SEKAR REPORTER

Court News from Madras High Court

Demolition case full order S.VAIDYANATHAN, J. & MOHAMMED SHAFFIQ, J.         

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W.A.No.2733 of 2021

 

THE COMMISSIONER
GREATER CHENNAI CORPORATION, RIPON BUILDINGS, CHENNAI 3.		 THE SECRETARY TO GOVERNMENT
MUNICIPAL ADMINISTRATION AND WATER SUPPLY DEPARTMENT, GOVERNMENT OF TAMIL NADU, CHENNAI 9.

M.P. THANIGAIVELAN
S/O. M.V. PINAGAPANI, FLAT D, NIRMALA FLATS, PLOT NO.72, 2ND ST, RAM NAGAR (NORTH EXTNESION) VELACHERY, CHENNAI 42.

THE SECRETARY, HOUSING AND U
RBAN DEVELOPMENT DEPARTMENT,, GOVERNMENT OF TAMILNADU, SECRETARIAT, FORT ST.GEORGE, CHENNAI -9.
Petitioner Counsel Respondent Counsel
M/S.KARTHIKAA ASHOK M/S.L.CHANDRAKUMAR
N.R.JASMINE PADMA
V.DINESH CAVEATOR FOR R2
Prayer
To set aside the order of the Learned Judge passed in WP No.18989 of 2013 dated 30.06.2021 on the file of this Honble High Court, Madras. R3 SUO MOTU IMPEADED, AS PER VIDE COURT ORDER DATED 07.03.2022, MADE IN WA.NO. 2733 OF 2021 (SVNJ AND MSQJ)4/4.

 

 

S.VAIDYANATHAN, J.

&

MOHAMMED SHAFFIQ, J.

 

 

This Writ Appeal has been preferred by the Appellant / 2nd respondent in W.P.No.18989 of 2013 against the order of the learned Single Judge dated 30.06.2021, by which the Respondents therein were directed to settle the entire benefits to the Writ Petitioner. The reason for denial of the benefits by the respondents was that there was a dereliction of duty on the part of the petitioner, as he had failed to detect the unauthorized construction of a residential and commercial building.

 

  1. Mr.L.Chandrakumar, learned counsel appearing for the writ petitioner/contesting respondent would submit that an interim order dated 22.12.2021 was passed by this Court to include the Writ Petitioner in the panel for promotion to the post of Executive Engineer, by observing that pendency of the Writ Appeal is not a bar for such consideration. This submission has been countered by Mr.Raveendran, learned Additional Advocate General, appearing for the newly impleaded respondent and Mrs.Karthika Ashok, learned Standing Counsel, stating that the Division Bench of this Court has directed to include the name of the Writ Petition in the panel and even if the name is included in the panel, the Writ Petitioner does not come within the zone of consideration.

 

  1. The aforesaid submissions have been strongly refuted by Mr.L.Chandrakumar, learned counsel for the Writ Petitioner that promotion is based on seniority list and that two Juniors have already been promoted.

 

  1. The learned Additional Advocate General appearing for the newly impleaded respondent and the learned counsel appearing for the Corporation would submit that there are about 2400 appeals/revisions pending before the 3rd Respondent impleaded herein in the Writ Appeal. Learned Additional Advocate General seeks some more time to ascertain the status of those appeals, furnish a Tabular Column and also the details where directions have been issued by this Court for disposing of the matter. He would further submit that in case the appeals are not disposed of within the time granted by this Court, he will ensure that such appeals are decided on top priority basis and disposed of as expeditiously as possible.

 

  1. In view of the submission made by learned Additional Advocate General, time is granted to furnish the list of appeals / revisions that are pending before the Authorities for consideration. We make it very clear that in case of any dispute over construction of a building, a spot inspection is mandatory and such building should be videographed and photographed with the help of drone technology. The Authorities shall also inspect the building from the basement level itself, so that the set backs as suggested by them / plan can be adhered to and in any event, the FSI / area cannot be enhanced, as directed by a Division Bench of this Court, in which one of us (SVNJ) was a party in W.P.No.28143 of 2021 dated 27.01.2022. Once the basement is done, a request by RPAD/speed post and also e-mail shall be made by the builder or owner and the inspection team shall inspect the place within 15 days from the date of receipt of the communication and give a clear certificate to proceed further if there are no violation. The name of the officer and his/her Aadhar number shall find a place. If this authorised person fails to do the inspection, Disciplinary Action may be initiated for not discharging his/her duties and adverse remarks shall be entered in the service records.

 

  1. A Division Bench of this Court, while dealing the provisions of the Act, 1971, in the case of Mehraj Begum vs. The Government of Tamil Nadu, rep. By its Secretary to the Government, Housing and Urban Development Department, Fort St. George, Chennai 600 009 and others [W.P.No.27499 of 2018] decided on 16.10.2018 formulated certain guidelines to be followed for disposal of the appeal and other applications by the Authority under the Act, 1971, which are extracted hereunder:

“12. Since it is represented by the learned counsel for the Petitioner that many Appeals are pending, this Court suo motu impleads the Commissioner, Corporation of Chennai, Ripon Building, Chennai as necessary party to this Writ Petition and passes the following directions:

(a) Respondents are directed to de-seal the building constructed by the Petitioner for the purpose of rectifying the defects and the building shall not be occupied for any other purpose, much less residential purpose.

