Madras High Court
M/S.Avn Flat Owners vs The Secretary on 17 July, 2025
Author: J. Nisha Banu
Bench: J. Nisha Banu
W.P.No.13262 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.06.2025
PRONOUNCED ON : 17.07.2025
CORAM:
THE HONOURABLE MRS. JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.P.No.13262 of 2024
and W.M.P.Nos.14401, 14403 & 14404 of 2024
M/s.AVN Flat Owners
Association – Velacherry,
Rep.by its Secretary Mr.Binny S.teevert S.G.,
S/o Mr.Selwyn Gnanasekaran,
Flat No.S-4, AVN Apartments, 2nd floor,
Anna Nagar 5th main road, Velacherry,
Chennai 600 042 ... Petitioner
Vs.
1.The Secretary,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort St. George, Secretariat,
Chennai 600 009
2. The Member Secretary,
Chennai Metropolitan Development Authority,
Chennai 600 009
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W.P.No.13262 of 2024
3. The Commissioner,
Corporation of Chennai,
Rippon Building, Raja Muthiah Road,
Kannappar Thidal, Periyamet,
Chennai 600 003
4. The Executive Engineer,
Zone 13, Division 179,
Corporation of Chennai,
No.115, Dr.Muthulakshmi Salai,
Adyar, Chennai 600020
5. M/s.AVN Constructions,
Rep. by its Proprietor Mr.Israel Jayakumar,
S/o. Mr. Vedachiromoney,
Plat No.14, Ponniamman Koil street,
Madipakkam, Chennai 600 091
6. Mr.V.Christopher
7. Mr.Anil Kumar
8. Mr.M.Sasikumar ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
entire records relating to the impugned order dated 04.04.2024, in letter
No.16149/UD-VII(1)/2021-4 of the first respondent and quash the same, in so far
as it relates to ordering action against the deviations/ violations in the building in
1st and 2nd floors in Block A, Block B and Block C of Plot No.138, AVN
Apartments, Anna Nagar 5th Main Road, Velachery, chennai 600 042 and
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W.P.No.13262 of 2024
consequently direct the respondents 3 and 4 to remove / demolish the
unauthorised construction in the non FSI area/ stilt floor of Block -A, B & C at
Plot No.138, AVN Apartments, Anna Nagar 5th main road, Velacherry, Chennai
600 042.
For Petitioner : Mr.Murualikumaran, Senior Counsel
For Mc. Gan Law Firm
For R1 : Mr.M.Venkateswaran,
Spl. Government Pleader
For R2 : Mr.R.Sivakumar, Standing Counsel
For RR 3 & 4 : Mr.G.T.Subramanian,Standing Counsel
For RR 5 to 8 : No Appearance
*****
ORDER
(Order of the Court was delivered by J. NISHA BANU, J.,)
Seeking to quash the impugned order dated 04.04.2024 in letter
No.16149/UD-VII(1)/2021-4 of the first respondent and for a consequential
direction to the respondents 3 and 4 to remove / demolish the unauthorised
construction in the non FSI area, the petitioner has preferred the present writ
petition.
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2. The brief facts of the case are as follows:-
2.1. The petitioner is an Association comprising of apartment owners,
collectively formed to represent and safeguard the common interests of its
members residing in the said residential complex. The members of the petitioner
Association are the purchasers of the Apartments, who have purchased flats
approved by Corporation of Chennai. The builder/ 5th Respondent, after obtaining
sub-division, dividing the land as plot A, B, & C, obtained 3 different approvals
for construction of stilt + 2 floors with 4 dwelling units in each block. All
approvals were granted on the same day, i.e., on 07.07.2008. The undivided share
of land for all the 12 flats were sold to the members of the petitioner Association
in the year 2011, except one, which was sold in the year 2010.
2.2. On 06.05.2011, the members of the petitioner Association made a
complaint that the promoter is illegally converting the non-FSI into an apartment,
which is actually meant for car parking area as per the approved plan. When no
action was taken in that regard, the members of the petitioner association have
approached this Court by way of filing a Writ Petition in W.P.No.18046/2021,
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seeking to take action against the unauthorised construction which was put up by
the promoter. This Court, vide its order dated 13.09.2021, disposed of the writ
petition by recording the statement of the Corporation and CMDA that based on
the representation of the petitioner Association, a lock and seal notice was issued
to the builder on 02.09.2021 and granted liberty to the members of the petitioner
association to file a fresh petition to ventilate their grievance in the manner known
to law.
2.3. Though Writ Petition No.18046/2021 was disposed of by recording
the statement made by Corporation and CMDA that based on the representation of
the petitioner Association, a lock and seal notice was issued to the builder on
02.09.2021, it was found that lock and seal notices were addressed to all the
Apartment owners pointing out the deviations in all the apartments. The
Apartment Owners, therefore preferred a statutory revision petition under Section
80A of the Tamil Nadu Town and Country Planning Act, 1971, before the 1st
respondent for regularisation of the same, contending that the deviations were
done not by them but by the builder/5th respondent.
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2.4. Subsequently, the petitioner Association filed several Writ Petitions
in W.P.Nos.34746, 34748 & 34749 of 2023 seeking for a direction to initiate
action in pursuant to the lock and seal notices, dated 31.08.2021, by removing the
unauthorised construction in the non FSI area and the said Writ Petitions are still
pending. Meanwhile, during the hearing of the revision petition preferred by the
apartment owners under section 80A application before the first respondent, the
1st respondent refused to regularise the deviations, which was originally
committed by the builder/5th respondent and dismissed the petition vide order
dated 04.04.2024 in letter No.16149/UD-VII(1)/2021-4. Aggrieved against the
same, the present writ petition has been filed.
