Madras High Court
M/S.Splus Media Pvt. Ltd vs The State Of Tamil Nadu on 6 October, 2021
W.P.No.21782 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A. NAKKIRAN
W.P.No.21782 of 2021
W.M.P.No.22965 of 2021
M/s.SPlus Media Pvt. Ltd.,
Rep. by its Director,
Mr.I.Nagamanickam
Old No.145, New No.4,
Rukmani Lakshmipathy Street,
(Marshalls Road), Egmore,
Chennai 600 008. .... Petitioner
-vs-
1. The State of Tamil Nadu,
Rep by its Secretary to Government,
Housing and Urban Development Department,
Secretariat,
Fort St. George,
Chennai -9.
2. The Greater Chennai Corporation,
Rep by the Commissioner,
Rippon Building, Park Town,
Chennai – 600 003.
3. The Assistant Engineer, Div 061,
Greater Chennai Corporation,
No.23, Driver Street,
Pudupet, Chennai 600 002.
4. The Assistant Executive Engineer, Unit 14,
Greater Chennai Corporation,
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W.P.No.21782 of 2021
No.2 Adikesavulu Street,
Chindadripet, Chennai 600 002.
5. The Executive Engineer, Zone 05,
Greater Chennai Corporation,
Rippon Building, Park Town,
Chennai – 600 003. ..... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for
issuance of a Writ of Mandamus forbearing the Respondents from in anyway taking
coercive steps like locking and sealing or demolishing or taking any other coercive steps
against any part of the Petitioner's premises situated at Old No.145, New No.4, Rukmani
Lakshmipathy Road, Egmore, Chennai 600 008 pending consideration of the Petitioner's
statutory Appeal before the 1st Respondent dated 14.09.2021.
For Petitioner : Mr.P. Wilson
Senior Counsel
for M/s.Wilson Associates
For Respondents : Mr.T.N.C. Kaushik (R1)
Government Advocate
Mr. Raja Srinivas (R2 to R5)
*****
ORDER
S.VAIDYANATHAN,J.,
AND
A.A. NAKKIRAN,.,
This Writ Petition has been filed, forbearing the Respondents from in anyway
taking coercive steps like locking and sealing or demolishing or taking any other coercive
steps against any part of the Petitioner's premises situated at Old No.145, New No.4,
Rukmani Lakshmipathy Road, Egmore, Chennai 600 008 pending consideration of the
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Petitioner's statutory Appeal before the 1st Respondent dated 14.09.2021
2. Mr.T.N.C.Kaushik, learned Government Advocate takes notice for 1st
respondent and Mr. Raja Srinivas, learned counsel takes notice for Respondents 2 to 5.
By consent, final orders are passed in the Writ Petition at the admission stage.
3. It is the case of the petitioner that he is the tenant of the property situated at old
No. 145, New No.4, Rukmani Lakshmipathy Road, Egmore Chennai 600 008 and he had
entered into a rental agreement with M/s.TCCL dated 01.08.2021 to let out the said
premises. Further the Petitioner's landlord also possessed a valid plan bearing Planning
Permit No. B/Spl.bldg/391/2002 subject to the conditions in the CMDA office letter
No.B1/14337/2002 dated 21.11.2002. At that time, the Respondents 3 to 5 under the
extraneous influence of M/s Madras Ashoka Hotel Pvt.Ltd., issued a stop work notice
bearing No.DN/61/253/2021 dated 09.08.2021 to the Petitioner, calling upon the
Petitioner to produce a copy of the plan or stop the construction work with immediate
effect.
4. It is further stated that the said stop work notice does not specify what portion
of the Petitioner's Construction is in violation or deviation. That apart, the stop notice
states that the Petitioner's property was inspected on 07.08.2021 but according to
Petitioner, no inspection was conducted. The petitioner also sent a suitable reply to the
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Respondents on 31.08.2021, but without considering the same, the Respondents 3 to 5
has issued a Lock & Seal and Demolition notice to the Petitioner vide letter No.
