IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09 / 12 / 2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NOS.10132 OF 2003, 4674 OF 2008, 4480 AND 4481 OF 2010 AND M.P.NO.1 OF 2008 W.P.NO.10132 OF 2003 Kences Foundations Pvt. Ltd., Rep. by its Managing Director K.Narsa Reddy ... Petitioner Versus 1.State of Tamil Nadu Rep. by its Secretary to Government Housing and Urban Development Department Chennai – 600 009. 2.Chennai Metropolitan Development Authority Rep. by its Member Secretary Chennai – 600 008. 3.The Branch Manager Vysya Bank Ltd., 184, Govindappa Naicken Street, Chennai – 600 001. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, forbearing the 2nd respondent from encashing the bank guarantee No.4/1995 dated 02.08.1995 issued by the 3rd respondent at the instance of the petitioner relating to the construction of multi storeyed buildings at No.135, P.H.Road, Chennai – 600 010 pending disposal of the petitioner's application dated 30.10.2000 under regularisation scheme based on the letter dated 27.03.2003 on the file of the 2nd respondent. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.V.T.Gopalan Senior Counsel for Mr.P.B.Ramanujam For Respondent-1 : Mr.Malarvizhi Udayakumar Special Government Pleader For Respondent-2 : Mr.I.Paranthaman W.P.NO.4674 OF 2008 M/s. Brindavan Apartment Owners Welfare Association Rep. by its Secretary Mr.M.Natarajan ... Petitioner Versus 1.Chennai Metropolitan Development Authority Rep. by its Member Secretary Egmore, Chennai – 600 008. 2.The Commissioner Chennai Corporation Ripon Buildings Chennai – 600 003. 3.Kences Constructions Pvt. Ltd. Rep. by its Managing Director K.Narasa Reddy ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, directing the respondents 1 and 2 to demolish the illegal and unauthorised construction being constructed by the 3rd respondent at No.135/142, Poonamallee High Road, Chennai – 600 010. For Petitioner : Mr.C.A.Diwakar For Respondent-1 : Mr.I.Paranthaman For Respondent-2 : Mr.V.Bharathidasan For Respondent-3 : Mr.V.T.Gopalan Senior Counsel for Mr.P.B.Ramanujam https://hcservices.ecourts.gov.in/hcservices/ W.P.NO.4480 OF 2010 M/s. Brindavan Apartment Owners Welfare Association Rep. by its Secretary ... Petitioner Versus 1.The Government of Tamil Nadu Rep. by its Secretary Housing and Urban Development Department (UDI) Fort St. George, Chennai – 600 009. 2.Chennai Metropolitan Development Authority Rep. by its Member Secretary Egmore, Chennai – 600 008. 3.The Commissioner Chennai Corporation Ripon Buildings, Chennai – 600 003. 4.Kences Constructions Pvt. Ltd. Rep. by its Managing Director K.Narasa Reddy 5.Ms.Saraswathy (R5 – impleaded as per order dated 05.04.2010 in M.P.No.2 / 2010 in W.P.No.4480 / 2010) ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records of the 1st respondent culminating in the impugned G.O.Ms.No.83, Housing and Urban Development (UDI) dated 02.06.2009, quash the same. For Petitioner : Mr.C.A.Diwakar For Respondent-1 : Mr.Malarvizhi Udayakumar Special Government Pleader For Respondent-2 : Mr.I.Paranthaman For Respondent-3 : Mr.V.Bharathidasan For Respondent-4 : Mr.V.T.Gopalan Senior Counsel for Mr.P.B.Ramanujam For Respondent-5 : Ms.C.Sri Ranjani https://hcservices.ecourts.gov.in/hcservices/ W.P.NO.4481 OF 2010 M/s. Brindavan Apartment Owners Welfare Association Rep. by its Secretary ... Petitioner Versus 1.The Government of Tamil Nadu Rep. by its Secretary Housing and Urban Development Department (UDI) Fort St. George, Chennai – 600 009. 2.Chennai Metropolitan Development Authority Rep. by its Member Secretary Egmore, Chennai – 600 008. 3.The Commissioner Chennai Corporation Ripon Buildings, Chennai – 600 003. 4.Kences Constructions Pvt. Ltd. Rep. by its Managing Director K.Narasa Reddy ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records of the 2nd respondent culminating in the 2nd respondents letter No.C3/8944/09 dated 29.06.2009 revalidating plan C/PP/MSD/25A/K/96 dated 20.06.1996, quash the same. For Petitioner : Mr.C.A.Diwakar For Respondent-1 : Mr.Malarvizhi Udayakumar Special Government Pleader For Respondent-2 : Mr.I.Paranthaman For Respondent-3 : Mr.V.Bharathidasan For Respondent-4 : Mr.V.T.Gopalan Senior Counsel for Mr.P.B.Ramanujam https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER D.HARIPARANTHAMAN, J. W.P.NOS.4674 OF 2008, 4480 AND 4481 OF 2010 Brindavan Apartment Owners Welfare Association (shortly "the Association") is the petitioner in W.P.Nos.4674 of 2008, 4480 and 4481 of 2010. The petitioner in W.P.No.10132 of 2003 is Kences Constructions Pvt. Ltd., (shortly "the Builder"). 