Madras High Court
M.Z. Ansari vs Xavier Britto on 26 March, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Appeal Suit No.946 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.03.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.946 of 2014
and
M.P.No.1 of 2015 and CMP.No.10056 of 2020
----
1. M.Z. Ansari
2. K. Balasubramanyan
3. B. Renuka
4. Cyril John
5. Fatima Jessey
6. M/s. G.K.C.Clothing Company
Rep. By its Partner
Gope K.Chatlani
Ground Floor, BSV Villa,
New No.42, Old No.428
Kilpauk Garden, Main Road,
Kilpauk, Chennai – 600 010.
7. Jean Johnson
8. Indira Cookie Royle .. Appellants
Versus
1. Xavier Britto
2.Vimala Rani Britto .. Respondents
Appeal Suit is filed under Section 96 of Code of Civil Procedure, 1908,
seeking to set aside the Judgment and Decree dated 17.06.2014 passed in
O.S.No.11802 of 2010 on the file of the learned XIX Additional District Judge,
City Civil Court, Chennai.
For Appellants : Mr. C. A. Diwakar
For Respondents : Mr. P. J. Gorge
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Appeal Suit No.946 of 2014
JUDGMENT
This Appeal had been filed to set aside the Judgment and Decree dated
17.06.2014 passed in O.S. No. 11802 of 2010 on the file of the learned XIX
Additional District Judge, City Civil Court, Chennai.
2. The Appellants are the Plaintiffs in the Suit in O.S.No.11802 of
2010. The Suit was filed in the Original Side of this Court as C.S. No. 443 of
2009 and subsequently it was transferred to the file of the City Civil Court,
Chennai due to enhancement of pecuniary jurisdiction of the District Courts as
per Act 9/2010. Upon transfer, the case was re-numbered as O.S.No.11802 of
2010.
3. The Suit was filed by the Plaintiffs seeking mandatory injunction
directing the first and second Defendants to remove the offending construction
both permanent and temporary put up on the open terrace (common area) of the
multi storey building viz., BSV Villa, New No.42, Kilpauk Garden Main Road,
Chennai; for permanent injunction to restrain the Defendants from in any
manner interfering with the Plaintiffs access, use and enjoyment of the open
terrace and for costs.
4. For the sake of convenience, the parties to this Appeal shall
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hereinafter be referred to as “Plaintiffs” and “Defendants” as per their rank in
the suit before the trial Court.
5. The averments of the Plaintiffs, set out in the Plaint, are briefly as
follows:-
5.1. The First Defendant developed a multi storied residential building
on a land owned by the Defendants. The multi storied building comprising of
Ground +3 floors with a total built up area of 7806 sq. ft. was constructed on
the plot measuring 5031 sq. ft. at New No.42. Kilpauk Garden Main Road,
Kilpauk, Chennai. The building consists of 8 dwelling units. Defendants sold
4980 sq. ft. of divided share in the land to the Plaintiffs 1 to 7 and to the
predecessor in title of the 8th Plaintiff under separate sale deeds. There were
separate agreements for construction between the first Defendant and Plaintiffs
and predecessor in title of the 8th Plaintiff. The sanctioned plan for the
residential building was obtained by the Defendants to construct ground and
three floors. It is also permitted to construct the generator room and lumber
room and 242.250 sq.ft. on the terrace for the head room. Even though the
actual extent of the plot is only 5031 sq.ft. the Defendants claimed that the total
extent of land was 5442 sq.ft. As per the sanctioned plan, the extent of
undivided share that remains with the Defendants is only 5031–4980 = 51 sq.
ft. The open terrace was
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( Uploaded the common
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enjoyment and use of the Plaintiffs. Contrary to the sanctioned plan, the first
Defendant illegally constructed 850 sq. ft. on a portion of the open terrace and
sought to regularize the illegal construction under the Regularisation Scheme
announced by the CMDA. The illegal construction of the first Defendant in the
open terrace is part of the common area which is liable to be removed. The
Defendants have started construction activity on the open terrace in the month
of April and on enquiry it was learnt that the Defendants are trying to sell the
illegal construction on the open terrace along with the Defendants undivided
share to some third party. Already the Defendants have sold 4980 sq.ft. of
undivided share out of 5031 sq.ft. The illegal construction occupies almost
70% of the open terrace infringing on the Plaintiffs' right of access and
enjoyment of the open terrace. The Defendants have no right to usurp the
terrace which is a common area available for equal enjoyment of all the
owners. The retention of 51 sq. ft. of undivided share will not give the
Defendants the right to construct in violation of the statute and transgressing
rights of the Plaintiffs. The construction, both temporary and permanent have
been made on the open terrace, which is part of the common area, is illegal.
