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2016 Supreme(Mad) 751
IN THE HIGH COURT OF JUDICATURE AT MADRAS
SATISH K.AGNIHOTRI AND M.VENUGOPAL, JJ.
Alarmel Valli and Ors. – Petitioners
Vs.
The Secretary, Urban and Housing Department and Ors. – Respondents
W.P.No.33013 of 2015 and M.P.Nos.1 and 2 of 2015
Decided On : 29-03-2016
Advocate Appeared:
For the Petitioners: Mr.C.Ramakrishnan Senior Counsel
For the 1st Respondent: Mr.P.S.Siva Shanmugasundaram, Special Government Pleader
For the 2nd Respondent: Mr.K.Raja Srinivas
For the 4th Respondent: Mr.A.Nagarajan
For the RR 5 and 6 : Mr.M.L.Ramesh
The need for reasoned speaking orders on merits and in accordance with the law when considering appeals under the Town and Country Planning Act, 1971.
Headnote:
Unauthorised Construction - Town and Country Planning Act, 1971 - [Section 79, Section 80-A, Section 113] - The court directed the 1st Respondent to consider the Appeal filed by the 6th Respondent and four others afresh and to pass a reasoned speaking order on merits and in accordance with Law, within a period of six weeks from the date of receipt of copy of this order.
Fact of the Case:
The Petitioners sought an order to demolish unauthorised construction at a specific location. The 5th and 6th Respondents had made unauthorised construction despite previous sealing and demolition notices.
Finding of the Court:
The court found that the 1st Respondent's order allowing the Appeal filed by the 6th Respondent lacked valid reasons and was not legally tenable. The court set aside the order and remitted the matter back to the 1st Respondent for fresh consideration and disposal in accordance with the law.
Issues: The main issue was the legality of the 1st Respondent's order allowing the Appeal filed by the 6th Respondent under the Town and Country Planning Act, 1971.
Ratio Decidendi: The court held that the 1st Respondent's order lacked valid reasons and was not legally tenable. The court emphasized the need for reasoned speaking orders on merits and in accordance with the law.
Final Decision: The court set aside the 1st Respondent's order and directed the 1st Respondent to consider the Appeal filed by the 6th Respondent afresh and to pass a reasoned speaking order on merits and in accordance with the law within six weeks.
M.VENUGOPAL, J.
The Petitioners have focussed the present Writ Petition praying for passing of an order by this Court in directing the Respondents 1 to 4 to demolish the unauthorised construction at Door No.232, Kilpauk Garden Road, Kilpauk, Chennai – 600 010 being done by 5th and 6th Respondents.
2. Summation of Facts:
(i) According to the Petitioners made a representation dated 21.12.2011 followed by a telegram dated 05.01.2012 to the 2nd and 3rd Respondents complaining about the unauthorised and illegal construction at Door No.232, Kilpauk Garden Road, Kilpauk, Chennai – 600 010. Since no action was taken by the 2nd and 3rd Respondents, they filed W.P.No.11235 of 2012 and this Court on 23.04.2012 had passed the following order:
“After considering the averments made in the Writ Petition, we are of the view that the petitioner shall pursue her representation before the 2nd Respondent, the Commissioner, Corporation of Chennai. In turn, the Second Respondent shall conduct enquiry and after giving opportunity to the Petitioners as well as the private respondents, take appropriate steps in accordance with law. The writ petition is disposed of accordingly. No costs. The connected miscellaneous petitions are closed.”
(ii) Pursuant to the orders passed by this Court in the aforesaid Writ Petition dated 23.04.2012, the 3rd Respondent/Commissioner, Corporation of Chennai directed the Petitioners to appear for an enquiry before him and they appeared on 11.05.2012. In fact, the Petitioners had addressed a detailed representation dated 21.05.2012 pointing out the nine deviations in the unauthorised construction at Door No.232, Kilpauk Garden Road, Chennai – 600 010 for taking appropriate action at the earliest.
(iii) Later, the Petitioners were given to understand that the demolition notice was also issued in respect of the unauthorised construction. Indeed, based on the orders passed by this Court and based on the enquiry, the 3rd Respondent/Commissioner, Corporation of Chennai passed an order to seal the premises during June 2012 and thereafter the premises was sealed.
(iv) During March 2013, the seal placed on the construction site was removed and further, when one of the Petitioners questioned the same, the persons who came to remove the sealing left without giving any notice. Thereafter, from 11.03.2013, there were few construction activities in the said premises. The Petitioners counsel issued a legal notice dated 12.03.2013 addressed to the 2nd Respondent/CMDA, Chennai and others, which was duly acknowledged by the 3rd Respondent. The 5th Respondent had refused the notice and the 6th Respondent issued a reply dated 25.03.2013 stating that they had preferred an Appeal before the 1st Respondent/Secretary, Urban and Housing Department, Chennai under Section 80-A of the Town and Country Planning Act, 1971 and obtained an order to remove the seal and do the rectification works. Based on the orders passed by this Court, the 3rd Respondent/ Commissioner, Corporation of Chennai had caused the premises to be sealed on 05.07.2013 thereby stopping all further work in the premises.
(v) The violations committed by the 5th and 6th Respondents cannot be rectified and in fact, the authorities should have demolished the building. Moreover, it was mandatory on the part of the authorities to put the Petitioners on notice for any appeal filed against the Sealing and Demolition Notice. As such, they filed another Writ Petition in W.P.No.10081 of 2013 and this Court was pleased to pass an order directing the 2nd and 3rd Respondents to inspect the premises No.232, Kilpauk Garden Road, Chennai – 600 010 and to file their status report regarding the unauthorised construction, whether it is in accordance with the Planning Permission and Development Rules for Chennai Metropolitan Area and forward the said Report to the 1st Respondent/ Secretary, Urban and Housing Department, Chennai. That apart, the sealing was effected by the 3rd Respondent/Commissio