2.The Builder submitted an application to the Chennai Metropolitan Development Authority (shortly "the CMDA") in the year 1996 seeking planning permission for construction of seven blocks of multi-storeyed buildings, out of which, six blocks are residential buildings and one block would be of a Hotel, at No.135, Poonamallee High Road, Kilpauk, Chennai –600 010, an arterial road in the Chennai Metropolitan City. 3.The CMDA granted planning permission for construction of six blocks consisting of ground and 9 floors for residential purposes and one block consisting of ground and 7 floors for Hotel purpose, in PP No.C/PP/MSB/25 A to K/96 (Planning Permit No.19735) dated 20.06.1996 and communicated the same to the Builder vide their letter No.C3/29047/95 dated 20.06.1996. The planning permit dated 20.06.1996 was valid for three years, that is from 20.06.1996 to 19.06.1999. 4.Based on the aforesaid planning permit, the Builder constructed 202 apartments for residential purposes in six blocks. 5.Subsequently, based on the advertisement and the Planning Permission of the CMDA in PP No.C/PP/MSB/25 A to K/96 (Planning Permit No.19735) dated 20.06.1996, several persons purchased the apartments. Out of 202 apartments owners, 201 are the Members of the Association, which is registered under the Tamil Nadu Societies Registration Act. 6.When the Builder completed the residential apartments and sold all the apartments, they did not construct Hotel building (in the 7th block) within the planning permit period i.e. before 19.06.1999. 7.In these circumstances, the Members of the Association, that is, the owners of the apartments, complained that the Builder failed to provide statutory requirements like providing of fire equipments, lightning conductors, bellow doors for the entrance leading to the lifts and proper earthing, which led to the filing of a suit in C.S.No.930 of 2007 before this Court by them. However, we https://hcservices.ecourts.gov.in/hcservices/ are not concerned with those issues in these writ petitions, since rest on different parameters and considerations. 8.While so, without any planning permit, the Builder proceeded with the construction work for building a Hospital in the vacant site earlier meant for the Hotel, during June 2007. The Builder sent a written communication to the Association on 18.04.2007 informing about the proposed construction of Multi Speciality Hospital. The Builder, in another letter dated 11.06.2007, informed the Association that as land owners, they entered into lease agreement with Apollo Hospitals for construction of a Multi Speciality Hospital. 9.The Association sent a letter dated 09.08.2007 to the CMDA informing them that the Members of the Association purchased the apartments believing that the Builder was planning to construct a Hotel on the plot, which he had reserved for the said purpose, but the Builder informed them that they were constructing a Multi Speciality Hospital on the vacant site. The Association pointed out that the excavation and pile work was going on at a brisk pace both during day and night. Since the construction was taking place without any planning permission, the Association requested the CMDA authorities to take action against the Builder forthwith to stop the construction work. The Association sent yet another letter dated 25.09.2007 to the CMDA authorities reminding about their earlier letter dated 09.08.2007 and requesting them to take steps to stop the illegal construction work being carried out by the Builder. But, the construction work was carried on by the Builder. 10.In these circumstances, the Association was forced to approach this Court by filing the writ petition in W.P.No.4674 of 2008 seeking a writ of mandamus directing the CMDA authorities and the Chennai Corporation to demolish the illegal and unauthorised construction being put up by the Builder at No.135/142, Poonamallee High Road, Kilpauk, Chennai–600 010. The Association also sought for an order of injunction restraining the Builder from constructing the Hospital at the aforesaid site by filing M.P.No.1 of 2008 in W.P.No.4674 of 2008. 11.In the said writ petition, the learned counsel for the CMDA informed that in spite of the order rejecting the application of the Builder seeking planning permission, the Builder started construction work and therefore, the CMDA issued stop work notice on 18.01.2008. The learned counsel for CMDA also brought to the notice of this Court that temporary injunction against the Builder from proceeding with the construction work was granted by this Court on 03.12.2007 in W.P.No.29133 of 2007 preferred by one of the apartment owners. The learned counsel for CMDA brought to the notice of this Court that there was also already an order of injunction issued https://hcservices.ecourts.gov.in/hcservices/ against the Builder in W.P.No.13066 of 2004 preferred by another apartment owner, not to proceed with the construction work. The learned counsel for CMDA further submitted that in violation of the orders of this Court as well as the stop work notice issued by the CMDA, the Builder was proceeding with the construction work. In these circumstances, the First Bench of this Court, on 27.02.2008, issued a contempt notice to the Builder in W.P.Nos.4674 of 2008 and 29133 of 2007. In the said notice, the Managing Director of the Builder company was directed to appear in person. The said notice was issued after hearing the learned counsel for