The Defendants are bound to remove the same to ensure the free access of the
terrace area and its enjoyment by the owners of the dwelling units. In those
circumstances, the Plaintiffs have filed the suit.
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5.2. On notice, the Defendants filed a written statement contending
inter alia that the question of measures to be taken in respect of applications
for regularisation made after 1999 have been placed before the Monitoring
Committee appointed by the First Bench of this Court and in respect of
residential buildings leniency has been recommended and not demolition.
Under the Tamil Nadu Ordinance No.2 of 2009, which has been extended by
Tamil Nadu Act No.45 of 2010, status quo have been extended in respect of
deviated constructions. The Monitoring Committee of the Chennai
Metropolitan Development Authority and The Corporation of Chennai and
Government of Tamil Nadu are necessary parties to the suit. The suit is also
barred by limitation because the construction has been put up and the fourth
floor was completed before 30.12.2000 and it is only the temporary shed which
was constructed recently. The Defendants are willing to remove the temporary
shed on appropriate orders by this Court. In fact, the permanent construction
on the 4th floor had been completed even before several flats have been handed
over to the Plaintiffs. The Plaintiffs are well aware of the same but filed the
suit belatedly. The application for regularisation made by the Defendants was
not only in respect of small portion on the 4th floor but in respect of extra areas
of the Plaintiffs. The real objection of the Plaintiffs is only about the temporary
structure which the Defendants have already undertaken to remove. The area
owned by the Defendants( Uploaded
https://www.mhc.tn.gov.in/judis is not on:
a terrace
28/03/2025 area,
11:46:06till
am ) the filing of the suit. The
Plaintiffs never objected to the Defendants portion on the fourth floor. There is
a definite recommendation of the Monitoring Committee to deal with
residential construction leniently. The Defendants have decided not to alienate
or let out their portion on the fourth floor but to use it for themselves and for
members of their families till their application for regularisation is allowed or
till the disposal of the suit. The suit deserves to be dismissed with costs for the
Defendants.
5.3. With the above pleadings, the Plaintiffs and Defendants went for
trial. During trial, the fourth Plaintiff examined himself as P.W-1. The
certified copy of the sale deed executed by the Defendants in favour of the
Plaintiffs 1 to 8 were marked as Ex.A-1 to Ex.A-4, Ex.A-6 and Ex.A-7. The
Encumbrance Certificate was marked as Ex.A-8. The photostat copy of
agreement for construction dated 05.11.2001 was marked as Ex.A-5. The
agreement for construction dated 05.11.2001 was marked as Ex.A-9. On
behalf of the Defendants, the first Defendant examined himself as D.W-1 and
marked 20 documents as Ex.B-1 to Ex.B-20. The copy of the approved plan
for the entire building was marked as Ex.X-1 through P.W-1.
5.4. After full trial, the learned XIX Additional District Judge, City
Civil Court, Chennai, had
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documentary, observed that the learned Counsel for the Defendants agreed that
already as per the order in the Writ Petitions, a Monitoring Committee has been
appointed by this Court and no final order has been passed by the said
Committee. Therefore, as per the order passed by this Court in the Writ
Petitions on 23.8.2006 no Civil Court shall entertain any suit or proceeding or
application in respect of the action taken by the CMDA or Corporation of
Chennai in respect of illegal construction and encroachments on roads and
pavements. While holding that the suit is not maintainable in view of the order
passed by this Court, it was also observed that CMDA and Corporation of
Chennai are necessary parties for adjudication of the suit, but they were not
impleaded. It was further observed that the open terrace construction was
completed in 2003 October itself, but due to personal reasons, the suit has been
filed only in the year 2009. Above all, the Plaintiffs have not indicated the
measurement of the offending construction and they are not sure about the
extent or measurement of the construction made by the Defendants.
Accordingly, the learned Trial Judge dismissed the Suit on 17.06.2014.
5.5. Aggrieved by the Judgment and Decree dated 17.06.2014 passed
in Original Suit No. 11802 of 2010, this Appeal Suit had been filed.
https://www.mhc.tn.gov.in/judis The learned (Counsel for the 11:46:06
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am ) Thiru. C. A. Diwakar,
submitted that the learned Trial Judge failed to appreciate that the permanent
and temporary construction put up by the Defendants on the terrace is
admittedly unauthorized, will remain unauthorized and illegal and efflux of
time cannot legalize the same as has been observed by the First Bench of this
Court in 2006 (1) LW 202 in the case of The Chairman, MMDA vs.
S.Radhakrishnan wherein it was held that an illegal and unauthorized
construction remains illegal till it is demolished and the question of limitation
cannot save the structure. The construction of an unauthorized and illegal
building is a continuing offence and even the statutory protection provided
under Section 56 of the Town and Country Planning Act was read down by the
First Bench of this Court leading to an amendment deleting the statutory
limitation period of 3 years given under the Act to initiate action of
demolishing such illegal construction. Above all, the scheme of regularization
under which the Defendants sought regularization of the illegal construction
has been quashed by this Court on 23.08.2006 in the W.P. No. 18898/2000.
