Madras High Court
K.M.Balagopalan vs The Secretary To Government on 25 April, 2022
W.P.No.17378 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
W.P.No.17378 of 2021
K.M.Balagopalan ... Petitioner
vs
1.The Secretary to Government,
Housing and Urban Development Department,
Fort St. George,
Secretariat,
Chennai - 600 009.
2.The Commissioner,
Greater Chennai Corporation,
Ripon Buildings,
Chennai 600 003.
3.The Executive Engineer,
Zone -VIII, Pulla Avenue,
Corporation of Chennai,
Shenoy Nagar,
Chennai. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India to
issue a writ of Mandamus directing the respondents to de-seal the
premises bearing Door No.335/2, (New No.168/2) Galaxy Apartments,
II Avenue, Anna Nagar, Chennai-600 040 for residential usage based
on the petitioner's representation dated 23.10.2020.
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W.P.No.17378 of 2021
For Petitioner : Mr.T.Nixon
For Respondents : Mr.K.V.Sajeevkumar,
Special Government Pleader for R1
Mr.K.Raja Shrinivas,
Standing Counsel for Corporation
for R2 & R3
ORDER
[Order of this Court was delivered by T.RAJA, J.]
The petitioner has come to this Court with this writ petition
seeking a direction to the respondents to de-seal the premises bearing
Door No.335/2, (New No.168/2) Galaxy Apartments, II Avenue, Anna
Nagar, Chennai - 600 040 for residential usage, based on his
representation dated 23.10.2020.
2.Learned counsel appearing for the petitioner submitted that
the petitioner, who is a Widower, aged 92 years, has resided in the
apartment, bearing Door No.335/2, Galaxy Apartments, II Avenue,
Anna Nagar, Chennai – 600 040, during the lifetime of his wife, after
purchasing the same, developed by the Tamil Nadu Housing Board, for
a valuable consideration by a Deed of Sale. Thereafter, the petitioner,
who is one of the flat owners of the above Galaxy Apartments, had
carried out certain additional constructions with intimation to the Tamil
Nadu Housing Board along with other owners of the apartments. While
so, during the year 2010, the apartment meant for residential use,
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W.P.No.17378 of 2021
was rented for running a Furniture Showroom due to its commercial
viability. However, some of the residents of the apartment had
preferred a complaint to the CMDA. On the basis of the said complaint,
the Chennai Corporation had taken enforcement action under Sections
56 and 57 of the Tamil Nadu Town and Country Planning Act 1971 as
against the persons, who had made additional constructions in the
common area. Thereafter, the petitioner's commercial premises were
locked and sealed along with other commercial premises on
08.08.2015. Aggrieved by the same, the petitioner preferred a Special
Revision/Appeal under Section 80-A of the above Act to the first
respondent, which came to be rejected. Subsequently, the premises
were locked and sealed. Therefore, the petitioner made a detailed
representation dated 23.10.2020 to the respondents requesting them
to consider de-sealing of the premises. Learned counsel for the
petitioner further submitted that since the petitioner, being a senior
citizen, is now residing in the rental house by paying a huge portion of
his pension towards rent and finding it difficult to lead his life and put
to severe financial crisis, he is before this Court.
3.In support of his contention, learned counsel appearing for the
petitioner, referring to Section 113-C of the Tamil Nadu Town and
Country Planning Act, submitted that the Government, taking into
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W.P.No.17378 of 2021
consideration the ecology and environment of the area and having
regard to public interest and in order to improve the infrastructure,
reduce public inconvenience and ensure public safety in the area, has
granted exemption in respect of development of certain buildings as
per Section 113-C of the above Act, which reads as under:
'113-C.Exemption in respect of development of certain
buildings: Notwithstanding anything contained in this Act
or any other law for the time being in force, the
Government may, taking into consideration the ecology
and environment of the area and having regard to public
interest and in order to improve the infrastructure, reduce
public inconvenience and ensure public safety in the area,
by order, exempt any building or class of buildings
developed on or before the 1st day of July 2007, from all
or any of the provisions of this Act or any Rule or
Regulation made thereunder, subject to the guidelines
made in this behalf, by collecting such amount, not
exceeding three times of the guideline value of the land, as
may be prescribed. Different rates may be prescribed for
different planning parameters and for different parts of the
planning area.'
4.Learned counsel for the petitioner further submitted that when
in a similar circumstance, one K.R.Ramaswamy alias Traffic
Ramaswamy vs. The Chief Secretary and 6 others moved W.P.
