IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-07-2006 CORAM : THE HONOURABLE MR. JUSTICE A. KULASEKARAN W.P. No. 7200 of 2006 and W.P.M.P. No. 7890 of 2006 -o- Madras Race Club rep. by Mr. Aruna Officer In-charge (Legal) Guindy, Chennai – 32 .. Petitioner Versus 1. The Chennai Metropolitan Development Authority rep. by its Member Secretary No.8, Gandhi Irwin Road Egmore, Chennai – 600 008 2. The Corporation of Chennai rep. by its Commissioner Ripon Building Park Town Chennai – 600 003 3. P.S. Karunakaran 4. P.S. Kumar .. Respondents Petition under Article 226 of The Constitution of India praying for a Writ of Mandamus as stated therein. For Petitioner : Mr. A.L. Somayaji, Senior Counsel for Mr. L. Dhamodharan For Respondents : Mr. P.R. Raman Additional Advocate General for Mr. J. Ravindran for R1 Mr. R. Kannan for R2 Mr. T.R. Rajagopalan, Senior Counsel for Mr. A.R. Karunakaran for RR3 & 4 ORDER The petitioner has filed this writ petition praying for a Writ of Mandamus directing the respondents 1 and 2 to demolish and remove https://hcservices.ecourts.gov.in/hcservices/ the unauthorised construction in Survey No.82, T.S. No.1, Block No.13 put up by the respondents 3 and 4 in Government lands leased out to the petitioner forthwith. 2. Mr. A.L. Somayaji, learned Senior counsel appearing for the petitioner submits as follows:- The Petitioner is Madras Race Club. The Government of Tamil Nadu under lease deed dated 06.03.1946 leased out the lands to an extent of 83.17 acres comprised in Survey No.82, TS No.1, Block No.13, Velacherry Village, Chennai to the petitioner, however, it is in continuous occupation of the said lands ever since 1845 onwards; that the property comprised in Old Survey No.78 (part) in T.S. No.1, Block No.15, Velacherry Village to an extent of 9600 square feet located on the Northern side of the petitioner's property was purchased by the respondents 3 and 4 herein on 15.12.2003 and construction activities were commenced in September 2005, while doing so, they attempted to encroach into the property of the petitioner, hence, the petitioner sent representations including the one dated 30.09.2005 requesting the respondents 1 and 2 herein to take appropriate action against the respondents 3 and 4, but they failed to take any action, with the result, the petitioner has filed WP No. 32583 of 2005 before this Court praying for a Writ of Mandamus directing the respondents 1 and 2 herein not to sanction the plan submitted by the respondents 3 and 4 in the leased lands of the petitioner in T.S.No.1 (part), Block No.13, Velacherry Village and the said writ petition was ordered by this Court on 07.10.2005 directing the respondents 1 and 2 herein to consider the representation dated 30.09.2005 of the petitioner and pass orders within a period of eight weeks, till such time, not to grant the plan sanction in favour of the respondents 3 and 4. Thereafter, the first respondent, in their letter dated 19.10.2005 informed that no planning permission application was received by them from the respondents 3 and 4 in respect of the land in TS No.1 (part), Block No.13, Velacherry Village. Mr. Somayaji further submitted that the respondents 3 and 4 allegedly obtained planning permission from the second respondent in respect of the lands belonged to them comprised in Survey No.78 (part), T.S.No.1, Block No.15 for ground plus first floor, in total violation of the plan, construction is made in Survey NO.78 (part) T.S. No.1, block No.15, but they illegally extended the construction without plan in S.No.82, T.S. No.1 in Block No.13 by encroaching 5 grounds 357 sq.ft.,; that the present writ petition was filed on 12.03.2006 seeking for a Writ of Mandamus "directing the respondents 1 and 2 to demolish and remove the unauthorised construction in Survey No.82, T.S. No.1, Block No.13 put up by the respondents 3 and 4 in Government lands leased out to the petitioner", however the respondents 3 and 4 continued their unauthorised construction in the lands of the petitioner also; that the first respondent issued a notice of stop work on 23.06.2006 and demolition notice dated 28.06.2006 under Section 56 read with Section 85 of the Tamil Nadu Town and Country Planning Act, hereinafter referred to Act, which is evident that the respondents 3 and 4 have constructed the building in total contravention of the building permission approved for ground plus first floor for their lands and also extended it in the petitioner's land, that too without any plan; https://hcservices.ecourts.gov.in/hcservices/ that the first respondent also said to have sent necessary instructions to the second respondent corporation for demolition of the unauthorised construction. The averments that respondents 3 and 4 on 19.07.2006 submitted an application seeking planning permission to the first respondent invoking Section 49 of the Act is untenable in law, which is nothing but a time gaining tactics. If at all, the said provisions can be made applicable to a person intending to carry