Therefore, the instant suit filed on 18.05.2009 by the Plaintiffs seeking
demolition of the illegal construction on the terrace was well within time and is
not barred by the law of limitation. In any event, the open terrace was part of
the amenities and facilities promised and given under Ex.A-9, while so, putting
up an illegal construction thereof is a breach and every day of such breach
gives rise to a fresh cause( Uploaded
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on: 28/03/2025 ofamthe
11:46:06 ) Plaintiffs to initiate legal
action against the Defendants. In such case, the question of limitation will not
arise. Even otherwise, the sanctioned plan under Ex.X-1 clearly shows the
terrace as an open and the unauthorized construction on the terrace is illegal
and it has to be demolished.
7. The learned Counsel for the Plaintiffs proceeded to contend that
when the entire construction on the terrace is illegal and unauthorized, there is
no necessity to show the measurements of the construction. Therefore, the
failure to mention or indicate the precise measurements of the unauthorized
construction in the plaint will not be a ground to dismiss the suit. Even
otherwise, the extent of the plot is only 6031 sq. ft. and the Defendants have
sold 4980 sq. ft. to the Plaintiffs. The balance available is only 51 sq.ft of
undivided share of land and such land is not proportionate to the unauthorized
construction on the terrace. By reason of such unauthorised and illegal
construction, the right of enjoyment of the open terrace has been deprived
which the learned Judge failed to consider. The terrace is an open common
area where construction of whatever dimension is clearly identifiable and
therefore, the rejection of the relief of Mandatory Injunction on the ground of
non-compliance of Order VII, Rule 3 of CPC is unsustainable. The provisions
contained under Order VII, Rule 3 of CPC is curable and the Court is under an
obligation to direct the parties
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to rectify the defect if the identification of the
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portion requiring demolition is not clear. Therefore, the findings that suit filed
for demolishing the illegal construction is not within time is unsustainable and
untenable. The offending construction is liable to be demolished under the
Tamil Nadu Town and Country Planning Act on the principle of continuous
wrong. In such event, any person, whether directly affected by such illegal
construction or not, is entitled to the relief of mandatory injunction of
demolition. Therefore, the learned Counsel for the Plaintiffs contended that the
Judgment and Decree passed by the Trial Court is perverse, legally not
sustainable and it is liable to be interfered with. Accordingly, the learned
Counsel for the Plaintiffs prayed for allowing this Appeal.
8. Per contra, the learned Counsel for the Defendants only submitted
that the Judgment of the learned XIX Additional District Judge, City Civil
Court, Chennai, is a well-reasoned Judgment and it does not warrant any
interference of this Court. It is the contention of the learned Counsel for the
Defendants that the Order passed by the first Bench of this Court in a W.P.
Nos. 18898 of 2000, 19998 of 2001, 24316 of 2002 and 17646 of 2006, dated
23.8.2006 only reiterated that some leniency can be shown by the CMDA and
other authorities to consider regularization of violation of building plan. The
learned Counsel for the Defendants relied on the Judgment of the First Bench
of this Court dated 23.08.2006.
https://www.mhc.tn.gov.in/judis ( UploadedThe relevant
on: 28/03/2025 portion
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“i) The amendments to Section 113-A of the Tamil Nadu Town
and Country Planning Act, 1971 by Amending Acts 31 of 2000, 17 of
2001 and 7 of 2002 and the consequential amendments to the
Application, Assessment and Collection of Regularisation Fee (Chennai
Metropolitan Area) Rules, 1999 as far as applicable to the constructions
made after 22.2.1999 are hereby declared ultra vires Articles 14 and 21
of the Constitution. All orders for regularisation of such buildings
(constructed after 28.2.99) passed pursuant to the amending provisions
stand quashed.
ii) A Monitoring Committee is hereby constituted consisting of the
following :-
a) The Vice Chairman, CMDA;
b) The Commissioner, Corporation of Chennai;
c) The Managing Director, Chennai Metro Water Supply and Sewerage
Board;
d) The Chairman, Tamil Nadu Electricity Board;
e) The District Collector, Chennai;
f) The Director of Fire Services;
g) Mr.Louis Menezes (former Commissioner, Corporation of Chennai);
h) Mr.M.G.Devasahayam (IAS retd.) (former Secretary, Housing and
Urban Development);
i) P.T.Krishnan, (Architect);
j) Prof.Suresh Kuppuswamy, (School of Architecture and Planning,
Anna University);
k) Durganand Balsaver (Architect and Urban Planner); and
l) Dr.A.Srivatsan (Architect and Urban Planner).
iii) The Monitoring Committee shall be provided with sufficient staff
and infrastructure and all files pertaining to illegal constructions to be
placed before it.
iv) The Committee shall first take up the multi-storied commercial
complexes for consideration. This should cover all buildings which are
more than four floors in height. Where the construction of the entire
building is illegal, the building has to be demolished. Where an extra
floor has been put up illegally, the same should be demolished.