 

(b) If the respondents are unable to demolish the building, then it is left open to them to demolish / remove all the doors, windows, glasses, toilet seats and bidets, kitchen cooking platform, waterline pipes running into domicile from water tank or sump or any other mode to wash basins, kitchen and rest rooms, including the tap / shower.

 

(c) In the event of the building being found locked or closed by the occupants, the respondents shall drill the roof of the building and make a big hole so that the building cannot be occupied any more.

 

(d) Respondents shall ensure that proper set back is maintained in the building in question and also ensure as to whether the building in question has encroached the Road.

 

(e) If the violated portions are not rectified, Respondents are directed to demolish the same.

 

(f) Till the building is brought in accordance with the Sanctioned Plan, there shall not be electricity supply to the building in question. Though this Court is entitled to disconnect water supply to the building in question, taking note of the fact that the neighbours of the Petitioner will suffer, water supply is not disconnected.

 

(g) The Appellate Authority shall conduct the proceedings once in 15 days and ensure that the building in question is brought in accordance with the sanctioned Plan within six months.

(h) If the Officials concerned do not adhere to the procedures mentioned supra, the Government shall post the erring Official in a non-sensitive post.

 

(i) Wherever Appeals are pending before the authorities concerned as regards buildings constructed in violation of the Sanctioned Plan, there shall be an interim order by the Appellate Authority and there shall be disconnection of electricity supply to the said violated portion, if the building is not brought as per the Sanctioned Plan within the time limit.

 

(j) whenever an appeal or any petition is filed under the Tamil Nadu Town and Country Planning Act, 1971, the said application should reflect the very same number and in case of appeal, the original number hould also find place. That apart, the owner of the house / flat shall exhibit in a notice board outside the premises that appeal is pending before the authority, by giving necessary details/numbers, like original application, appeal, writ petition, if any and the authorities concerned shall also forward a copy of the same to the Metro Water and Tamil Nadu Electricity Board for appropriate action.

 

(k) The 1st Respondent/Secretary to the Government of Tamil Nadu, Housing and Urban Development Department and the 5th Respondent/Commissioner, Corporation of Chennai, Chennai are directed to furnish the following particulars to this Court on or before 18.12.2018:

(i) Number of appeals pending before the authorities;

(ii) Number of cases, wherein directions have been issued by this Court.

 

  1. It is needless to mention that the 1st respondent will have to follow the guidelines, while passing orders in all the applications filed under the Tamil Nadu Town and Country Planning Act, 1971. Even though the Act empowers to grant an interim order, the interim order cannot be absolute. If there are any violations, as the Act is silent, the authority concerned is bound to order disconnection of electricity till the building is altered in accordance with the plan. That apart, the 1st respondent has to ask the occupier to rectify the defects and for that purpose alone, the building could be unlocked or unsealed and not for continuation of occupation in the violative portion. When the Court is empowered to inspect the site under Order XVIII Rule 18 of CPC, nothing prevents the authority to inspect the place, as the same will ensure removal of encroachment / violations of constructions and that Government lands are restored. The purpose of the Act is to ensure that the buildings are constructed in accordance with the plan and not in violation of the plan. The deviations could be permissible in accordance with Rules to some extent and not in its entirety. There cannot be any encroachments on roads, OSR, parks, lakes, Odai and other public places.
  2. When there is a demand by the Applicant or Complainant that he/she has got to be heard with regard to violations / encroachments, it is the duty bound on the part of the authorities concerned to inspect the site so that different considerations by authorities may not arise. If any proceedings are started based on the application, the same should be conducted on day to-day basis without adjourning the matter beyond seven working days at any point of time.

 

  1. We do not know whether the above order has been complied with. If not what action has been taken by the Government against all the persons more so, against the superior officers.

 

  1. Of late, it is reported that several I.A.S. Officers, dealing with applications under Section 80-A of the Act, 1971, are not complying with the orders of this Court, inspite of specific orders issued every now and then, fixing the outer time limit for disposal of Appeal. Such Officers, who are least bothered about the orders of this Court and are not doing their duty, must be shown the doors, as ignoring the orders of this Court would definitely amount to dishonest in their duty, besides disobedience. In case of non-compliance of the orders of this Court, it is time and again made clear that fine will be secondary and the imprisonment will be primary. If any contempt is filed against this order dated 16.10.2018 we will take serious view as one of us (SVNJ) is a party to this order.

