IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) WP.No. of 2020 N.Rukmangathan No.59/31, Perumal Street, Egmore, Chennai-600 008. …Petitioner Versus 1. TheState of Tamil Nadu, Rep. by The Chief Secretary,, Fort St.George, Chennai-600 009. 2. The Commissioner Chennai Corporation, Ripon Building, Chennai-600 003.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

WP.No. of 2020

N.Rukmangathan
No.59/31, Perumal Street,
Egmore, Chennai-600 008. …Petitioner

Versus

1. TheState of Tamil Nadu,
Rep. by The Chief Secretary,,
Fort St.George, Chennai-600 009.

2. The Commissioner
Chennai Corporation, Ripon Building,
Chennai-600 003.

3. The Secretary,
Municipal Administration and Welfare Supply Dept.
Government of TamilNadu,Secretariat,
Fort St.George, Chennai- 600 009

4. The Assistant Commissioner,
Zone 5, Chennai Corporation,
Chennai- 600 021. …Respondents

AFFIDAVIT OF THE PETITIONER

I, N.Rukmangathan, S/o.Vardhan,Hindu aged about 54 years, No.59/31, Perumal Street, Egmore, Chennai – 600 028, do hereby solemnly affirm and sincerely state as follows:-
1. I am the petitioner herein and as such I am well acquainted with the facts of the case. I have not filed any other writ petition seeking similar relief arising out of the same cause of action.
2. I am a practicing advocate of the Hon’ble Madras High Court and am filing the present petition in the larger interest of the public.
3. I state that I am the petitioner herein and that I am a practicing Advocate and am well aware and acquainted with the present file for a writ petition at hand. I would also like to state that this is a public interest litigation and that I have not filed any other public interest litigation earlier to my knowledge on the same subject. I humbly submit that the present petition has been filed in the larger interest of the public and for promotion for effective implementation of human rights in the state.
4. I state that I am filing this public interest litigation out of my own funds. I have not filed similar kind of writ petitions before any Hon’ble High Courts and also the Hon’ble Supreme Court of India pertaining to this writ petition subject matter. I am filing this writ petition based on the information obtained from the official records through various sources, while also putting to use my personal knowledge with regards to its filing. If this writ petition is found to be vexatious or frivolous, I am liable to be imposed with exemplary costs, by this Hon’ble Court. I do not have any personal interest in this case. I have filed this writ petition only in the interest of larger public and to regulate the activities of the Respondents further directions as to what action they have taken towards 5,674 unauthorized/deviated construction and in particular in division number 49 to 63 in Zone V. I further submit to my knowledge and belief, no similar PIL has been filed before this Hon’ble Court.
5. I state that I am an Income Tax Assessee and by following the Amendment to Rule 4 of the Rules to Regulate the Public Interest Litigations Framed by the High Court, I am disclosing my PAN Details and Annual Income which are as follows:-
PAN NUMBER:-
ANNUAL INCOME:-
6. I submit that I am filing this writ petition seeking indulgence of this Hon’ble Court to resolve the malaise of unauthorized/deviated constructions in Zone V in division No.49 to 63 and as to what steps the Respondents have taken towards the same and the present public interest also points out the inaction on the part of the Respondents in selectively taking action against the encroachers/unauthorized constructions in Zone V. The petitioner has all documentary evidences to substantiate his case as the documentary evidences were collected by the petitioner under the Right to Information Act, 2004 on 31.12.2019 and the petitioner being a practicing advocate has done a thorough research on this issue and is saddened to note the glaring inaction on the part of the Respondents officials in taking action against unauthorized constructions.
7. The response received from the public information officer under the Right to Information Act, 2004, it is reiterated that there is an absolute inaction on the part of the Respondents to adopt a ‘pick and choose’ method of towards taking action. In Division No.49 to 63 in Zone V, the Town planning inspection summary which is annexed along with the typed set clearly shows a blatant selective approach adopted by the Respondents. It is seen that there are 5,674 deviations that have been found. Our of which only 1,191 Stop Work notices were issued under Section 56(1) , 57 read with Section 85 of the Town and Country Planning Act, 1971. It is pertinent to observe only a hand full of 679 residents were issued Lock and Seal Notice. It is further shocking and important to observe that only 115 premises were Locked and Sealed. Therefore, one would ask a simple question as to what transpired and what action is taken against the other violators when only 115 premises were sealed? Why was no action initiated against the other noticees, in simple words when stop work notice was issued to 1179 noticees and thereby restricting lock and seal notices to only 679 noticees, what happens to the other noticees and why was there no action being initiated against them when deviations were pointed out by the Greater Chennai Corporation. In effect, the number of houses that were locked and sealed from the year 2019 is only a meagre 115. Therefore, it remains to be seen that there is a glaring irregularity on the part of the Respondents officials in taking action against the encroachers and this clearly shows that a selective approach is being adopted by the Respondents which permeates violation under Article 14 of the Constitution of India and clearly constitutes manifest arbitrariness. It is submitted that Rule of law permeates the entire fabric of the Indian Constitution and it excludes arbitrariness. It is a settled law that every action of the State should be free from arbitrariness.
