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Madras High Court .Judgment. Demolition Illegal Buildings

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Madras High Court .Judgment. Demolition Illegal Buildings

http://judis.nic.in/chennai/qryjud2.asp

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.8.2006

C O R A M :

THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.Nos.18898 of 2000, 19998 of 2001,
24316 of 2002 and 17646 of 2006
&
W.M.P.Nos.27383 and 27384 of 2000,
29477 and 29478 of 2001, 33424 and
33425 of 2002 and MP.Nos.1, 2 and 3 of 2006

W.P.NOs.18898 of 2000, 19998 of 2001
and 24316 of 2002:

Consumer Action Group rep.by its
Trustee Tara Murali,
No.7, 4th Street, Venkateswara Nagar,
Adyar, Chennai-600 020. ... Appellant

 

-vs-

1. The State of Tamil Nadu rep.by its
Secretary to Government,
Law Department, Fort St.George, Chennai-600 009.

2. The State of Tamil Nadu rep.by its
Secretary to Government,
Housing and Urban Development
Department, Fort St.George, Chennai-600 009.

3. The Chennai Metropolitan Development
Authority, rep.by its Member-Secretary,
Thalamuthu Natarajan Malegai,
Egmore, Chennai-600 008. ...Respondents

WP.17646 OF 2006:

K.R.Ramaswamy @ Traffic Ramaswamy ... Petitioner

-vs-

1. State rep.by the Secretary,
Municipal Administration,
Government of Tamil Nadu,
Secretariat, Chennai-600 009.

2. The Member Secretary,
Chennai Metropolitan Development
Authority, Gandhi Irwin Road,
Egmore, Chennai-600 008.

3. The Commissioner,
Corporation of Chennai,
Ripon Building,
Chennai-600 003.

4. The Commissioner of Police,
Greater Chennai City,
Egmore, Chennai-8.

5. The Chairman,
Tamil Nadu Electricity Board,
800, Anna Salai, Chennai-2.

6. The Chairman,
Chennai Metropolitan Water supply
and sewerage Board, Pumping
Station Road, Chennai-2. ... Respondents
(Respondents 5 and 6 impleaded
suo motu as per the order of
this court, dated 21.7.2006)

PRAYER in WP.18898 of 2000: Petition filed under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring (a) Section 113-A of the Tamil Nadu Town and Country Planning Act,1971 as amended by the Tamil Nadu Town and Country Planning Amendment Ordinance, 2000 (Ordinance 7 of 2000) ultra vires Articles 14 and 21 of the Constitution of India; and (b) The provisions of the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as ultra vires Articles 14 and 21 of the Constitution of India; and pass such further orders.

PRAYER in WP.19998 of 2001: Petition filed under Article 226 of the Constitution praying for the issuance of a writ of declaration declaring (a) Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971 as amended by the Tamil Nadu Town and Country Planning Amendment Ordinance, 2001 (Ordinance 5 of 2001) ultra vires Articles 14 and 21 of the Constitution of India and (b) The provisions of the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as ultra vires Articles 14 and 21 of the Constitution of India; and pass such further orders.

PRAYER in WP.24316 of 2002: Petition filed under Article 226 of the Constitution praying for the issuance of a writ of declaration declaring (a) Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971 as amended by the Tamil Nadu Town and Country Planning Amendment Act, 2002 (Act 7 of 2002) ultra vires Articles 14 and 21 of the Constitution of India and (b) The provisions of the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as ultra vires Articles 14 and 21 of the Constitution of India; and pass such further orders.

PRAYER IN WP.17646 OF 2006 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 2, 3 and 4 to enforce the provisions on the Tamil Nadu Multi-storeyed Building Act and Rules, 1973 and City Municipal Act, 1919 in respect of building in the city of Chennai to ensure the public safety and effective free flow of Traffic and pass such further orders.

