petitioners’ premises in consonance with the permissible planning rules and regulations in the said premises within six months on the basis of the petitioners’ representation dated 05.01.2022.

For Petitioners : Ms.B.Kavya for Mr. C.S. Srinivasan
For Respondents 1 & 2 : Mr. J. Ravindran

Additional Advocate General assisted by Mr. K. Raja Srinivas

For 3rd respondent : Mrs.P.Kavitha

ORDER

  1. MAHADEVAN, J.

The petitioners, who are the owners of the residential flats, bearing Door No.132/6, Sachidanantham Street, Kosapet, Chennai – 600 012, have come forward with this writ petition seeking to issue a mandamus, forbearing the respondent authorities from initiating any coercive action of Lock and Seal of the premises pursuant to the De-Occupation notice dated 15.12.2021 issued by the second respondent herein under Sections 56, 57 read with Section 85 of the Tamil Nadu Town and Country Planning Act, 1971 (in short, “the Act”), so as to enable them to rectify and restore the said premises in consonance with the permissible planning rules and regulations, on the basis of their representation dated 05.01.2022.

  1. The background facts, which led to the filing of this writ petition, are narrated below:

2.1. Originally, one Lakshmi Jeeva, a neighbour of the petitioners herein, made a representation dated 19.03.2016 to the Member Secretary, Chennai Metropolitan Development Authority (in short, “the CMDA”), Egmore, Chennai, requesting to take appropriate action against the illegal construction of the residential building at New No.132, Old No.6/1,

Sachidhanandam Street, Kosapet, Chennai-12 made by the builder namely M/s.New Venus Developers Private Limited / 3rd respondent herein. Since the said representation was not considered, she preferred a writ petition bearing No. 35378 of 2016, which, by order dated 05.10.2016, was disposed of, directing the Corporation officials to verify the records and take action after issuing notice to all the parties, within a period of three months.

2.2. Pursuant to the aforesaid direction, the respondent authorities scrutinised the records relating to the subject building and found that planning permission and building approval were issued vide PPA No.D6/3634/2015 and

BA No.D6/3233/2015 dated 15.07.2015 respectively and according to the same, permission was accorded for construction of a stilt, first floor and second floor consisting of six dwelling units. However, on physical inspection, it was noticed that the building was constructed without leaving sufficient set backs, besides additional / unauthorised construction was put up by way of third floor. Therefore, a Lock and Seal and Demolition notice dated

31.10.2016 was issued to the petitioners under Section 56 and 57 read with

Section 85 of the Act. Following the same, another notice dated 02.12.2016 also came to be issued to them.

2.3. However, the petitioners did not submit any reply, but preferred a writ petition viz., WP No. 5831 of 2017, praying to issue a Writ of Mandamus forbearing the respondent authorities from in any manner initiating any coercive action of locking and sealing and demolition of the subject premises till the final determination of the petitioners’ special revision petition filed under section 80(A) of the Act along with stay petition under section 80(A)(3) of the Act dated 08.11.2016 pending with the Government. By order dated 09.03.2017, the said writ petition was disposed of, directing the Government to dispose of the statutory appeal said to have been filed by the petitioners / occupants of the subject building, within a period of three months and further directing them, not to take any coercive steps against the petitioners.

2.4. In the mean while, the complainant namely Lakshmi Jeeva made a complaint dated 30.10.2017 to the Corporation of Chennai about the pendency of the proceedings relating to lock and seal-cum -demolition of the subject building. In response, a reply was sent by the Regional Deputy Commissioner (Central) stating that the demolition drive could not be proceeded with due to the pendency of the statutory appeal filed by the petitioners to the Government. After waiting for nearly two years, the complainant sent another complaint on 16.12.2019 to the Corporation officials reiterating her earlier request, for which, a reply was sent by citing the pendency of the appeal before the Government. A similar reply dated 28.12.2019 was received by the complainant in response to her representation to the Corporation officials. Continuing her tirade against the inaction on the part of the CMDA as well as Corporation officials, the complainant sent a similar complaint addressed to the Assistant Engineer, Division – 78, for which also, she received a reply that the building owners filed an appeal to the Government along with an application seeking regularisation of the unauthorised construction and therefore, after disposal of the same, necessary action will be taken. Since her repeated complaints did not evoke any response, she sent a legal notice to the

CMDA as well as the officials of the Corporation of Chennai.  Even thereafter, there was no concrete action taken by the officials of the CMDA as well as the

Corporation. Hence, she submitted an application dated 02.07.2021 under the Right to Information Act to ascertain the status of the statutory appeal said to have been filed by the petitioners herein, to which, the Public Information Officer sent a reply dated 07.07.2021 stating that the appeal preferred by the petitioners came to be disposed of even as early as on 17.01.2018 by rejecting their claim. Pointing out the same, the complainant sent a notice dated 14.07.2021 to the CMDA as well as the officials of the Corporation of Chennai to take action against the petitioners in accordance with the directions issued by this Court, but it was not responded to. Finding no other option, she filed Contempt Petition No. 1099 of 2021 for the alleged disobedience of the order of this court dated 05.10.2016 in WP.No.35378 of 2016.

2.5. Thereafter, the respondent officials issued de-occupation notice dated 15.12.2021 to the petitioners, directing them to vacate and handover vacant possession of the building within seven days.  Upon receipt of the same, the petitioners sent a representation dated 05.01.2022 to the respondent authorities requesting time by stating that they would rectify and restore the subject building in accordance with the permissible planning rules and regulations. While so, apprehending that the respondent authorities would take coercive steps by locking and sealing and demolition of the subject building, the petitioners are before this court with the present writ petition for the above stated relief.

3.On 12.01.2022, when this writ petition was listed for admission, this court has granted an order of status quo. Seeking to vacate the said interim order, the respondents have taken out an application in WMP No. 1119 of 2022 on 24.01.2022.

4.The learned counsel appearing for the petitioners / owners would contend that the petitioners purchased the residential units under bonafide belief that the building was constructed in accordance with the planning permission issued by the CMDA. Whereas, the third respondent / builder, contrary to the planning permit and building approval, had constructed nine dwelling units, instead of six residential units, and sold the same to the petitioners by suppressing the said deviations made. The petitioners came to aware of the same, only after receipt of the notice issued by the second respondent herein to vacate and handover the vacant possession of the building. Elaborating further, the learned counsel contended that the petitioners are innocent purchasers and they have nothing to do with the unauthorised construction put up by the third respondent / builder. The learned counsel made a fervent appeal to this court stating that on 11.01.2022, the petitioners have filed an application along with a revised plan as per section 56

(3) r/w section 49 of the Act and it is pending with the Corporation of Chennai. During the pendency of such application, the petitioners are sought to be evicted by issuing the impugned notice. Above all, it is submitted that there are nine families residing in the building in question and there are school going children as well as aged persons. It is ultimately submitted that the nature of deviations made by the builder is feasible of being rectified, but it will take atleast six months time; and hence, the haste with which the second respondent issued the notice dated 15.12.2021, calls for interference of this court. Thus, the learned counsel prayed to allow this writ petition by issuing appropriate direction to the respondent authorities to safeguard the interest of the petitioners.