the CMDA. 12.The Managing Director of the Builder company appeared before this Court in person on 08.04.2008, pursuant to the order dated 27.02.2008 of this Court passed in W.P.Nos.4674 of 2008 and 29133 of 2007 and filed an affidavit tendering unconditional apology and also informed that after knowledge of the order, he stopped the construction. On the same day, i.e., on 08.04.2008, the CMDA was directed to file an affidavit as to whether the application for approval of the building plan submitted by the Builder has been approved or rejected or is pending consideration and to produce the order showing the grounds for rejection if any order of rejection was already made. 13.The CMDA filed a counter affidavit in W.P.No.4674 of 2008 stating that the Builder constructed only six residential blocks based on the planning permit. But the seventh block with regard to the construction of a Hotel building was not proceeded with and the site was kept vacant. While so, the Builder submitted an application in the year 2007 for construction of basement, ground floor, service floor and 2 to 6 floors for Hospital purposes in the vacant site, wherein approval was granted during 1996 for construction of Hotel building. The application of the Builder was returned by CMDA on 02.11.2007 for various reasons. One of the reasons for returning the application was that the Hospital activity was not permissible in the mixed residential zone. Hence, the Builder submitted an application in the month of November 2007 for reclassification of zone. Based on the said application, the CMDA issued a public notice on 21.02.2008 calling for objections of general public giving 21 days time. 14.While so, on 10.04.2008 the Division Bench of this Court directed that the Builder shall not proceed with the further construction until further orders and it was also made clear that the pendency of the writ petitions shall not stand in the way of the competent authority to pass appropriate orders in accordance with law on the application if any preferred by the Builder for change of zone. https://hcservices.ecourts.gov.in/hcservices/ 15.In these circumstances, the Builder approached the CMDA with an application dated 18.03.2009 for renewal of planning permission obtained in the order dated 20.06.1996 of the CMDA, as the planning permit expired on 19.06.1999. However, the CMDA rejected the said application as they could not renew the planning permit if the application was received after the expiry of the planning permit period as per Section 50 of the Tamil Nadu Town and Country Planning Act, 1971 (shortly "the Act"). 16.Thereafter, the Builder approached the Government vide letter dated 28.04.2009 to pardon/condone the delay in submitting the papers for renewal of planning permission and sought for approval by revalidating the earlier planning permission. Accordingly, as a special case, the Government issued an order in G.O.Ms.No.83, Housing and Urban Development Department, dated 02.06.2009 invoking its power under Section 113 of the Act by granting exemption to the provision of Section 50 of the Act. In the said G.O. the Government condoned the delay in making the application for renewal of planning permit. The said G.O. was challenged by the Association in W.P.No.4480 of 2010. 17.The CMDA passed the consequential order dated 29.06.2009, as the impediment for considering the renewal application under Section 50 of the Act was removed by the impugned G.O.Ms.No.83 referred to above granting revalidation of planning permit up to 16.06.2012. 18.The Association challenged the order dated 29.06.2009 of the CMDA renewing the planning permit up to 16.06.2012 in W.P.No.4481 of 2010. 19.The Government is the first respondent, CMDA is the second respondent, Chennai Corporation is the third respondent and the Builder is the fourth respondent in W.P.Nos.4480 and 4481 of 2010. 20.While admitting the writ petitions on 05.03.2010 in W.P.Nos.4480 and 4481 of 2010, this Court granted interim injunction in M.P.No.1 of 2010 in W.P.No.4480 of 2010 restraining the Government and CMDA from permitting the change in usage of the building from a hotel to a hospital, pending disposal of the said writ petition and granted interim stay in M.P.No.1 of 2010 in W.P.No.4481 of 2010 staying the operation of the order dated 29.06.2009 of the CMDA revalidating the plan pending disposal of the said writ petition. Both the interim orders were made absolute on 14.07.2010. 21.The Government filed a common counter affidavit in W.P.Nos.4480 and 4481 of 2010. It is stated therein that the powers https://hcservices.ecourts.gov.in/hcservices/ vested with the Government under Section 113 of the Act was invoked, as a special case, and Section 50 of the Act was exempted, thereby the delay in making the application for renewal of planning permit was condoned. 