out development in future on any land, not for ratifying unauthorised construction already made. In support of this contention, the learned Senior counsel for the petitioner relied on the below mentioned decisions:- i) (Mahendra Baburao Mahadik and others vs. Subhash Krishna Kanitkar and others) (2005) 4 SCC 99 wherein in Para Nos. 38, 43, 44, 45, 46, 47 and 48, it was held thus:- 38. The Municipal Council being a creature of statute was bound to carry out its functions within the four corners thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal Council is not possessed of any statutory power to regularise unauthorised constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development charges could not be recovered from the appellant in respect of unauthorised constructions in terms of Section 124-E(2) of the MRTP Act. 43. The jurisdiction of a local authority is confined only to deal with application for grant of permission for construction as contained in Section 44 of the MRTP Act whether at the initial stage or when a notice is served under sub-section (2) of Section 53 of the MRTP Act. The power to grant such permission could be exercised only within the purview of the Building Bye-laws. Therefore, being beyond the scope of Section 44 of the MRTP Act, the Municipal Council did not have any jurisdiction to direct regularisation of such unauthorised constructions by reason of the said resolution or otherwise. The power of the Municipal Council, it is trite, being confined to the provisions of the said Acts, no action could be taken by them contrary thereto or inconsistent therewith. 44. In Friends Colony Development Committee v. State of Orissa this Court opined: (SCC p.744, para 25) '25. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of https://hcservices.ecourts.gov.in/hcservices/ time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum....' 45. In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu this Court observed: (SCC p.529, para 73) '73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.' A discretionary power must be exercised having regard to the larger public interest. 46. In Consumer Action Group v. State of T.N. this Court held: (SCC p. 443,para 30) https://hcservices.ecourts.gov.in/hcservices/ 'While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting.' Mr Naphde, therefore, is not correct in contending that the High Court should have taken a lenient view. 47. In Mulchand Agarwalla whereupon strong reliance has been placed by Mr Naphde, this Court upon taking into consideration the provisions of the Calcutta Municipal Act and in view of the terminologies contained in Section 449 thereof noticed that the Magistrate had a discretionary jurisdiction to pass an order of demolition and held: (SCR p.1005) “The conduct of the respondent in adopting a hide-and-seek attitude in completing the constructions in deliberate defiance of the law https://hcservices.ecourts.gov.in/hcservices/ calls for severe action. It would be most unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break the building rules and put up a construction and get away with it on payment of fine. All this would be good justification for making an order for demolition.” 48. However, keeping in view the provisions of sub-section (2) of Section 363 of the Act which directs that no application for demolition shall be instituted after a lapse of five years from the date of the work, although were found to be inapplicable, but in the fact situation obtaining therein, it was opined: (SCR pp. 1005-06) “But then, it is now nearly five years since the building was completed, and though Section 363 (2) which directs that no application for demolition shall be instituted after a lapse of five years from the date of the work does not, in terms, apply as the proceedings have been started in time, we do not feel that after the lapse of all this time, an order for demolition is called for in the interests of the public. We also take into account the fact that the orders in question would not have come before us in the normal course by way of appeal, were it not that the appellant desired that the decision of this Court should be obtained on certain questions of importance, and that purpose has been achieved. On a consideration of all the circumstances, we do not think that this is a fit case in which we should pass an order for demolition.” The said decision, therefore, does not support the contention of the appellants. ii) (Seema Arshad Zaheer and others vs. Municipal Corporation of Greater Mumbai and others) JT 2006 (11) SC 1 wherein in Para-30, it was held thus:- "30. It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was anthorised and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the https://hcservices.ecourts.gov.in/hcservices/ documents produced clearly show that the structures are unauthorised,t he court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant temporary injunction, where the structure is clearly unauthorised and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality...." 