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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO & THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN
Kences Foundations Pvt. Ltd., Rep. by its Managing Director K. Narsa Reddy & Another
Versus
State of Tamil Nadu Rep. by its Secretary to Government Housing and Urban Development Department & Others
W.P.Nos.10132 of 2003, 4674 of 2008, 4480 & 4481 of 2010 & M.P.No.1 of 2008
Decided On :Decided on : 09-12-2011
The Court held that the Builder violated building laws and ordered demolition of the unauthorized construction. The Court also held that the Government order granting exemption to the Builder from the operation of the law was illegal and quashed it.
Fact of the Case:
The Builder obtained planning permission from CMDA for construction of 6 blocks of residential buildings and one block of Hotel. The Builder constructed only 202 apartments in 6 blocks and did not construct the Hotel building. The Builder applied for renewal of planning permit in 2009. The CMDA refused to renew the planning permit as the application was not made before the expiry of the planning permit. The Builder approached the Government and the Government granted exemption to the Builder from the operation of the law and renewed the planning permit. The Association challenged the Government order and the renewal of planning permit in the High Court.
Finding of the Court:
The Court held that the Builder violated building laws by constructing a Hospital without planning permission and by proceeding with the construction even after the planning permit expired. The Court also held that the Government order granting exemption to the Builder from the operation of the law was illegal as it was not supported by any reason and no condition was imposed on the Builder.
Issues: 1. Whether the Builder violated building laws? 2. Whether the Government order granting exemption to the Builder from the operation of the law was legal?
Ratio Decidendi: The Court held that the Builder violated building laws by constructing a Hospital without planning permission and by proceeding with the construction even after the planning permit expired. The Court also held that the Government order granting exemption to the Builder from the operation of the law was illegal as it was not supported by any reason and no condition was imposed on the Builder.
Final Decision: The Court allowed the writ petitions filed by the Association and quashed the Government order granting exemption to the Builder from the operation of the law and the renewal of planning permit. The Court also directed the CMDA to demolish the unauthorized construction put up by the Builder.
D.HARIPARANTHAMAN, J.
W.P.NOS.4674 OF 2008, 4480 AND 4481 OF 2010
1. Brindavan Apartment Owners Welfare Association (shortly "the Association") is the petitioner in W.P.Nos.4674 of 2008, 4480 and 4481 of 2010. The petitioner in W.P.No.10132 of 2003 is Kences Constructions Pvt. Ltd., (shortly "the Builder").
2. The Builder submitted an application to the Chennai Metropolitan Development Authority (shortly "the CMDA") in the year 1996 seeking planning permission for construction of seven blocks of multi-storeyed buildings, out of which, six blocks are residential buildings and one block would be of a Hotel, at No.135, Poonamallee High Road, Kilpauk, Chennai -600 010, an arterial road in the Chennai Metropolitan City.
3. The CMDA granted planning permission for construction of six blocks consisting of ground and 9 floors for residential purposes and one block consisting of ground and 7 floors for Hotel purpose, in PP No.C/PP/MSB/25 A to K/96 (Planning Permit No.19735) dated 20.06.1996 and communicated the same to the Builder vide their letter No.C3/29047/95 dated 20.06.1996. The planning permit dated 20.06.1996 was valid for three years, that is from 20.06.1996 to 19.06.1999.
4. Based on the aforesaid planning permit, the Builder constructed 202 apartments for residential purposes in six blocks.
5. Subsequently, based on the advertisement and the Planning Permission of the CMDA in PP No.C/PP/MSB/25 A to K/96 (Planning Permit No.19735) dated 20.06.1996, several persons purchased the apartments. Out of 202 apartments owners, 201 are the Members of the Association, which is registered under the Tamil Nadu Societies Registration Act.
6. When the Builder completed the residential apartments and sold all the apartments, they did not construct Hotel building (in the 7th block) within the planning permit period i.e. before 19.06.1999.
7. In these circumstances, the Members of the Association, that is, the owners of the apartments, complained that the Builder failed to provide statutory requirements like providing of fire equipments, lightning conductors, bellow doors for the entrance leading to the lifts and proper earthing, which led to the filing of a suit in C.S.No.930 of 2007 before this Court by them. However, we are not concerned with those issues in these writ petitions, since rest on different parameters and considerations.
8. While so, without any planning permit, the Builder proceeded with the construction work for building a Hospital in the vacant site earlier meant for the Hotel, during June 2007. The Builder sent a written communication to the Association on 18.04.2007 informing about the proposed construction of Multi Specialty Hospital. The Builder, in another letter dated 11.06.2007, informed the Association that as land owners, they entered into lease agreement with Apollo Hospitals for construction of a Multi Specialty Hospital.
9. The Association sent a letter dated 09.08.2007 to the CMDA informing them that the Members of the Association purchased the apartments believing that the Builder was planning to construct a Hotel on the plot, which he had reserved for the said purpose, but the Builder informed them that they were constructing a Multi Speciality Hospital on the vacant site. The Association pointed out that the excavation and pile work was going on at a brisk pace both during day and night. Since the construction was taking place without any planning permission, the Association requested the CMDA authorities to take action against the Builder forthwith to stop the construction work. The Association sent yet another letter dated 25.09.2007 to the CMDA authorities reminding about their earlier letter dated 09.08.2007 and requesting them to take steps to stop the illegal construction work being carried out by the Builder. But, the construction work was carried on by the Builder.
10. In these circumstances, the Association was forced to approach this Court by filing the writ petition in W.P.No.4674
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