J K TOWERS FLAT OWNERS ASSOCIATION Vs. COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF TAMIL NADU HOUSING AND URBAN DEVELOPMENT DEPARTMENT FORT ST GEORGE MADRAS 9

JUDGEMENT

(1.) THE petitioner is J. K. Towers Flat Owners Association represented by its Secretary, Chennai. According to the petitioner association, the 2nd and 3rd respondents were the owners of the land wherein the premises m/s J. K. Towers, 77, 7th Avenue, Ashok Nagar, Madras which consists of land, ground floor for car parking area with three floors totalling 33 flats is constructed. THE petitioner and the 2nd respondent entered into an agreement wherein the 2nd respondent was styled as promoter. THE 2nd respondent was given the power of attorney on 3. 11. 89 to develop and deal with the above said property and to convey undivided interest to the third parties. THE said agreement also disclosed the sanction by the 4th respondent for construction. Accordingly, 33 flats were constructed in the first, second and third floors leaving ground floor car parking space and fourth floor open space. Contrary to the planning permission, the 2nd and 3rd respondents put up construction of four flats each approximately measuring 1,100 sq. ft. in the ground floor thereby depriving the car parking area to the purchasers of the flats. THE 2nd and 3rd respondents also started putting up construction of two flats on the top floor each approximately measuring 1000 sq. ft. area. Since the said constructions were in violation of the building permission granted by the 4th respondent, the members of the petitioner association filed O. S. No. 7976 of 1991 against the respondents 2 to 4 for a declaration that the conversion of the ground floor into office and flats and also additional construction of two flats on the terrace in the top floor are in contravention of the sanctioned plan and also for mandatory injunction directing the respondents 2 to 4 to demolish the unauthorized construction in the ground floor and the two floors put up on the top floor. In the meantime, the 2nd and 3rd respondents also filed a suit in O. S. No. 7921 of 1991 against the 4th respondent for a declaration that the notice issued by the 4th respondent on 4. 11. 91 for demolition of the portion constructed by the 2nd and 3rd respondents without planning permission and also for permanent injunction restraining the 4th respondent from taking any further action pursuant to the said notice of demolition. In the said suit, the members of the petitioner association also impleaded themselves as parties. In the suit in O. S. No. 7976 of 1991 filed by the members of the petitioner association, by common judgment dated 30. 4. 2001 it was decreed with a direction for demolition of the additional construction put up in the car parking area in the ground floor by the respondents 2 and 3. However, the mandatory injunction for demolition of the two floors put up in the top floor was not granted. THE suit filed by the 2nd and 3rd respondents in o. S. No. 7921 of 1991 was dismissed by the common judgment and decree. Even when the suits were pending, the 2nd and 3rd respondents applied to the 4th respondent for planning permission for additional construction in the top floor and the same was refused by the 4th respondent on 26. 2. 92. As against the said order, the 2nd and 3rd respondents preferred an appeal on 1. 3. 92 to the 1st respondent. THE 1st respondent in G. O. Ms. No. 526/ii (2)/hou/3054/94 dated 26. 7. 94 exempted the additional construction in the top floor from the provisions of the development control Rules. Challenging the said order of the 1st respondent, the present writ petition has been filed.

(2.) MR. V. Rangarajan, learned counsel for the petitioner would contend that the 1st respondent has granted exemption by virtue of the powers conferred under Section 113 of the Tamil Nadu Town and Country Planning Act 1971. Such powers are not conferred on the 1st respondent for grant of exemption to the 2nd and 3rd respondents to put up additional constructions. In this regard, the learned counsel relied upon a judgment of the Supreme Court reported in Consumer action Group and another v. State of Tamil Nadu and others, AIR 2000 SC 3060 and contended that whenever any statute confers any power on statutory authority, the same has to be exercised reasonably within the powers the statute confers and such exercise of power must stand the test of judicial scrutiny. The learned counsel would also submit that when such power is vested in the Government, it has to be exercised with greater circumspection. The learned counsel would also rely upon a judgment of the Supreme Court reported in V. M. Kurian v. State of Kerala, 2001 (4) SCC 215 to contend that the power of exemption can be exercised only for minor deviation. In this case, the 2nd and 3rd respondents have put up construction of two flats in the top floor which cannot be considered as minor deviation. The learned counsel also submitted that when the Association came to know of the appeal filed by the 2nd and 3rd respondents before the 1st respondent, it made a representation to the 1st respondent for an opportunity. Without giving any opportunity the 1st respondent has passed the impugned order. The learned counsel further submitted that in the event if any opportunity had been given to the petitioner by the 1st respondent before the 1st respondent exercised its powers under Section 113 of the Act, the petitioner would have explained all these positions to the 1st respondent that the exemption sought for is not for minor deviation and on facts of the case such exemption is not warranted. The learned counsel relied upon a Division Bench judgment of this Court reported in Palani Hills Conservation council rep. by its President Navroz Mody v. The State of Tamil Nadu rep. by its Secretary to government, Rural Development and Local Admn. Department, Madras and 3 others, 1995 WLR 737 and contended that exemptions can be granted only when the deviation is minor in nature. Secondly, the exemption granted by the 1st respondent is only in respect of two floors put up in the top floor and there is no exemption for putting up any construction in the car parking area in ground floor. However, the 4th respondent has sanctioned the revised plans to put up construction in the car parking area.