Necessary modifications/demolitions must be done for satisfying the
norms for fire safety and car parking facilities within the building
premises.
v) Special buildings should be categorized as those with actual
construction of ground plus three floors. In the case of commercial
special buildings, the
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same measures that apply to multi-storied
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buildings as above should be followed. In the case of residential multi-
storied buildings and special buildings, the Monitoring Committee may
suggest less stringent measures, bearing in mind the impact of retaining
the building.
vi) The professional builders of illegal multi-storied and special
buildings should be identified for imposition of heavy penalties. This
amount should be used to compensate the unwary purchasers and to
take remedial measures for alleviating the harm caused to the society.
vii) The Committee shall identify the officers at the CMDA and the
Corporation, who are responsible for the failure to enforce the planning
laws and make appropriate recommendation for prosecution and/or
disciplinary action.
viii) The CMDA and the Corporation are directed to take action against
the illegal multi-storied and special buildings, as per the
recommendation of the Monitoring Committee. The Commissioner of
Police, Chennai is directed to provide necessary police protection for
taking action against illegal constructions.
ix) To avoid future violations, buildings should be certified as having
been constructed in compliance of planning permit and other applicable
laws. The Certifying Officer will be personally responsible if any illegal
building is certified. Electricity, water connection and occupation
should be contingent on such certificate. In respect of the builders who
have been identified by the Monitoring Committee as having put up
illegal buildings, constructions by such builders should be certified for
compliance only by the Chief Planner, who shall bear personal
responsibility.
x) The Chief Planner is directed to decide the applications for
exemption pertaining to constructions prior to the cut-off date, i.e.
28.2.1999 and dispose of all the applications within a period of three
months. It is needless to say that all the applications claiming
exemption under the amended provisions of Section 113-A of the Act in
respect of constructions made after 28.2.1999 shall stand dismissed and
those applications shall not be entertained by the Government and/or
the authority or officer authorised by the Government under Section
113-A of the Act. The Chief Secretary is directed to allot the hearing of
appeals atleast to two officers in addition to the Housing and Urban
Development Secretary.
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xi) Where claims are made that the unauthorised/deviated constructions
were eligible for protection under the 1999 scheme - to determine the
veracity of claims and evolve criteria for such identification which may
include the following:-
a) Date of planning permission and proof of completion;
b) Electricity service connection and water connection; and
c) Registration of sale deed conveying constructed area.
xii) The Monitoring Committee shall be consulted for applications
claiming exemption under section 113-A of the Act as well as appeals
under section 113-A(6). The Monitoring Committee shall also be
consulted for changes in the Master Plan and Development Control
Rules, which affect construction activity in the city.
xiii) The regularisation fee collected should be kept aside in a separate
fund and not to be merged with the general account of the State of
Tamil Nadu or its Agencies and this fund shall be used to alleviate the
sufferings of the affected citizens in consultation with the Monitoring
Committee.
xiv) The Corporation is directed to forthwith take steps to remove the
encroachments on all busy streets like Ranganathan street, Natesan
street, Madley road, etc. and the Commissioner of Police is directed to
provide adequate police force at the disposal of the Corporation for the
purpose of carrying out work of removal of encroachments.
xv) No Civil Court shall entertain any suit or proceedings or application
in respect of the action taken by the CMDA or Corporation in respect of
the illegal construction and encroachments on roads and pavements. All
pending and future petitions filed/to be filed against CMDA and the
Corporation relating to the illegal and unauthorised construction of
buildings and or encroachment, and the demolition notice shall be
placed before the special bench to be nominated by the Chief Justice.”
9. The learned Counsel for the Defendants also relied on the
Ordinance passed by the Government of Tamil Nadu No.2 of 2009 published
in the Government Gazette
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on: 28/03/2025 11:46:06 am ) constituted a Committee
headed by a retired Supreme Court Judge to look into all aspects of
developments and to suggest necessary modifications to the Tamil Nadu Town
and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972). The
recommendations of the Committee aforesaid may involve substantial
amendments to the Tamil Nadu Town and Country Planning Act, 1971 (Tamil
Nadu Act 35 of 1972) and some with retrospective effect, and in particular to
the Provisions relating to construction and use of the premises, thereby
changing the position as obtaining now under the said Act. Therefore, the Suit
itself is not maintainable. The Plaintiffs have approached the Court with an
ulterior motive. Taking note of the above facts, the learned Trial Judge rightly
dismissed the suit filed by the Plaintiffs. The learned Counsel for the
Defendants also submitted that the Defendants paid Rs.22,00,000/- seeking
regularization to the CMDA and it is still pending. Therefore, the Appeal lacks
merits and is to be dismissed.
