Back
1999 Supreme(Mad) 997
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A. RAMAMURTHI
P.N. Udani
Versus
Corporation of Chennai rep. by its Assistant Engineer
Crl.O.P. No. 10233 of 1999 and Crl.M.P. No. 4066 of 1999 and 4067of 1999 and 7215 of 1999
Decided On : 27-09-1999
Mr. K. Venkatasubramanian, Advocate for Petitioner. Mr.Ramanlal, Advocate for Respondent.
The court cannot quash proceedings under Section 482 of the Code of Criminal Procedure merely because the Standing Committee failed to determine whether to grant approval or permission within one month from the receipt of a written request, if the applicant contravened any of the provisions of the City Municipal Corporation Act, rules, or by-laws.
Headnote:
CITY MUNICIPAL CORPORATION ACT - SECTION 236, 239(2), 244-A - CONSTRUCTION WITHOUT PERMISSION - APPROVAL OR REJECTION OF PLANNING PAPERS - DEEMED APPROVAL - DEVIATIONS FROM SANCTIONED PLAN - REGULARISATION CHARGES - POWER OF ATTORNEY - PRINCIPAL OFFENDER - QUASHING OF PROCEEDINGS - SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE - ABUSE OF PROCESS OF COURT - MERITS OR DE-MERITS OF THE CASE - TRIAL COURT'S DISCRETION - SUMMARY DISMISSAL OF PETITION.
Fact of the Case:
Petitioner, the owner of a property, executed a power of attorney and development agreement for construction of residential apartments. The developer applied for planning permission and paid development charges and security deposit. The CMDA requested the developer to gift the OSR area to the Corporation of Chennai free of cost. The petitioner filed a writ petition and obtained an order directing the CMDA to process the application and issue planning permission. The developer executed a bank guarantee and sent a letter requesting the Commissioner, Corporation of Chennai to approve the draft gift deed. The Corporation issued a notice under Section 236 of the City Municipal Corporation Act stating that the requirements have not been complied with. The petitioner replied to the notice. The respondent lodged a complaint before the Metropolitan Magistrate alleging that the petitioner proceeded with the construction without permission from the corporation. The petitioner filed a petition under Section 482 of the Code of Criminal Procedure to quash the proceedings.
Finding of the Court:
The court held that the petitioner cannot take shelter under Section 239(2) of the Act as there were deviations from the sanctioned plan and the petitioner failed to comply with the legal requirements. The court also held that the merits or de-merits of the case cannot be considered at this stage and the trial court is directed to consider the petitioner's defenses uninfluenced by any of the observations made by the court.
Issues: 1. Whether the petitioner can take shelter under Section 239(2) of the City Municipal Corporation Act despite deviations from the sanctioned plan and failure to comply with legal requirements? 2. Whether the merits or de-merits of the case can be considered at the stage of quashing proceedings under Section 482 of the Code of Criminal Procedure?
Ratio Decidendi: 1. Section 239(2) of the City Municipal Corporation Act provides that if the Standing Committee does not determine whether to grant approval or permission within one month from the receipt of a written request, such approval or permission shall be deemed to have been given and the applicant may proceed to execute the work. However, this provision does not allow the applicant to contravene any of the provisions of the Act, rules, or by-laws. 2. The merits or de-merits of a case cannot be considered at the stage of quashing proceedings under Section 482 of the Code of Criminal Procedure. The court can only quash the proceedings if it comes to the conclusion that even if the entire case of the prosecution is taken into consideration, it will be an abuse of process of the court.
Final Decision: The petition to quash the proceedings was dismissed. The trial court was directed to consider the petitioner's defenses uninfluenced by any of the observations made by the court.
1. Petitioner/accused in S.T.C. No. 1032 of 1998 on the file of learned XX Metropolitan Magistrate, Chennai has-preferred the petition under section 482 of the Code of Criminal Procedure, to quash the, proceedings.
2. The case in brief is as follows:-
The petitioner is the owner of property situated at Villivakkam village measuring about ?’acre and 66 cents bearing S. No. 172/2 and executed a Power of Attorney in favour of Mr.Chirag N Mehar to deal with the property absolutely to apply to authorities for getting-planning permission and to develop the same by constructing residential apartments. She also executed a Development Agreement on 26. 96 with Narendra Properties Limited agreeing for certain terms and conditions. The developer applied to the CMDA and Corporation for planning permission on 296. The CMDA requested the developer to pay the development charges and security deposit and the same was paid. The CMDA requested the developer to gift the OSR area to Corporation of Chennai free of cost. Since the planning permission was delayed for the purpose of executing bank guarantee, the petitioner filed W. P. No. 1367 of 1997 before this Court and by an order dated 9. 97 this Court directed the CMDA to process the application and issue the planning permission. The developer executed bank guarantee and sent a letter on 28. 97 requesting the Commissioner, Corporation of Chennai to approve the draft gift deed. After the receipt of the draft deed from the developer on 28. 97, they did not take action in approving the draft gift deed, the petitioner once again moved this Court in W.P. 7685 of 1998 for a writ of mandamus directing the Commissioner of Corporation to take over the OSR land and this Court directed the Corporation authorities to pass final order within two weeks. The petitioner after getting orders from the court, obtained planning permission and building licence from the respondent. When W.P. No. 7685 of 1998 was filed, the petitioner has stated that the respondent has issued notice under Section 236 of the City Municipal Corporation Act (hereinafter referred to as the acts) stating that the requirements have not been complied with. The petitioner also sent a reply. The respondent, however, lodged a complaint before the learned Metropolitan as if without permission from the corporation the petitioner proceeded with the construction.
3. Once she has executed a power of attorney and development agreement, it is not proper on the part of the respondent to issue any notice and file a complaint. She, is a lady of 65 years, suffering from hyper tension and also not moving out. she should not be penalysed for any offences if at all any committed by the developer as alleged , in the complaint. It is the duty of the respondent that within 30 days from the date of receipt of the application, they should either approve or reject the planning papers and if within one month such approval or submission is not granted, it shall be deemed to be given in view of section 239 (2) of the Act. Since the petition has not been disposed of within one month under section 239 (2), it is presumed that the petitioner can proceed with the construction. Accordingly, the developer proceeded with the construction. The developer also paid the regularisation charges under section 244-A to the tune of Rs.58, 500 on 99. Hence, the proceedings are liable to be quashed.
4. The respondent filed a counter affidavit, stating that the allegations in the petition are not correct. No construction or re-construction can be commenced without permission of the authorities. The petitioner has commenced construction even prior to the grant of permission. Notice under section 236 of the Act was given. Moreover, notice under section 236 of the said Act dated 15. 98 was also given. No satisfactory reply was given, and, hence, the prosecution was launched. The petitioner submitted a defective proposal and this can be established before the court. The