05/04918/2021 dated 27.08.2021. Being aggrieved by the action of the Respondents, the
Petitioner has filed an Appeal before the First Respondent on 14.09.2021 with an
application for interim stay. Since no orders have been passed in the Appeal, the
Petitioner has come forward with this Writ Petition seeking for the aforesaid relief.
5. Considering the facts and circumstances of the case and taking into account the
fact that the Petitioner's Appeal is already pending with the First Respondent, the Writ
Petition is disposed of with the following directions:
i) A direction is issued to the First Respondent concerned to consider the Appeal
preferred by the petitioner dated 14.09.2021, if not already disposed of, and pass
appropriate orders thereon, in accordance with law, after affording an opportunity of
hearing to the petitioner and other persons, if any, who are likely to be affected, as
expeditiously as possible, preferably within a period of three months from the date of
receipt of a copy of this order, without adjourning the proceedings beyond seven working
days at any point of time;
ii) In case the petitioner is unable to appear for personal hearing either physically
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W.P.No.21782 of 2021
or virtually, the petitioner is entitled to send a written submission within a period of one
month from the date of receipt of a copy of this order through registered post or speed
post and the same shall be treated as personal hearing. It is made clear that the petitioner
can avail the opportunity of either personal hearing or filing written submission and not
both;
iii) In case the petitioner fails to appear or file a written submission in time, the
First Respondent concerned shall pass orders based on the available records and the
petitioner, cannot at a later point of time take a stand that opportunity of being heard is
not given to the petitioner;
iv) The petitioner shall furnish Mobile Number, email ID, if any, etc., along with a
copy of the Appeal dated 14.09.2021 and this order, to the First Respondent concerned
forthwith;
v) The First Respondent is directed to communicate the decision taken on the
Appeal, to the petitioner within a period of three weeks from the date of decision taken
thereon, by way of SMS/Email/registered post/speed post, so that there is no need for the
petitioner to file contempt after expiry of the specified period. In case the authorities
concerned fail to send communication to the petitioner, they will have to face the civil
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W.P.No.21782 of 2021
imprisonment in case of contempt proceedings. If they are unable to serve the order and
the cover being returned un-served for one reason or the other, the same shall be kept in
the file without opening it for the proof of delivery, so that the petitioner, later on, will not
take a plea that the petitioner is not aware of the order.
6. It is made clear that in case of non-passing of orders in the Appeal, any person
can file contempt and Court will punish the Authority, if the said non-compliance is wilful
and deliberate. This Court has already warned the Authorities and also called for details
vide its order dated 16.10.2018 in W.P.No.27499 of 2018, in addition to prescribing
procedures to be adopted and the relevant paragraphs are extracted below:
“12 (c) In the event of the building being found locked or closed by the
occupants, the respondents shall drill the roof of the building and make a big
hole so that the building cannot be occupied any more.
******
(k) The 1st Respondent/Secretary to the Government of Tamil Nadu,
Housing and Urban Development Department and the 5th
Respondent/Commissioner, Corporation of Chennai, Chennai are directed to
furnish the following particulars to this Court on or before 18.12.2018:
(i) Number of appeals pending before the authorities;
(ii) Number of cases, wherein directions have been issued by this
Court.”
7. The Authorities concerned can also utilize the advanced technology of drone
survey in the presence of the respective parties in order to ascertain the factum of
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W.P.No.21782 of 2021
encroachment and they should conduct a periodical inspection on the construction of
building from the basement, ground floor onwards, so that the set backs are adhered to
and to ensure that on-going construction complies with the norms. In case of inspection
after the basement is constructed and if any defect is found out at the initial stage / stages,
a decision could be arrived to prevent further construction, unless it is rectified within a
time frame. The suggestion for grant of permission in stages is for eradication of
encroachment and not for accumulation of wealth by the Officials concerned in the garb
of acceptance of bribe.
