Madras High Court
R.P.S.Mahendhiran vs The Member Secretary on 28 March, 2023
W.P.Nos.5253, 12208 & 12211 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.03.2023
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P.Nos.5253, 12208 & 12211 of 2020
and
W.M.P.Nos.6203, 6204, 6206, 14957 & 14964 of 2020
W.P.No.5253 of 2020:
R.P.S.Mahendhiran .. Petitioner
Vs.
1.The Member Secretary,
Chennai Metropolitan Development Authority,
Thazhamuthu Natrajan Building,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
2.State of Tamilnadu,
Rep. by the Principal Secretary to Government,
Department of Housing and Urban Development, (UD-VII(1))
Fort St. George,
Chennai – 600 005. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorari, calling for the records
comprised the proceedings of the 2nd respondent bearing
G.O.(3D).No.38, dated 22.01.2020 and quash the same.
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W.P.Nos.5253, 12208 & 12211 of 2020
For Petitioner : Mr.T.T.Ravichandran
for Mr.L.Sivakumar
For R1 : Mr.P.Kumaresan
Additional Advocate General VII
Assisted by
Mr.Vadivelu Deenadayalan
Additional Government Pleader
For R2 : Mr.E.Vijay Anand
Additional Government Pleader
W.P.Nos.12208 & 12211 of 2020:
Vijaya and Bhagiya Lakshmi Estates Pvt Ltd.,
No. AJ-42, Anna Nagar,
Chennai – 600 040
Rep. by its Managing Director,
S.Lakshmipathy. .. Petitioner
Vs.
1.State of Tamil Nadu,
Department of Housing and Urban Development,
Rep. by its Principal Secretary,
Secretariat,
Fort St. George,
Chennai – 600 009.
2.Chennai Metropolitan Development Authority,
Rep. by its Member Secretary,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
3.Appeal Committee,
Department of Housing and Urban Development,
Secretariat, Fort St. George,
Chennai – 600 009
Rep. by its Secretary. .. Respondents
https://www.mhc.tn.gov.in/judis
W.P.Nos.5253, 12208 & 12211 of 2020
Prayer in W.P.No.12208 of 2020: Writ Petition is filed under Article 226
of the Constitution of India, praying for issuance of a Writ of
Certiorarified Mandamus, calling for the records relating to the order
passed by the 1st Respondent in Government G.O.(3D) No.38, (Housing
and Urban Development (UD-VII(1)) dated 22.01.2020, quash the same
and consequently direct the 1st respondent to consider the petitioner's
representation dated 12.12.2018 under Section 113 of the Tamil Nadu
Town and Country Planning Act, 1971.
Prayer in W.P.No.12211 of 2020: Writ Petition is filed under Article 226
of the Constitution of India, praying for issuance of a Writ of
Certiorarified Mandamus, calling for the records relating to the order
passed by the 2nd Respondent in Letter No.EC/N-1/15722/2017, dated
30.07.2020 requesting the petitioner to vacate the premises in the
allegedly unauthorized portions of the building at No.354, Konnur High
Road, T.S.No.183, Block No.25, Ayanavaram Village, Chennai, quash the
same and consequently direct the 2nd respondent not to take steps to
de-occupy or demolish the said structure, pending disposal of the
application under Section 113 of the Tamil Nadu Town and Country
Planning Act, 1971, filed by the petitioner before the 1st respondent.
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W.P.Nos.5253, 12208 & 12211 of 2020
In W.P.Nos.12208 & 12211 of 2020:
For Petitioner : Mr.Niranjan Rajagopalan
For RR 1 & 3 : Mr.E.Vijay Anand
Additional Government Pleader
For R2 : Mr.P.Kumaresan
Additional Advocate General VII
Assisted by
Mr.Vadivelu Deenadayalan
Additional Government Pleader
COMMON ORDER
(Order of the Court was delivered by V.M.VELUMANI, J.)
The petitioner in W.P.No.5253 of 2020 has come out with the said
Writ Petition to quash the proceedings of the 2nd respondent bearing
G.O.(3D).No.38, Housing and Urban Development (UD-VII(1))
Department, dated 22.01.2020.