Point for determination:
Whether the Judgment and Decree dated 17.06.2014
passed in O.S. No. 11802 of 2010 on the file of the learned XIX
Additional District Judge, City Civil Court, Chennai, is to be set
aside as perverse?
https://www.mhc.tn.gov.in/judis Heard the learned Counsel
( Uploaded on: for the
28/03/2025 11:46:06 am ) Plaintiffs and the learned
Counsel for the Defendants. Perused the documents marked on behalf of the
Plaintiffs and Defendants and also the judgment of the Trial Court, which is
impugned in this appeal.
11. In the ruling reported in 2006 (4) CTC 483 in the case of
Consumer Action Group and others Vs. The State of Tamil Nadu and others,
the First Bench of this Court had struck down the amendments to Tamil Nadu
Act 17/2001 whereby all buildings constructed on or before 31st July 2001
become eligible to be considered for regularization was struck down. The First
Bench of this Court appointed Monitoring Committee for regularization of
such building pertaining to construction prior to cut off date 28.02.1999 and to
dispose of the applications within a period of three months. The Applications
claiming exemption under amended Provisions of Section 113-A made after
28.02.1999 shall stand dismissed and those applications shall not be
communicated by the Government or Authority or Authorities by the
Government under Section 113 of the Act. It was also held that no Civil Court
shall entertain any Suit or proceedings or Applications, instead action shall be
taken by the CMDA in respect of illegal construction on roads and pavements.
All the pending and future Petitions against CMDA relying on illegal and
unauthorized construction of building or encroachment and demolishment
notice shall be placed before
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( Uploaded 28/03/2025 Bench nominated
11:46:06 am ) by Hon’ble Chief
Justice of this Court in The Chairman, MMDA -Vs- S.Radhakrishnan (2006 (1)
CTC 241). The direction issued in this case is against the person who approaches
the Civil Court seeking mandatory injunction against the CMDA or
Corporation Authorities or against the Authorities directing the builder or the
owner of the property for demolishing the offending construction. Here, the
facts are different. The Plaintiff had purchased the flats as per the sale deed
executed by the Defendants in their favour. The open terrace is for the common
use of the purchasers of the property. After having purchased the property, the
Defendants, as owners of the vacant site and builder of the flats had put up
construction without obtaining prior approval either by Corporation of Chennai
or by CMDA. The claim of the Defendant that the First Bench alone shall
dispose of cases of this nature and the Civil Court has no jurisdiction in the
light of the reported ruling in 2006 (4) CTC 483 in the case of Consumer
Action Group and others Vs. The State of Tamil Nadu and others, will not
hold good as far as the facts of this case is concerned. The Plaintiffs suffered
injury, due to a continuous wrong perpetrated by the Defendants. As per the
reported ruling in 2022 (4) SCC 103 in the case of Samruddhi Co-operative
Housing Society Limited vs. Mumbai Mahalaxmi Construction Private
Limited the Hon’ble Supreme Court in Para No.17 thereof had interpreted
continuous wrong and injury which does not attract limitation. Therefore, the
question of limitation does
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on: 28/03/2025 in this
11:46:06 am ) case to be put against the
Plaintiffs. The breach committed by the Defendants is a case on continuous
breach. Therefore, dismissal of Suit by the Trial Judge on the ground that the
Suit is barred by limitation since the Plaintiff has in cross-examination stated
that the construction was completed in the month of October 2000. The
offending construction by the Defendants is a continuous wrong by which
permanent injury has been caused to the Plaintiffs/purchasers, thereby they
have lost the common enjoyment guaranteed in the sale deed executed in their
favour. The Plaintiffs are entitled to share in the common space/terrace which
had been violated by the Defendants/owner of the site and builder of the flats.
The conduction of first and second Defendants attract promissory estoppel
having sold the property with a promise. The purchasers/ Plaintiffs are entitled
to a share in the open terrace/common space and denying it after sale of the
property is illegal. The Plaintiffs believing the guarantee given by the
Defendants purchased the flats. However, after purchase by the Plaintiffs
denying the same amounts to depriving the rights guaranteed to them. The
Plaintiffs have instituted the present suit only after the Judgment in 2006 (4)
CTC 483 in the case of Consumer Action Group and others Vs. The State of
Tamil Nadu and others and that is the reason why they had approached the
Court in the year 2009 and it is found reasonable. The First Bench of this
Court in the reported ruling in 2006 (4) CTC 483 in the case of Consumer
Action Group and others (Vs.