8. It is needless to mention that if any encroachment is found to be made by the
Petitioner, the electricity connection with respect to the petitioner shall have to be
disconnected in the light of the Judgment of the Division Bench in the case of
"P.Selvarajan Vs. The Commissioner of Municipal Administration, Chennai and
others" (W.P.No. 21639 of 2017), decided on 13.02.2018, wherein the Division Bench
observed as follows, in consonance with the order of the Supreme Court dated
05.01.2018 passed in Petition for Special Leave to Appeal (C) No.33863 of 2017:
“3. Learned counsel appearing for the fourth respondent
submitted that the fourth respondent has made an application for
regularisation and that during the pendency of the proceedings, this
Court, by order dated 11.09.2017, directed disconnection of
electricity in respect of basement, second and third floors of the
fourth respondent's premises, against which, the matter was taken
up to the Supreme Court. The Supreme Court, in Petition for
Special Leave to Appeal (C).No.26509 of 2017, by order dated
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W.P.No.21782 of 2021
13.10.2017, did not interfere with the said order of this Court
dated 11.09.2017, and permitted the fourth respondent herein to
move the High Court. During the pendency of this Writ Petition, the
fourth respondent herein has filed W.M.P.No.30495 of 2017 seeking
direction to the TANGEDCO to restore the electricity connection to
the building of the fourth respondent. This Court, by order dated
07.11.2017, rejected the restoration of electricity supply.
Thereafter, once again the matter was taken up to the Supreme
Court by the fourth respondent, and the Supreme Court, by order
dated 05.01.2018 in Petition for Special Leave to Appeal (C)
No.33863 of 2017, has dismissed the Special Leave Petition, by
observing as follows:
"Heard learned counsel for the petitioner and perused
the impugned order dated 07.11.2017 passed in
WMP.No.30495/2017 passed by the Madras High Court.
We are not inclined to interfere in the impugned
order and accordingly, the Special Leave Petition is
dismissed.
However, we direct the authority concerned before
whom the application for regularisation under the DTCP
Building Regularisation Scheme 2017 is pending to decide
the matter in accordance with law within two months.
Pending application stands disposed of."
9. It goes without saying that if the area building is not able to be bifurcated for the
purpose of rectification, the Electricity supply shall be disconnected for the entire
building and the building shall not be put to any use till it is rectified and brought in
accordance with the plan. A building can be permitted to be brought in accordance with
the sanctioned plan and approval and in case, during on-site inspection, it is found by the
Authorities that still there are violations, the violated portions shall be kept under lock and
seal and the same can be opened only for rectification purpose.
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10. A Division Bench of this Court in the case of N.Ravikumar vs. The District
Collector, O/o.Thiruvallur District, Thiruvallur, Thiruvallur District and others
[W.P.Nos.13963 to 13967, 14359 and 15229 of 2018] decided on 02.01.2019 observed
as follows:
“11. Before parting with this judgment, this Court is of the view that
unless there is a stay of the proceedings by the High Court, quoting any
pendency of the matter, the Officials of the Municipality / Corporation /
CMDA and Government Officials cannot close the complaints or appeals,
etc., on the ground of pendency of Writ Petition or Writ Appeal. If they do
so, it would amount to dereliction of duty and they could be proceeded
with departmentally so as to bring them within the ambit of not
discharging their duties with integrity and devotion to duties and also it
may attract moral turpitude, depriving them their gratuity and terminal
benefits, apart from endorsing the same in the Service Register during
their service, which would disentitle their further promotion and those
Officials shall be removed from the said post and posted in a non-sensitive
post, if any complaint is made that they are not discharging their duties to
the fullest satisfaction.
12. We are of the view that any records or statements made by
the Staff, who are dealing with the encroachment and illegal construction, are
found to be false, it would amount to not only dereliction of duty, but also
attract moral turpitude.