 

  1. In the present case on hand, departmental proceedings should be initiated against the Officers, who have been sitting over the appeal for quite a long time without taking any decision thereon and they should be immediately suspended and their suspension may be revoked so as to post them in a non-sensitive post in the light of the judgment of the State of TN vs. Promod Kumar IPS and another, reported in AIR 2018 SC 4060 and Ajay Kumar Choudhary vs. Union of India through its Secretary and another, reported in 2015 (3) CTC 119. Unless there is a stay of the proceedings by the High Court, quoting any pendency of the matter, the Officials of the Municipality / Corporation / CMDA and Government Officials cannot close the complaints or appeals, etc., on the ground of pendency of Writ Petition or Writ Appeal. If they do so, it would amount to dereliction of duty and they should be proceeded with departmentally so as to bring them within the ambit of not discharging their duties with integrity and devotion to duties and also it may attract moral turpitude, depriving them their gratuity and terminal benefits, apart from endorsing the same in the Service Register during their service, which would disentitle their further promotion and those Officials shall be removed from the said post and posted in a non-sensitive post, if any complaint is made that they are not discharging their duties to the fullest satisfaction.

 

  1. The appellant, Respondents 1 and 3 are directed to, at the first instance, furnish the list of cases, where Writ Petitions were heard and decided with a direction to dispose of the matter within a time frame and how many hearings have been conducted, list of proceedings, etc. In case directions issued by this Court have not been complied with so far, action should be initiated against the Officers concerned. The Government is directed to frame charges against those officials for a major misconduct and proceed against them departmentally for not disposing of appeals within time, inspite of the orders of this Court, as it will amount to disobedience of the orders of the Court and dereliction of duty. The question whether there is a wilful disobedience or not will be considered, when a Contempt Petition is filed before this Court. We are of the view that in case of deliberate disobedience of the orders of this Court, the Top Most Officials, who were entrusted with the job of hearing appeal under Section 80-A of the Town and Country Planning Act, 1971 or any other Laws should be suspended and charge sheeted and if not already initiated, it has got to be initiated forthwith in the light of the judgment of the First Bench of this Court (S.K.Kaul,C.J., and R.Mahadevan,J.) in Contempt Petition No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo motu), which took up a matter pertaining to demolition of the violated portions of a building and insisted that the unauthorised constructions are decimated, by holding as under:

”….4.(c) The delinquent officers are brought to book not by mere censure, stoppage of increment, but by more severe consequences like compulsory retirement and dismissal from service. We say so, as despite, mammoth amount of unauthorised construction, we are informed that not a single person has suffered the punishment of dismissal from service or even compulsory retirement at least for the last five years…”

  1. The Government shall commence such initiation of action firstly with I.A.S. Officers and produce the record in respect of the steps taken against them, including issuance of charge memo. It is highly shameful to indicate that the Officials, who are posted to deal with 80-A applications are under the impression that the said post is for remunerative purpose so as to get bribe and mint money. In order to curb accumulation of wealth by them, the Government should press Vigilance Department into service to enquire about the disproportionate wealth of Officers, who were posted to hear appeal under Section 80-A of the Act, 1971. In the present case on hand, the appeal is said to be pending for over a decade. The Authorities will have to search for the appeal files and dust the same before commencing the hearing.
  2. The 3rd respondent impleaded herein shall take a decision on the pending appeals, numbering approximately 2400 at the earliest and file the details of disposal to this Court. However non-compliance of the order till date will be viewed contemptuously if any contempt is filed. Whenever the parties or their nominees require a copy of videographs and photographs, the same have to be provided by the authorities without fail.

 

  1. At this juncture, Mr.Raveendran, learned Additional Advocate General submitted that the exercise of photographing and videographing may take a longer time in disposal of appeals. We make it very clear that it is not necessary that the authorities have to do it, instead they can depute nominees, who can do the exercise and present a copy of the videographs and photographs to the parties concerned to make their submissions.

 

  1. It is needless to mention here that as observed by this Court on 22.12.2021, there is no impediment for inclusion of the name of the Writ Petitioner in the panel for promotion to the post of Executive Engineer, if he is otherwise eligible and comes within the zone of consideration.

 

  1. At this moment, it is represented by Mrs.Karthika Ashok, learned Standing Counsel for the Appellant that the representation in Paragraph No.1 of the previous order dated 07.03.2022 has been made by the learned counsel for the writ petitioner, whereas it has been wrongly typed as if she made such representation. The submission of Mrs.Karthika Ashok, learned Standing Counsel for the Appellant is taken on record and the error stands rectified.

 

  1. Mr.V.Prakash, learned Senior Counsel who is not at all a party to this writ appeal submitted that the building, which is said to be not inspected by the Writ Petitioner, has been constructed a decade ago and the same is now sought to be demolished. It is further represented that against the order of demolition, Appeal is also pending before the Authority and the same has not been disposed of till now. He brought to the notice of this Court that in the connected Writ Petition in W.P.No.5952 of 2022 filed by one S.Marikannu, an order of Status Quo has been granted by the other Division Bench of this Court.

He further submitted that the Division Bench in which the Writ Petition No.5952 of 2022 is pending has already directed the Registry to club the said Writ Petition along with this Writ Appeal. Registry is directed to verify the same and list the connected W.P.No.5952 of 2022 along with this Writ Appeal if there is any direction to that effect.

 

  1. List this matter on 04.04.2022.

          (S.V.N.,J)           (M.S.Q.,J)

                                                                                 21.03.2022

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