5.Per contra, the learned Additional Advocate General appearing for the respondents would contend that the building in question has been constructed in violation of the planning permission and approval by putting up an additional floor and without following the rules and regulations, which fact was also admitted by the petitioners. Continuing further, he contended that as per the directions issued by this Court in the order dated 05.10.2016 in WP No.35378 of 2016, the petitioners filed a Special Revision before the Government under Section 80A of the Act and it was rejected on 17.01.2018, against which, they have not preferred any appeal. Therefore, the second respondent as per law, issued de-occupation notice dated 15.12.2021 to the petitioners, which is proper and cannot be found fault with. It is also submitted that even though the official respondents are pursuing the matter in accordance with the directions issued by this court, the complainant has filed Contempt Petition No. 1099 of 2021, in which, by order dated 07.01.2022, the respondent authorities were directed to report compliance of the order dated

05.10.2016 passed in WP.No.35378 of 2016. Therefore, the learned Additional Advocate General prayed for dismissal of the writ petition so as to enable the respondent authorities to proceed with the process of demolition of the unauthorised construction made in the subject building.

6.The learned counsel appearing for the third respondent / builder drew the attention of this court to the affidavit filed by the third respondent in WMP.No.8017 of 2022 and submitted that after completion of the building, the third respondent had been approaching the respondent authorities for regularisation of the building constructed, but the same was not considered and the appeal preferred in this regard, was also rejected on 17.01.2018. In such circumstances, the third respondent has taken steps to provide alternative accommodation to the occupants, so as to enable them to vacate the premises and thereafter, rectify the deviation / demolish the unauthorised construction, however, all the activities were paralysed due to covid-19 pandemic situation. Therefore, the learned counsel prayed this court to grant time for providing alternative accommodation to the petitioners and thereafter, rectifying the deviations / demolish the unauthorised portion of the building.

7.This court has considered the submissions made by the learned counsel appearing for all the parties and carefully perused the materials available on record.

8.At the first instance, be it noted that though the relief sought in the writ petition lies in a narrow campus, considering the nature of the issue involved herein, this court, in the larger public interest, is inclined to delve into the same in detail. For the said purpose, the relevant provisions of law may be set out hereunder, which regulate the construction of buildings:

The Tamil Nadu Town and Country Planning Act, 1971

  1. Detailed town planning schemes prepared under the Tamil Nadu Town Planning Act, 1920, deemed to be detailed development plans under this Act.-

Every detailed town planning scheme notified, submitted or sanctioned under the Tamil Nadu Town Planning Act, 1920 (Tamil Nadu Act VII of 1920) together with any variation made thereto shall, for purposes of this

Act, be deemed to be a detailed development plan made under the Act and

all actions taken under the said Act in respect thereof shall be seemed to have been taken under this Act.

34-A.  Special provision for sanction of building plan in certain cases-

Notwithstanding anything contained in this Act or in any other law relating to local authorities for the time being in force, or in any detailed development plan, made or deemed to be made under this Act, the

Municipal Corporation of Chennai may sanction any building plan –

(i)providing for the construction of more than one dwelling-house on any one site; or

(ii)providing for the construction of any building with variation in regard to requirement of plot extent or plot coverage or open space.

35. Special provision in respect of development plan.-

Notwithstanding anything contained in this Act or in any other law relating to local authorities for the time being in force or in the Tamil Nadu Estates Land Act, 1908 (Tamil Nadu Act I of 1908), any development plan prepared under this Act may, among other matters as provided for in the foregoing provisions, also propose or provide for all or any of the following matters, namely:-

  • the suspension, restriction or modification, so far as may be necessary for the proper carrying out of such development plan, of any provision in the Chennai City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919), the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920), or the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958), or any other law relating to local authorities for the time being in force, or in any rule, by-law or regulation made under the said Acts or laws and in force in the area included in such development plan;
  • the suspension, restriction or modification, so far as may be necessary for the proper carrying out of such development plan, of any provision in the Tamil Nadu Estates Land Act, 1908 (Tamil Nadu Act I of 1908), affecting the conversion of holdings or portions thereof into building-land in the area included in such development plan.

Explanation.- Tamil Nadu Act I of 1908: The word “holdings” in this clause shall have all same meaning as in the Tamil Nadu Estates Land Act, 1908

  • the determination of the size and shape of every reconstituted plot for rendering it suitable so far as may be, for planning purposes including building purposes;
  • the formation of any reconstituted plot by the alteration of the boundaries of the plot in the original size.
  • the conversion with the consent of the owners, of ownership held severally or jointly, of two or more plots in the original size, with or without alteration of boundaries, into common ownership of such plots as reconstituted plots;
  • the allotment of a plot to any owner dispossessed of any land infurtherance of any development plan; and
  • the transfer with the consent of the owners, of the ownership of a plot from one person to another.
  1. Use and development of land to be in conformity with development plan.-

After the coming into operation of any development plan in any area, no person other than any State Government or the Central Government, or any local authority shall use or cause to be used, any land or carry out any development in that area otherwise than in conformity with such development plan:

Provided that the continuance of the use of any land for the purpose and to the extent for, and to which it is being used on the date on which such development plan comes into operation, may be allowed for such period and upon such terms and conditions as may be specified in such development plan.

  1. Restrictions on buildings and lands, in the area of the planning authority.- On or after the date of the publication of the resolution under sub-section (2) of section 19 or of the notice in the Tamil Nadu Government Gazette under section 26, no person other than any State Government or the Central Government or any local authority, shall, erect any building or make or extend any excavation or carry out any mining or other operation, in, on, over or under any land or make any material change in the use of land or construct, form or layout any work except with the written permission of the appropriate planning authority and in accordance with the conditions, if any, specified therein.
  2. Power to require removal of unauthorised development-
  • Where any development of land or building has been carried out-
    • without permission required under this Act; or
    • in contravention of any permission granted or of any condition subject to which permission has been granted; or
    • after the permission for development of land or building has been duly revoked; or
    • in contravention of any permission which has been duly modified, the appropriate planning authority may, within 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-
    • in cases specified in clause (a) or (c) above, to restore the land to its condition before the said development took place;
    • in cases specified in clause (b) or (d) above, to secure compliancewith the permission or with the conditions of the permission, as the case may be.
  • In particular, any such notice may, for the purposes aforesaid,require-
    • the demolition or alteration of any building or works;(ii) the carrying out on land, of any building or other operations; (iii) the discontinuance of any use of land or building:

Provided that, in case the notice requires the discontinuance of any use of land or building, the appropriate planning authority shall serve a notice on the occupier also.

“(2-A) If the owner or occupier, as the case may be, of land or building has not discontinued, the use of such land or building as required in the notice served under subsection

(1), within the time specified therein, the appropriate planning authority if primafacie satisfied, may take action to discontinue the use of such land or building by looking and sealing the premises in such manner as may be prescribed irrespective of pendency of any application under section 49 or appeal under section 79 or any litigation before a court. The owner or occupier, as the case may be, of such land or building shall provide security for such sealed premises.”;

  • Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 49 for the retention of the land, or any buildings or works or for the continuance of any use of the land or building to which the notice relates.
  • (a) The notice (except the cases covered by clause (iii) of subsection (2)) shall not be of any effect pending the final determination or withdrawal of the application.

