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High Court of Judicature at Madras
ELIPE DHARMA RAO & D. HARIPARANTHAMAN, JJ.
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 : 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 provisions of the Town and Country Planning Act 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. Later, the Builder submitted an application for reclassification of zone as commercial zone, as per para 6 of the counter affidavit filed by the CMDA in W.P.No.4674 of 2008. The CMDA refused to renew the planning permit dated 20.06.1996 that expired on 19.06.1999, when the Builder approached the CMDA in March 2009 for renewal, as the application was not made before the date of expiry of the planning permit. Thereafter, the Builder approached the Government with their application dated 28.04.2009 seeking to revalidate the earlier planning permission. Based on the said application, the Government issued the order in G.O.Ms.No.83, Housing and Urban Development Department, dated 02.06.2009 invoking section 113 of the Act and pardoned / condoned the delay in submitting the papers for renewal of planning permit.
Finding of the Court:
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 provisions of the Town and Country Planning Act was illegal and quashed it.
Issues: Whether the writ petitions in W.P.Nos.4480 and 4481 of 2010 are maintainable under Article 226 of the Constitution of India? Whether G.O.Ms.No.83, Housing and Urban Development Department, dated 02.06.2009 and the consequential order dated 29.06.2009 of the CMDA renewing the planning permit are valid ? Whether the prayer of the Association for demolition of the construction put up by the Builder has to be granted ?
Ratio Decidendi: 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 provisions of the Town and Country Planning Act was illegal and quashed it. The Court relied on the following judgments to support its decision: PRATIBHA COOPERATIVE HOUSING SOCIETY LTD. AND ANOTHER VS. STATE OF MAHARASHTRA AND OTHERS [1991 (3) SCC 341] PALANI HILLS CONSERVATION COUNCIL VS. THE STATE OF TAMIL NADU AND OTHERS [1995 (2) WRIT L.R. 737] DR.G.N.KHAJURIA AND OTHERS VS. DELHI DEVELOPMENT AUTHORITY AND OTHERS [1995 (5) SCC 762] THE CHAIRMAN, MADRAS METROPOLITAN DEVELOPMENT AUTHORITY VS. S.RADHAKRISHNAN AND OTHERS [2006 (1) CTC 241] CONSUMER ACTION GROUP AND ANOTHER VS. STATE OF TAMIL NADU AND OTHERS [2000 (7) SCC 425]
Final Decision: The Court allowed the writ petition in W.P.No.4674 of 2008 and directed the CMDA to demolish the unauthorized construction put up by the Builder at No.135/142, Poonamallee High Road, Chennai - 600 010, within a period of two weeks from the date of receipt of a copy of this order, at the cost and expenditure of the Builder. The Court also allowed the writ petitions in W.P.Nos.4480 and 4481 of 2010 and quashed the order in G.O.Ms.No.83, Housing and Urban Development Department, dated 02.06.2009 of the Government and the consequential order dated 29.06.2009 of the CMDA. The Court dismissed the writ petition in W.P.No.10132 of 2003.
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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