22.The CMDA filed a common counter affidavit in W.P.Nos.4480 and 4481 of 2010 stating that the application of the Builder seeking renewal of planning permit was rejected, since the same was made after the expiry of the planning permit period, in view of Section 50 of the Act. Later, the Government issued the order in G.O.Ms.No.83 condoning the delay in making the application for renewal of planning permit as a special case, by granting exemption to the provision of Section 50 of the Act, under Section 113 of the Act. Accordingly, the planning permit was renewed up to 16.06.2012 by the CMDA by order dated 29.06.2009. It is stated that the change of usage of one block from Hotel to Hospital was returned on 10.05.2010 itself. 23.The Builder filed a counter affidavit in W.P.No.4674 of 2008 and also a common counter affidavit in W.P.Nos.4480 and 4481 of 2010. The crux of the averments made in the counter affidavits referred to above, filed by the Builder, are as follows: (a) It is true that originally what was proposed was a hotel project, but however, subsequently, the Builder decided to construct a Speciality Hospital. At the relevant point of time, since a Hospital was not permitted in a mixed residential zone, the Builder was advised to apply for reclassification of the land and accordingly, the Builder made an application and the same was under due process. Further, the Association was fully aware of the fact that the Builder proposed to construct a Hospital. (b) The reclassification application of the Builder was returned and the Builder was informed that after the second master plan came into force, reclassification was not required, since construction of Hospital is permitted even in a mixed residential zone. A communication to the said effect returning the papers for reclassification from CMDA was received on 14.11.2008. (c) It is stated that the Builder applied for renewal of the original plan, which got lapsed. Ultimately, the Housing and Urban Development Department, Government of Tamil Nadu accepted the request of the Builder and renewed the original planning permit and the same was published in the Government Gazette on 17.06.2009. The CMDA, on 29.06.2009 informed the Builder that the original plan was renewed upto 16.06.2012. (d) It is stated that drawings were enclosed along with the application for approval of revised plan submitted to CMDA and the Builder was directed to deposit a sum of Rs.65,000/- to process the https://hcservices.ecourts.gov.in/hcservices/ revised building plan. Accordingly, the said amount was deposited with the CMDA and the CMDA acknowledged the receipt of the same on 15.09.2009. (e) Since there was a change in the proposal and the Hotel project was replaced by a Speciality Hospital, the Builder wrote to the CMDA on 21.10.2009 informing them that the change of use from Hotel to Hospital would not affect the setback measurements and only internal changes in the plan to suit the Hospital would be effected. (f) It is also averred that at the time of renewal of original plan, the Builder incurred heavy expenditure in the form of fees for processing, permit etc. It is stated that there has been no illegal construction whatsoever and only for technical reasons, the original plan lapsed, for which, thereafter the Builder had taken due steps to renew the same and subsequently it was also renewed and the CMDA stated that reclassification was not required for constructing a Hospital after the issuance of second master plan. (g) It is stated that the building plan submitted on 21.10.2009 for construction of a Hospital is to be formally approved to enable the Builder to commence construction of the Speciality Hospital. Further, the Builder is entitled to put up construction as per the original plan which has now been renewed up to 2012, though it is one for Hotel, as there are no changes affecting the surroundings of the proposed building, like setback spaces and there would be only internal structural changes to suit the Hospital to be constructed. (h) Further, the foundation work for the Hospital project was under construction and basement floor was about to complete when the Association filed the writ petition in W.P.No.4674 of 2008 and obtained interim injunction. The work was stopped and no further construction work was undertaken thereafter. (i) It is averred that the relief claimed in the writ petitions in W.P.Nos.4480 and 4481 of 2010 are of purely civil in nature, which need to be adjudicated only in civil suits and already, the Association filed a suit in C.S.No.930 of 2007 before this Court for certain relief and the writ petition, under such circumstances, is not an appropriate remedy. Further, if the Builder is driven today to apply afresh for the commercial block alone, irreparable hardship and prejudice would be caused to the Builder and the residents also would be made to suffer because of change in FSI set backs and other parameters. Thus, it is stated that the writ petitions are absolutely frivolous besides not being bona fide and deserve to be dismissed. 