13. In fine, we would like to quote the decision of the Apex
Court in the case of M.I.Builders Private Ltd. Vs. Radhey Shyam Sahu
and others, reported in AIR 1999 SC 2468 at Special Page 2505, wherein at
Paragraph 82, it is observed and held as under:
"82. 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 rule of law. Stress was laid by the
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W.P.No.21782 of 2021
appellant and the prospective allottees of the shops to exercise
judicial discretion in moulding the relief. Such 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 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.
...."
14. The Secretary, HUD Department, Govt. of Tamil Nadu,
Chennai, The Additional Secretary (Technical), HUD Department, Govt. of
Tamil Nadu, Chennai, The Commissioner, Corporation of Chennai, Chennai,
The Secretary, Municipal Administration and Water Supply Department,
Government of Tamil Nadu, Fort St. George, Chennai 600 009, The
Commissioner of Municipal Administration, Ezhilagam, Chennai 600 005,
The Member Secretary, Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Building, No.1, Gandhi-Irwin Road, Egmore,
Chennai-600 008, are expected to issue suitable direction to the concerned
authorities to go ahead with the matter, where there are no stay to proceed
with the matter. The Government is expected to issue necessary circular /
Government Order, incorporating the above directions and a copy of the
same shall be filed before this Court on 04.02.2019. Till such circular /
Government Order is issued, the afore-stated directions should be followed
in letter and spirit. It is made clear that the directions issued hereinabove are
only illustrative and apart from the above directions, stringent conditions may
also be incorporated in the circular / Government Order so as to make the
Officials to execute their job consecutively in the absence of stay of the
proceedings by any judicial forum.”
11. This Court in the order dated 29.04.2019 passed in W.P.5076 of 2016 already
directed the Government to constitute a Permanent Special Task Force duly headed by an
efficient, devoted and honest Official, not below the rank of Additional Chief Secretary,
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as Chairman of the STF for various purposes, including periodical inspections, field
survey and create a boundary marks in respect of vacant Government lands as per
Sections 16 and 21 of The Tamilnadu Survey and Boundaries Act, 1923 and other
relevant provisions of the Act, etc., and it is not known as to whether such a Force has
been constituted for the said purpose. Any lapses are noticed in respect of wilful and
deliberate disobedience, this Court will pass stringent orders against erring officials and in
that case, imposition of fine is secondary and the imprisonment is primary.
12. In yet another case, a Division Bench of this Court, finding building violations,
directed the violated portions to be razed to the ground, in the case of M/s.Aara Silk,
rep. by its Partner, MAM. Hayath S/o.M.A.Mohamed Masthan, 8/42 & 8/42-A, B -
Ranganatha Mudhali Street, C.Pallavaram, Chennai vs. The Principal Director,
Southern Command, IDES Guest House and others, [W.P.No.29985 of 2016] decided
on 29.09.2016. For the sake of convenience, the relevant paragraphs of the said judgment
are extracted hereunder:
“20. It is pertinent to note that recently, the First Bench of this Court
(S.K.Kaul,C.J., and R.Mahadevan,J.) in Contempt Petition No.1769 of
2015 and Contempt Petition No.2166 of 2015 (Suo motu), took up a matter
pertaining to demolition of the violated portions of a building and insisted
that the unauthorised constructions are decimated. Relevant portion of the
said order reads thus:
''4.We have also perused the report of the Commissioner, who is
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present in Court. We have impressed upon him the importance of ensuring
that there is atleast no continuing unauthorised construction by issuing stop
work notices immediately when such unauthorised construction is detected
rather than waiting for comparison of the plans. We have also emphasised the
importance of:
(a) Checking the buildings from the basement, ground floor
onwards, so that the set backs are adhered to;
(b) Ensure that the on-going construction complies with the norms;
(c) The delinquent officers are brought to book not by mere censure,
stoppage of increment, but by more severe consequences like compulsory
retirement and dismissal from service. We say so, as despite, mammoth
amount of unauthorised construction, we are informed that not a single
person has suffered the punishment of dismissal from service or even
compulsory retirement atleast for the last five years.