3. Citing the above decisions, the learned Senior counsel for the petitioner prayed this Court for necessary directions to the respondents 1 and 2 to demolish the unauthorised super-structure found in Block No.13. 4. Mr. P.R. Raman, learned Additional Advocate General appearing for the first respondent submitted that as soon as the alleged unauthorised construction was brought to the notice of the first respondent, stop work notice was issued to the respondents 3 and 4 on 26.06.2006 and thereafter notice for demolition under Section 56 read with Section 85 of the Act was issued and the same was also communicated to the second respondent corporation for necessary follow up action. The first respondent, following the site plan maintained by them sent a reply dated 19.12.2005 to the petitioner stating that they have not received any application for planning permission sanction in respect of their lands in Block No.13 from the respondents 3 and 4. The plan was issued to respondents 3 and 4 by the second respondent in the year 2004 for development/construction in block No.15 only. On inspection, the first respondent came to know the violations of the plan approved and also additional areas added with the approved area and construction made thereon. In clear terms, the learned Additional Advocate General submitted that construction was also made in the petitioner's land in block No.13. It is further submitted by the learned Additional Advocate General that under Section 49 of the Act, the respondents 3 and 4 may seek for revised plan if at all only for Block No.15 and not entitled for Block No.13 which was constructed without permission. 5. Mr. Kannan, learned counsel appearing for the second respondent corporation submitted that the plan was issued to the respondents 3 and 4 in the year 2004 for ground plus first floor, but they have constructed ground, first, second and third floor part; that the violations pointed out in the demolition notice dated 28.06.2006 of the first respondent was endorsed by the second respondent. Mr. Kannan also adopted the arguments of the learned Additional Advocate General appearing for the first respondent. 6. Mr. Rajagopalan, learned Senior counsel appearing for the respondents 3 and 4 submitted as follows:- The petitioner has already filed a suit in O.S. No. 353 of 2006 https://hcservices.ecourts.gov.in/hcservices/ before the III Assistant Judge, City Civil Court, Chennai for the very same relief of demolition, restoration of possession and other reliefs as well, suppressing the same, the present writ petition has been filed. The affidavit filed in support of the writ petition does not disclose infringements of legal right of the petitioner or neglect of statutory and public duty of respondents 1 and, as such, the writ petition is not maintainable at all; that the respondents 3 and 4 purchased the property in Block No.15 under a sale deed dated 15.12.2003; that adjoining portion of land belonged to the Government of Tamil Nadu in Block No.13 was also allotted to their predecessor in title Mrs. Vijayalakshmi and others, who is paying FCR for the same to the authorities.; that the respondents 3 and 4 have obtained sanction plan from the second respondent in No.2894 of 2004 dated 02.07.2004 and constructed the building on the said land in block No.15, which was also leased out to M/s. MPL Cars and Vehicles Private Limited; that the respondents 3 and 4 have put up a temporary shed in Block No.13, which has a compound wall for more than 25 years old and a toilet, both were constructed by the said Vijayalakshmi; that the petitioner is not aggrieved in any manner with the construction raised by the respondents 3 and 4 in their land; that at no point of time, the petitioner raised any objection when the respondents 3 and 4 demolished the old house and raised the existing construction; that when the suit is filed in O.S. No. 353 of 2006 before the civil court for the same relief, suppressing the same, the petitioner has filed the present writ petition which disclose that the petitioner has not approached this Court with clean hands; that the revenue department was not impleaded as a party in this writ petition; that the respondents 3 and 4 have also filed necessary application on 19.07.2006 before the first respondent invoking Section 49 of the Act and once the said application is received, the demolition notice shall not have any effect pending final determination of the same and the respondents 3 and 4 are certainly entitled to the benefits of Section 49 of the Act; that when the application is filed under Section 49 of the Act, the third party like the petitioner cannot have any say; that there is an appeal remedy provided under the Act before the State Government in case if an adverse order is passed by first respondent and prayed for dismissal of the writ petition. 