MADRAS RACE CLUB Vs. CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THE petitioner has filed this writ petition praying for a writ of Mandamus directing the respondents 1 and 2 to demolish and remove the unauthorised construction in Survey No. 82, T. S. No. 1, Block No. 13 put up by the respondents 3 and 4 in Government lands leased out to the petitioner forthwith.

(2.) MR. A. L. Somayaji, learned Senior counsel appearing for the petitioner submits as follows:- The Petitioner is Madras Race Club. The Government of tamil Nadu under lease deed dated 06. 03. 1946 leased out the lands to an extent of 83. 17 acres comprised in Survey No. 82, TS No. 1, Block No. 13, Velacherry village, Chennai to the petitioner, however, it is in continuous occupation of the said lands ever since 1845 onwards; that the property comprised in Old survey No. 78 (part) in T. S. No. 1, Block No. 15, Velacherry Village to an extent of 9600 square feet located on the Northern side of the petitioner's property was purchased by the respondents 3 and 4 herein on 15. 12. 2003 and construction activities were commenced in September 2005, while doing so, they attempted to encroach into the property of the petitioner, hence, the petitioner sent representations including the one dated 30. 09. 2005 requesting the respondents 1 and 2 herein to take appropriate action against the respondents 3 and 4, but they failed to take any action, with the result, the petitioner has filed WP no. 32583 of 2005 before this Court praying for a Writ of Mandamus directing the respondents 1 and 2 herein not to sanction the plan submitted by the respondents 3 and 4 in the leased lands of the petitioner in T. S. No. 1 (part), block No. 13, Velacherry Village and the said writ petition was ordered by this court on 07. 10. 2005 directing the respondents 1 and 2 herein to consider the representation dated 30. 09. 2005 of the petitioner and pass orders within a period of eight weeks, till such time, not to grant the plan sanction in favour of the respondents 3 and 4. Thereafter, the first respondent, in their letter dated 19. 10. 2005 informed that no planning permission application was received by them from the respondents 3 and 4 in respect of the land in TS No. 1 (part), block No. 13, Velacherry Village . MR. Somayaji further submitted that the respondents 3 and 4 allegedly obtained planning permission from the second respondent in respect of the lands belonged to them comprised in Survey No. 78 (part), T. S. No. 1, Block No. 15 for ground plus first floor, in total violation of the plan, construction is made in Survey NO. 78 (part) T. S. No. 1, block No. 15, but they illegally extended the construction without plan in S. No. 82, T. S. No. 1 in Block No. 13 by encroaching 5 grounds 357 sq. ft. ,; that the present writ petition was filed on 12. 03. 2006 seeking for a writ of Mandamus "directing the respondents 1 and 2 to demolish and remove the unauthorised construction in Survey No. 82, T. S. No. 1, Block No. 13 put up by the respondents 3 and 4 in Government lands leased out to the petitioner", however the respondents 3 and 4 continued their unauthorised construction in the lands of the petitioner also; that the first respondent issued a notice of stop work on 23. 06. 2006 and demolition notice dated 28. 06. 2006 under Section 56 read with Section 85 of the Tamil Nadu Town and Country Planning Act, hereinafter referred to Act, which is evident that the respondents 3 and 4 have constructed the building in total contravention of the building permission approved for ground plus first floor for their lands and also extended it in the petitioner's land, that too without any plan; that the first respondent also said to have sent necessary instructions to the second respondent corporation for demolition of the unauthorised construction. The averments that respondents 3 and 4 on 19. 07. 2006 submitted an application seeking planning permission to the first respondent invoking Section 49 of the Act is untenable in law, which is nothing but a time gaining tactics. If at all, the said provisions can be made applicable to a person intending to carry out development in future on any land, not for ratifying unauthorised construction already made. In support of this contention, the learned Senior counsel for the petitioner relied on the below mentioned decisions:- i) (Mahendra Baburao Mahadik and others vs. Subhash krishna Kanitkar and others) (2005) 4 SCC 99 wherein in Para Nos. 38, 43, 44, 45, 46, 47 and 48, it was held thus:- 38. The Municipal Council being a creature of statute was bound to carry out its functions within the four corners thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal Council is not possessed of any statutory power to regularise unauthorised constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development charges could not be recovered from the appellant in respect of unauthorised constructions in terms of Section 124-E (2) of the MRTP Act. 43. The jurisdiction of a local authority is confined only to deal with application for grant of permission for construction as contained in Section 44 of the MRTP Act whether at the initial stage or when a notice is served under sub-section (2) of Section 53 of the MRTP Act. The power to grant such permission could be exercised only within the purview of the building Bye-laws. Therefore, being beyond the scope of Section 44 of the MRTP act, the Municipal Council did not have any jurisdiction to direct regularisation of such unauthorised constructions by reason of the said resolution or otherwise. The power of the Municipal Council, it is trite, being confined to the provisions of the said Acts, no action could be taken by them contrary thereto or inconsistent therewith. 44. In Friends Colony Development Committee v. State of Orissa this Court opined: (SCC p. 744, para 25) '25. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. . . .' 45. In M. I. Builders (P) Ltd. v. Radhey Shyam Sahu this court observed: (SCC p. 529, para 73) '73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.' A discretionary power must be exercised having regard to the larger public interest. 46. In Consumer Action Group v. State of T. N. this Court held: (SCC p. 443,para 30) 'while exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting.' MR Naphde, therefore, is not correct in contending that the High Court should have taken a lenient view. 47. In Mulchand Agarwalla whereupon strong reliance has been placed by MR Naphde, this Court upon taking into consideration the provisions of the Calcutta Municipal Act and in view of the terminologies contained in Section 449 thereof noticed that the Magistrate had a discretionary jurisdiction to pass an order of demolition and held: (SCR p. 1005) "the conduct of the respondent in adopting a hide-and-seek attitude in completing the constructions in deliberate defiance of the law calls for severe action. It would be most unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break the building rules and put up a construction and get away with it on payment of fine. All this would be good justification for making an order for demolition. " 48. However, keeping in view the provisions of sub-section (2) of Section 363 of the Act which directs that no application for demolition shall be instituted after a lapse of five years from the date of the work, although were found to be inapplicable, but in the fact situation obtaining therein, it was opined: (SCR pp. 1005-06) "but then, it is now nearly five years since the building was completed, and though Section 363 (2) which directs that no application for demolition shall be instituted after a lapse of five years from the date of the work does not, in terms, apply as the proceedings have been started in time, we do not feel that after the lapse of all this time, an order for demolition is called for in the interests of the public. We also take into account the fact that the orders in question would not have come before us in the normal course by way of appeal, were it not that the appellant desired that the decision of this Court should be obtained on certain questions of importance, and that purpose has been achieved. On a consideration of all the circumstances, we do not think that this is a fit case in which we should pass an order for demolition. " The said decision, therefore, does not support the contention of the appellants. ii) (Seema Arshad Zaheer and others vs. Municipal corporation of Greater Mumbai and others) JT 2006 (11) SC 1 wherein in Para-30, it was held thus:- "30. It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was anthorised and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorised,t he court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant temporary injunction, where the structure is clearly unauthorised and the final order passed by the Commissioner (of the corporation) after considering the entire material directing demolition is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality. . . . "

(3.) THIS Court carefully considered the arguments of the counsel on either side and perused the records. The land claimed to have belonged to the petitioner hereinafter referred to as land in Block No. 13 and the land of the respondents 3 and 4 as land in Block No. 15 so that the repetition of corresponding Survey Number and Town Survey Number be avoided.