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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. VAIDYANATHAN, JJ.
M.S. Niranjhan & Another - Appellants
Versus
Vishwakamal Residents' Welfare Association, Rep. by its President Rajendran Ponnambalam, Mylapore - Respondent
O.S.A. No. 96 of 2018 & C.M.P. No. 6189 of 2018
Decided On : 27-03-2018
Tamil Nadu Town and Country Planning Act, 1971 – Sections 56, 57, 101 – Notice – Appellants/plaintiffs have preferred the instant O.S.A. being aggrieved by the order in O.A. in C.S. passed by the learned Single Judge of this Court in dismissing the said O.A. with costs – Plaintiff had filed the suit and the suit had been presented on 02.02.2018 and came up for consideration before this Court – Fact of this notice was not informed to the Court – It is also to be mentioned that under Section 101 of the Tamil Nadu Town and Country Planning Act, 1971, once the notice is issued by the CMDA, the jurisdiction of the Court is specifically barred. – Held, On a careful consideration of the contentions advanced on behalf of the Appellants/plaintiff, is of the prima-facie view that the purchase of the property in question by the Appellants/plaintiffs, is an unauthorised one and when the same is unauthorised to the knowledge of the appellants and is all the more when the CMDA has exercised its requisite powers under the Tamil Nadu Town and Country Planning Act, 1971 and also this Court, taking note of the fact that numerous litigations are pending between the parties, comes to an inevitable and irresistible conclusion that the Appellants/plaintiffs are not entitled to seek interim injunction in O.A.No.101 of 2018 in C.S.No.82 of 2018 because of the latent and patent reason that they do not have a prima-facie case for grant of such relief and also that the "Balance of Convenience" is also not in their favour, and as such, this Court, without any haziness, holds that the view taken by the Learned Single Judge in O.A.No.101 of 2018 in C.S.No.82 of 2018 in dismissing the application, is free from any material irregularity and patent illegality in the eye of law. – Resultantly, the O.S.A. fails. – An injunction is not a matter of right, but of discretion. – No wonder, the relief of an injunction is a Judicial Process operating in personam and requiring a person to whom it is directed to do or refrain from doing a certain thing. – An injunction is an equitable relief, to be adjusted in aid of Equity and Justice to the facts of a particular case. – An injury is deemed to be an irreparable one and the mischief is said to be irremediable, when having regard to the nature of the act and from the circumstances relating to the threatened harm, the apprehended damage cannot be adequately compensated in terms of money. – O.S.A. Dismissed
M. Venugopal, J.
Heard the Learned counsel for the Appellants. Since this Court is disposing of the present Original Side Appeal (O.S.A) at the admission stage itself, this Court is not ordering any notice to the respondent.
2. The Appellants/plaintiffs have preferred the instant O.S.A. being aggrieved by the order dated 01.03.2018 in O.A.No.101 of 2018 in C.S.No.82 of 2018 passed by the learned Single Judge of this Court in dismissing the said O.A. with costs.
3. Earlier, the Learned Single Judge, while passing the impugned order dated 01.03.2018 in O.A.No.101 of 2018 in C.S.No.82 of 2018, in paragraphs 12 to 14, had observed the following and ultimately dismissed the said O.A. :
"12. In the present case, the plaintiff had suppressed the fact that on 02.02.2018, the CMDA had issued notice to the first plaintiff under Sections 56 and 57 read with Section 85 of the Tamil Nadu Town and Country Planning Act, 1971 and which is as follows:-
Your construction at the site under reference was inspected. No approved plan has been exhibited at the site or produced when called for. Therefore, you are requested to produce a copy of approved plan in original for verification and if no approved plan is available or the construction is in deviation to the approved plan, you are requested to stop the work immediately and confirm in writing the fact of having done so, within 3 days from the date of receipt of this notice.
If you fail to comply with this notice within the stipulated time, this Authority will be constrained to taking legal action against the construction, including locking and sealing of the premises, seizure and confiscation of construction materials, auction of the materials seized, demolition of the building, prosecution of the owner, discontinuance of usage, recovery of cost of expenses as arrears of land revenue etc., under the provisions of the Town and Country Planning Act, 1971, as amended by Act 61 of 2008.
You may also note that once the building is sealed, it is the responsibility of the owner/occupier to provide security for such sealed premises, as per the provisions of the said Act.
13. Again, the plaintiff had filed the suit and the suit had been presented on 02.02.2018 and came up for consideration before this Court on 5.02.2018. The fact of this notice was not informed to the Court. It is also to be mentioned that under Section 101 of the Tamil Nadu Town and Country Planning Act, 1971, once the notice is issued by the CMDA, the jurisdiction of the Court is specifically barred. Section 101 of the Act, reads as follows:
101. Bar of jurisdiction of Courts.--Any decision or order of the Tribunal or the Government or the planning authority or other authority or of any officer under this Act shall, subject to any appeal or revision or review provided under this Act, be final and shall not be liable to be questioned in any Court of law (and no injunction shall be granted by any court against the notices served to any person by the planning authority under section 56 or under section 57 of this Act).
14. Even on facts, I am not able to convince myself that the plaintiff is an innocent purchaser. He has deliberately purchased the property, which is unauthorised and which is, to his knowledge unauthorised and illegal. It is further to his knowledge that the CMDA had issued notice in exercise of their powers. There are litigations pending. Consequently, this Court cannot come to the assistance of the plaintiff. Accordingly, the application is dismissed with costs."
4. Assailing the correctness, validity and legality of the impugned order dated 01.03.2018 passed by the Learned Single Judge in O.A.No.101 of 2018 in C.S.No.82 of 2018, the Appellants/plaintiffs have preferred the present O.S.A. before this Court by taking a plea that the impugned order passed by the learned Single Judge in dismissing the O.A., is against the well settled principles of law, besides the same was passed on mis-appreciation of the facts of the case
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