For petitioner in WP.
Nos.18898 of 2000,
9998 of 2001 and
24316 of 2002 :: Mr. Sriram Panchu, SC for Mr.T.Mohan

For petitioner in WP.
No.17646 of 2006 :: Mr.Elephant G.Rajendran

For respondents :: Mr.R.Viduthalai, Advocate General
assisted by Mr.Raja Kalifulla, GP
for State
assisted by Mr.J.Ravindran,
for CMDA, TNEB and CMWSSB
assisted by Mr.L.N.Praghasham,
for Chennai Corporation.

 

* * * * *

COMMON ORDER

(ORDER OF THE COURT WAS MADE BY THE HONOURABLE THE CHIEF JUSTICE)

W.P.Nos.18898 of 2000, 19998 of 2001 and 24316 of 2002 have been filed by the Consumer Action Group challenging the constitutional validity of the amended provisions of Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971, hereinafter be referred to as 'the Act as also the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999, hereinafter be referred to as 'the Rules'.

2. Section 113-A was introduced through the Tamil Nadu Town and Country Planning (Amendment) Act, 1998 (Tamil Nadu Act 58 of 1998), whereby the Government is empowered, on an application being made by the person affected, to exempt any land or building developed immediately before the date of commencement of this Amending Act, from all or any of the provisions of the Act or Rules or Regulations made thereunder, by collecting regularisation fee at such rate not exceeding Rs.2,000/- per square metre. The constitutional validity of Section 113-A was upheld by the Supreme Court in CONSUMER ACTION GROUP -VS- STATE OF TAMIL NADU ((2000) 7 SCC 425) as a one-time measure. By the Tamil Nadu Town and Country Planning (Amendment) Ordinance 7 of 2000 (Tamil Nadu Act 31 of 2000), Section 113-A was further amended, whereby all buildings constructed on or before 31st August 2000 were made eligible to be considered for such regularisation on payment of reduced regularisation fees. Thereafter, Tamil Nadu Town and Country Planning (Amendment) Ordinance 5 of 2001(Tamil Nadu Act 17 of 2001) was promulgated putting off the date for regularisation of the unauthorised constructions to 31st July 2001. Thereafter, the cut-off date for regularisation was again extended to 31st March 2002 by the Tamil Nadu Town and Country Planning (Amendment) Act, 2002 (Tamil Nadu Act 7 of 2002). The validity of these amending Acts is sought to be challenged as they being ultra vires Articles 14 and 21 of the Constitution of India.

3. W.P.No.17646 of 2006 is filed by the petitioner K.R.Ramaswamy, in public interest highlighting the violations of the Rules in construction of shopping complexes at T.Nagar and at N.S.C.Bose Road in Parrys area without allotting Car and Two Wheeler parking spaces in the multi-storied buildings. The petitioner is seeking a direction to the authorities to enforce the provisions of the Tamil Nadu Multi-storied Buildings Act, 1973 and Tamil Nadu Multi-storied Buildings Rules of 1973 as well as the Chennai City Municipal Corporation Act, 1919 and the Rules framed thereunder in respect of the buildings in the city of Chennai to ensure public safety and effective free flow of traffic.