(b) (i) The foregoing provisions of this Chapter shall so far as may be, apply to an application made under sub-section (3).

(ii) If such permission applied for is granted on that application, the notice shall not take effect, or if such permission applied for is not granted, the notice shall have full effect, or if such permission is granted for the retention only of some buildings or works, or for the continuance of use of only a part of the land or building, the notice shall not take effect regarding such buildings or works or such part of the land or building, but shall have full effect regarding other buildings or works or other parts of the land or building, as the case may be.

(5) If within the period specified in the notice or within such period after the disposal or withdrawal of the application for permission, the notice or so much of it as continues to have effect, is not complied with, the appropriate planning authority may-

(a) prosecute the owner for not complying with the notice; and in case where the notice requires the discontinuance of any use of land or building, any other person, who uses the land or building or causes or permits the land or buildings to be used in contravention of the notice; and

(b)(i) in the case where the notice requires the demolition or alteration of any building or works or carrying out of any building or other operations itself cause the restoration of the land to its condition before the development took place and secure the  compliance with the conditions of the permission or with the permission as modified by taking such steps as the appropriate planning authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and

(ii) the appropriate planning authority concerned may recover the cost of any expenses incurred by it in this behalf from the owner as arrears of land revenue.

  1. Power to stop unauthorised development.-
  • Where any development as described in clauses (a) to (d) of subsection (1) of section 56 is being carried out , but has not bee completed, the appropriate planning authority may serve on the owner and the person carrying out the development, a notice requiring the development to be discontinued from the time of service of such notice.
  • Where the notice under sub-section (1) has been served, the owner or the person carrying out any development shall discontinue the development from the date of service of such notice and inform the fact of discontinuance to the appropriate planning authority:

Provided that the provisions of clause (a) of sub-section (4) of section 56 shall not apply to the notice served under sub-section (1) and the notice shall continue to have effect and the development shall not be continued during the period in which the final determination or disposal of application for permission under section 49 is pending.

  • If the owner or the person carrying out the development has not discontinued the development as required in the notice served under subsection (1)-
  • the appropriate planning authority may serve a notice on the owner requiring him within such period, being not less than seven days to remove that part of the building built subsequent to the notice served under sub-section (1). If, the direction is not complied with, within the period specified therein, the appropriate planning authority may demolish that part of the building built subsequent to the notice served under subsection (1) and reserve the right to recover the cost of any expenses incurred by it in this behalf from the owner, as an arrear of land revenue;
  • the appropriate planning authority may also proceed to seize any construction material, tool, machinery, equipment, scaffolding, vehicle or any other thing used for such development and kept within the site for development;
  • the material, tool, equipment, scaffolding, vehicle or any other thing so seized may be confiscated by such planning authority and sold by auction in such manner as may be prescribed and the sale proceeds shall be credited to the Fund Account. No claim shall be made by the owner or any other person, on the material, tool, equipment, scaffolding, vehicle or any other thing confiscated and on the sale proceeds.
  • Where the development as described in clauses (a) to (d) of subsection (1) of section 56 is being carried out, the planning authority may also take action to discontinue the development by locking and sealing the premises, in such manner as may be prescribed, till the production of the planning permission from the appropriate planning authority as required under this Act.
  • If the owner or the person carrying out the development has not complied with the requirement in the notices served under sub-section (1) or (3), within the period specified therein, the appropriate planning authority may prosecute the owner for not complying with the notice.

(6)(a) If the development as described in clauses (a) to (d) of subsection (1) of section 56 is discontinued, the provisions under sub-sections (3) and (4) of section 56 shall apply:

(b)No person shall continue the development after obtaining any Order of stay or interim injunction from any court against the notice served by the appropriate planning authority under section 56 or under this section.

(c) Any development continued after obtaining the order to stay or interim injunction referred to in clause (b), shall be deemed to be unauthorised development and the appropriate planning authority may demolish such unauthorised development without any notice.

  1. Appeal to the Director. – (1) Any person objecting to any decision or order taken or passed by the planning authority under the provisions of Chapter VII of this Act may, within a period of two months from the date on which the decision or order was communicated to him in the manner prescribed, appeal against such decision or order to the Director:

Provided that the Director may admit an appeal preferred after the expiration of the said period, if he is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period:

Provided further that no appeal shall be entertained under this subsection unless it is accompanied by satisfactory proof of the payment of the development charges admitted by the appellant to be due.

  • The appeal shall be in the prescribed form and shall be verified in the prescribed manner.
  • In disposing of an appeal, the Director may, after giving the appellant an opportunity for making his representations-

(a) in the case of an order of assessment of development charge-

  • confirm, reduce, enhance or annual such assessment;
  • set aside such assessment and direct the planning authority to make a fresh assessment after such further inquiry as may be directed; or
  • pass such other orders as he may think fit; or

(b) in the case of any other order or decision confirm, cancel or vary such order or decision:

Provided that at the hearing of any appeal against an order or decision of the planning authority, the planning authority shall have the right to be heard.

  • Where as a result of the appeal, any change becomes necessary inthe order or decision appealed against, the Director may authorise the planning authority to amend such order or decision accordingly and on such amendment being made, any amount overpaid by the appellant shall be refunded to him without interest or the further amount of development charges, if any, due from him shall be collected in accordance with the provisions for this Act, as the case may be.
  • Notwithstanding that an appeal has been preferred under subsection (1), the development charge shall be paid in accordance with the order or decision of assessment against which the appeal has been preferred:

Provided that the Director may, in his discretion, give such directions as he thinks fit in regard to the payment of the development charges before the disposal of the appeal, if the appellant furnishes sufficient security to his satisfaction in such form and in such manner as may be prescribed.

  • The Director may pass such interlocutory orders pending the decision on the appeal as the Director may deem fit.
  • The Director may award costs in proceedings under this section to be paid either out of the Fund Account or by such party to the appeal, as the Director may deem fit.
  1. Appeal to the Tribunal.- (1) Any person objecting to an order passed by the Director under sub-section (3) of section 76 may, within a period of two months from the date on which the order was communicated to him in the manner prescribed, appeal against such order to the Tribunal:

Provided that the Tribunal may admit an appeal preferred after the expiration of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.

  • The appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding two hundred and fifty rupees as may be prescribed.
  • In disposing of an appeal, the Tribunal may, after giving the appellant an opportunity of making his representation-

(a) in the case of an order or decision of assessment of development charge-

  • confirm, reduce, enhance or annual such assessment;
  • set aside such assessment and direct the planning authority concerned to make a fresh assessment after such further inquiry as may be directed; or
  • pass such other orders, as it may think fit; or

(b) in the case of any other order or decision, confirm, cancel or vary such order or decision:

Provided that at the hearing of any appeal against an order or decision of the Director, the planning authority concerned shall have the right to be heard.