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28/03/2025 TamilamNadu
) and others had clearly
given guidelines to regularize construction that were completed in the year
1999. The cut off date was mentioned and all those construction made after the
cut off date cannot be treated leniently by the Authorities. Therefore, the claim
of the Defendants that they paid Rs.22,00,000/- towards regularization and it is
pending cannot be a ground to permit them to retain the offending construction.
12. The submission of the learned Counsel for the Defendants that
they have paid Rs.22,00,000/- for regularisation and the subject matter is
pending before the Monitoring Committee appointed by the First Bench of this
Court as per the ruling reported in 2006 (4) CTC 483 in the case of Consumer
Action Group and others Vs. The State of Tamil Nadu and others, is found
not acceptable. On perusal of the minutes of the 52nd Meeting of the
Monitoring Committee held on 04.02.2015 at 5.00 p.m. at Main Conference
Hall at CMDA, among the subject matter, the property of the Defendant before
the trial Court is not found in the list of properties taken for consideration.
Further, as per the reported ruling, the amendment brought about by the State
Government to regularise violations in the building plan time and again had
been struck down by the Division Bench. Also in the same judgment, they had
quashed the regularisation for the buildings constructed after 28.02.1999.
Therefore, the claim of the Defendants that they are expecting regularisation
does not hold good. The submission
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of the learned Counsel for the Defendants
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that the suit is not maintainable for not impleading the CMDA and the
Monitoring Committee appointed by the First Bench of this Court also will not
hold good. The Plaintiffs 1 to 7 had instituted the suit only to enforce the
conditions imposed in the judgment of the First Bench of this Court for
violations of building plan. Also they sought for mandatory injunction to
demolish the illegal construction put up in the fourth floor by the Defendants
without approval and contrary to the recitals contained in the sale deed wherein
the purchasers/Plaintiffs were guaranteed undivided share in the free space that
is the open terrace which was subsequently violated by the Defendants with an
intention to sell it. Therefore, the suit for mandatory injunction filed by the
Plaintiffs is found proper.
13. The action of the Defendants is nothing but violation of building
plan and against the recitals of the sale deeds granting undivided share to each
of the Plaintiffs who are the purchasers of the properties under Ex.A-1 to Ex.A-
4, Ex.A-6 and A-7. The pleadings and evidence let in by the Defendants are
contrary to the agreement of construction marked as Ex.A-9. The claim of the
Defendants that the suit itself is barred, as per the judgment of the First Bench
of this Court reported in 2006 (4) CTC 483 in the case of Consumer Action
Group and others Vs. The State of Tamil Nadu and others, will not hold good
in the facts and circumstances
https://www.mhc.tn.gov.in/judis ofon:this
( Uploaded case.11:46:06
28/03/2025 Theamsaid
) Judgment bars the Civil
Courts from granting any relief against CMDA or the Greater Chennai
Corporation or statutory bodies from implementing the building plan. Here, the
Plaintiffs are the purchasers who approached the Court for mandatory
injunction to demolish the structures put up on the fourth floor violating the
building agreement and the plan approved by the authorities concerned which
attracts the judgment reported in 2006 (4) CTC 483 in the case of Consumer
Action Group and others Vs. The State of Tamil Nadu and others. The said
judgement had mentioned the cut off date as 28.02.1999.
14. The learned Counsel for the Plaintiffs relied on the reported ruling
in 2008 (3) CTC 405 in the case of Tamil Nadu Electricity Board and others
vs. Madasamy Konar in which the Plaintiff therein sought for removal of the
transformer in front of the house of the Plaintiff where the properties are
identified. Here the Plaintiffs clearly stated in the plaint that the construction
put up on the 4th floor is unapproved construction, therefore, sought mandatory
injunction. The learned XIX Additional District Judge, however, dismissed the
suit on the ground that the Plaintiffs had not described the property properly.
Also the Plaintiffs stated that the construction was completed in October, 2003
whereas the suit was instituted in the year 2009 as Civil Suit on the original
side of the High Court. Therefore, the learned Judge had held that the suit is
barred by limitation. As per
https://www.mhc.tn.gov.in/judis the on:
( Uploaded judgment in 2006
28/03/2025 11:46:06 am ) (4) CTC 483 in the case of
Consumer Action Group and others Vs. The State of Tamil Nadu and others,
all the applications claiming exemption under the amended provisions of
Section 113-A of the Act in respect of constructions which had been put up
by violating the approved building plan after 28.02.1999 shall stand dismissed
and the cut off date was fixed as 28.02.1999. Whereas the construction in this
case is completed during October 2003. Therefore, the submission of the
learned Counsel for the Defendants that the proceedings are pending before the
Monitoring Committee cannot at all be accepted. The Monitoring Committee
was directed to consider the applications for exemption pertaining to
constructions prior to the cut-off date, i.e. 28.2.1999 and dispose of all the
applications within a period of three months. As per the rulings of the First
Bench of this Court in 2006 (1) LW 202 in the case of The Chairman, MMDA
vs. S.Radhakrishnan, it is stated that contravention of Planning permission to
be treated as continuing offence. The First Bench of this Court had held that in
matters of this nature, the offence committed is to be treated as continuing one
till the offending structure is either demolished or altered. Even after expiry of
three years, the authorities concerned shall take appropriate steps for
demolition of the development by the developer if it is without obtaining
permission from the appropriate planning authority.
