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2017 Supreme(Mad) 1804
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. VAIDYANATHAN, R. SUBRAMANIAN, JJ.
M. Kalyani & Anr. - Petitioners
Versus
The Commissioner, Greater Chennai Corporation & Ors. - Respondents
W.P. Nos. 25811 & 25812 of 2017; WMP Nos. 27241 to 27244 of 2017
Decided On : 27-09-2017
Advocate Appeared:
For the Petitioners: M/s. V.R. Kamalanathan
For the Respondents: Mr. A. Nagarajan
Importance of verifying sanctioned plans before taking action and the obligation of private parties to produce sanctioned plans.
Headnote:
Writ Petition - Building Violation - 2005 Plan, 2010 Plan - [Section 80-A, Master Plan, CMDA, Corporation of Chennai] - The court quashed the impugned notices issued based on a 2010 plan without reference to the 2005 plan. The court emphasized the importance of verifying sanctioned plans before issuing lock and seal notices and highlighted the obligation of private parties to produce sanctioned plans. The court also held that authorities should not regularize set-back violations.
Fact of the Case:
The petitioners sought a Writ of Certiorari to quash the impugned notices issued by the respondents regarding building violations based on a 2010 plan without reference to the 2005 plan.
Finding of the Court:
The court quashed the impugned notices and allowed the writ petitions with directions to the respondents. The court emphasized the importance of verifying sanctioned plans before issuing lock and seal notices and highlighted the obligation of private parties to produce sanctioned plans.
Issues: Building violation based on incorrect plan, issuance of impugned notices without proper verification of sanctioned plans.
Ratio Decidendi: Importance of verifying sanctioned plans before taking action, obligation of private parties to produce sanctioned plans, authorities should not regularize set-back violations.
Final Decision: The writ petitions were allowed, and the impugned notices were quashed with directions to the respondents. No costs were awarded, and connected miscellaneous petitions were closed.
S. Vaidyanathan, J.
The petitioners have come forward with the following prayers:
W.P.No.25811 of 2017: The Writ Petition is filed seeking for a Writ of Certiorari to call for the records pertaining to the impugned notice No.Dn/33/2017, dated 25.07.2017 and the consequential de-occupation notice letter No.03/00003/2017, dated 13.09.2017, issued by the respondents 2 to 4, pertaining to the petitioner's property at ground floor of the premises bearing Door No.46C, Madhavaram High Road, Moolakkadai, Madhavaram, Chennai - 600 060 and quash the same.
W.P.No.25812 of 2017: The Writ Petition is filed seeking for a Writ of Certiorari to call for the records pertaining to the impugned notice No.Dn/33/2017, dated 25.07.2017 and the consequential de-occupation notice letter No.03/00003/2017, dated 13.09.2017, issued by the respondents 2 to 4, pertaining to the petitioner's property at first floor of the premises bearing Door No.46C, Madhavaram High Road, Moolakkadai, Madhavaram, Chennai - 600 060 and quash the same.
2. According to the petitioners, they have got sanctioned plan in the year 2005. Unfortunately, without referring to the said plan, taking into account of some other plan, vide P.P.No.962/2010, dated 01.11.2010, the respondents have proceed to demolish the house and also issued lock and seal notice, dated 25.07.2017 and de-occupation notice has also been issued on 13.09.2017.
3. The respondents are unable to refute the contention of the petitioners. However, it is submitted that the respondents may be permitted to issue fresh notice and take appropriate action in accordance with law, if there is any violation.
4. Taking note of the fact that without reference to the earlier plan of the year 2005 issued by the Madhavaram Municipality, the present impugned notices have been issued, we have no other option except to interfere with the impugned lock and seal notice dated 25.07.2017 and also with the de-occupation notice issued on 13.09.2017, which were issued on the ground that there is deviation of the approved plan. This will not preclude the respondents from issuing fresh notice to the petitioners, if the petitioners have violated the plan and made construction thereon not in accordance with the plan, and the respondents shall proceed further on the same. It is very unfortunate that the officer concerned without applying his mind, referred to the plan pertaining to some other person of the year 2010 even without reference to the earlier plan of the year 2005 issued by the Madhavaram Municipality in respect of the petitioners' building. There is no reference in the impugned order dated 25.07.2017 as to the various violations said to have been made while constructing the site under reference. If there is any complaint, the complainant should also be heard before taking further action.
5. Accordingly, while quashing the said two notices, the Writ Petitions are allowed with the said liberty/directions to the respondents as discussed supra. No costs. Consequently, connected miscellaneous petitions are closed.
6. Before parting with the case, this Court would like to observe that the authorities should not regularise the set-back violations/OSR violations of the lands. Earlier, a Division Bench of this Court, by order dated 10.02.2017 in W.P.No.6109 of 2013, has considered the construction made therein in violation of the plan and the relevant paragraphs are extracted hereunder:
"5. The Secretary, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai is impleaded as respondent No.2 in this petition. Memo of parties be amended accordingly. Mr. M.K. Subramanian, learned Government Pleader accepts notice for the said respondent.
6. We also find there are set back violations in the building, apart from floor violations. The set back violations are not capable of being cured as per the Master Plan, as observed by us in a series of orders."
Similarly, in yet another judgment, dated 08.11.2016 in W.P.No.18777 of 2014,