4. In order to appreciate the challenge and to adjudicate the issues involved, it is necessary to scan through the periphery, scope and object of the Act and the Rules. The Preamble of the Act states that this is an Act to provide for planning, the development and use of rural and urban land in the State of Tamil Nadu and for the purposes connected therewith. Section 2 (13) defines development to mean carrying out of all or any of the works contemplated in a regional plan, master plan, detailed development plan or a new town development plan prepared under the Act, which includes the carrying out of building, engineering, mining or other operations in, or over, or under the land and also includes making of any material change in the use of any building or land. Sub section 15 of Section 2 defines development plan to mean the plan for the development or redevelopment or improvement of the area within the jurisdiction of a planning authority and includes a regional plan, master plan, detailed development plan and new town development plan prepared under the Act. The Act is an elaborate piece of legislation consisting of 14 Chapters, which contain 125 sections. The Act provides for incorporation of the Metropolitan Development Authority for the metropolitan area. In pursuance of the powers set out in Chapter II-A of the Act, the Chennai Metropolitan Development Authority was formed. This Authority shall hereinafter be referred to as 'the CMDA'. The control and development plan of the Madras Metropolitan area is listed with CMDA. Chapter  III deals with the planning authorities and its plan, Chapter  IV deals with the acquisition and disposal of that land, Chapter  V contains special provision regarding new town development authority and Chapter  VI refers to control of development and use of land. This chapter gives clear guidelines to the appropriate authority in which manner it has to perform its statutory functions. Sub section 2 of Section 49 gives guidelines to enable the appropriate planning authority to grant or refuse permission in respect of an application made under Section 49(1) by any person intending to carry out any development on any land or building. Under Section 54 the CMDA has the power of revocation or modification of the permission which has been granted and this Section contains guidelines as to when such revocation or modification can be made. Section 56 confers power on the planning authority to require removal of unauthorized development. Section 57 provides for power to stop unauthorized development. The Act also provides for the constitution of a tribunal under Chapter IX and provisions under Chapter X for an appeal, revision or review. It is under Chapter XII the impugned Section 113-A is placed. This section as indicated earlier provides for regularization of illegal constructions on payment of a fee. Section 113 confers power on the State Government and states that notwithstanding anything contained in the Act the Government may subject to such conditions as they deem fit, by notification, exempt any land or building or class of lands or buildings from all or any of the provisions of the Act or Rules or Regulations made thereunder.

5. Section 122 of the Act confers power upon the State Government to make rules to carry out the purposes of the Act. Section 123 obligates the Government to place its rules before the legislature. Section 124 empowers the planning authority with the previous approval of the Government to make regulations prospectively or retrospectively not inconsistent with the Act and the Rules. Pursuant to the powers conferred under Section 122 of the Act, the Development Control Rules have been framed for the Madras Metropolitan area. The present Development Control Rules were substituted for the former Rules by G.O.Ms.No.328, Housing and Urban Development, dated 18.2.1983. Under the Development Control Rules, the Madras Metropolitan area is divided into nine zones as per Rule 3 of the said Rules. The rules provide for elaborate guidelines as to the limitations in respect of each such zone. For example, in each zone, the Development Control Rules have set out in a tabular form, the requirements relating to Floor Space Index (FSI), maximum height, minimum set back, front set back, side set back, rear setback etc. For the commercial zones, further restrictions are imposed in relation to the horsepower rating of electric motors and provisions have also been made to regulate storage of explosives as well as to regulate effluents, smoke, gas or other items which are likely to cause danger or nuisance to public health. The Development Control Rules have been framed with great care to ensure that the use of land or development of any building is regulated in a proper manner. The said Rules have been framed on a scientific basis and norms have been set out on the basis of specific standards keeping in mind the public interest (especially public health and safety) as well as the requirements of land owners.

6. In the year 1988, after learning from press reports that 73 orders of exemption came to be passed in a day, the petitioner Consumer Action Group approached the Supreme Court in W.P.(C) No.926 of 1988 seeking a declaration that Section 113 of the Act was ultra vires Articles 14 and 21 of the Constitution and for quashing the 62 G.Os. granting exemption. While the said writ petition was pending in Supreme Court, the State of Tamil Nadu amended the Tamil Nadu Town and Country Planning Act, 1971 by the Amending Act, 1998 (Tamil Nadu Act 58 of 1998) by inserting Section 113-A to the Act, which reads as follows:-

'' 113-A. Exemption in respect of development of certain lands or buildings.--

(1) Notwithstanding anything contained in this Act or any other law for the time being in force, the Government or any officer or authority authorised by the Government, by notification, in this behalf may, on application, by order, exempt any land or building or class of lands or buildings developed immediately before the date of commencement of the Tamil Nadu Town and Country Planning (Amendment) Act, 1998, (hereafter in this section referred to as the said date) in the Chennai Metropolitan Planning Area, from all or any of the provisions of this Act or any rule or regulation made thereunder, by collecting regularisation fee at such rate not exceeding twenty thousand rupees per square metre, as may be prescribed. Different rates may be prescribed for different planning parameters and for different parts of the Chennai Metropolitan Planning Area.

(2) The application under sub-section (1) shall be made within ninety days from the said date in such form containing such particulars and with such documents and such application fee, as may be prescribed.