3. It is the case of the petitioner that the builder/fifth respondent ought
to have conveyed the UDS to the purchasers of the Apartments, in proportionate
to the built up area, by multiplying the land area with a total constructed area of
the apartment and dividing the same by the total built up area, which
principle/formula stands approved by the Coordinate Bench of this Court in the
case of Abbotsbury Owners Association vs.Jaganathan in W.P.No.5765/2020
dated 20.01.2023. The learned Senior Counsel also pointed out the Single Judge
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judgment of the Karnataka High Court in W.P. No. 19151/2021 dated 25.04.2025
and also the Abbotsbury Owners Association' case, wherein it was held that the
conveyance of UDS of land without related approved construction is invalid and
the said document is a void document, and further contended that any retention of
the land in violation of the above said formula would be illegal and any
conveyance of the illegally retained UDS would be a perpetuation of illegality.
4. The writ petitioner assailed the impugned order stating that the act of
the builder/5th respondent causing deviation in the apartments and selling the same
to innocent 3rd party purchasers and blackmailing them at the threat of demolition,
if they question the illegal construction subsequently put up by the promoter or
any sale of undivided share of land illegally retained by the promoter/owner, is an
illegality committed by the builder/5th respondent and in collusion with the
regulating authority and the same is in direct violation of the principle and law
laid down by the Supreme Court in the case of Rajendra Kumar Barjatya dated
17.12.2024 in Civil Appeal No.14604/2024.
5. Per contra, the stand taken by the learned Special Government
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Pleader for the 1st respondent in the counter is as follows:-
“...There is Floor Space a possibility to apply for
revised approval as per Tamil Nadu Combined Development
and Building Rules, 2019 which permits the Index upto 2.
However, the Flat Owners Association and all other flat
owners of the subject buildings are not willing to get revised
approval as per Tamil Nadu Combined Development and
Building Rules, 2019 covering the unauthorised ground floor
put up by the builder.”
It is not only per se illegal but also shocking and it vindicates the stand
of the Writ Petitioner that they are blackmailed to give consent to approve the
unauthorised construction.
6. The Supreme Court in the case of Rajendra Kumar Barjatya referred
supra has come down heavily on the collusion of the regulating authorities with
the violators and the lapses on the part of the authorities.
“...15. ...Even otherwise, we are of the view that
there cannot be any estoppel against law. The lapses on the
part of the authorities will not vest any person with a right to
put up construction without planning approval and in
violation of the conditions regarding usage. However, the
fact that the notices issued by the authorities between 1990 to
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2013 did not culminate into demolition, would speak volumes
about the lackadaisical attitude of the authorities and that
also smacks of collusion with the violators.”
7. The regulating authorities cannot allow the builder to commit
deviations and sell the deviated apartments to innocent purchasers and hold the
innocent purchasers with the threat of demolition, if they failed to give their
consent to the unauthorised construction by the builder/5th respondent. As held by
the Hon'ble Supreme Court, this is a clear case of collusion between the violator
and regulating authorities.
8. When this court poised a question as to how an illegal demand can be
made by the 1st respondent when the apartment owners sought for the
regularisation of the apartments the Special Government Pleader,
Mr.M.Venkateswaran, learned Special Government Pleader appearing for the 1st
respondent gave an evasive answer stating that it was only a suggestion. However,
we see it only as a coercion, which when leashed by the regulating authorities
would amount to tyrannical act by the State.
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9. Deviation is completely different from unauthorised construction.
While deviations are normally permissible to be regularised, the unauthorised
construction is not. We do not know as to how the Tamil Nadu Combined
Development and Building Rules,2019 which increased the floor space index
from 1.5 to 2 FSI, vests power with the 1st respondent to regularise the
unauthorised construction. The car parking, which is a non FSI area, is a common
area owned by all the apartment owners and any construction put up in the same,
is an illegal one. The stand of the 1st respondent that it has got power under the
Tamil Nadu Combined Development and Building Rules,2019 to approve the said
illegality, is an act of lawlessness. We also do not have hesitation to hold that any
retention of UDS of land by the promoter by conveying lesser UDS to the
apartment owners is illegal and sale of such illegal UDS is void.
10. Neither the 5th respondent nor the respondents 6 to 8, who are the
purchasers of the UDS, without any corresponding approved apartment can be
construed as owners. Therefore, the impugned order dated 04.04.2024, in letter
No.16149/UD-VII(1)/2021-4 of the first respondent is set aside and the 1st
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respondent is directed to consider the application of the members of the petitioner
Association filed under Section 80A of the Tamil Nadu Town and Country
Planning Act for the regularisation of deviations without insisting any consent
from the promoter or other persons, as only the owners of the approved
apartments are owners of the entire extent of land and building.
11. We also make it clear that for the violations committed by the
builder/promoter, the authorities need to take action only against the
builder/owner/promoter and not against the innocent purchasers, who admittedly
made the purchases because of the certificates given by the regulating authorities
such as “occupancy certificate”, “completion certificates”, etc., and the
permissions and connections given by the respective authorities.
12. Accordingly, the Writ Petition stands allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
[J.N.B., J.] [M.J.R., J.]
17.07.2025
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J.NISHA BANU, J.
and
M.JOTHIRAMAN, J.
sts
Index : Yes / No
Internet : Yes / No
NCC : Yes/No
Order made in
Dated:
17.07.2025
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