7. This Court carefully considered the arguments of the counsel on either side and perused the records. The land claimed to have belonged to the petitioner hereinafter referred to as land in Block No.13 and the land of the respondents 3 and 4 as land in Block No.15 so that the repetition of corresponding Survey Number and Town Survey Number be avoided. 8. The averments of the petitioner is that the respondents 3 and 4 under the pretext of constructing building in Block No.15 encroached into the lands of the petitioner in block No.13. The petitioner has filed WP No. 32583 of 2005 wherein the respondents 3 and 4 herein were arrayed as respondents 1 and 2. The said writ petition was disposed of by this Court on 07.10.2005 as mentioned below:- "In view of the submissions made by the https://hcservices.ecourts.gov.in/hcservices/ counsel on either side, the writ petition is disposed of with an observation to consider the objections raised by the petitioner in respect of the construction on his representation dated 30.09.2005 in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order, till such time, the statutory respondents shall not grant plan sanction." 9. Thereafter, the first respondent in their letter No.C3/25652/05 dated 19.12.2005 informed the petitioner that no planning permission application has been received by them from the respondents 3 and 4 for the alleged construction in the land bearing T.S. No.1 part, Block No.13 of Velacherry Village. It is stated by the petitioner that even without planning permission, the respondents 3 and 4 have encroached into their lands in block No.13 and made unauthorised construction, besides, constructed second and third floors in total violation of the building plan issued by the second respondent. In this context, it is necessary to look into the demolition notice dated 28.06.2006 issued by the first respondent, which is extracted below:- "Form-II (SEC.56) CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY, EGMORE, CHENNAI-8 DEMOLITION NOTICE (Notice Under Section-56 read with Section 85 f Town and Country Planning Act, 1971, requiring compliance with the planning permission granted under Section- 49 of the Act by Demolishing the portions constructed in contravention of the permission) Letter No.ES2/13374/06 Dated:28.06.2006 Sub : Construction in contravention of planning permission approved for Ground floor+first floor at Door No.123, Old No.82, Velacherry Main Road, Kannigapuram, Guindy, Chennai 32 Ref : 1) Stop work notice No.D-2839 dt.23.6.2006 2) P.P.A.No.D9/3029/2004 & B.A.No. D9/2984/2004 dt. 2.7.2004 --- The construction of Ground + first floor at Door No.123, Old No.82, Velacherry Main Road, Kannigapuram, Guindy, Chennai-32 is in contravention to the planning permission granted under Section 49, Town and Country Planning Act, 1971 and issued to you under reference cited on your application. The deviation to the approved plan are as https://hcservices.ecourts.gov.in/hcservices/ indicated below:- S. No. Description As per approved plan As on site Deviation 1 Front set back at GF at FF 20' 0" 20' 0" 16' 4" 12' 4" due to 4' continuous balcony Less by 3' 9" Less by 7' 8" 2 Rear Set back at Southwest Corner at Northwest Corner 15' 0" 15' 0" 5' 1" Nil Less by 9'11" Less by 15'0" 3 Side set back (South) 5' 0" 5' 4" Nil 4 Side set back (North) at Northeast Corner at Northwest Corner 9' 0" 9' 0" Nil 9' 11" Less by 9' 0" Nil Note: As per approved plan, the site dimension is 90' 0" X 106' 6" whereas at site the compound wall constructed is much more and does not tally with the approved plan site dimension. As per approved plan, the building dimension is 71'6" X 76'0" whereas constructed is more than approved plot area of 90'0" X 106'6". Hence the set back measurements of SSB (South), SSB (north) and RSB mentioned above are approximate only. 5 Length of building at GF level 71' 6" 85' 1 ½" Excess by 13' 7 ½" 6 Width of building at Eastern side Western side 76' 0" 76' 0" 89' 3" 75' 3" Excess by 13'3" Nil https://hcservices.ecourts.gov.in/hcservices/ 7 No. of floors GF + FF GF+2F+3F pt. (one room & AC sheetshed) 2nd floor & 3rd floor pt (one room & AC sheet shed) unauthorised Others: Extent of site as on ground does not match with the approved plan. Additional areas added with the approved area and constructions made. Portico in FSB to a size of 21'3" X 27' 9" not covered in approved plan Continuous balcony projection 4' 2ide at 1st floor and 2nd floor in FSB and SSB (north) are not covered in approved plan Temporary shed in SSB (north) to a size of 26' 0" X 12' 0" not covered in approved plan As per approval the usage is cottage industry and residential with 3 dwelling units whereas being used by MPL Ford for automobile service station. The following Structures constructed are not within the site boundary (with reference to approved plan): i) Ground floor AC sheet shed car service area of size 28'0" X 23'3" ii) Ground floor RCC roof (store room) to a size of 22'9" X 23'3" iii) Ramp leading to first floor service car parking iv) Ground floor AC sheet car wash area of size 25'9" X 42'0"