Nos.1664, 16785 to 16787 of 2013 seeking appropriate order before
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W.P.No.17378 of 2021
the Hon'ble First Bench of this Court, this Court, by judgment dated
10.02.2014, directed the State Government to frame appropriate
guidelines and rules for proper and effective implementation of Section
113-C of the Town and Country Planning Act.
5.Learned counsel for the petitioner further submitted that the
petitioner has also filed an Undertaking Affidavit dated 17.04.2022
stating that he would not rent the premises for commercial purpose,
without obtaining necessary planning permission and would use the
premises only for residential purpose. Therefore, recording the
Undertaking Affidavit filed by the petitioner, this petition may be
closed.
6.Opposing the above prayer, learned Special Government
Pleader appearing for the first respondent, by filing a counter affidavit
dated 03.12.2021, submitted that once the petitioner has lost his case
before the first respondent in the Special Revision/Appeal filed under
Section 80-A of the Tamil Nadu Town and Country Planning Act and he
has also constructed the building, deviating from the original planning
permission, by making additional construction, he would go back to
the residential use.
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W.P.No.17378 of 2021
7.In reply, learned counsel for the petitioner submitted that the
petitioner, being the senior citizen, living alone in a rental house. If he
is permitted to use the place in question by de-sealing the property, as
per Section 113-C of the Act, within a months' time, he would move
an application before the concerned authority seeking appropriate
order.
8.Learned Standing Counsel appearing for respondents 2 and 3
submitted that if the petitioner comes forward to use the premises
only for residential purpose, realising his mistake in making the
deviated construction without planning permission, he may be
permitted to move a proper application under Section 113-C of the
above Act, by giving sufficient time to approach the CMDA and if he is
not able to get an order under Section 113-C, liberty may be given to
the Corporation to take appropriate action against him.
9.Heard both sides.
10.Since the Hon'ble First Bench has already ceased of the
matter under Section 113-C of the Tamil Nadu Town and Country
Planning Act, 1971 in W.P. Nos.1664 and 16785 to 16787 of 2013 vide
judgment dated 10.02.2014, directing the State Government to frame
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W.P.No.17378 of 2021
appropriate guidelines and rules for proper and effective
implementation of Section 113-C of the Town and Country Planning
Act and following the same, the Government have also issued G.O.
(Ms) No.110 Housing and Urban Development (UD4(3)) Department
dated 22.06.2017 for assessment and collection of amount for
exemption of buildings, 2017, we are inclined to accept the affidavit of
undertaking dated 17.04.2022 filed by the petitioner, which reads as
under:
'5.I state that I am a widower leading my life with the
support of the caretakers solely depending upon the
pension drawn by me. Further I am now residing in rented
house by paying a huge portion of my pension towards
rent and finding it difficult to lead my life and put to severe
financial crisis. Hence under such circumstances I being
the owner of the apartment now under lock and seal by
Chennai Corporation is ideal without fetching any income.
6.I state that in the event if the respondent Corporation is
inclined to remove the lock and seal I hereby undertakes
that I will not rent the premises for commercial purposes
without necessary planning permission and use the same
for residential purpose alone and the same may be
recorded by this Court. Further in the event if it comes to
the notice of the Corporation on a later date that I have
violated my undertaking they may be at liberty to take
appropriate coercive action of lock and sealing of the
premises without any further action.'
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W.P.No.17378 of 2021
T.RAJA,J.
and
S.SOUNTHAR,J.
vga
11.In the light of the above affidavit of undertaking filed by the
petitioner, we hereby direct the petitioner to use the premises only for
residential purpose and not for commercial purpose, after obtaining
necessary planning permission from the competent authority. If the
petitioner breaches the undertaking given by him, by renting out the
premises for commercial purpose, it is left open to the respondents to
take appropriate action against him. With the above direction and
observation, this writ petition stands disposed of. No costs.
[T.R.,J.] [S.S.,J.]
25.04.2022
vga
Index: Yes/No
To
1.The Secretary to Government,
Housing and Urban Development Department,
Fort St. George,
Secretariat,
Chennai - 600 009.
2.The Commissioner,
Greater Chennai Corporation,
Ripon Buildings,
Chennai 600 003.
3.The Executive Engineer,
Zone -VIII, Pulla Avenue,
Corporation of Chennai,
Shenoy Nagar, Chennai.
W.P.No.17378 of 2021
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