8. I state that the issue of encroachment/unauthorized constructions is a long standing malaise and the rise in the number of encroachment shows the abject failure of the civic body officials-Respondents to control the issue. It is submitted that however powerful and influential the encroachers may be, it warrants a strict action to be initiated against the guilty and this warrants interference of this Hon’ble Court to exercise its constitutional might under Article 226 of the Constitution of India to protect and prevent the encroachments that are wide spread.
9. It is further deplorable to observe that the encroachments and illegal constructions go unnoticed by the Respondents who only takes note once the encroachment and subsequent construction is complete. Unless demolition of illegal structures and encroachment is done, this menace will continue to exist as the people are taking undue advantage of the existing rules governing it. In the instant case, the Respondents have not taken action against the deviations that were found in Zone V , but has rather chosen to issue stop work notice to certain residents, lock and seal to a select few and de-occupation notice to the miniscule, thereby not taking action and proceeding further against the unauthorized constructions/deviations that were found.
Brief Facts
10. I state that I had sought for information under the Right to Information Act on 15.02.2019 requesting for certain information relating to the encroachments that were found in Zone V at present and violations found thereof under the Town and Country Planning Act, 1971 and the number of lock and seal notices, deoccupation notices were issued for deviated constructions in Zone V. Aggrieved by the same, the petitioner sent an application to the first appellate authority 20.03.2019 and thereafter to the second appellate authority on 07.05.2019. I state that the appellate authority had sent a reply dated 31.12.2019 along with the annexure detailing the number of deviations, lock seal notices, stop work notices, and number of houses that were locked and sealed. It is disturbing to observe that there was no action taken by the Respondents authorities towards removing the unauthorized construction as the information received to the petitioner dated 31.12.2019 clearly shows that pick and choose approach adopted by the Respondents in selectively taking action against few thereby leaving the rest of the encroachers. I submit that the details of the same are narrated as hereunder in the succeeding paragraphs.
11. I submit that thereafter the state information commission vide order in SA 4232/2019 dated 03.01.2020, had passed a detailed order to furnish all the details of the notices that were issued in the year 2019 to the residents of Zone V towards removal of unauthorized construction. From the records issued to the petitioner, it is seen that 323 stop work notice being issued in Division number 49 to 63 in Zone-V to the violators for unauthorized construction in the year 2019 under Section 56(1) and 57 read with Section 85 of the Town and Country Planning Act, 1971 to forthwith stop the work and calling upon the noticees to confirm in writing within 15 days of the date of notice. I submit that, in effect there were only 141 notices for which the lock and seal notices were issued and further only for 21 buildings, notices were issued for de-occupation. I further submit that the Respondents have completely failed to exercise its powers under Section 57 of the Town and Country Planning Act, 1971 for the remaining buildings that are constructed in utter violation of the relevant building rules. Section 57 is extracted hereunder:-
57. Power to stop unauthorised development.- (1) Where any development as described in clauses (a) to (d) of sub-section (1) of section 56 is being carried out , but has not been completed, the appropriate planning authority may serve on the owner and the person carrying out the development, a notice requiring the development to be discontinued from the time of service of such notice.
(2) Where the notice under sub-section (1) has been served, the owner or the person carrying out any development shall discontinue the development from the date of service of such notice and inform the fact of discontinuance to the appropriate planning authority.”;)
(3) If the owner or the person carrying out the development has not discontinued the development as required in the notice served under sub-section (1).-
(a) the appropriate planning authority may serve a notice on the owner requiring him within such period, being not less than seven days to remove that part of the building built subsequent to the notice served under sub-section
(1). If, the direction is not complied with, within the period specified therein, the appropriate planning authority may demolish that part of the building built subsequent to the notice served under subsection (1) and reserve the right to recover the cost of any expenses incurred by it in this behalf from the owner, as an arrear of land revenue.
