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2015 Supreme(Mad) 174
HIGH COURT OF JUDICATURE AT MADRAS
SATISH K. AGNIHOTRI & M. VENUGOPAL, JJ.
Rupert J. Barnabas & Another
Versus
The Chennai Metropolitan Development Authority & Others
W.P.Nos. 33697 of 2014 & 941 of 2015 & M.P.Nos. 1 to 3 of 2014 & 1 to 3 of 2015
Decided on: 03-02-2015
For the Petitioners:T. Mohan for M/s. S. Jim Raj Milton, R. Thiyagarajan, Advocates.
For the Respondents:R1, N. Sampath, R2 & R3, R. Arunmozhi, A. Nagarajan, R4, N. Ramesh, R5, P.R. Dhilip Kumar, R7, R. Thiyagarajan, Advocates, R6, No Appearance.
Headnote:
Town and Country Planning Act, 1971 - Section 57 read with Section 85 - Illegal construction of building unauthorized - Order of interim injunction - Challenging legality of locking and sealing notice - Writ petitioner in hereinafter referred first petitioner stating to be a resident of Dally Street came up with this petition seeking a direction to first and second respondents to demolish and remove illegal unsanctioned and unauthorized construction carried out by respondents at Old New Street - Brief facts as projected by first petitioner are that Dally Street in Cholas is full of narrow roads and old buildings and they have been taken over by multistoried and special buildings with no attention being paid to infrastructure availability such as water sewerage capacity fire safety parking - Respondents who are owners of property in question were accorded permission for construction of with car park on ground floor - They built superstructure through respondent without proper sanction and also secured power supply from fifth respondent water supply and sewerage connection from fourth respondent before completion of building – Held, To avoid future violations buildings should be certified as having been constructed in compliance of planning permit and other applicable laws - Certifying Officer will be personally responsible if any illegal building is certified - Electricity water connection and occupation should be contingent on such certificate - In respect of builders who have been identified by Monitoring Committee as having put up illegal buildings constructions by such builders should be certified for compliance only by Chief Planner who shall bear personal responsibility - Development Control Rules prohibit use of building without obtaining completion certificate - Direction to provide electricity water and sewerage connection without insisting Completion Certificate from would amount to permission to put building to use which is prohibited by statute - Electricity Water and Sewerage Boards are not bound to entertain application for such amenities without submitting Completion Certificate issued by CMDA - Authorities exercising statutory functions under various enactments must assist to implement Development Control Rules - If such authorities entertain request and provide electricity water and sewerage connection it would help builder to bypass mandatory requirement of Statute requiring completion certificate to occupy building – Court therefore hold that Chennai Metro Water Supply and Sewerage Board and Electricity Board have no authority to issue electricity water and sewerage connection without producing of Completion Certificate from CMDA – Court are therefore of view that builders have no right to approach Court for mandamus to provide electricity water and sewerage connections without insisting completion certificate from CMDA - It is further informed that there are several other buildings in locality area which have come up illegally without proper approval and sanction - Thus respondents are directed to take extensive survey of locality area to find out fact of illegal unauthorized construction if any locality - If it is so after affording proper opportunity of hearing by way of notice statutory notice prescribed under provisions of Act authorities shall take action as advised to achieve purpose of public health and general welfare of residents of locality – Petitions allowed
Satish K. Agnihotri, J.
1. Both writ petitions, W.P.No.33697 of 2014 and W.P.No.941 of 2015, are being considered and decided by a common order as the question of law and facts involved are one and the same.
2. The writ petitioner in W.P.No.33697 of 2014 (hereinafter referred as "the first petitioner"), stating to be a resident of Dally Street, Choolai, Chennai, came up with this petition, seeking a direction to the first and second respondents to demolish and remove the illegal, unsanctioned and unauthorised construction carried out by 6th, 7th, and 8th respondents at Old Door No.9, New No.17, Vichoor Muthia Street, Choolai, Chennai-600 112.
3. The brief facts as projected by the first petitioner are that Dally Street in Choolai is full of narrow roads and old buildings and they have been taken over by the multistoreyed and special buildings with no attention being paid to infrastructure availability, such as water, sewerage capacity, fire safety, parking, etc. The 6th and 7th respondents, who are the owners of the property in question, were accorded permission for construction of 1+2 with car park on the ground floor. They built the superstructure through 8th respondent without proper sanction and also secured power supply from the fifth respondent, water supply and sewerage connection from the fourth respondent before completion of the building.
4. Looking into the unhygenic condition and also the illegal construction of building unauthorisedly, the first petitioner made representations on 19.04.2014 and 29.04.2014 through email to the second respondent, i.e., the Commissioner, Corporation of Chennai, for taking action against the illegal and unauthorised construction. It was duly received by the office of the second respondent. Thereafter, one more email was sent on 23.7.2014. Nothing was done and no action has been taken. One more representation was made on 27.11.2014, pointing out continuation of illegal and unauthorised construction by the 6th , 7th and 8th respondents, causing enormous problems to other residents of the area. As nothing has come out of the said representations, the first petitioner was constrained to file the instant petition seeking aforestated direction.
5. This court, taking cognizance of the matter, issued notice on 18.12.2014, making it returnable on 22.12.2014. On 22.12.2014, the learned counsel appearing for the second respondent brought to the notice of the court that a stop work notice has been issued on 18.11.2014. It was further submitted that despite stop work notice, the respondents 6, 7 and 8 are continuing with the construction activities at breakneck speed. Thus, this Court directed not to proceed with the construction, by an order of interim injunction. The said order continued thereafter.
6. The petitioner in W.P.No.941 of 2015, who is the 7th respondent in W.P.No.33697 of 2014, (hereinafter referred to as "the 7th respondent"), also came up with the writ petition, without disclosing the fact of currency of W.P.No.33697 of 2014 in respect of the same matter, challenging the legality of the locking and sealing notice dated 12.12.2014 under the provisions of Section 57 read with Section 85 of the Town and Country Planning Act, 1971 and also the notice dated 7.1.2015 issued by the first respondent for removal of illegal and unauthorised construction. This Court directed the status quo as obtained on 13.01.2015 to be maintained.
7. The learned counsel appearing for the first petitioner would submit that the authorities are guilty of nonfeasance. Once the illegality of unauthorised construction was brought to the notice of the authorities, they were under statutory obligation to take action immediately to ensure that the construction is carried out in accordance with the sanctioned plan properly approved. The authorities have completely ignored the judicial pronouncements in Consumer A