(d) Not to let any unnecessary interference with his work by the
persons, who have nothing to do with his job and that he should be able to do
his task without fear or favour, for which necessary Court protection is
available.''
21. And, this Court (Huluvadi G.Ramesh, J. & M.V. Muralidaran,J.),
while dealing with the removal of encroachments, in the case of A.Kumar
vs. The Commissioner, Greater Corporation of Chennai vide judgment
dated 13.06.2016, has held as under:
17. In view of the act of the petitioner in making repeated
representations, the Corporation could not remove the encroachment as
directed by this Court. Therefore, the Corporation had to face contempt
proceedings in Contempt Petition No.1391 of 2015, which was closed after
recording the submission of the Corporation that they would remove the
same within a period of two weeks. Again, since the the encroachment could
not removed due to the attempts made by the petitioner and other
encroachers, the Corporation faced another contempt proceedings in
Contempt Petition No.13 of 2016. In that matter, the Corporation sought one
week time to comply with the order and the same was granted on depositing
a sum of Rs.20,000/- within a week.
18. In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan
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W.P.No.21782 of 2021
[(1997) 11 SCC 123], the Supreme Court after referring to the earlier
decisions, has observed thus:
"The removal of encroachment needs urgent action. But in this behalf
what requires to be done by the competent authority is to ensure constant
vigil on encroachment of the public places. Sooner the encroachment is
removed when sighted, better would be the facilities or convenience for
passing or re-passing of the pedestrians on the pavements or footpaths
facilitating free flow of regulated traffic on the road or use of public places.
On the contrary, the longer the delay, the greater will be the danger of
permitting the encroachers claiming semblance of right to obstruct removal of
the encroachment."
19. In view of the decision cited above, we are of the considered view
that the encroachment has to be removed forthwith, since the petitioner and
others were given notice and their objections were also heard and
considered, in accordance with law. Therefore, this writ petition is disposed
of, with a direction to the Corporation to demolish the encroachment, in the
presence of the petitioner on 13.7.2016 and also with a direction to the
petitioner to pay a fine of Rs.1,000/- (Rupees one thousand only) to the
credit of the Tamil Nadu Mediation and Conciliation Centre, Chennai, within
a period of one week from the date of receipt of a copy of this order. This
order shall be treated as notice to the petitioner for demolishing the
encroachment made in the land in question. There shall be no order as to
costs. Consequently, WMP No.16456 of 2016 is closed.
22. In view of the decisions cited supra, this Court is of the view that
the violated portions have got to be razed to the ground. In terms of the
provisions of the Cantonment Act, the police shall give full protection for the
demolition of the building and the petitioner is given a week's time from
today, to remove the belongings in the building, otherwise, it will be
construed that the belongings have been vacated by the petitioner. This Writ
Petition is dismissed with the above direction and observation.”
No costs. Consequently, connected Miscellaneous Petition is closed.
[S.V.N,J.,] [A.A.N,J.,]
06.10.2021
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Index: Yes / No
Speaking order /Non speaking order
arr
S.VAIDYANATHAN,J.,
and
A.A.NAKKIRAN,J.,
arr/ar
To:
1. The Secretary to Government,
Housing and Urban Development Department,
Secretariat,
Fort St. George,
Chennai -9.
2. The Greater Chennai Corporation,
Rep by the Commissioner,
Rippon Building, Park Town,
Chennai – 600 003.
3. The Assistant Engineer, Div 061,
Greater Chennai Corporation,
No.23, Driver Street,
Pudupet, Chennai 600 002.
4. The Assistant Executive Engineer, Unit 14,
Greater Chennai Corporation,
No.2 Adikesavulu Street,
Chindadripet, Chennai 600 002.
5. The Executive Engineer, Zone 05,
Greater Chennai Corporation,
Rippon Building, Park Town,
Chennai – 600 003.
W.P.No.21782 of 2021
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