I submit that based on the abovesaid provision, it is clearly seen that appropriate action ought to have been initiated under the Town and Country Planning Act, 1971 and that an enquiry should have been made and notice of lock and seal ought to have been issued to all the noticees from the date of issuance of the first stop work notice. It also raises a question as to what steps the Respondents have taken towards locking and sealing of unauthorized constructions in Zone V insofar as the other noticees are concerned. In effect, when only 21 de-occupation notices were issued, this aspect definitely calls for a detailed enquiry by issuing directions to the Respondents. Therefore, selective exercise of powers by the Respondents officials is arbitrary and calls of immediate intervention by this Hon’ble Court.
12. I state that even after giving 30 days time upon issuance of lock and seal notice, the de-occupation notice ought to have been issued to all the buildings where constructions were made in deviation to the approved plan, it is reiterated and it is shocking to observe that only 21 buildings have been issued de-occupation notice. I state that subsequent to the de-occupation notice even after giving 15 days time, the building should have been sealed and demolished under 57(4) of the Town and Country Planning Act, 1971, but on the contrary no such sealing or demolition has taken place till date and this calls for an immediate intervention before this Hon’ble Court and the Respondent must have to answer before this Hon’ble Court as to why no actions have been taken against the unauthorized buildings. There is a complete dereliction of duty on the part of the Respondents officials towards taking action against the unauthorized construction. This calls for an immediate intervention by this Hon’ble Court to identify the officers responsible for the failure and to initiate disciplinary action against these erring officials.
13. The Hon’ble Supreme Court in the case of Sudhir M. Khandwala vs. Mumbai Municipal Corporation and others in paragraphs 123 observed thus:
“123. The Hon’ble Supreme Court has time and again expressed its serious concern over unauthorized and indiscriminate constructions in cities and big towns. In fact, the Supreme Court has cautioned against liberal use of the power of regularization and retention of unauthorized works and buildings. The Supreme Court has warned that authorities must take into account considerations of public safety and health, protection of environment and ill-effects of unregulated and uncontrolled construction in cities and towns.”
14. Further, the Hon’ble Supreme Court which analysed with the provisions of sections 52 and 53 of the MRTP Act is in the case of Mahendra Baburao Mahadik vs. Subhash Krishna Kanitkar and others. In paragraphs 18 and 19 as well as in paragraphs 38 to 49 held thus:
“Section 52 contains penal provisions. Section 53 authorises the local authority to direct removal of unauthorised development. Sub-section (1) of Section 53 authorises the local authority to issue a notice where a development of land has taken place in violation of the conditions indicated in sub-section (1) of Section 52.”
15. Further the Hon’ble Supreme Court In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] 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. Unauthorized 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. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles”
Therefore, by a perusal of the above mentioned judgments, it is a trite law that a discretionary powers may be exercised having regard to the public interest. In the instant case, the menace of removal of unauthorized construction has to be seen on a holistic perspective and the authorities like the Respondents cannot pick and choose certain class of people and issue stop work notice, lock and seal notice and select certain class of people to issue lock and seal notice and then select a minimum number of noticees and then issue the de-occupation notice. Such practice is against law and against well established cannons of right to equality enshrined under Article 14 of the Constitution. Therefore, this selective strategy adopted by the Respondents requires be dealt with iron fist by this Hon’ble Court and the authorities of the Respondents are answerable as to why actions have not been taken against the other buildings which are constructions in utter deviation of the required standards under the Town and Country Planning Act, 1971. Therefore, in the cases of unauthorized constructions, the officers of the Respondents cannot turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons.
16. I submit that the Respondents till date have not even sealed any building out of the 323 buildings for which stop work notice have been issued. In Zone V, on the whole, after examining 6317 buildings, 5674 buildings have been issued for violation under the Town and Country planning act. The Petitioner had sought for information from the first appellate authority on 31.12.2019 as to the number of buildings in Zone V which fell under unauthorized construction. The reply received from the public information officer dated 31.12.2019 annexing the Town planning inspection summary which are as follows:-
a. Number of Stop work notice issued- 1191
b. Number of lock and seal notice issued- 679
c. Number of De-occupation notice issued-3195
d. Number of lock and sealed- 115
