Demolition notice not issued within three years of offending development does not mean that unauthorisied construction has been legalized.

(Appeals under Cl.15 of the Letters Patent against the order dated 9-3-1994 in W.P. No.5670 of 1988 etc.)

A.P. Shah, C.J.

These writ appeals arise out of the common order by the learned single Judge in a batch of writ petitions, challenging the demolition notices issued by the Chennai Metropolitan Development Authority (hereinafter, for the sake of brevity, referred to as ‘MMDA’).

2. The writ-petitioners claim to be the purchasers of the offices/flats in the residential apartments, promoted and developed by M/s. R.R. Constructions, situate at Door No.16, Saravana Mudali Street, T. Nagar, Madras. The promoter had applied to the appropriate planning authority for the planning permission for construction of a residential complex of ground plus three floors, with four flats each in the first, second and third floors and the ground floor for being used as parking space for the flat-owners. The planning permit was issued by the Corporation of Madras on 25-5-1981. In violation of the permit, the promoters had converted the ground floor, which was shown in the planning permission as parking space for the use of the flat-owners, for commercial purposes by putting up office-rooms and also put up unauthorised construction of four flats (Flat Nos.13, 14, 16 and 16-A) over and above the third floor. Irked by the act of unauthorised constructions by the promoter, the purchasers of the flats in the first, second and third floors of the apartment made a complaint to the MMDA about the unauthorised and illegal conversion of parking space and construction of four flats. Based on the complaint received, MMDA had issued demolition notices, dated 20-4-1988, under Sec.56 read with Sec.85 of the Tamil Nadu Town and Country Planning Act, 1971 (in short, for the sake of brevity referred to as ‘the Act’), directing the owner/developer/occupiers to demolish the construction which had been carried out without permission of the MMDA. The said demand notices were challenged by the purchasers/tenants of the structures in parking area and flat Nos.13, 14, 16 and 16-A by filing writ petitions before this Court. During the pendency of the writ petitions, owners/occupiers of the sanctioned flats got themselves impleaded as respondents in the writ petitions.

3. Learned single Judge though recorded a categorical finding that the conversion of the ground floor parking space into commercial area and the construction of four flats over and above the third floor was unauthorised and illegal, however, quashed the impugned notices solely on the ground that the said notices were not issued within the period of three years of the offending construction as contemplated under Sec.56(1)(d) of the Act and as such, the impugned notices were barred by limitation. Learned single Judge observed that the newly added respondents 4 to 10 can take action under the common law for removing the offending construction. Aggrieved, MMDA as well as the impleaded respondents 4 to 10 have preferred these writ appeals.

4. The short question that falls for our consideration is whether the unauthorised construction would, by mere lapse of time, namely three years from the date of construction, stand legalised, if within this period, no notice is served upon the owner/promoter/developer to demolish it? In other words, whether the appropriate authority could take action against the unauthorised construction only within the period of three years of such offending development.

5. Now let us take a look at the scheme of the Act. The object of the Act is to regulate the development of buildings so as to secure to the inhabitants sanitary conditions, amenity and convenience. Sec.47 of the Act mandates that the use and development of land are to be in conformity with the development plan. Sec.48 puts restrictions on the erection of any building or making or extending any excavation or carrying out any mining or other operation, in, on, over or under any land except with the written permission of