  • Where as a result of the appeal, any change becomes necessary inthe order or decision appealed against, the Tribunal may authorise the planning authority concerned to amend such order or decision accordingly and on such amendment being made, any amount overpaid by the appellant shall be refunded to him without interest, or the further amount of development charges, if any, due from him shall be collected in accordance with the provisions of this Act, as the case may be.
  • Notwithstanding that an appeal has been preferred under subsection (1), the development charges shall be paid in accordance with the order or decision of assessment against which the appeal has been preferred:

Provided that the Tribunal may, in its discretion, give such directions, as it thinks fit in regard to the payment of the development charges before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction, in such form and in such manner as may be prescribed.

  • The Tribunal may pass such interlocutory orders pending the decision on the appeal as the Tribunal may deem fit.
  • The Tribunal may award costs in proceedings under this section to be paid either out of the Fund Account or by such party to the appeal as the Tribunal may deem fit.
  1. Appeal to the prescribed authority.-
  • Any person aggrieved by any decision or order of the planning authority under section 49 or sub-section (1) of section 54 may appeal to the prescribed authority.
  • An appeal under sub-section (1) shall be preferred within two months from the date on which the decision or order was communicated to him in the manner prescribed, but the prescribed authority may admit an appeal preferred after the said period of two months if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.
  • In disposing of an appeal, the prescribed authority may, after giving the parties an opportunity of making their representations, pass such order thereon as the prescribed authority may deem fit.
  • The decision or order of he prescribed authority on such appeal shall be final.
  • The prescribed authority may pass such interlocutory orders pending the decision on such appeal as the prescribed authority may deem fit.
  • The prescribed authority may award costs in proceedings under this section to be paid either out of the Fund Account or by such party to such appeal as the prescribed authority may deem fit.
  1. Revision.- (1) The Director may, of his own motion or on application, call for and examine the record of any officer subordinate to him and the Government may, of their own motion or on application, call for an examine the record of the Director, in respect of any proceeding not being a proceeding in respect of which any appeal or revision or review to the Director or the Tribunal or the District Court, as the case may be, is provided for by sections 76 to 78 and 81, to satisfy himself or themselves as to the regularity of such proceedings, or the correctness, legality or propriety of any decision or order made therein, and if, any case, it appears to the Director or Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, he or they may pass orders accordingly:

Provided that every application to the Director or the Government for the exercise of the powers under this section shall be preferred within three months from the date on which the proceeding, decision or order to which the application relates was communicated to the applicant.

  • No order prejudicial to any party shall be passed under sub-section (1), unless such party has been given an opportunity of making his representations.
  • The Director or the Government, as the case may be, may suspend the execution of the decision or order pending the exercise of his or their power under sub-section (1) in respect thereof.
  • The Director or the Government may award costs in proceedings under this section to be paid either out of the Fund Account or by such party to the application for revision as the Director or the Government may deem fit.

80-A. Special Powers of Government.-

  • Notwithstanding anything contained in section 80, the Government may, on application, call for and examine the records of the appropriate planning authority in respect of sealing of the premises under sub-section (2-A) of section 56 or under section (4) of section 57 and if, in any case, it appears to the Government that any such action or decision should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly.

Provided that every application to the Government for the exercise of the powers under this section shall be preferred within thirty days from the date of sealing:

Provided further that such application for revision shall be disposed of by the Government within ninety days from the date of receipt of the application.

  • No order prejudicial to any person shall be passed under subsection (1) unless such person has been given an opportunity of making his representation.
  • The Government may pass such interim order, as they deem fit, pending the exercise of the powers under sub-section (1) in respect thereof.
  1. Review.- (1) The appellant or the applicant for revision or the respondent may apply for the review of any order passed under sections 76 to 78 and 80, on the basis of the discovery of new and important facts which, after the exercise of due diligence, were not then within his knowledge or could not be produced by him when the order was made, or on the basis of some mistake or error apparent on the face of the record or for any other sufficient reason:

Provided that no application for review shall be presented more than once in respect of the same order.

  • Every application for review shall be presented within such timeand in such manner as may be prescribed.
  • The decision or order passed on the application for review shallbe final.
  • The authority competent to pass orders on the application for review may pass such interlocutory orders pending the decision on the application for review as it may deem fit.
  • The authority referred to in sub-section (4) may award costs in proceedings under this section to be paid either out of the Fund Account or by such party to the application for review as it may deem fit.
  1. Execution of orders passed in appeal, revision or review.- Any order passed by the Director, Tribunal, the District Court, the Government or the prescribed authority under the provisions of this Chapter shall be enforced by such authority and in such manner as may be prescribed.

113-C. Exemption in respect of development of certain buildings.-

Notwithstanding anything contained in this Act or any other law for the time being in force, the Government may, taking into consideration the ecology and environment of the area and having regard to public interest and in order to improve the infrastructure, reduce public inconvenience and ensure public safety in the area, by order, exempt any building or class of buildings developed on or before the 1st day of July, 2007, from all or any of the provisions of this Act or any Rule or Regulation made thereunder, subject to the guidelines made in this behalf, by collecting such amount, not exceeding three times of the guideline value of the land, as may be prescribed. Different rates may be prescribed for different planning parameters and for different parts of the planning area.

Tamil Nadu Combined Development and Building Rules, 2019

  1. Written Permission for development.— (1) Subject to section 47 and 58 of the Tamil Nadu Town and Country Planning Act 1971 (Tamil Nadu Act 35 of 1972) no person shall carry out any development or construction of building or structure, subdivision, layout, reconstitution or amalgamation of land or change of use of land or building without the written permission of the competent authority.

Explanation.— Such written permission shall include an electronic version issued with the digital signature of the competent authority.

(2) Any site approval or Permission for any development/ construction under these rules shall not absolve the applicant of his responsibilities to get clearance or permission under other Acts and Rules, if so required.

  1. Application for Planning Permission and Building Permit.— (1) For the purpose of obtaining planning permission or building permit, the applicant who should be the owner of the land or leaseholder or power of attorney holder who has right over the land to develop, shall submit an application on-line in the prescribed Form to the competent authority.

(2)… (3)…

(4)…

  • Government departments are exempted from the payment of scrutiny fee or any other fee or charge.
  • The plan submitted under sub-rule (4) shall be prepared by a qualified architect or engineer and structural aspects of the design shall be certified by a qualified structural engineer.
  • An application in Form – A in Annexure – I accompanied by proof of ownership, plans, specifications, etc., mentioned therein shall be submitted to the competent authority in case of subdivision or layout or reconstitution or amalgamation of land for building purposes.
  • An application in Form – B in Annexure – II accompanied by proof of ownership, detailed plans, specifications, site plan, key plan and topo plan showing existing developments to a radius of 100 metres drawn to a scale of 1:500 and such other details as may be required from time to time shall be submitted to the competent authority, in the case of development of land and buildings, change of land and building use and in the case of site approval.
  • An undertaking in Form – C in Annexure -III by the registered professionals to the competent authority in the case of developments such as Non High Rise Buildings and High Rise Buildings and other developments as may be decided by the competent authority.
  • The competent authority may seek any additional particulars as deemed fit for processing the application.
  • The applicant may address the competent authority for clarification before filing an application and such clarification shall be issued within 2 months from the date of receipt of application seeking such clarification.