24.We have heard the submissions made on either side. https://hcservices.ecourts.gov.in/hcservices/ 25.The learned counsel for the Association vehemently contended that the Builder deliberately proceeded with the construction, without any planning permit and the planning permit for construction of Hotel expired in 1999 itself. Besides, the construction put up by the Builder was for a Hospital, for which, they did not have any planning permit, at any point of time. In spite of bringing to the notice, about the unauthorised construction being carried on by the Builder as early as on 09.08.2007, the CMDA gave stop work notice only after five months in January 2008. Even after the issuance of the stop work notice, the Builder proceeded with their construction without any regard to the rule of law. In fact, the injunction order of this Court also did not deter him from committing illegality. The Builder stopped his illegal construction activities, only after they were pulled up by way of contempt proceedings. (a) The learned counsel for the Association heavily relied on the order dated 27.02.2008 passed by this Court initiating contempt proceedings for proceeding with unauthorised construction despite an order of injunction. The Builder admitted that they sent proposals in November 2007 for reclassification of the site from mixed residential zone to commercial zone for the purpose of construction of a Hospital. Even before submitting such proposal, the Builder proceeded with their construction. Mere reclassification itself would not suffice for proceeding with construction, as the Builder did not have valid planning permit for construction of Hospital. (b) The Builder filed an application for renewal of planning permit only on 18.03.2009. Even if the renewal of planning permit could be validly issued by the CMDA, they could, at the most, build a Hotel and not a Hospital. But the construction which they had put up is a Hospital and therefore, in any event, the same should be demolished and the violator should not be shown any mercy. Further, it is not a case wherein the Builder made certain deviations while constructing a building pursuant to a planning permit, but it is a case of construction of a building without any planning permit leaving to winds the law of the land in this regard. (c) The learned counsel for the Association relied on the following judgments, wherein the Honourable Supreme Court and this Court have come down heavily on violators of building laws and ordered for demolition of the unauthorised constructions. (i) Judgment of the Honourable Supreme Court in PRATIBHA COOPERATIVE HOUSING SOCIETY LTD. AND ANOTHER VS. STATE OF MAHARASHTRA AND OTHERS [1991 (3) SCC 341] https://hcservices.ecourts.gov.in/hcservices/ (ii) Division Bench judgment of this Court in PALANI HILLS CONSERVATION COUNCIL VS. THE STATE OF TAMIL NADU AND OTHERS [1995 (2) WRIT L.R. 737] (iii) Judgment of the Honourable Supreme Court in DR.G.N.KHAJURIA AND OTHERS VS. DELHI DEVELOPMENT AUTHORITY AND OTHERS [1995 (5) SCC 762] (iv) First Bench judgment of this Court in THE CHAIRMAN, MADRAS METROPOLITAN DEVELOPMENT AUTHORITY VS. S.RADHAKRISHNAN AND OTHERS [2006 (1) CTC 241] (d) The learned counsel for the Association submitted that the G.O.Ms.No.83 does not contain any reason for granting exemption of Section 50 of the Act, except stating that "it is treated as a special case". No reason was given as to why the matter was treated as a "special one". Even the counter affidavit filed by the Government does not give any reason as to why they granted exemption to Section 50 to the builder, by invoking its power under Section 113 of the Act. Though the Government has power under Section 113 of the Act to grant exemption, it should be for some valid reasons and the same should not be to aid a violator. The facts of the case make it clear that the Builder is a gross violator and therefore, the Government ought not to have invoked its power under Section 113 of the Act. Even in the application dated 28.04.2009 made to the Government, the only reason given by the Builder is that they did not apply for renewal due to market conditions and scarcity of funds, for which, no supporting materials were placed. Neither the market conditions nor the alleged scarcity of funds could be a valid reason for not making an application for renewal of the planning permit under Section 50 of the Act. For making an application for renewal of the planning permit, the plea of scarcity of funds has no relevance. The Government mechanically passed the order in G.O.Ms.No.83, without applying its mind, particularly by not taking note of the fact that the Builder is a gross violator. (e) The learned counsel for the Association heavily relied on the judgment of the Honourable Supreme Court in CONSUMER ACTION GROUP AND ANOTHER VS. STATE OF TAMIL NADU AND OTHERS [2000 (7) SCC 425] wherein, the Honourable Supreme Court has held that the Government should give reason while passing orders, granting exemption under Section 113 of the Act. (f) It was submitted that while Section 113 of the Act and the judgment of the Honourable Supreme Court in CONSUMER ACTION GROUP AND