(3) Upon the issue of the order under sub-section (1), permission shall be deemed to have been granted under this Act for such development of land or building.

(4) Nothing contained in sub-section (1) shall apply to any application made by any person who does not have any right over the land or building referred to in sub-section (1).

(5) Save as otherwise provided in this section, the provisions of this Act, or other laws for the time being in force, and rules or regulations made thereunder, shall apply to the development of land or building referred to in sub-section (1).

(6) Any person aggrieved by any order passed under sub-section (1) by any officer or authority may prefer an appeal to the Government within thirty days from the date of receipt of the order."

7. Section 122(2)(cc) was added to the Act to provide the procedure for the collection of regularisation fee and the prescription, calculation, assessment and collection of such fee.

8. The Statement of Objects and Reasons for the Amendment Act reads as follows:-

"As of today in Chennai as well as in other metropolitan cities of India, many aberrations in the urban development are noticed. Huge disparities between people's income and property value, together tempt the builders to violate the rules and the buyers to opt for such properties in the city of Chennai. A rough estimate of about three lakh buildings (approximately 50% on total number of buildings) will be violative of Development Control Rules or unauthorised structures. However, according to the Tamil Nadu Town and Country Planning Act, 1971 (Act 35 of 1972), the demolition action cannot be pursued on any of them unless a notice issued within 3 years of completion. The Chennai Metropolitan Development Authority has booked five thousand structures on which demolition action could be taken. Number of such cases booked by the Chennai City Municipal Corporation within its jurisdiction is nearly one thousand. Administratively also, demolition of such a large number of cases is neither feasible nor desirable as it will result in undue hardship to the owners and occupants. Considering this and the practice followed in other metropolitan cities of the country to deal with violated constructions, the State Government have taken a policy to exempt the lands and buildings developed immediately before the date of commencement of the proposed legislation by collecting regularisation fee provided that the development has been made by a person who has right over such land or building".

9. The petitioner Consumer Action Group filed W.P.(C) No.237 of 1999 in the Supreme Court challenging the vires of Section 113-A of the Act. The Supreme Court vide a common order, dated 18.8.2000 in W.P.(C) No.926 of 1988 upheld the validity of both Section 113 and Section 113-A of the Act. However, the Court set aside the 62 G.Os. granting exemption under section 113 of the Act, but left it open to them to apply afresh under Section 113-A of the Act. The Supreme Court while upholding the validity of Section 113-A of the Act clearly stated that Section 113-A as a 'one-time measure' was a valid piece of legislation and underscored the need for taking effective steps to check at the root level, at the very nascent stage, such violations/deviations.

10. The grievance of the petitioner is that in spite of the order of the Supreme Court, no administrative schemes to enforce Town Planning law and to demolish deviations have been formulated till date. On the contrary, the Governor of Tamil Nadu promulgated Tamil Nadu Ordinance No.7 of 2000 (Tamil Nadu Act 31 of 2000) to amend Section 113-A of the Act. By virtue of the amendment, all the buildings constructed on or before 31st August 2000 were made eligible to be considered for regularisation and such application for regularisation had to be made on or before 31st October 2000. In the Statement of Objects and Reasons to the impugned Ordinance, it was stated that the expected number of applications were not received during the period of 90 days and only 5,474 applications had been received. It was further stated that it had been brought to the notice of the Government that the poor receipt of the applications was due to various reasons mainly because of the high rate of regularisation fee and in view of the order of the Supreme Court upholding Section 113-A, it had been decided to reduce the rate and extend the scheme covering all buildings constructed upto 31st August 2000 by amending the Act and the Rules. The Rules were also subsequently amended and now the fee has been reduced to only a fraction of what it was originally. Section 113-A of the Act was further amended by Tamil Nadu Act 17 of 2001. By virtue of Tamil Nadu Act 17 of 2001 all buildings constructed on or before 31st July 2001 became eligible to be considered for regularisation and such applications for regularisation were to be made on or before 30th November 2001. Further, by subsequent amendment (Tamil Nadu Act 7 of 2002), the cut-off date for regularisation was once again extended to 31st March 2002.