9.Inspection –

10.Sanction –

  1. The Developments to be in conformity with these Rules-
    • No developments shall be in contravention of these Rules.
    • No land, premises or building shall be developed, constructed,altered, reconstructed, subdivided, amalgamated, reconstituted, laid-out, changed or put to use which is not in conformity with the provisions of these rules.
    • In the case of an area comprised in a Detailed Development Planapproved under the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972) the Developments therein shall be in conformity with that Detailed Development Plan:

Provided that where for a road, street alignment is not prescribed in Detailed Development Plan, but it is prescribed in the Master Plan, then street alignment in Master Plan shall apply. Provided further that in cases where an area is declared as Continuous Building Area either in Master Plan or in Detailed Development Plan, the area shall be taken as Continuous Building Area and developments therein shall be regulated accordingly. However, Continuous Building Area parameters shall not apply to plots in approved layout areas unless specifically earmarked for continuous building developments.

  • All detailed Town Planning Schemes sanctioned under the Town Planning Act 1920 (Tamil Nadu Act VII of 1920) shall stand superseded by the Master Plan/Detailed Development Plan approved for that area. All developments therein shall be regulated with reference to the Land Use classification indicated in the Master Plan or Detailed Development Plan for that area and development regulations.
  1. Application for Completion Certificate.—
  • For all buildings except residential building upto 12m in height not exceeding 3 dwelling units or 750 sq.m and all type of Industrial buildings, the Applicant or Owner or Power of Attorney Holder or Registered Developer and any other Person who is acquiring interest shall submit a completion report in Form 5 along with Form 6, 7 and 8 in Annexure – XIV, to obtain Completion Certificate, certifying that the building has been completed as per the approved plan, from the competent authority that has issued Planning Permit before getting service connections such as electric power connection, water supply sewerage connection. These service connections shall be given by the service provider to these buildings only after the production of the Completion Certificate.
  • The owner or developer shall submit an application to the competent authority in the first stage after completion of work upto plinth level requesting for issue of order for continuance of work.
  • The owner or developer through the registered professional shall submit to the designated officer of the competent authority a progress certificate in the given format at the stage of Plinth and last storey level along with structural inspection report as provided for under sub-rule (2) of rule 9 of these rules.
  • On receipt of the progress certificate from the owner or registered developer through the registered professional, the competent authority shall check for any deviation from the approved plan and convey decision within 7 working days to the owner or developer for compliance.
  • If the order of continuance is not issued within 15 days of receipt of the respective application, it will be taken as deemed to be issued and the owner or developer may proceed with the construction without any deviation to the approved plan.
  • The owner or Power of Attorney holder or registered developeror any other person who has acquired interest shall submit application in complete shape for issue of completion certificate according to the norms prescribed in Annexure – XXIII to these Rules.
  • The competent authority may on its own or through a subordinate official or a qualified professional inspect or cause to be inspected the work atleast the two stages of construction viz, plinth level and completion of construction and such inspection shall include confirmation that,—
  • the work was executed and the building was completed as per the approved plan as stated in these rules along with the norms prescribed for issuing the completion certificate;
  • it shall be obligatory on the part of the applicant to confirm that certificate of Lift Inspector has been obtained regarding satisfactory erection of lift; and
  • it shall also be obligatory on the part of the applicant to confirm the certificate to the Directorate of Fire & Rescue Services for completion of fire safety requirements as applicable for the type of building has also been obtained.
  • If any project consists of more than one detached or semi detached building or buildings in a building unit and any building or buildings thereof is completed as per approved plan (such as parking, internal roads, height of the building, infrastructure facilities, lift and fire safety measures), the competent authority may issue completion certificate for such detached or semidetached building or buildings in a building unit.
  • The completion certificate shall not be issued unless the information is supplied by the owner, developer, the registered professionals concerned in the schedule as prescribed by the competent authority from time to time.
  • The competent authority shall within 30 days from the date of receipt of application for completion report inform, communicate its decision after necessary inspection about grant of completion certificate.
  • Connection to the sewer or water mains or electricity:
  • Temporary connection for water, electricity or sewer, permitted for the purpose of facilitating the construction, shall not be allowed to continue in the premises after completion of the building construction.
  • No connection to the water mains or sewer line or electricity distribution line with a building shall be made without the prior permission of the authority and without obtaining completion certificate.
  • In case the use is changed or unauthorised construction is made, the authority is authorised to discontinue such services or cause discontinuance of such service.
  1. Illegal Occupation of Building.— (1) Executive Authority of Local Body may by written notice, order any building or any portion thereof to be vacated forthwith or within the time specified in such notice;—
  • if such building or portion thereof has been unlawfully occupiedin contravention of these Rules
  • if a notice has been issued in respect of such building or partthereof requiring the alteration of restriction of any works specified in such notice have not been commenced or completed.
  • if the building or part thereof is in a ruinous or dangerous condition, which are likely to fall and cause damage to any person occupying, resorting to or passing by such building or structures or any other structure or place in the neighbourhood thereof.
  • The reasons for requiring such building or portion thereof to be vacated should be clearly specified in every such notice.
  • The affixing of such written notice or any part of such premises shall be deemed to be a sufficient intimation to the occupiers of such building or portion thereof.
  • On issue of such notice, every person in occupation of the building or portion thereof to which the notice relates shall vacate the building or portion as directed in the notice and no person shall so long as the notice is withdrawn, enter the building or portion thereof, except for the purpose of carrying out any work of reinstatement which he may lawfully permitted to carry out.
  • The competent authority may direct that any person who acts in contravention of above provision or who obstructs him in any action taken under these rules shall be removed from such building or part thereof by any police officer, and may also use such force as is reasonably necessary to effect entry in the said premises.
  • The cost of any measures taken under this provision shall be recovered from the owners or occupants.
  1. Illegal Developments.— If any construction or development is carried out illegally or in deviation to the plan approved, the competent authority shall take action against the constructions or developments as provided in the Act and in these rules.
  2. Structures in setback spaces.—Unless or otherwise specifically provided for elsewhere in these regulations, no structure shall be constructed within the minimum prescribed set back spaces except the following:
  3. a) In cases of Non High Rise buildings.— (i) Sun-shades not exceeding 0.6m.
  • Motor room of area not exceeding 2 sq.m. each and height not exceeding 1.8m, without affecting parking and driveway requirements.
  • In case of Non High Rise Buildings with height upto 9.0m, open single flight or spiral staircase or open double flight staircase so long as such structure do not fall within 0.50 m from the side boundary or 1m. from the rear or front boundary of the site or street alignment.
  • A compound wall of height not exceeding 2.0m
  • Watchman booth not exceeding 2.5m.x 2.5m. in size at each gateand height not exceeding 3m.
  • Gate pillars without or with arches with a minimum headroomclearance of 5.50 m available atleast to a width of 3.5m.
  • Meter Rooms for meter boxes or electrical panels along the boundary wall or external walls of the building with the projections not exceeding 0.60 meter from the abutting walls and the open Transformer without affecting parking and drive way, subject to the safety measures stipulated by Tamil Nadu Electricity Board.

Explanation: (i) In order to minimize traffic conflicts on to the abutting roads, the number of vehicular entry or exits to site shall be kept minimum and it shall not exceed 2 numbers (i.e. one entry or one exit); provided that an additional gate for every 50 metres frontage may be allowed in large sites where its frontage exceeds 50 metres.

