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HIGH COURT OF JUDICATURE AT MADRAS
SATISH K. AGNIHOTRI & M. VENUGOPAL, JJ.
M. Gnanam - Appellant
Versus
The State of Tamil Nadu, Rep. By its Secretary & Others - Respondents
W.P. No. 20591 of 2013 & M.P. Nos. 1 to 4 of 2014
Decided on: 12-02-2015
Town and Country Planning Act, 1971 - Section 113(C) – Quash of order - Arbitrary and illegal - Additional construction on northern side of their property – Petitioner one wife of purchased portion of Flat in 1st Floor of building in Block erected on land in Survey Block part of Village Madras City flat - Stated boundaries which is subject matter of proceedings from 3rd Respondent Housing Board as per schedule through registered sale deed – Said in turn sold the property through registered sale deed to one - Later said sold property in question through registered sale deed - 5th Respondent had purchased property in Ground floor of Petitioners property from 3rd Respondent Housing Board by means of registered sale deed - After that had conveyed property in dispute through registered sale deed to one as per registered Document - In turn said conveyed property described in schedule to and in favor of Petitioner by means of registered sale deed – Held, Be that as it may in light of qualitative and quantitative discussions mentioned supra and in view of fact that 1st Respondent had passed orders in Housing and Urban Development Department rejecting Appeal filed by Petitioner under Section 113A(6) of Tamil Nadu Town and Country Planning Act, 1971 by inter alia stating that Applicant had not produced proof of exclusive ownership for site in subject matter in issue in her favors and further Appellant had constructed additional construction by encroaching road and also when it was observed that she had not submitted proof of completion of building and since that order has become final and no further appeal would lie before Government this Court is of considered view that said order does not suffer from any material infirmity or irregularity or patent illegality in eye of law – Consequently Writ Petition fails - In result Writ Petition is dismissed leaving parties to bear their own costs - Before parting with case this Court is very much conscious and alive to fact that this Court had upheld constitutional validity of Section 113(C) of Tamil Nadu Town and Country Planning Act, 1971 and also quashed rules by means of an order - Also that State Government has been directed to frame rules to give effect to Section 113(C) of Act – Moreover State Government has been directed to constitute a fresh committee or utilize services of very same committee for framing appropriate rules and guidelines for processing application for regularization under Section 113(C) of Act - At this juncture it is not out of place for this Court to make a significant mention that stand of Petitioner is that as per Section 113(C) of Act all buildings constructed prior can be regularized - It cannot be gainsaid that when once rules are framed Government is to consider regularization application of Petitioner one way or other by passing appropriate orders thereto - Writ Petition dismissed
M. Venugopal, J.
1. The Petitioner has preferred the instant Writ Petition praying for passing of an order by this Court in calling for the records of the 1st Respondent comprised in G.O.(3D)No.47, Housing and Urban Development (UD-VI) Department, dated 10.07.2013 passed by the 1st Respondent, confirming the order of the 2nd Respondent dated 09.03.2011 in Letter No.REG.I/B4/(BC2)/37571/2001 and to quash the same as arbitrary and illegal. Further, she has sought for passing of a consequential order in directing the Respondents to consider her regularisation application in the light of the statutory amendments to the Tamil Nadu Town and Country Planning Act, 1971 and the Government Orders issued in G.O.(Ms).Nos.234 and 235, Urban Development Department, dated 30.10.2012.
2. Writ Factual Matrix:
(i) According to the Petitioner, one Nagalakshmi Ammal, wife of V.Rangasamy purchased portion of Flat No.4 in the 1st Floor of the building in Block No.41, erected on the land in Survey No.T.S.71, Block No.14, part of Kodambakkam Village Madras City, flat measuring 565 sq.ft. with stated boundaries, which is subject matter of the proceedings, from the 3rd Respondent/Tamil Nadu Housing Board, as per schedule, through registered sale deed dated 28.02.1981. The said Nagalakshmi, in turn, sold the property through registered sale deed to one G. Vijayalakshmi on 22.04.1981. Later the said Vijayalakshmi sold the property in question to Mrs. Uma Rama Durai on 28.08.1986 through registered sale deed.
(ii) The 5th Respondent had purchased the property in the Ground floor of the Petitioner's property from the 3rd Respondent/Tamil Nadu Housing Board, by means of registered sale deed dated 16.03.1992. After that, Mrs. Uma Rama Durai had conveyed the property in dispute through registered sale deed dated 07.04.1997 to one P.G. Krishnamurthy and Tmt.Komalavalli Krishnamurthy, as per registered Document No.529 of 1997. In turn, the said Krishnamurthy and Komalavalli Krishnamurthy conveyed the property described in the schedule to and in favour of the Petitioner by means of registered sale deed dated 30.11.1998.
(iii) After purchase of the flat in the first floor, the Petitioner with an idea of putting up additional construction approached the 5th Respondent and accordingly, a Memorandum of Understanding was entered into between herself and the 5th Respondent on 23.08.1999. By means of the said Understanding, the 5th Respondent was to allow her to make additional construction on the northern side and also gave 'No Objection Certificate' to the 4th Respondent/Corporation of Chennai for construction. On the basis of 'No Objection Certificate' furnished by the 5th Respondent, the Petitioner had put up additional construction on the northern side of their property in the Ground and First floors.
(iv) It comes to be known that the Petitioner on 31.12.2000 applied for regularisation of the additional construction on the northern side under the Regularisation Scheme of the 2nd Respondent/CMDA. In the meanwhile, she obtained NOC from the 3rd Respondent/Tamil Nadu Housing Board for putting up additional construction on 27.12.2001 and thereafter the value of the property had increased. Soon thereafter, the 5th Respondent, who gave consent, entered into 'Memorandum of Understanding', and initiated one after the other.
(v) As a matter of fact, the 5th Respondent filed four Writ Petitions, one Suit and an Appeal and numerous representations to various authorities for pulling down the additional construction mentioning that he had revoked the consent given on 23.08.1999.
(vi) In the first Writ Petition No. 18131 of 2001 filed by the 5th Respondent for taking action as against the Petitioner's construction, this Court, on 01.10.2001 disposed of the Writ Petition by directing the 2nd Respondent herein (CMDA) to consider the 5th Respondent's representation dated 06.09.2001. Subsequently, the 5th Respondent filed O.S. No. 3577 of 2001 seeking a relief of declaration that
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