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2024 Supreme(Online)(MAD) 20302
HIGH COURT OF MADRAS
Honourable Mr Justice V. LAKSHMINARAYANAN
T.A. MOHAN KUMARAN – Appellant
Versus
M. ARASAKUMAR – Respondent
Civil courts lack jurisdiction over unauthorized construction disputes under Section 101 of the Town Planning Act, and payment of property taxes does not regularize such constructions.
Headnote:
Construction - Unauthorized Property - Madras City Municipal Corporation Act - [Section 256, Section 101, Section 56] - The court found that the civil court lacked jurisdiction over unauthorized construction challenges per Section 101, revoked the lower court's decree on incorrect property tax assumptions related to construction legality.
Fact of the Case:
The plaintiff sought a declaration that a property was a legitimate extension of his ownership and that a demolition notice from the Chennai Corporation was invalid. He claimed his family had initially obtained ownership through legal means, and a series of disputes and legal actions followed.
Finding of the Court:
The trial court ruled the construction was unauthorized. The appellate court reversed this based on prior property tax assessments suggesting legitimacy. However, the final court held that the appellate court had no jurisdiction to hear the case and misapplied the law regarding property tax.
Issues: Whether the civil court has jurisdiction over challenges to demolition notices under the Town Planning Act and the validity of property tax assessments in determining construction legality.
Ratio Decidendi: The judgment clarified that Section 101 of the Town Planning Act restricts civil court jurisdiction over unauthorized constructions and established that property tax payments do not confer legal approval for unauthorized buildings.
Final Decision: The Second Appeal was allowed, restoring the trial court's dismissal of the plaintiff's suit.
J U D G M E N T
The present Second Appeal arises out of the judgment and decree dated
09.08.2010 passed in A.S.No.281 of 2008 by the learned Additional District Judge, Fast Track Court IV, Chennai, reversing the decree and judgment dated 21.01.2008 passed in O.S.No.6573 of 2005 by the learned VI Assistant City Civil Judge at Chennai.
For the sake of convenience, the parties will be referred to as per their ranking in the suit.
2. Third party to the proceedings is the appellant before me. The suit had been presented by the first respondent herein seeking for a declaration that the suit 'B' schedule property is a part of the suit 'A' schedule property, which has been constructed in the year 1972 and for a declaration that the notice issued by the first defendant Corporation of Chennai on 14.09.2005 invoking the provisions of Section 256 of the Madras City Municipal Corporation Act (hereinafter referred to as the 'Act') is null and void and for permanent injunction restraining the first defendant from interfering with the peaceful possession and enjoyment of the suit 'B' schedule property by giving notice for demolition or in any other manner and for costs.
3. The case of the plaintiff is that he and his father one T.A.P.Mohanraj were benefitted with allotment of the suit property. On the death of the said T.A.P.Mohanraj on 31.05.1971, the plaintiff and his mother succeeded to the property. He would submit that the plaintiff's mother had applied and obtained planning permission for an additional construction on the ground floor of the property and to raise a fresh construction over the same to an extent of three floors. He would plead that on 16.07.1986 since his mother had passed on, the legal representatives of T.A.P.Mohanraj partitioned the property and the suit 'B'
schedule property was allotted to the plaintiff.
4. He would further state that there was a common passage, which was blocked by his brothers, for which he gave a complaint and obtained an undertaking before the police that his brothers will not interfere with the common passage. Thereafter, he presented a suit in O.S.No.6933 of 2004 against his brothers and had obtained a decree on 17.06.2005.
5. On account of the fact that he has obtained a decree, the plaintiff's brother's son became inimical towards him and filed a writ petition in W.P.No.34726 of 2004 seeking for direction to the State / respondents therein/ Town Planning authorities to dispose of his representation. The said writ petition was ordered on 30.11.2004. On the basis of the representation that had been given, the second defendant had issued a notice on 23.12.2004 without even causing an inspection of the property. On 02.02.2005, the plaintiff requested the first defendant to furnish a certified copy of the planning permission obtained by his mother and just before this request had been made, a demolition notice was issued by the first defendant through the second defendant stating the building has been constructed without any approval and therefore it is liable to be proceeded against in terms of Section 256 (3) of the Act.
6. On service of summons, the defendants entered appearance and filed a detailed written statement. It is the case of the first defendant that the entire construction caused by the plaintiff is an unauthorised one without any valid sanction plan issued by it. He further pleaded that pursuant to the directions of the Court in W.P.No.34726 of 2004, notice was issued invoking the provisions of Section 236 of the Act and this was also served on the plaintiff on 27.12.2004 and the consequent notice under Section 256 (1) of the said Act was served on 17.01.2005. This would point out that though the plaintiff had raised a building and that building had an approved plan in Planning Permission No.1183 of 1974, no such records were available with the Corporation of Chennai. They will also point out that despite the specific request of the Town and Country Planning authorities, the plan was not