  1. In the event of the site abutting more than one road one additional gate shall be permitted.

            Annexure XXIII

[See rule 20 (6)]

Completion Certificate Norms

1) The following guidelines are issued for the purpose of treating the building as completed for issue of completion certificate

  1. In respect of commercial buildings, the following items should have been completed in all respects. However, interior completion works, fixtures, flooring and partition need not be insisted.
  • Terrace Floor with weathering course including parapet wall
  • Lift Machine Room, OHT and Stair-case Head room
  • Electrical installations (switch boxes and fixtures not to be insisted)
  • Sanitary and water supply installations (fixtures not to be insisted)
  • Sump for water storage
  • Outer plastering of the building
  • Frames for joinery
  • No dowel rods left out in the building for vertical or horizontal expansion
  • Completion of Internal Plastering and Flooring need not be insisted
  1. In case of residential buildings, the following items shall have been completed in the said project to consider it for issue of Completion

Certificate

  • Terrace Floor with weathering course including parapet wall
  • Lift Machine Room, OHT and Stair-case Head room
  • Electrical installations (switch boxes and fixture not to beinsisted)
  • Sanitary and Water Supply installations (fixtures not to beinsisted)
  • Sump for Water storage
  • Outer plastering of the building
  • Frames for Joinery
  • Kitchen (Provision on Modular Kitchen is permitted provided provision for water supply / drainage is made)
  • Internal partition walls
  • No dowel rods left out in the building for vertical or horizontal expansion
  • Completion of Internal Plastering and Flooring need not be insisted.

Apart from that, vide G.O.Ms.No.191, Housing and Urban Development Department, dated 02.09.2008, the Government have approved the second master plan for Chennai Metropolitan Area, 2026. The Development Regulations for Chennai Metropolitan Area form part of the said Second Master Plan approved. The relevant regulations of the same may be set out below.

  1. Planning Parameters:

The extent of the site, plot coverage, FSI, set back etc. for the developments shall be regulated according to the tables below:

Table (1) Ordinary Residential Buildings and other small developments

  • Ordinary residential / predominantly residential buildings, Clinics, dispensaries, nursing homes with floor area not exceeding 300 sq.m. and G+1 floor in height.
  • Working women hostels / old age homes with floor area not exceeding 500 sq.m. and G+1 floor in height.
  • Corporate / Institution Guesthouses with floor area not exceeding 300 sq.m. and G+1 floor in height.
  • Cottage industries (with number of workers not exceeding 8 and electric machineries not exceeding 5 H.P.) with floor area not exceeding 300 sq.m. and G+1 floor in height.
  • Nursery schools, primary schools with floor area not exceeding 300sq.m.
  • Reading rooms, libraries, Post office, EB Office, telegraphic office,Local body maintenance offices with floor area not exceeding 300 sq.m.
  1. Regulation for Special Buildings:

(1) “ Special Buildings” means

  1. a residential or commercial buildings with more than 2 floors; or
  2. a residential building with more than six dwelling units; or
  3. a commercial building exceeding a floor area of 300 square

metres:

Provided that any construction in the second floor with prior permission as an addition to an existing ground and first storeyed authorised ordinary residential building which is three years old shall not be construed as a “Special Building”.

(2) (a) The minimum width of the public road on which the site abuts or gains access shall be 10 mtrs.

Provided that if the extent of the site is more than 1100 sq.m. a special building for residential use may be permitted on a site abutting or gaining access from 9m. wide public road.

Provided further that special building for residential use may be permitted with limitation on maximum number of dwellings and / maximum height of the building on a site abutting or gaining access from 9 m wide public road subject to compliance of the planning parameters stated in the Tables under sub rule (3) below.

The minimum width stated above shall be the existing width of the road and not the street alignment prescribed.

Explanation:

(i) Road width means the road space as defined in DR no. 2 (35). The qualifying road width for permitting special building shall be available atleast for a stretch of 250m along the length of the road abutting the site and the stretch from a junction can be straight or a curve or zigzag or combination of the above.

To cite examples:

  1. If the road over its general length is of 10 metres width, but because of some kinks in front of the site one end is 9.8 metres and the other end is 10.2 metres is acceptable.
  2. If the general road is of width less than 10 metres width, but only widens opposite to or nearer to the site is more than 10 metres, is not acceptable.
  3. If the road is generally of 10 metres width upto a considerable length on one side, but discontinues and narrows into a road of smaller width on the other side of the site in question and the plot owner is willing to leave enough space for continuity of 10 metres road in front of his site, this will have to be checked and decided on case-by-case.
  4. If the general road width is less than 10 metres and the site owner

merely agrees to leave enough space to have 10 metres in front of his site only, this is not acceptable.

(ii) Road width measurements for the above purpose shall be of the road as designed and laid and the existence of unauthorized encroachments, for which no patta has been given, will not normally affect adversely provided the shortage in width in the min. stretch stated above does not exceed 10% of the min. prescribed width. However permissibility or otherwise (in exceptional cases) in such specific situations will be decided case-by-case.

(b) If the site does not directly abut a public road but gains access through a private exclusive passage or through a part of the plot which can be treated as a passage from a public road of minimum width as prescribed above, the minimum width of such passage shall be as follows:

…..”

From the reading of the aforesaid provisions of law as well as the Development Regulations, it is apparent that  all the constructions should be made by strictly adhering to the planning permission and any of the deviations will be viewed seriously, so as to compel the parties to follow the requisite norms, rules and regulations in order to curtail unauthorised construction.

 

9.In the present case, it is seen from the pleadings as narrated above that the building in question, which was purchased and in occupation of the petitioners herein, was constructed by the third respondent / builder after obtaining planning permission and building approval, as per which, they were entitled to put up a construction of stilt plus first and second floors and the proposal was to put up six residential units in both the floors. However, contrary to the same, they had made additional construction in the third floor consisting of three residential units unauthorisedly and also sold the same to the petitioners numbering 9. According to the petitioners, without the knowledge of the deviations / unauthorised construction in the subject building, they have purchased the residential units in good faith for valuable consideration through loan from the financial institutions and they have nothing to do with the illegal act done by the third respondent / builder. They further submitted that without considering any of the ground reality, the respondent officials issued de-occupation notice to them and hence, they made representation requesting them to grant time to rectify the deviations made in the subject building and regularisation of the construction.

10.On the other hand, it is submitted on the side of the respondent authorities that the building in question was constructed contrary to the building planning permission and in violation of the relevant provisions of law. Therefore, the respondent authorities have taken earnest steps by issuing notices to the petitioners / occupants of the subject building, but they failed to comply with such directions and dragged on the proceedings by making faint attempts.

11.During the course of hearing, a memo containing the particulars of the subject building, was filed, on the side of the respondent authorities, which reads as follows:

Land area

FSI permissible     =        1.5 times of land area

= 2070 sq.ft.
                                           =        1.5 x 2070 sq.ft = 3105 sq.ft.
Total built up area permissible = 3105 sq.ft

Planning Approval obtained: Stilt + 2 floors with 6 Dwelling Units

Building on site: Ground + 3 Floors with 11 Dwelling Units

On site details:  (all details are extracted from official website of Tamil Nadu Registration Website – Survey No.2403/2 & 2403/4 Purasawalkam Village, Purasawalkam SRO).