11. We have heard Mr.Sriram Panchu, learned senior counsel appearing for the Consumer Action Group, the petitioner in W.P.Nos.18898 of 2000, 19998 of 2001 and 24316 of 2002; Mr.G.Rajendran, learned counsel appearing for the petitioner in W.P.No.17646 of 2006; Mr.R.Viduthalai, learned Advocate General appearing for the State of Tamil Nadu; Mr.J.Ravindran, learned counsel appearing for the CMDA and Mr.L.N.Praghasham, learned counsel appearing for the Chennai Corporation.

12. The affidavits filed by the authorities, documents and other materials brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorised constructions in the City of Chennai. It is seen that the builders have violated with impunity the sanctioned building plans, and the Rules relating to FSI, fire safety and parking facilities to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Such wayward growth in illegal constructions has posed a serious threat to ecology and environment and affected water supply, sewerage and traffic movement facilities in the city. The violations of regulatory rules on such massive scale can result in development plan becoming merely a scrap of paper. On the one hand, various laws are enacted, master plans are prepared by expert planners, provision is made in the regulations also to tackle the problem of unauthorized constructions and misusers, and on the other hand, such illegal activities go on unabated openly under the gaze of everyone, without having respect for the law and other citizens. There is no gainsaying that the application and observation of the Development Control Rules is vital for the proper and planned growth and development of the city. If these rules are given a go-by, the inevitable result would be shortage of water and electricity, choked roads and ecological and environmental imbalances causing serious hardship to every resident of the city.

13. In CONSUMER ACTION GROUP'S CASE, cited supra, the Supreme Court while upholding the validity of Section 113-A as a one-time measure, has warned that before such pattern becomes cancerous and spreads to all parts of the country, it is high time that remedial measures were taken to check this pattern, as it retards development, jeopardises all purposeful plans of any city and liquidates the expenditure incurred in such development process. Misra,J. speaking for the Bench, observed in paragraphs 37 and 38 as follows:-

'' 37. Mere reading of this reveals administrative failure, regulatory inefficiency and laxity on the part of the authorities concerned being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with staring eyes the Government feels helpless to let it pass; as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing the illegalities, which are writ large, no administrative action of demolition of such a large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal, what not? Are the consequences of such illegal constructions not laid down? Does the statute not provide for controlled development of cities and rural lands in the interest of the welfare of the people to cater to public convenience, safety, health etc.? Why this inaction? The Government may have a gainful eye in this process of regularisation to gain affluence by enriching coffers of the State resources but this gain is insignificant compared to the loss to the public, which is State concern also as it waters down all preceding developments. Before such pattern becomes cancerous and spreads to all parts of this country, it is high time that remedial measure was taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the laches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of the public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks, etc. Such a pattern retards development, jeopardises all purposeful plans of any city, and liquidates the expenditure incurred in such development process.

38. We may shortly refer to the possible consequences of the grant of such exemption under Section 113-A by collecting regularisation fees. Regularisation in many cases, for the violation of front setback, will not make it easily feasible for the corporation to widen the abutting road in future and bring the incumbent closer to the danger of the road. The waiver of requirements of side setback will deprive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight a fire in a high-rise building. The violation of floor space index will result in undue strain on the civil amenities such as water, electricity, sewage collection and disposal. The waiver of requirements regarding fire staircase and other fire prevention and fire-fighting measures would seriously endanger the occupants resulting in the building becoming a veritable death trap. The waiver of car parking and abutting road width requirements would inevitably lead to congestion on public roads causing severe inconvenience to the public at large. Such grant of exemption and the regularisation is likely to spell ruin for any city as it affects the lives, health, safety and convenience of all its citizens. This provision, as we have said, cannot be held to be invalid as it is within the competence of the State Legislature to legislate based on its policy decision, but it is a matter of concern. Unless check at the nascent stage is made, for which it is for the State to consider what administrative scheme is to be evolved, it may be difficult to control this progressive illegality. If such illegalities stay for long, waves of political, humanitarian, regional and other sympathies develop. Then to break it may become difficult. Thus this inflow has to be checked at the very root. The State must act effectively not to permit such situation to develop in the wider interest of the public at large. When there is any provision to make illegal construction valid on that ground of limitation, then it must mean that the statutory authority in spite of knowledge has not taken any action. The functionary of this infrastructure has to report such illegalities within the shortest period, if not, there should be stricter rules for their non-compliance. We leave the matter here by bringing this to the notice of the State Government to do the needful for salvaging the cities and country from the wrath of these illegal colonies and construction."