e. Deviation on unauthorized buildings found- 5674
17. From the above, it can be seen that action was taken only on 115 buildings. If Zone V contains nearly 5000 buildings in violation of rules, then there would be close to 75,000 to 1,00,000 buildings which are constructed in violation of the building rules all over 15 zones in Chennai Corporation. Therefore, it was only due to this reason there are buildings which are constructed in violation the Town and Country Planning Act, 1971. The Petitioner further submits that unless stringent action is taken against these erring officials who have repeatedly failed in their duty to take action against the violators of unauthorized and deviated construction and unless an action is taken against these violators and officers who are not taking action against the said violators on unauthorized construction, the unauthorized and deviated construction will continue which is not in the interest of the public and would cause a grave menace to the society as a whole.
18. It is submitted that in exceptional circumstances, this petitioner is entitled to seek for a positive mandamus before this Hon’ble Court and this case is one such matter in which the extraordinary jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India can be exercised and hence the present petition.
19. No earlier writ petition has been filed by this petitioner in respect of the same subject matter pertaining to the respondents nor is any proceeding pending before any court, with regard to the same cause of action. This is the first litigation initiated by this Petitioner in the present subject matter- cause of action.
Scope of Issuance of a positive mandamus by this Hon’ble Court under Article 226 of the Constitution of India
20. I state that the it has been held in the case of SM.Anantha Murugan vs. Bar Council of India and Others reported in 2015 6 CTC 22 that the extraordinary circumstances warrants extraordinary remedy. In the present case, if the actions of the violators and the officials goes unchecked, then it would lead to a precarious situation where actions will be taken only against the select few violators, whereas the rest of the residents who live on an unauthorized/deviated construction will go unnoticed. Therefore, it surely warrants the exercise of extraordinary remedy.
21. The petitioner states the Hon’ble Madras High Court in 2019 6 MLJ 583, it has been held that the equity jurisdiction under Article 226 can be utilised to pass positive mandamus and a positive direction/command is maintainable. Thus, in the present case, which has manifested itself in such a way that it could potentially jeopardize the interest of the society, it is submitted that the reliefs claimed for are maintainable and that in the larger interest of the society, a positive mandamus should be issued.
22. It is submitted that the petitioner herein had sent a representation on 21.03.2020 to the Respondents detailing the wide ranging allegations against the Respondents and pointing out their inaction and seeking explanation on the following which are contained therein and annexed along with the typed set of papers. However, no action was taken pursuant to my representation to the Respondents. The contents in the representation may be treated as a part and parcel of the present writ petition and the said representation is annexed herein along with the typed set of papers. However, no positive action has been taken on the representation of the petitioner. It is submitted having regard to the facts and circumstances I have no other remedy except to invoke the jurisdiction of this Hon’ble Court under Article 226 of the Constitution on India.
23. I state that till to date there is no action taken by the Respondents for the removal of the said unauthorized construction. In the said premise I have come forward with the above Writ Petition seeking for a necessary direction of this Hon’ble High Court for the removal of the unauthorized construction in Zone V ,and also as to what actions have been taken against the violators running to 5674 deviators in the particular zone. If this goes unnoticed, a huge prejudice will be caused to the petitioner and also to the entire society which are living under the menace of unauthorized construction.
24. The Petitioner craves leave to add additional grounds, file additional affidavits and circulate additional typed set of papers at the time of hearing and as and when such need arises.

For the reasons stated above, it is prayed that this Hon’ble Court may be pleased to pass an INTERIM DIRECTION directing the Respondents to submit a detailed report before this Hon’ble Court as to what actions were taken in Zone V, Greater Chennai Corporation, Division No.49 to 63 pursuant to the issuance of stop work notice pending disposal of the present writ petition and thus render justice.

It is therefore prayed that this Hon’ble Court may be pleased to issue a WRIT OF MANDAMUS or any other Writ or Order or Direction in the nature of a Writ directing the 1st Respondent initiate appropriate action under the provisions of the Town and Country Planning Act, 1971 against the unauthorized constructions made in Zone V, Greater Chennai Corporation and pass such further or other orders as this Hon’ble Court deems fit and proper in the circumstances of the case and thus render justice.

Solemnly affirmed and signed Before Me,
His name in my presence
at Chennai the 03rd day of October, 2020 Advocate, Chennai