S.

No.

Floor

Number

Flat

Number

Built up area Remarks
1. Ground Floor G-1 728 sq.ft Unauthorized Construction

(Converted        stilt        into

Residential)

2. Ground Floor G-2 633 sq.ft. Unauthorized Construction

(Converted        stilt        into

Residential)

3. First Floor F-1 703 sq.ft. Set back space and FSI

violation

4. First Floor F-2 633 sq.ft. Set back space and FSI

violation

5. First Floor F-3 714 sq.ft. Set back space and FSI

violation

6. Second Floor S-1 703 sq.ft. Set back space and FSI

violation

7. Second Floor S-2 633 sq.ft. Set back space and FSI

violation

8 Second Floor S-3 714 sq.ft. Set back space and FSI

violation

9. Third Floor T-1 703 sq.ft. Unauthorized Construction
10. Third Floor T-2 633 sq.ft. Unauthorized Construction
11. Third Floor T-3 714 sq.ft Unauthorized Construction
S.

No.

Floor

Number

Flat

Number

Built up area Remarks
Total 11 Units 7511 sq.ft

It is crystal clear from the above that the subject building was constructed by the third respondent in violation of the planning permission, which fact was also admitted by the petitioners. It is also borne out from the records that pursuant to the order dated 05.10.2016 passed by this Court in WP No. 35378 of 2016, the petitioners preferred a Special Revision before the Government for regularisation of the unauthorised construction in exercise of the powers conferred under Section 80A of the Act, but it was rejected by the Government on 17.01.2018, which was not challenged by the petitioners, in the manner known to law, till date. In such circumstances, the action taken by the respondent authorities by issuing de-occupation notice dated 15.12.2021 as contemplated under section 56 and 57 read with section 85 of the Act, that too, pursuant to the directions of this court in the writ as well as contempt proceedings, cannot be found fault with, in the opinion of this court. Therefore, the relief sought in this writ petition cannot be granted.

12.It is, time and again held that unauthorised construction(s) put up with deviation should not be encouraged; the building rules have to be scrupulously followed; and the violations have to be curtailed with iron hands.

A Division Bench of this Court, in similar circumstances, passed an order dated 09.01.2018 in the case of Kiran bai vs. District Collector, Coimbatore and others in WP No. 14250 of 2017, wherein, a residential house was constructed in violation of the planning permission and therefore, the portion of the offending superstructure was directed to be demolished, referring to a decision of the First Bench in a contempt petition. Paragraphs 7 and 8 of the said order read as follows:-

“7. According to the 4th respondent, he obtained Planning Permission from the 2nd respondent/Corporation vide No.BL/0342/2016/MHI/W on 20.10.2016, and started constructing the building in question, but, however, to increase the built up area, he altered the Plan and constructed the building with some modifications. From the Status Report filed by the 2nd respondent/Corporation, it appears that the 4th respondent, after obtaining building licence from the Corporation for a single shop building, converted the existing structure into a Restaurant and Kitchen and also made new construction in the basement with violations and deviations.

  1. In a similar circumstance, the First Bench of this Court in the case of R.Vadivelu vs. P.Devaraji, by an order dated 23.09.2016 in Contempt Petition No.1769 of 2015, has held as under:

“4. We have also perused the Report of the Commissioner, who is present in Court. We have impressed upon him the importance of ensuring that there is atleast no continuing unauthorized construction by issuing stop work notices immediately when such unauthorized construction is detected rather than waiting for comparison of the plans. We have also emphasised the importance of:

  • Checking the buildings from the basement, ground floor onwards, so that the set backs are adhered to;
  • Ensure that the on-going construction complies with the norms;
  • The delinquent officers are brought to book not by mere censure, stoppage of increment, but by more severe consequences like compulsory retirement and dismissal from service. We say so, as despite, mammoth amount of unauthorised construction, we are informed that not a single person has suffered the punishment of dismissal from service or even compulsory retirement atleast for the last five years.
  • Not to let any unnecessary interference with his work by the persons, who have nothing to do with his job and that he should be able to do his task without fear or favour, for which necessary court protection is available.”

13.In yet another case in the case of P. Selvarajan vs. The Commissioner of Municipal Administration, Chennai – 600 005 and others, a Division Bench of this Court had an occasion to consider an identical case and passed an order dated 13.02.2018 in WP No. 21639 of 2017. In that case, a five-floor commercial complex was constructed in Attur Town, Salem Taluk and District, even though the building planning permission was obtained to construct ground and first floors only. As the entire building was constructed in violation of the building plan, a notice was issued for removal of unauthorised construction within seven days.  The petitioner therein did not challenge the notice, but submitted a representation to the authorities to re-consider their decision. The Division Bench of this Court, after appreciating the facts in detail, ordered that the portion of the construction made in violation of the building plan has to be erased to ground.

14.In the order dated 13.03.2018 passed in WP (MD) No. 21406 of

2017 in the case of S. Nagajothi vs. Commissioner of Madurai City

Municipal Corporation and others, it was noticed by a Division Bench of this

Court that on the basis of a complaint given by the neighbour, the proceedings under the Tamil Nadu Town and Country Planning Act, 1971 were initiated against the petitioner therein. It was also found that the petitioner therein had constructed the building without leaving sufficient side set backs, besides, she had put up a construction on the compound wall, contrary to the building planning permission. Therefore, it was directed that the offending construction has to be removed within a period of forty days by the petitioner herself failing which the Corporation was directed to do so without affecting the stability of the main building and to recover the cost thereof from the petitioner.

15.At this juncture, it would be apposite to refer to a decision of this

Court in Consumer Action Group v. The State of Tamil Nadu and others

[(2006) 4 CTC 483 = (2006) 4 LW 41], wherein, the plea of the Consumer Action Group with respect to the violations of the Building norms in the construction of shopping complexes at T.Nagar and at N.S.C.Bose Road without allotting Car and Two Wheeler parking spaces in such multi-storied buildings, was considered and after elaborate discussion with all the relevant decisions in the field, it was held at paragraph 37 as follows:

“37.Mere reading of this reveals administrative failure, regulatory inefficiency and laxity on the part of the authorities concerned being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with staring eyes the Government feels helpless to let it pass; as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing the illegalities, which are writ large, no administrative action of demolition of such a large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal, what not? Are the consequences of such illegal constructions not laid down? Does the statute not provide for controlled development of cities and rural lands in the interest of the welfare of the people to cater to public convenience, safety, health etc.? Why this inaction? The Government may have a gainful eye in this process of regularisation to gain affluence by enriching coffers of the State resources but this gain is insignificant compared to the loss to the public, which is State concern also as it waters down all preceding developments. Before such pattern becomes cancerous and spreads to all parts of this country, it is high time that remedial measure was taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the laches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of the public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks, etc. Such a pattern retards development, jeopardises all purposeful plans of any city, and liquidates the expenditure incurred in such development process.

16.In Esha Ekta Apartments Coop Housing Society Limited v.