14. The Court also cautioned that the State's power of exemption under section 113 of the Act has to be exercised with greater circumspection. Even if the section is silent about recording of reasons, it is obligatory on the Government while passing orders under Section 113, to record the reasons and the power of exemption could be exercised only in furtherance of the development of that area. The Court further observed that - ''When such a wide power is vested in the Government, it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra-statutory field. Entrustment of such a power is only for the public good and for the public cause. 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 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. Such an application of mind has not been made in any of these impugned orders. Another significant fact which makes these impugned orders illegal is that section 113 empowers it to exempt but it obligates it to grant subject to such condition as it deems fit. In other words, if any power is exercised then the Government must put such condition so as to keep in check such person. We find that in none of these sixty-two orders any condition is put by the Government. If not this then what else would be the exercise of arbitrary power?

15. In FRIENDS COLONY DEVELOPMENT COMMITTEE -VS- STATE OF ORISSA ((2004) 8 SCC 733), Lahoti, C.J. stressing the importance of the planned development of cities in developing countries observed thus:-

'' 22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.

23. The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.

24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building. (For a detailed discussion reference may be had to the chapter on "Zoning and Planning" in American Jurisprudence, 2d, Vol. 82.)."

16. The Court held that though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. 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. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. The application for compounding the deviations made by the builders should always be dealt with at a higher level by a multi-membered High Power Committee so that the builders cannot manipulate. The officials who had connived at unauthorised or illegal constructions should not be spared. In developing cities, the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorised constructions. The Court observed that the High Court if it feels that illegal/unauthorised building activities are so rampant as to be noticed judicially, may suo motu register a public interest litigation and commence monitoring the same by issuing directions so as to curb such tendency and fixing liability and accountability.

17. In CANTONMENT BOARD, JABALPUR -VS- S.N. AVASTHI (1995 SUPP (4) SCC 595), the Court observed that construction made in contravention of law would not be a premium to extend equity so as to facilitate violation of the mandatory requirements of law. There the Cantonment Board had granted permission for construction of a building which was later on cancelled, as the resolution of the Board granting permission was suspended by the GOC-in-Chief.

18. In PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD. -VS- STATE OF MAHARASHTRA (1991) 3 SCC 341), the Court came down heavily on the housing society which made construction in violation of the Floor Space Index. The Court said that such unlawful construction was made by the Housing Board in clear and flagrant violation and disregard of FSI and upheld the order of demolition of all the eight floors as ordered by the Bombay Municipal Corporation. While dismissing the special leave petition, the Court observed as under:-

''Before parting with the case, we would like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of the society at large. The rules, regulations and bye-laws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits."

19. In DR.G.N.KHAJURIA -VS- DELHI DEVELOPMENT AUTHORITY (1995) 5 SCC 762), the Supreme Court observed as under:-

"Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the officer of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot-free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."

20. In MRS.MANJU BHATIA -VS- NEW DELHI MUNICIPAL COMMITTEE (AIR 1998 SC 223), the builder, after obtaining requisite sanction to build 8 floors, constructed more floors, sold the flats and gave possession to the respective buyers. Subsequently, it was found that the builder constructed the building in violation of the building regulations and consequently flats on the top four floors were ordered to be demolished. The demolition was challenged in the High Court by way of a writ petition which was dismissed. Special leave to appeal to the Supreme Court was also dismissed. The question before the Supreme Court was whether the appellants who had purchased the flats without the builder informing them of the illegal construction, should be compensated for the loss suffered by them. The High Court in the impugned judgment directed the return of the amount plus the escalation charges. The Supreme Court noticed that the escalated price as on the date was around Rs.1.5 crores per flat. Taking into consideration the totality of the circumstances, the Supreme Court directed the builder to pay Rs.60 lakhs including the amount paid by the allottees.

