CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY Vs. AYISATHU JAILANI

JUDGEMENT

(1.) Chennai Metropolitan Development Authority, which figured as the defendant before the trial Court in O.S.No.1895 of 1995, is the appellant in the present second appeal. The respondent herein is one of the co-owners of the suit property, namely the property bearing Door No.756, Anna Salai, Chennai. The respondent along with the other co-owners got planning permission for constructing a building with three floors. Subsequently, building permit for putting the 4th floor was sought for, but the same was declined. As against the order declining permission to put up the fourth floor, an appeal came to be preferred, as per the plaint averments, under Section 79 of the Tamil Nadu Town and Country Planning Act. In the meantime, without permission, the additional floors had also been constructed.

(2.) The appellant (CMDA) issued a notice dated 13.06.1989 directing the owners of the property to demolish the unauthorized construction. As against the said notice, the land owners filed a suit in O.S.No.6537 of 1989 for an injunction not to take further action based on the said notice directing demolition and removal of unauthorized construction. However, the plaintiff did not pursue the remedy sought for in the said suit and allowed it to be dismissed. On the other hand, the respondent herein/plaintiff approached CMDA authorities for regularisation of the unauthorized construction. Meanwhile, a notice under Section 56 (2)(iii) of the Tamil Nadu Town and Country Planning Act, 1971 dated 27.02.1995 came to be served on 13.03.1995 on the tenants informing them to vacate the premises within seven days as the building was going to be demolished. Challenging the said notice and praying for a decree declaring the said notice issued by the appellant/defendant under Letter No.ES4/4215/95 dated 27.02.1995 was null and void and for a consequential permanent injunction restraining the appellant herein, its officials or anybody acting under the appellant/defendant from in anyway proceeding with the said impugned notice dated 27.02.1995, the present suit O.S.No. 1895 of 1995 came to be filed.

(3.) The suit was resisted by the appellant/defendant contending that the suit was barred by a statutory provision, namely Section 101 of the Tamil Nadu Town and Country Planning Act, 1971 and that the said Act also provided a bar for granting any injunction against the exercise of the statutory powers conferred on the authorities under the Act. On merits, it was contended that the approved plan contained only the basement floor, ground floor plus three flours and without obtaining planning permission, 4th and 5th floors came to be constructed together with a machine room in the 6th floor; that the permission sought for to construct the 4th and 5th floors had been refused under Letter No.C/4825/83 dated 21.04.1988 and that therefore CMDA had to take steps for the removal of the unauthorized construction for which alone the impugned notice came to be issued.