2.The petitioner in W.P.No.12208 of 2020 has come out with the
said Writ Petition to quash the Government G.O.(3D) No.38, (Housing
and Urban Development (UD-VII(1)) dated 22.01.2020, passed by the 1st
respondent and for a direction to the 1st respondent to consider the
petitioner's representation dated 12.12.2018 under Section 113 of the
Tamil Nadu Town and Country Planning Act, 1971.
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W.P.Nos.5253, 12208 & 12211 of 2020
3.The petitioner in W.P.No.12211 of 2020 has come out with the
said Writ Petition to quash the order passed by the 2nd Respondent in
Letter No.EC/N-1/15722/2017, dated 30.07.2020 requesting the
petitioner to vacate the premises in the allegedly unauthorized portions of
the building at No.354, Konnur High Road, T.S.No.183, Block No.25,
Ayanavaram Village, Chennai and for a direction to the 2nd respondent
not to take steps to de-occupy or demolish the said structure, pending
disposal of the application under Section 113 of the Tamil Nadu Town
and Country Planning Act, 1971, filed by the petitioner before the 1 st
respondent.
4.The issue involved in all the Writ Petitions are one and the same
and hence, all the Writ Petitions are disposed of by this common order.
5.The parties are referred to as per their rank in W.P.No.12208 of
2020 for the sake of convenience.
6.According to petitioner and one R.P.S.Mahendhiran (who is the
petitioner in W.P.No.5253 of 2020), the land in which the Apartment is
constructed belongs to the petitioner. In Block – A & B, the builder has
constructed the building deviating from the approved plan. M/s.Sayani
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W.P.Nos.5253, 12208 & 12211 of 2020
Complex Welfare Association gave complaint about the unauthorised
construction to the 1st respondent. Based on the said complaint, the
officials of the Chennai Metropolitan Development Authority inspected
the properties and found various deviations and unauthorised
constructions and notices were issued. The petitioner and one
R.P.S.Mahendhiran (who is the petitioner in W.P.No.5253 of 2020) filed
separate appeals before the Housing and Urban Development Department
dated 12.12.2018 and 20.03.2019 respectively. The Housing and Urban
Development (UD-VII(1)) Department, by the order dated 22.01.2020,
rejected the said appeals. Consequent to rejection of the said appeals, the
2nd respondent issued De-occupation notice dated 30.07.2020 to the
petitioner. The De-occupation notice dated 30.07.2020 was challenged in
W.P.No.12211 of 2020 and the rejection order dated 22.01.2020 was
challenged in W.P.Nos.5253 & 12208 of 2020.
7.The grievance of the petitioner and one R.P.S.Mahendhiran (who
is the petitioner in W.P.No.5253 of 2020) is that the 1st respondent, based
on the recommendation of the Appeal Committee, rejected their appeal.
The learned counsel appearing for the petitioners submitted that the 1 st
respondent did not furnish a copy of the report of the Appeal Committee
and in a mechanical manner, rejected their appeal. In support of his
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W.P.Nos.5253, 12208 & 12211 of 2020
contention, the learned counsel for the petitioners relied on the following
judgments:
(i) 1991 (2) LW 525, [R.Antony Doss & another Vs. The State of
Tamil Nadu by its Secretary, Housing and Urban Development,
Madras – 600 009 & another];
(ii) 2016 SCC Online Mad 1754, [Alarmel Valli & others Vs. The
Secretary, Urban and Housing Department, Fort St. George, Chennai
– 600 009 & others].
7(a).The learned counsel appearing for the petitioners further
contended that the impugned orders of the respondents 1 & 2 dated
22.01.2020 and 30.07.2020 respectively are invalid and prayed for
setting aside the same.