21. In an unreported decision of the Supreme Court in RAM AWATAR AGARWAL -VS- THE CORPORATION OF CALCUTTA (C.A.NO.6416 OF 1981) decided on August 20, 1996, an unauthorised construction in the City of Calcutta was allowed to be demolished by the Corporation of Calcutta. It was a multi-storied building. The Court observed as under:-

''We share the feeling of the Deputy City Architect when he states in paragraph 18 of his affidavit that this is a case in which an unscrupulous builder took advantage of the court's order up to a point of time and after he failed in the legal process up to this Court, the tenants were set up to delay the inevitable and thus in this matter the unauthorised structure hazardous and unsafe has stood all these years. We have, therefore, no manner of doubt that this is a case in which exemplary costs should be awarded."

22. In M.C.MEHTA -VS- UNION OF INDIA (2006) 3 SCC 399), Y.K.Sabharwal, CJ, taking note of the flagrant violations of various laws in large number of immovable properties including municipal laws, master plan and other plans besides environmental laws, observed that the court cannot remain a mute spectator when the violations also affect the environment and healthy living of law-abiders. The enormity of the problem which, to a great extent, is the doing of the authorities themselves, does not mean that a beginning should not be made to set things right. If the entire misuser cannot be stopped at one point of time because of its extensive nature, then it has to be stopped in a phased manner, beginning with major violators. There has to be a will to do it. The things cannot be permitted to go on in this manner forever. The Court cited with approval the observations of R.C.Lahoti, Chief Justice of India (as he then was) in the case of ANZ GRINDLAYS BANK -VS- COMMISSIONER, MCD (1995) 34 DRJ 492), that the word ''environment" is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. There is constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but is also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment. The Court also cited with approval the observations of the division Bench of the Delhi High Court (to which Y.K.Sabharwal, C.J. was a party) in the case of ANIL KUMAR KHURANA -VS- MCD (1996) 36 DRJ 558), which reads as follows:- ''59. In the concluding paragraph it was stated that: ''In the end, I regret to notice that despite warning and caution given by the Apex Court and also this Court, from time to time, that stern action will be taken against unauthorised constructions and misuse, these activities have gone on unabated, without any let or hindrance and all the warnings have fallen on deaf ears without any effect on the unscrupulous builders and purchasers of these spaces. It is, therefore, necessary to once again send a message, loudly, clearly and firmly to all those who indulge in such illegal activities that courts will not come to the aid of persons who indulge in such blatant unauthorised constructions and misuser of the properties. It is also the duty of the courts to examine these matters carefully before granting injunction restraining demolition of such unauthorised constructions. Ordinarily the courts before issuing injunctions in such matters should insist upon filing of the sanctioned plans and details about the existing structures to prima facie find out whether the existing structures are in accordance with the sanctioned plan and building bye-laws, etc. or not. The courts may also consider appointment of independent person to verify correctness of representations made about existing structures as in many cases unauthorised constructions are raised after issue of injunctions and in cover and garb of orders of injunction. The alarming nature of such illegal activities can be controlled only by due co-operation from all citizens including the media and the press. It is the duty of all to expose these lawbreakers. I hope the media would bring to the notice of public in general that unauthorised constructions and misuser have been severely dealt with by this Court and henceforth also no leniency would be shown in such matters. A copy of this judgment shall be sent forthwith to Delhi Doordarshan and All India Radio. Everyone has to be told that such unauthorised activities are against public interest. These activities have to be stopped forthwith. If in spite of this warning any one indulges in such unauthorised construction or misuse or in purchase of these unauthorised constructions, he would be doing it at his own risk and peril and would not be heard to say that he has made large investments. I hope that at least now this message would be taken with all seriousness.

