P T PRABHAKAR Vs. MEMBER SECRETARY

JUDGEMENT

(1.) THE petitioners, owners of the premises bearing Old Door No.14, New No.15 and presently bearing No.5, Sivasamy Street, Mylapore, Chennai-4 comprised in R.S.No.1146/2 have approached this court seeking for a direction in the nature of a Writ of Mandamus, to take immediate action to demolish the unauthorised construction put up by one H.Salahudeen Babu, the 3rd respondent herein in New Door No.4, Old Door No.14, Sir Sivaswamy Ist Street, Mylapore, Madras-4 -R.S.No.1146/2 Block No.24, Division No.95, Zone-4.

(2.) THE following are few facts that give rise to the present Writ Petition:- THE petitioners having purchased an extent of 4934 Sq. ft. of land in R.S. No.1146/2 under a registered sale deed dated 8.6.1987, had put up construction of ground floor and first floor after obtaining the planning permission dated 14.7.1987. On the ground that the 3rd respondent had erected concrete columns to a height of 30 feet very close to the petitioners' premises, they made enquiries and found that the 3rd respondent had obtained planning permission from the Commissioner, Corporation of Chennai for the construction of ground and first floors only and by such permission, the 3rd respondent should provide on front and rear a set back of 3 meters. Even though the 3rd respondent had shown in the plan seeking permission necessary set back as per the rules and regulations provided by the Development Control Rules and Corporation of Chennai, actually the construction was contrary to the planning permission. THE petitioners had also found that during the process of actual construction, the 3rd respondent violated the sanctioned plan and did not provide set back not only on the rear and front side but also on all four sides as per the planning permission and left only about 3'6'instead of 3 meters as set back. THEy also found that the entire construction of the building was in contravention of the planning permission granted by the Commissioner and by reason of this illegal construction, the petitioners were put to great hardship. As the petitioners came to know about the said illegal construction, they approached the 3rd respondent and his builder pointing out that necessary set back had not been given, which is mandatory and requested to remove the unauthorised construction. Instead of removing, the 3rd respondent had not only put up ground and first floors but also constructed the basement and second floor. When they contacted the Commissioner, Corporation of Chennai, they were informed that the Corporation of Chennai had already issued proper notice twice and inspite of such notices, the 3rd respondent continued the construction. A written representation was also made to the Commissioner, Corporation of Chennai on 9.9.2004 pointing out the unauthorised construction being made by the 3rd respondent in contravention of the planning permission by not leaving three meters set back in front and rear side. As no action was taken, the petitioners filed a suit in O.S. No.4636 of 2004 in City Civil Court, Chennai seeking permanent injunction restraining the 3rd respondent from putting up construction contrary to the planning permission. As the Civil Court had ordered status quo during the pendency of the injunction application, the 3rd respondent stopped the construction. In the injunction application, the Commissioner also filed a counter affidavit stating that the 3rd respondent had put up construction deviating from the sanctioned plan and notice under Section 236 of the City Municipal Corporation Act was served on the 3rd respondent on 12.7.2004 directing him to stop the illegal construction but he did not comply with the notice and flouted the same. Inspite of the above, no action was taken and hence, the petitioners had made a representation to the Member Secretary, CMDA requesting him to take further action pursuant to the stop construction notice dated 12.7.2004. THE petitioners received the communication from the Member Secretary, CMDA that Notice under Sections 56 and 57 of the Town and Country Planning Act, 1971 had already been served to the 3rd respondent on 4.11.2004 and even after the said notice, no action was taken. Hence, they approached this Court for a direction to demolish the offending construction pursuant to the notice dated 4.11.2004.

(3.) MR.AR.L.Sundaresan, learned senior counsel appearing for the substituted respondents 4 to 8 in the place of the 3rd respondent, submitted that though there are violations of planning permission, inasmuch as the respondents have approached the Member Secretary, CMDA under Section 49 of the Town and Country Planning Act (hereinafter referred to as'Town Planning Act', on 2.2.2005 for revised planning permission and the same was refused by the Member Secretary,CMDA and questioning the same, the respondents have preferred appeal to the Government on 23.9.2005, the issue of regularisation can be left to the Government for adjudication in the said appeal. As the appeal is still pending, the relief of direction to demolish the construction cannot be entertained.