IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 14-03-2008 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.11773 of 1999 T.S.Sivam . . Petitioner Vs. 1.Chennai Metropolitan Development Authority, rep. by its Member Secretary, No.8, Gandhi Irwin Road, Egmore, Madras -8. 2.The Commissioner, Corporation of Madras, Rippon Buildings, Madras-3. 3.The Chairman, Syndicate Bank, No.245, R.K.Mutt Road, Mylapore, Madras-4. 4.Viswakamal Residents Welfare Association, represented by its Secretary No.245, R.K.Mutt Road, Mylapore, Madras-4. . . Respondents The writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records relating to the impugned letter-order, bearing No.ESI/23962/98 dated 16.12.1998 of the first respondent herein and quashing the same. For Petitioner : Mr.T.Viswanatha Rao For Respondents : Mr.Kathiravan for R1 Mr.V.Bhiman for R3 Mrs.Geetha Additional Government Pleader for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER Heard Mr.T.Viswanatha Rao, learned counsel appearing for the petitioner, Mr.Kathiravan learned counsel appearing for the first respondent, Mr.V.Bhiman learned counsel for the third respondent and Mrs.Geetha, learned Additional Government Pleader for the second respondent. 2. This writ petition challenges the notice of the first respondent, Chennai Metropolitan Development Authority, dated 16.12.1998 by which the Chennai Metropolitan Development Authority has directed the petitioner to discontinue the usage of the Bank activity in Ground Floor of the premises bearing Door No.245, R.K.Mutt Road, Mylapore, Chennai on the basis that the said usage is against the approval granted by CMDA dated 08.07.1988. The said notice is said to be given under Section 56(2)(iii) Town and Country Planning Act, 1971. 3. The petitioner along with his wife had purchased the ground floor of the premises bearing Door Number 245, R.K.Mutt Road, Mylapore, Chennai under a sale deed dated 02.03.1988 in respect of undivided share in the land along with the construction in the ground floor. After purchase, the petitioner let out the entire ground floor portion to the third respondent bank. The building was constructed by a promotor called M/s.Kapali Promotors after obtaining sanction of building plan from the respondents 1 and 2 in the year 1988 itself. 4. It is the case of the petitioner that the fourth respondent, who has developed difference of opinion with the petitioner, has filed W.P.No.18723 of 1990 seeking for a direction against CMDA to take immediate steps to restore to the petitioner- Association the area shown as a common area in the sanctioned building plan. This Court after hearing arguments, directed the respondents 1 and 2 to take action in accordance with law after giving notice to the parties. It was pursuant to the above said order dated 08.10.1998, the first respondent has issued a notice on 25.11.1998 and there was a hearing on 02.12.1998 after which the impugned notice came to be issued directing the discontinuance of bank activities of the third respondent in the ground floor. The said notice is challenged on various grounds including that there is no jurisdiction to the first respondent to issue such notice under Section 56 of the Act after the lapse of 10 years apart from want of notice under Section 49 of the Act and therefore, there is violation of principles of natural justice. https://hcservices.ecourts.gov.in/hcservices/ 5. The first respondent has filed the counter affidavit. In the counter affidavit, the first respondent has taken the stand that it was pursuant to the order of this Court in W.P.Nos.18723 and 18724 of 1999 filed by Viswa kamal Residents Welfare Association, action was taken by the first respondent in respect of construction in Door No.245, R.K.Mutt Road, Mylapore, Madras in the ground floor covering an area of 1647 sq.ft out of the open area 4306 sq.ft. reserved for common facilities. It is the case of the first respondent in the counter affidavit that as per the approved plan given by the CMDA dated 08.07.1988 the ground floor has been approved for residential use and part of incidental use and therefore the conversion of the entire ground floor for the purpose of running a bank is amounting to converting into commercial area and therefore it is against the sanction plan dated 08.07.1988. It is also the further case of the first respondent that even in the year 1991, action was initiated after deviation in construction and notice was issued even on 15.12.1989 itself. 6. The third respondent in the counter affidavit as well as in the typed set of papers has stated that in fact the petitioner has filed application for regularisation of construction on 27.05.1999 vide PPA received in Reg.No.1070 as per G.O.Ms.No.76, H&UD (UD.1) Department dated 27.02.1999. Therefore, it is the submission of the learned counsel for the third respondent that when the construction which is sought to be interfered with by the impugned notice is before 1999, it is the duty of the first respondent to consider the regularisation application and till final order is passed in accordance with law, there is no right or jurisdiction on the part of the first respondent to proceed with the impugned notice or demolition etc., On the face of the counter affidavit filed by the first respondent, it is clear that the original plan was sanctioned on 08.07.1988 and the ground floor which was meant for residential use has been converted by letting out to the third respondent bank and therefore it is unauthorised. It is not in dispute that the construction has been effected before February 1999. Further it is the case of the first respondent itself that even in the year 1991, a notice was issued about the conversion and even prior notice was issued on 15.12.1989 also. Therefore, there is no difficulty to conclude that the construction should have been prior to February 1999 in which event it is for the first respondent to consider regularisation application stated to have been filed by the petitioner on 27.05.1999 as per G.O.Ms.No.76, H&UD (UD.1) Department, dated 27.02.1999. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr.Kathirvan, learned counsel appearing for CMDA brought to the notice of this Court that in a Special Leave Petition filed against the order of the Division Bench regarding the Ordinance issued by the Government, the Supreme Court has issued an interim order against CMDA not to issue any regularisation order. In these circumstances, he expresses his difficulty in processing the regularisation application at this point of time even though the application is pending and the construction has been put up as per the records before February 1999. In view of the above said factual positions and after hearing the respective counsel, the writ petition is disposed of with a direction to the first respondent to consider the regularisation application of the petitioner dated 27.05.1999 on merits and in accordance with law immediately after the final order passed in the SLP by the Honourable Supreme Court. It is made clear that until final order is passed in the regularisation application, the impugned notice dated 16.12.1998 shall not be given effect to. The writ petition is disposed of with the above terms. jikr Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1.The Member Secretary, Chennai Metropolitan Development Authority, No.8, Gandhi Irwin Road, Egmore, Madras -8. 2.The Commissioner, Corporation of Madras, Rippon Buildings, Madras-3. 3.The Chairman, Syndicate Bank, No.245, R.K.Mutt Road, Mylapore, Madras-4. 1 cc to M/s.S.Sampath Kumar Associates, SR.14583 1 cc to Mr.T.Viswanatha Rao, Advocate, SR.14705 1 cc to Mr.C.Kathiravan, Advocate, SR.14276 nsm (co) dv/4.4. W.P.NO.11773 of 1999 https://hcservices.ecourts.gov.in/hcservices/