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The submission of the learned Counsel for the Plaintiffs that the
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learned trial Judge failed to consider that the injury caused to the Plaintiffs was
a continuous injury and it is not barred by limitation, is having adequate force.
Therefore, the judgment of the learned Trial Judge, dismissing the suit by the
Plaintiffs is found to be perverse in the light of the judgment of the First
Bench of this Court in 2006 (1) LW 202 in the case of The Chairman, MMDA
vs. S.Radhakrishnan.
16. The learned Counsel for the Plaintiffs relied on the judgment
reported in 2022 (4) SCC 103 in Samruddhi Co-operative Housing Society
Limited Vs. Mumbai Mahalaxmi Construction Private Limited wherein it was
observed thus:-
“17. In M. Siddiq v. Suresh Das, a Constitution Bench of this
Court (of which one of us (Justice DY Chandrachud) was a part)
examined the precedents with regards to a continuing wrong. The Court
observed that :
“343. The submission of Nirmohi Akhara is based on the principle of
continuing wrong as a defence to a plea of limitation. In assessing the
submission, a distinction must be made between the source of a legal
injury and the effect of the injury. The source of a legal injury is founded
in a breach of an obligation. A continuing wrong arises where there is an
obligation imposed by law, (2020) 1 SCC 1 PART C agreement or
otherwise to continue to act or to desist from acting in a particular
manner. The breach of such an obligation extends beyond a single
completed act or omission. The breach is of a continuing nature, giving
rise to a legal injury which assumes the nature of a continuing wrong.
For a continuing wrong to arise, there must in the first place be a wrong
which is actionable because in the absence of a wrong, there can be no
continuing wrong. It is when there is a wrong that a further line of
enquiry of whether there is a continuing wrong would arise. Without a
wrong there cannot be a continuing wrong. A wrong postulates a breach
of an obligation imposed on an individual, whether positive or negative,
to act or desist from acting
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in a particular manner.
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The obligation on one individual finds a corresponding reflection of a
right which inheres in another. A continuing wrong postulates a breach
of a continuing duty or a breach of an obligation which is of a continuing
nature. […] Hence, in evaluating whether there is a continuing wrong
within the meaning of Section 23, the mere fact that the effect of the
injury caused has continued, is not sufficient to constitute it as a
continuing wrong. For instance, when the wrong is complete as a result
of the act or omission which is complained of, no continuing wrong
arises even though the effect or damage that is sustained may enure in
the future. What makes a wrong, a wrong of a continuing nature is the
breach of a duty which has not ceased but which continues to subsist.
The breach of such a duty creates a continuing wrong and hence a
defence to a plea of limitation.” (emphasis supplied)
17. Therefore, the submission of the learned Counsel for the Plaintiffs
that the Plaintiffs suffered continuous injury as the Defendants had put up
construction violating the approved building plan in the fourth floor is
acceptable. Considering that the injury suffered by the Plaintiffs is a
continuous injury, it is not barred by limitation in the light of the ruling
reported in 2022 (4) SCC 103 in the case of Samruddhi Co-operative
Housing Society Limited vs. Mumbai Mahalaxmi Construction Private
Limited. Also reliance was placed by the learned Counsel for the Plaintiffs in
the reported ruling in 2008 (3) CTC 405 in the case of Tamil Nadu Electricity
Board and others vs. Madasamy Konar regarding identification of the
property and grant of mandatory injunction to remove the objectionable
construction is found acceptable in the light of the reported ruling. The learned
trial Judge, however, refused to grant the relief of mandatory injunction on the
ground that the relief sought
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Plaintiffs isambarred
11:46:06 ) by limitation and also
the measurement of the property has not been described. On the other hand,
the property is clearly identified in this case. It is clearly described as open
terrace where the offending construction has been put up by the Defendants.
Therefore, as per the reported ruling in 2008 (3) CTC 405 in the case of
Tamil Nadu Electricity Board and others vs. Madasamy Konar the judgment
of the learned XIX Additional District Judge, City Civil Court, Chennai, is
perverse.