8.Mr.E.Vijay Anand, learned Additional Government Pleader
appearing for the respondents 1 & 3 submitted that the petitioner and one
R.P.S.Mahendhiran (who is the petitioner in W.P.No.5253 of 2020) were
given opportunity to appear before the Appeal Committee and after
considering their contentions only, the Appeal Committee recommended
rejection of appeals filed by the petitioner and one R.P.S.Mahendhiran
(who is the petitioner in W.P.No.5253 of 2020), as deviations and
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W.P.Nos.5253, 12208 & 12211 of 2020
unauthorised constructions cannot be regularized. The 1st respondent has
not only considered the recommendation of the Appeal Committee, but
also considered all the materials placed before it and rejected the appeal.
The order of the Government is valid and legal and prayed for dismissal
of all the Writ Petitions.
9.Heard the learned counsel appearing for the parties and perused
the entire materials on record.
10.The petitioners have made various averments on merits with
regard to inspection by officials of 1st respondent, issue of notice and
with regard to their right for regularization. Without deciding the said
contention on merits, the Writ Petitions are disposed of on the ground
that the 1st respondent, relying on the recommendation of the Appeal
Committee, failed to exercise his power properly. The 1st respondent is
exercising his quasi judicial powers while considering and passing orders
in the appeal and revision filed by the aggrieved party. The 1st
respondent, while deciding the issue in the appeal or revision, must
consider all the materials placed before him and by independent
appreciation of the materials placed, has to pass speaking order by giving
reasons. In the present case, the issue was referred to the Appeal
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W.P.Nos.5253, 12208 & 12211 of 2020
Committee. The Appeal Committee after giving opportunity to the
petitioners, recommended the rejection of the appeal and revision. From
the impugned orders, it is seen that the 1st respondent has accepted the
recommendation of the Appeal Committee and rejected the appeal and
revision. As rightly pointed out by the learned counsel for the petitioners,
the 1st respondent has not given any reason for accepting the
recommendation of the Appeal Committee. Further, the 1st respondent has
not furnished the copy of the report of the Appeal Committee and no
opportunity was given to the petitioner and one R.P.S.Mahendhiran (who
is the petitioner in W.P.No.5253 of 2020) to put forth their objections to
the recommendation made by the Appeal Committee.
11.In the two judgments relied on by the learned counsel for the
petitioners reported in 1991 (2) LW 525 and 2016 SCC Online Mad
1754, it has been held that deciding the issue merely based on reason
given by Appeal Committee is invalid. In the said judgments, it is held
that Appeal Committee has no jurisdiction to consider the issue and give
recommendation. The two judgments relied on by the learned counsel for
the petitioners are squarely applicable to the facts of the present case. For
the above reasons, the impugned order in W.P.Nos.5253 & 12208 of 2020
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W.P.Nos.5253, 12208 & 12211 of 2020
is set aside and remanded to the 1st respondent for fresh consideration
independently without being influenced by the report of the Appeal
Committee.
12.In view of the order passed in W.P.Nos.5253 & 12208 of 2020,
the lock and seal notice dated 30.07.2020 issued by the 2nd respondent in
W.P.No.12211 of 2020 is also set aside. The matters are remitted back to
1st respondent for fresh consideration. The 1st respondent is directed to
give opportunity to the petitioner and one R.P.S.Mahendhiran (who is the
petitioner in W.P.No.5253 of 2020) and without being influenced by the
report of the Appeal Committee, decide the matter independently, within
a period of three months from the date of receipt of a copy of this order.
13.With the above observations, all the Writ Petitions are allowed.
Consequently, the connected Miscellaneous Petitions are closed. No
costs.
(V.M.V., J) (V.L.N., J)
28.03.2023
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
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W.P.Nos.5253, 12208 & 12211 of 2020
V.M.VELUMANI, J.
and
V.LAKSHMINARAYANAN, J.
krk
To
1.State of Tamil Nadu,
Department of Housing and Urban Development,
Rep. by its Principal Secretary,
Secretariat, Fort St. George,
Chennai – 600 009.
2.Chennai Metropolitan Development Authority,
Rep. by its Member Secretary,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
3.Appeal Committee,
Department of Housing and Urban Development,
Secretariat, Fort St. George,
Chennai – 600 009
Rep. by its Secretary.
W.P.Nos.5253, 12208 & 12211 of 2020
28.03.2023
https://www.mhc.tn.gov.in/judis
