Disposed

C.Seetharaman v. The Secretary to the Government

Madras HC28 Apr 2022WP/10478/2022

Case brief

AI extract

What is this about?

The High Court of Judicature at Madras disposed of a writ petition challenging a de-occupation notice issued by CMDA. The Court held that since statutory appeals were pending under Section 80-A of the Tamil Nadu Town and Country Planning Act, the writ petition could not proceed, directing the Government to dispose of the appeal expeditiously and directing parties to maintain status quo.

What did the court decide?

Petitioner directed to approach the appellate authority; respondents directed to dispose of pending appeals and maintain status quo.

C.Seetharaman Vs The Secretary to the Government — Civil Procedure and Limitation | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 28.04.2022

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CORAM

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THE HONOURABLE MR.JUSTICE T.RAJA AND THE HONOURABLE MR.JUSTICE S.SOUNTHAR

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W.P.No.10478 of 2022 and WMP.No.10170 of 2022

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C.Seetharaman ... Petitioner -vs-

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The Secretary to Government Housing and Urban Development Department Fort St.George Chennai 600 009

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The Member Secretary Chennai Metropolitan Development Authority Thalamuthu Natarajan Building No.1, Gandhi Irwin Road

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Egmore, Chennai 600 008

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The Senior Planning Officer Enforcement Cell CMDA North Divison, Zone-7 Thalamuthu Natarajan Building No.1, Gandhi Irwin Road Egmore, Chennai 600 008 ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records from the 2^nd respondent relating to the impugned de-occupation notice issued in letter No.EC/N-II/13099/2017 dated 05.01.2022 and quash the same and further direct the respondents 2 and 3 not to take any further action till the revision filed by the petitioner dated 02.12.2021 is disposed of by the 1^st respondent.

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For Petitioner :: Mr.R.Rajaram For Respondents :: Mr.K.V.Sajeev Kumar Special Government Pleader for R1 in all cases

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Mrs.P.Veena Suresh Standing Counsel for R2 & R3

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https://hcservices.ecourts.gov.in/hcservices/

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ORDER (Order of the Court was made by T.RAJA, J.)

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This Writ Petition has been filed by the petitioner challenging the impugned de-occupation notice dated 05.01.2022 issued pursuant to the locking and sealing and demolition notice dated 03.11.2021 issued by the Chennai Metropolitan Development Authority (for short, “the CMDA”), the second respondent herein, to quash the same with a consequential direction to the respondents 2 & 3 not to take any further action till the revision filed by the petitioner dated 02.12.2021 is disposed of by the 1^st respondent.

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Learned counsel appearing for the petitioner submitted that when the Life Insurance Corporation of India (for short, “the LIC”) advertised in the newspaper in the year 1993 inviting applicants for the purchase of single, double and three bedroom flats at Jeevan Bhima Nagar, Anna Nagar Western Extension, Chennai in S.No.253 (part) of Padi Village, the original allottee purchased a Flat, namely, Flat No.191, Block 48, Jeevan Bhima Nagar, Anna Nagar Western Extension, Chennai-600 101. Similarly, others also purchased the respective flats and thereafter, the owners started occupying the flats from September 1995 onwards. But they were shocked to find out that there were no basic civil and social amenities provided in the entire complex. After finding out the defective and substandard construction which are full of deficiencies in more than one way, they had given representations to rectify the defects. The Jeevan Bhima Nagar Flat Owners Welfare Association also approached the LIC urging them to rectify the defects on a war footing so as to safeguard the lives and properties of the residents. Unfortunately, there was no response and they disowned their liability altogether. Therefore, the Welfare Association approached the National Consumer Disputes Redressal Commission, New Delhi by filing a petition under Section 21 of the Consumer Protection Act seeking a direction to the LIC to rectify all the defects in the construction and also to strengthen the beams and columns wherever deep and long cracks were visibly found. Considering the case of the Association, the National Consumer Disputes Redressal Commission took up the Original Petition No.155 of 1996 and during the course of trial, by order dated 8.11.2002, the National Consumer Disputes Redressal Commission appointed a Professor from the Civil Engineering Department, IIT, Madras to inspect the colony and submit a report and the Commissioner, after inspecting the entire colony and all the 800 flats, submitted his report in April, 2005 to the National Consumer Disputes Redressal Commission, New Delhi. Thereafter, on the request of the LIC, the National Consumer Disputes Redressal Commission again appointed one Mr.Subramanian, the then Registrar of the State

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Consumer Disputes Redressal Commission, Chennai as a Commissioner to inspect all the flats and submit a report, in its order dated 17.02.2006. Accordingly, the Commissioner submitted his report certifying that there were cracks more visible in the staircases, portico and all the RCC pillars ranging from earth to terrace and the connecting cross beams were full of cracks explicitly visible. But the LIC did not carry out any repairs. Therefore, the Association again went back to the National Consumer Disputes Redressal Commission, New Delhi on the inaction shown by the LIC for carrying out the work of strengthening the buildings. Finally, the National Consumer Disputes Redressal Commission, in its order dated 10.01.2007, asked the Joint Registrar of the National Consumer Disputes Redressal Commission to visit the colony and submit a report. Again when the report dated 09.02.2007 was submitted to the National Consumer Disputes Redressal Commission, a direction was issued to the LIC on 02.01.2013 to carry out the work of strengthening the buildings and also imposed costs of Rs.5 lakhs. But the LIC failed to rectify the defects.

