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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. DURAISWAMY, ANITA SUMANTH, JJ.
Muthujothi - Appellant
Versus
Empowered Committee and Ors. - Respondents
W.P.(MD) No. 6027 of 2018 and W.M.P.(MD) Nos. 5900 to 5902 of 2018
Decided On : 27-07-2018
Municipalities Act - Section 197 - Town and Country Planning Act - Sections 56 & 57 - challenge - Demolish allegedly illegal construction - Grant of Planning Permission construction of any building except a hut - Petitioner is a resident of Melkarai By-pass in vicinity of which Third Respondent has constructed a Hospital building - According to learned Counsel appearing on behalf of Petitioner construction of Hospital is without required approvals and sanctions - Submissions of are as set out below - He first states that Third Respondent Hospital is a Multi-storied building - According to him construction of Ground plus five floors is entirely illegal insofar as Sanction obtained in terms of Section 197 of Tamil Nadu District Municipalities Act, 1920 for construction of Ground plus two floors has been granted by Executive Officer Selection Grade Town Panchayat who is not empowered to grant same - All subsequent proceedings including present Approval of Empowered Committee are consequently vitiated - Our attention is then drawn to a Counter said to be filed by official Respondent in of where at Paragraph there is reference by District Collector and Deputy Director Town and Country Planning to approval granted by Executive Officer for construction of sq.ft in land admeasuring sq.ft in following terms According to Counter subject matter of Plan that was sanctioned is a Public building for which only Local Planning Authority is Competent to grant Approval - According to Petitioner official Respondent has itself stated that construction is illegal and unauthorized - His third submission is to effect that construction of Hospital is upon Banks of River Vaigai and is adjacent to a cemetery - As such he would question Sanction accorded for construction both on grounds of positioning of Hospital proximate to unhygienic surroundings as aforesaid as well as for reason that it runs contrary to provisions of law and all applicable Rules and Regulations - Unauthorized construction of Ground plus five floors cannot be regularized by Empowered Committee which only has power under Development Control Regulations to regularize violations in Planning parameters - Whether Third Respondent had constructed a Five storied building as a Hospital - Whether Third floor should left to remain or not - Whether Third floor is unauthorized at all seeing as Building Plan Permission has been produced by Third Respondent purporting to have been Building Permission granted by Deputy Director Town and Country Planning - Held, Court may mention at this juncture that no specific objection or contra argument has been raised by Petitioner in this regard and it is only Affidavit filed in support of Writ Petition that avers that Hospital is a Multi-storied building placing reliance upon Section 12.2.5.1 of National Building Code a general Pan-India document - Court are of view that Empowered Committee does not have power to regularize construction of Third floor which is unauthorized to begin with - As on date when proceedings of Empowered Committee were passed there was no approval for Third floor - Such Building Plan Permission if at all it can be called so has been issued only more than a month after date of impugned proceedings - In this light of matter and particularly in light of our observations on Building Plan Application and Building Plan Approval Court are of view that Third floor of building is liable to be demolished - Court have our reservations about manner in which said Building Permission has been obtained - Though Approval lists documents in Reference Column there is no reference to Application filed by Hospital which as Court have noted earlier is almost blank when it comes to relevant particulars - Moreover Planning Permission refers to proceedings of Empowered Committee and also makes note of FSI premium charges that were directed to be paid by Petitioner in regard to violations that were relaxed by Empowered Committee - Though Plan Approval has been obtained in December and construction of G + All three floors are said to have constructed by we see that Petitioner has been raising queries/objections from shortly thereafter - Application under Right to Information Act was filed in April and Reply was received from Deputy Director Town and Country Planning - Petitioner has also earlier approached this Court seeking remedial action in respect of very same Hospital as in issue before us now - In aforesaid circumstances Court do not believe that elapse of time between when present Writ Petition has been filed is fatal to present proceedings - This argument of Third Respondent is rejected - Writ Petition Partly Allowed
JUDGMENT :
Anita Sumanth, J.
1. This Writ Petition challenges an approval of the First Respondent dated 7.2.2018 and a consequential direction to the Respondents to demolish the allegedly illegal construction made by the Third Respondent of a Hospital constructed by it in Melkarai By-pass Road, Manamadurai Town and Taluk, Sivagangai District.
2. Mr. Elephant Rajendran, learned Counsel appears for Mr. RM. Arun Swaminathan, learned Counsel for the Petitioner, Mr. Baskarapandian, learned Special Government Pleader appears for Respondents 1 & 2 and Mr. Lajapathi Roy, learned Counsel appears for the Third Respondent.
3. The Petitioner is a resident of Melkarai By-pass in the vicinity of which the Third Respondent has constructed a Hospital building. According to Mr. Rajendran, learned Counsel appearing on behalf of the Petitioner, the construction of the Hospital is without required approvals and sanctions. The submissions of Mr. Rajendran are as set out below:
(i) He first states that the Third Respondent Hospital is a 'Multi-storied' building. According to him, the construction of Ground plus five (5) floors is entirely illegal insofar as the Sanction obtained in terms of Section 197 of the Tamil Nadu District Municipalities Act, 1920 for construction of Ground plus two (G+2) floors has been granted by the Executive Officer, Selection Grade Town Panchayat, who is not empowered to grant the same. All subsequent proceedings including the present Approval of the Empowered Committee are consequently vitiated.
(ii) Our attention is then drawn to a Counter said to be filed by the official Respondent in W.P.(MD) No. 18594 of 2017, where at Paragraph 3, there is reference by the District Collector and the Deputy Director, Town and Country Planning to the approval granted by the Executive Officer for construction of 5985 sq.ft. in land admeasuring 13,952 sq.ft. in the following terms:
'..3. It is humbly submitted that this 4th Respondent constructed G + 3 building in S. No. 73/2D2. And the 4th Respondent constructed the building by obtaining plan approval from Executive Officer, Selection Grade Town Panchayat as per Building Plan Approval No. 151/11-12, dated 16.11.2011 and the condition to construct the building on or before 15.12.2014. The above Approval given to construct 5985 sq.ft. in the total land of 13952 sq.ft. In fact, the Local Authority is having power to grant Approval for the building G+1 to the extent of 2000 sq. ft. all Commercial building and 4000 sq.ft. residential building. And, the Local Authority don't have power to give approval to the Public building. This subject matter of the building is a Public building for which the Local Planning Authority is the Competent Authority to grant approval. Hence, the approval given by the Local Authority is not valid in the eye of law....'
According to the Counter, the subject matter of the Plan that was sanctioned is a Public building for which only the Local Planning Authority is Competent to grant Approval. Thus, according to the Petitioner, the official Respondent has itself stated that the construction is illegal and unauthorized.
(iii) His third submission is to the effect that the construction of the Hospital is upon the Banks of the River Vaigai and is adjacent to a cemetery. As such, he would question the Sanction accorded for construction, both on the grounds of positioning of the Hospital proximate to unhygienic surroundings as aforesaid as well as for the reason that it runs contrary to the provisions of law and all applicable Rules and Regulations.
(iv) The unauthorized construction of Ground plus five (5) floors cannot be regularized by the Empowered Committee, which only has the power under the Development Control Regulations to regularize violations in Planning parameters.
4. Though not specifically argued, the following issues have also been raised in the Writ Petition:
(i) No proper set back of 6 metres maintained on all sides of the building.
(ii) The building is adjacent to
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