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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. VAIDYANATHAN, JJ.
D. Rajappa & Another - Petitioner
Versus
The State of Tamil Nadu, Rep. by its Secretary to Government, Housing and Urban Development Department, Secretariat, St. Fort George, Chennai & Others - Respondent
Review Application No. 14 of 2018 in Writ Petition No. 22058 of 2017 & W.M.P. No. 3303 of 2018
Decided On : 09-03-2018
Civil Procedure Code, 1908 – Order 47 Rule 1 – Tamil Nadu Town and Country Planning Act, 1971 – Section 113-A – Regularisation of the building – Petitioners are before this Court by way of Review Application seeking to review the order in Writ Petition and W.M.P., on the file of this Court – Senior Counsel appearing for the petitioners contended that the order that has been challenged upto the Supreme Court, was one passed under Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971 and that there is no bar for the authorities to entertain the application under Section 113-C of the said Act. – It is the further contention of the petitioners that the present subject in issue is with regard to the regularisation of the building that has got to be considered by the authorities under Section 113-C of the said Act. – Further, the petitioners drew the attention of this Court to the order passed by the Apex Court and stated that there cannot be any hurdle on the part of the authorities to deal with the issue on hand, more particularly in the light of G.O.Ms.No.111, Housing and Urban Development Department, dated 22.06.2017. – The petitioners contended that the guidelines/regulations framed with regard to the transitory provisions, may apply for exemption under Section 113-C of the said Act, either by withdrawing the application preferred under Section 113-A and that the petitioners have got right to make an application under Section 113-C, even if there is refusal of the request of the petitioners under Section 113-A. – Held, Basic principle to entertain a Review Application under Order 47 Rule 1 C.P.C. is to correct the errors, but not to substitute a view. – The judgment under review cannot be reversed (or) altered taking away the rights declared and conferred by the Court under the said judgment; once a judgment is rendered, the Court becomes "functus-officio " and it cannot set aside its judgment or the decree; no inherent powers of review were conferred on the Court; the review Court cannot look into the trial Courts judgment; it can look into its own judgment for limited purpose to correct any error or mistake in the judgment pointed out by the review petitioner without altering or substituting its view in the judgment under review; the review Court cannot entertain the arguments touching the merits and demerits of the case and cannot take a different view disturbing the finality of the judgment; the review cannot be treated as appeal in disguise, as the object behind review is ultimately to see that there should not be miscarriage of justice and shall do justice for the sake of justice only and review on the ground that the judgment is erroneous, cannot be sustained. – There are more deviations of the planning permission and in this regard, in the decision of the Supreme Court reported in 2016 (3) SCALE 206 : AIR 2016 SC 1460 (Babita Badasaria and others Vs. Patna Municipal Corporation and others), the issue relating to unauthorised construction by compounding of the illegal construction by paying compounding fee, came up for consideration and the Supreme Court had taken note of the fact that there was enormous deviation from the sanctioned plan in construction of multi-storeyed building and found no reason to change their mind and allow to keep the illegal construction which is contrary to law. – Review Application Dismissed
S. Vaidyanathan, J.
"The Review Petitioners who have utter disregard to the orders of the Apex Court and this Court, are before this Court by means of Review Application”
The petitioners are before this Court by way of Review Application seeking to review the order dated 03.01.2018 in Writ Petition No.22058 of 2017 and W.M.P.Nos.23110 and 23111 of 2017, on the file of this Court.
2. Heard both sides and perused the materials available on record.
3. The learned Senior Counsel appearing for the petitioners contended that the order that has been challenged upto the Supreme Court, was one passed under Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971 and that there is no bar for the authorities to entertain the application under Section 113-C of the said Act. It is the further contention of the petitioners that the present subject in issue is with regard to the regularisation of the building that has got to be considered by the authorities under Section 113-C of the said Act. Further, the petitioners drew the attention of this Court to the order passed by the Apex Court and stated that there cannot be any hurdle on the part of the authorities to deal with the issue on hand, more particularly in the light of G.O.Ms.No.111, Housing and Urban Development Department, dated 22.06.2017. The petitioners contended that the guidelines/regulations framed with regard to the transitory provisions, may apply for exemption under Section 113-C of the said Act, either by withdrawing the application preferred under Section 113-A and that the petitioners have got right to make an application under Section 113-C, even if there is refusal of the request of the petitioners under Section 113-A. For the sake of convenience, the relevant portion of the order of the Supreme Court in Petitions for Special Leave to Appeal (Civil) Nos.14415 and 14416 of 2008, dated 02.03.2012, reads as follows:
"In our considered view, the special leave petitions are wholly meritless and deserve to be dismissed because the finding recorded by the competent authority and the State Government that the petitioners had not completed the structural construction till 31.03.2002 is based on correct evaluation of the documents produced by the first authority. The very fact that the petitioners had made application on 31.10.2000 for regularisation of the building despite the fact that as on that date the construction had not even commenced shows that by taking advantage of the Rules framed by the State Government under Section 122(2) of the Act, they wanted to have an advance certificate for future illegal construction of the commercial building and we have no hesitation to hold that the competent authority and the State Government did not commit any illegality by rejecting their application and the appeal and the High Court rightly declined their prayer for issue of a mandamus to the respondents to regularise the illegal construction of commercial building. The special leave petitions are accordingly dismissed.
We hope and trust that in future the State Government will refrain from changing cut off date specified in Rule 3 because that will only encourage those who make illegal/unauthorised constructions with the hope that in future they will succeed in persuading the Government to regularise the illegal construction. Such an exercise has the pernicious effect of destroying the concept of planned development of the urban area which is the primary object of the Act."
4. It is the further contention of the learned Senior Counsel appearing for the petitioners that Section 113-C of the Act has been upheld by this Court in the decision reported in 2014 (2) CTC 225 (K.R.Ramaswamy alias Traffic Ramaswamy Vs. State). It is further contended that the guidelines framed under Section 113-C of the Act, are the subject matter of the writ petition and there was an interim order saying that the planning authority/authorities shall receive the application for regularisation of
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