Municipal Corporation of Mumbai [(2013) 5 Supreme Court Cases = (2013)

3 Supreme Court Cases (Civil) 89], it was observed by the Hon’ble Supreme Court that the courts are expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions and the relevant passage of the said decision is extracted below:

“1.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 construction by way of compounding and otherwise.”

“8.At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law-abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their own hands and get away with it.”

“56.We would like to reiterate that no authority administrating municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.”

17.The aforesaid view was reiterated by the Hon’ble Supreme Court in the decision rendered in Supertech Limited v. Emerald Court Owner Resident Welfare Association and others [(2021) 10 Supreme Court Cases 1] by holding that illegal constructions have to be dealt with strictly to ensure compliance with rule of law. Paragraphs 159, 160 and 161 of the same read as under:

“159. The rampant increase in unauthorised constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court.  This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities.

  1. From commencement to completion, the process of construction by developers is regulated within the framework of law. The regulatory framework encompasses all stages of construction, including allocation of land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from the different departments (fire, garden, sewage etc.,) and the issuance of occupation and completion certificates. While the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations – the protection of the environment and the wellbeing and safety of those who occupy these constructions.  The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned.  Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards.  Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law.
  2. The judgments of this Court spanning the last four decades emphasise the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach of the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance.  Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners.  Their quality of life is affected the most.  Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes.  As this case demonstrates, they are denied access to information and are victims of misinformation.  Hence, the law must step in to protect their legitimate concerns.”

18.In Kerala State Costal Zone Management Authority vs. Maradu

Municipality [(2021) 16 Supreme Court Cases 822], the Hon’ble Supreme Court has once again reiterated that illegal and unauthorised constructions put up with brazen immunity, cannot be permitted to remain. The relevant passage of the said decision is quoted below:

“107. At this stage, we must deal with the argument raised before us by

the company. It is submitted that a world class resort has been put up which will promote tourism in a State like Kerala which does not have any industries as such and where tourism has immense potential and jobs will be created. It is submitted that the Court may bear in mind that the company is eco-friendly and if at all the Court is inclined to find against the company, the Court may, in the facts of this case, give direction to the company and the company will strictly abide by any safeguards essential for the preservation of environment.

  1. We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument. We find that the view taken by the Kerala High Court in aforesaid decision is appropriate. Permission granted by the Panchayat was illegal and void. No such development activity could have taken place. In view of the findings of the Enquiry, Committee, let all the structures be removed forthwith within a period of one month from today and compliance be reported to this Court.”

19.Applying the parameters laid down by this Court as well as the Hon’ble Supreme Court in the decisions mentioned supra to the present case, wherein, the petitioners sought an interim order forbearing the respondent authorities from taking coercive steps, so as to enable them to rectify and restore the subject building in consonance with the permissible planning rules and regulations, within a period of six months, this court is of the opinion that the practice of putting up an illegal construction and subsequently seek for regularisation or rectification should not be encouraged as it would give a wrong impression that a building can be unauthorisedly constructed and later, defects could be rectified. In such cases, the plea for regularisation or rectification should not be entertained either as a matter of course or routine and it should be considered sparingly and reasonably. If it is shown that an unauthorised construction has been put up, it should be ordered to be demolished, thereby indicating a strong warning signal to the perpetrators of such offences. It is trite law that the respondent authorities should take action for the services rendered to the public, whereas in the instant case, after so many litigations, at the instance of the complainant, who is the neighbour of the subject building, the officials have taken action in accordance with law. In many cases, they failed to do so promptly and appropriately; and the completion certificate issued by the authorities is, without proper verification of the actual status of the building, whether there is deviation / unauthorised construction. Further, as evident from the memo filed on the side of the respondent authorities, 847 appeal petitions in Chennai south region and 1581 appeal petitions in respect of Chennai north and Central Region, are pending consideration before the Government, without any progress. Such being the present scenario, this court, in order to sort out the same, issues the following directions to the respondent authorities:

  • Before issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion certificate from the authorities concerned.
  • Upon conducing personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion certificate in respect of residential / commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion certificate should be deferred, unless and until the deviations pointed out are completely rectified.
  • All the necessary connections, such as, Electricity power connection, water supply sewerage connection, etc. shall be given by the service provider / Board to the buildings only after the production of the completion certificate.
  • After issuance of completion certificate, if there is any deviation / violation contrary to the planning permission given, immediate steps be taken by the authority concerned, in accordance with law, against the builder / owner / occupant; and the official, who is responsible for issuance of completion certificate shall be proceeded with departmentally forthwith.
  • In the event of any statutory appeal or revision filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the appellate or revisional authority shall dispose the same, including the pending appeals / revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided.
  • Necessary instruction be issued by the Government in the form of Circular to all concerned to the effect that any undue delay on the part of the authorities concerned, in issuing the completion certificate or on the part of the appellate authority in disposal of the statutory appeal, will be viewed seriously and departmental action shall be initiated against the erring officials as per law.

It goes without saying that the banks / financial institutions shall sanction loan to the building(s) only after production of the completion certificate by the parties concerned.

20.It may not be out of context to point out at this juncture that the object with which the enactments were made is to promote ‘Planned Development’ in the city, however, by defeating such object, the buildings are constructed with impunity and most of such buildings have gone unchecked. The officials have seldom initiated proceedings by invoking the Act, that too after complaints are given by neighbour or by the person aggrieved by such unauthorised construction in any manner. In most of the cases, buildings are not constructed as per the building planning permission and they are constructed by flouting the building norms, as a result, the concept of planned development becomes a day dream. Unless there is strict enforcement with respect to building norms by identifying the unauthorised construction or deviation at the earliest point of time, before the beneficiaries or owners of the building take possession, it will be difficult for the Courts to issue directives against the parties, who purchase the same for valuable consideration through bank loans, without the knowledge of the deviations in the construction of the building. Therefore, this court, having regard to the need of the hour, issues the aforesaid directions.

21.Apart from the aforesaid directions, this writ petition is disposed of, in the following terms, taking note of the undertaking given by the learned counsel for the third respondent / builder that they would provide alternative accommodation expeditiously, to the petitioners:

(i)The third respondent / builder shall provide alternative accommodation to the petitioners so as to enable them, to vacate and handover the vacant premises of the subject building to the respondent authorities within a period of six weeks from the date of receipt of a copy of this order.

(ii)On such surrender, the respondent authorities shall take steps to demolish the unauthorised portion of the subject building, within a period of two weeks therefrom.

No costs.  Consequently, connected miscellaneous petitions are closed.

22.Post the matter for reporting compliance after ten weeks.

(R.M.D., J.)      (M.S.Q., J.)

29.07.2022

Index     : Yes/No

Internet  : Yes/No

rsh / r n s

  1. MAHADEVAN, J and MOHAMMED SHAFFIQ,  J 

rsh/rns

To

  1. The Commissioner,

Greater Chennai Corporation,     Ripon Buildings, Chennai.

  1. The Executive Engineer, Zone-VI, Greater Chennai Corporation,     Ripon Buildings, Chennai.

WP No. 407 of 2022

29.07.2022

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