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Continuing his arguments, learned Counsel for the petitioner also submitted that finding no positive response, the Association also lodged a criminal complaint on 14.07.2007 before the V3, J.J.Nagar Police Station. In the meanwhile, the second respondent-CMDA issued the locking and sealing and demolition notice dated 03.11.2021 under Section 56(2)(iii) and (2A) of the Town and Country Planning Act, 1971 requiring discontinuation of the usage of the deviated/unauthorised building and also to restore the construction in compliance with the planning permission granted under Section 49 of the Act. Challenging the same, appeals under Section 80-A of the Tamil Nadu Town and Country Planning Act have been filed before the first respondent and the same are pending. When the residents of Jeevan Bhima Nagar are all belonging to the middle class and they have also purchased the flats by spending their hard earned money, which are found to be with all defects, if they are forced to vacate the premises, they would be put to face irreparable loss. Therefore, they were advised to come to this Court. Concluding his arguments, learned counsel appearing for the petitioner submitted that the petitioner and the members of the Association were misled by the promoter/LIC, as though they have constructed the buildings as per the standards prescribed by law without leaving any room for raising any complaint whatsoever. When the petitioner and the members of the Association are innocent and bona fide purchasers of the flats, the impugned action initiated by the CMDA is unjustified. Therefore, they have filed appeals before the first respondent. In the meanwhile, if the buildings in question occupied by the petitioner and others belonging to middle class and purchased with the hard earned money are demolished, the loss to be

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suffered by them cannot be assessed, hence, the impugned notices are liable to be set aside.

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Mr.K.V.Sajeev Kumar, learned Special Government Pleader appearing for the first respondent, relying upon the status report, emphatically submitted that when it is the admitted case of the petitioner and others that challenging the locking and sealing and demolition notices dated 03.11.2021, they have filed appeals under Section 80-A of the Tamil Nadu Town and Country Planning Act, as per the well settled legal position, they cannot maintain two proceedings, one before the appellate authority under Section 80-A of the Act and the other before this Court invoking Article 226 of the Constitution of India. Continuing his arguments, he submitted that the invocation of the writ jurisdiction under Article 226 is normally denied, on the premise that if the petitioner is having an effective and alternative statutory remedy, the writ petition should be dismissed directing him to approach the appellate authority for suitable relief. Again drawing our notice to paragraph-4 of the status report, Mr.Sajeev Kumar stated that there are 214 violators, out of them, 180 appellants including the present petitioner, have filed the revision petitions under Section 80-A of the Act for the subject buildings in question. When the petitioner and others have filed individual appeals before the statutory appellate authority, the appellate authority is bound to dispose of all these appeals on merit and as per law after receipt of the report from the CMDA. Therefore, the petitioner cannot approach this Court when the appeal under Section 80-A of the Act is pending before the appellate authority for disposal on merit and in accordance with law.

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Mrs.P.Veena Suresh, learned Standing Counsel appearing for the respondents 2 & 3 also submitted that after filing the appeal under Section 80-A of the Act, 120 members of the Association have also responded to the CMDA by giving detailed representations and the same also have been forwarded to the appellate authority where the appeals are pending. In an identical matter in W.P.No.620/2022, learned Additional Advocate General also informed this Court that the individual applications filed under Section 113-C of the Tamil Nadu Town and Country Planning Act will also be dealt with by the second respondent in the manner known to law, after the outcome of the appeals under Section 80-A of the Act, expeditiously.

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Since the status report dated 9^th April, 2022 filed by the Additional Secretary to Government (Technical), Housing and Urban Development Department, Chennai in W.P.No.620/2022 shows that the petitioner and others have already approached the appellate authority, the first respondent herein by filing statutory appeals under Section 80-A of the Tamil Nadu Town and

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Country Planning Act and the learned Special Government Pleader appearing for the first respondent also informed this Court that their appeals, after receipt of the report from the CMDA, will be disposed of on merits and as per law, in the light of the averments made in paragraph-8 of the status report that at present around 2444 revision petitions have been filed and in several cases, appeals are being disposed of in compliance of the time bound orders that are being passed by this Court, we hereby direct the first respondent, namely, the Secretary to Government, Housing and Urban Development Department to consider the appeal filed by the petitioner dated 02.12.2021 on merits and dispose of the same in accordance with law expeditiously. Since the petitioner has also moved stay application and the authority has not taken up the stay application, we also direct the respondents 2 & 3 and the petitioner to maintain status quo, till the appeal of the petitioner is disposed of by the first respondent on merit and as per law expeditiously. We also place on record the submission made by the learned Additional Advocate General appearing for the second respondent in W.P.No.620/2022 that the individual applications filed under Section 113-C of the Tamil Nadu Town and Country Planning Act will also be dealt with by the second respondent in the manner known to law, after the outcome of the appeals under Section 80-A, expeditiously.

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With the above direction and observation, the present writ petition is disposed of accordingly. Consequently, connected Miscellaneous Petition is closed. However, there is no order as to costs.

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Sd/-

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Assistant Registrar (CS-VI) //True Copy//

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Sub Assistant Registrar

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tsi

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The Secretary to Government Housing and Urban Development Department Fort St.George, Chennai

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The Member Secretary Chennai Metropolitan Development Authority Thalamuthu Natarajan Building No.1, Gandhi Irwin Road Egmore, Chennai 600 008

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https://hcservices.ecourts.gov.in/hcservices/

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The Senior Planning Officer Enforcement Cell CMDA North Divison, Zone-7 Thalamuthu Natarajan Building No.1, Gandhi Irwin Road Egmore, Chennai 600 008

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W.P.No.10478/2022

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NR(CO) GN(27/05/2022)

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https://hcservices.ecourts.gov.in/hcservices/

C.Seetharaman v. The Secretary to the Government

Case brief

What is this about?

What did the court decide?

C.Seetharaman v. The Secretary to the Government

Case brief

What is this about?

What did the court decide?

What the court decided

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