18. The learned Judge ought to have directed the Plaintiffs to rectify
the defects by furnishing the description of the property, if need be. Instead the
learned Judge dismissed the suit even though the Plaintiffs had through oral
and documentary evidence made out the case that the Defendants had put up
construction violating the approved building plan by putting up construction in
the fourth floor. The fourth floor was a open terrace which was sold to the
Plaintiffs 1 to 7 with undivided share in the open terrace. After sale, the same
had been violated by the Defendants 1 and 2 by putting up construction thereby
denying what was guaranteed in the sale deed by recitals.
19. In the light of the reported rulings in (i) 2006 (4) CTC 483 in the
case of Consumer Action Group and others Vs. The State of Tamil Nadu and
others; (ii) 2006 (1) L.W.
https://www.mhc.tn.gov.in/judis 202 on:in28/03/2025
( Uploaded the case of amThe
11:46:06 ) Chairman, MMDA vs.
S.Radhakrishnan; (iii) (2003) 2 SCC 330 in the case of Pratibha Sing and
another vs. Shanti Devi Prasad and another; (iv) 2008 (3) CTC 405 in the
case of Tamil Nadu Electricity Board and others vs. Madasamy Konar and
(v) 2022 (4) SCC 103 in Samruddhi Co-operative Housing Society Limited
Vs. Mumbai Mahalaxmi Construction Private Limited, the judgment of the
XIX Additional District Judge, City Civil Court, Chennai, dismissing the suit
by observing that (i) the properties had not been properly described, (ii) the
Plaintiffs had not filed the suit within three years period, are found to be
perverse since the learned Judge failed to consider that the property described
by the Plaintiffs was the free space in the open terrace which was guaranteed
by the Defendants 1 and 2, as sellers to the Plaintiffs, who are the purchasers of
the flats. Further, the building plan was violated by the Defendants thereby
denying the right guaranteed to the Plaintiffs. The conduct of the Defendants 1
and 2 attracts the principles of promissory estoppel. They are prevented from
denying the rights of the Plaintiffs after having executed the sale deed
guaranteeing the undivided share in the open terrace. Therefore, the judgment
of the learned XIX Additional District Judge, City Civil Court, Chennai,
dismissing the suit is found perverse.
20. The contention of the learned Counsel for the Defendants 1 and 2
that they had paid Rs.22,00,000/-
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( Uploaded on: 28/03/2025 11:46:06 amapproval
) by the Monitoring
Committee appointed by the First Bench of this Court is also found
unacceptable in the light of the reported ruling in 2006 (4) CTC 483 in the case
of Consumer Action Group and others Vs. The State of Tamil Nadu and
others where cut off date is mentioned as 28.02.1999.
21. In (2019) 7 SCC 248 in the case of Kerala State Coastal Zone
Management Authority vs. State of Kerala, Maradu Municipality and others
the construction put up by private parties for which permission granted by local
body violating Environment (Protection) Act, 1986 was directed to be
demolished by the Hon'ble Supreme Court.
22. In the light of such ruling, the claim of the Appellants that the
Respondents had in violation of Building plan approved by the CMDA put up
construction in the fourth floor which was open terrace as per building plan is
found objectionable thereby the suit for mandatory injunction had to be
decreed. Instead the learned trial Judge dismissed the suit thereby encouraging
violation of building plan which is a continuous violation.
23. In the light of the above discussion, the point for determination is
answered in favour of the Plaintiffs and against the Defendants. The Judgment
and Decree dated 17.06.2014 passed in O.S. No. 11802 of 2010 by the learned
XIX Additional District Judge, City Civil Court, Chennai, is to be set aside as
https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 11:46:06 am )
perverse.
In the result, this Appeal Suit is allowed. The Judgment and Decree
dated 17.06.2014 passed in O.S. No. 11802 of 2010 by the learned XIX
Additional District Judge, City Civil Court, Chennai, is set aside. The
Plaintiffs are entitled to mandatory injunction in the light of the reported ruling
in 2006 (4) CTC 483 in the case of Consumer Action Group and others Vs.
The State of Tamil Nadu and others and 2006 (1) L.W. 202 in the case of The
Chairman, MMDA vs. S.Radhakrishnan. In effect, the suit is decreed with
cost throughout. Consequently, connected civil miscellaneous petitions are
closed.
26.03.2025
Index :Yes/No
Internet : Yes/No
Speaking Order/Non-speaking Order
dh/srm
To
1. The XIX Additional District Judge,
City Civil Court,
Chennai.
2. The Section Officer,
V.R.Section,
High Court, Madras.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 11:46:06 am )
SATHI KUMAR SUKUMARA KURUP, J
dh/srm
Judgment made in
26.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 11:46:06 am )