In view of the above, in my opinion, all the petitions and appeals deserve dismissal with costs quantified at Rs.10,000 in each case. These costs would be utilised by MCD for creating a special cell which should be set up to curb unauthorised construction and misuser of the immovable properties so that at least a beginning is made now to promptly check these illegal activities. The officials and officers manning this cell will have to be informed that any dereliction of duty would be severely dealt with".

The Court further observed in para 61 thus:-

''61. Despite passing of the laws and repeated orders of the High Court and this Court, the enforcement of the laws and the implementations of the orders are utterly lacking. If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens. Those who own the properties that are misused have also implied responsibility towards the hardship, inconvenience, suffering caused to the residents of the locality and injuries to third parties. It is, therefore, not only the question of stopping the misuser but also making the owners at default accountable for the injuries caused to others. Similar would also be the accountability of errant officers as well since, prima facie, such large-scale misuser, in violation of laws, cannot take place without the active connivance of the officers. It would be for the officers to show what effective steps were taken to stop the misuser."

As regards the Ad hoc Trade Registration Scheme, 2004, which was introduced by the MCD for regularisation of the unlawful constructions, the Court observed in paragraphs 65 and 66 as follows:-

''65. The areas and the colonies abovereferred themselves show that the so-called Registration Scheme, 2004 can have no applicability to the nature of misuse under consideration. It deserves to be noted that it is implicit in the Scheme that a person to get benefit of the Scheme has himself to be resident of such premises.

66. The introduction of the Ad hoc Registration Scheme would not only regularise the illegalities but further encourage more illegalities to take place by sending a wrong message underlying the press release. This Ad hoc Scheme has been stayed by this Court. A similar scheme was also sought to be introduced by DDA as well for grant of temporary permission for commercial use in industrial plots and for condonation of misuse of industrial premises for offices and other commercial purposes on payment of requisite charges. On learned Amicus Curiae filing IA No.1816 of 2002, seeking stay of the said Scheme, the Scheme was given up and an affidavit filed that no action is being taken by DDA upon the Scheme or the notice, subject-matter of the application. The introduction of such schemes by MCD and DDA show the extent of the apathy and lack of concern of these bodies." The Court ultimately concluded that rule of law is the essence of democracy. It has to be preserved and Laws have to be enforced.

23. In MAHENDRA BABURAO MAHADIK -VS- SUBHASH KRISHNA KANITKAR (2005) 4 SCC 99), a two Judge Bench of the Supreme Court held that a purported resolution of the Municipal Council in terms whereof all unauthorised constructions within the municipal area were sought to be regularised upon imposition of penalty and compounding of offences in terms of Section 43 of the MRTP Act, is wholly unsustainable in law and offences relating to unauthorised or illegal constructions cannot be compounded and, therefore, the structures have to demolished. The court held that regularisation of such unauthorised structures would defeat the very purpose of introducing the rules of planned development of the city and, thus, cases of such unauthorised constructions must be dealt with sternly.

24. We may also mention that this court in THE CHAIRMAN, MMDA -VS- S.RADHAKRISHNAN (2006 (1) CTC 241), to which one of us (A.P.Shah,C.J.) was a party, held that under the Tamil Nadu Town and Country Planning Act, 1971, mere lapse of time, viz., three years from the date of completion of unauthorised construction would not stand legalized. The appropriate authority has got power de hors section 56 to order demolition of unauthorised development under section 85(1)(c) of the Act. The planning authority is, therefore, within its right to issue notice against unauthorised construction even after expiry of three years and take appropriate steps for demolition of unauthorised development.

25. In RANI -VS- KRISHNAN (1994-II-MLJ 186), K.A.Swami, C.J. has held that in view of express provisions of sections 48 and 56 of the Tamil Nadu Town and Country Planning Act, 1971, unauthorised construction cannot be allowed to be used by owner or lessee pending consideration of application for permission submitted by the owner.

26. The catena of decisions referred to above unwaveringly show that the word environment is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is, therefore, not only the duty of the State, but also the duty of every citizen to maintain hygienic environment. There is constitutional obligation on the State Government and the Municipalities, not only to ensure and safeguard proper environment, but also an imperative duty to take adequate measures to promote, protect and improve both man-made and natural environment. The municipal laws regulating the building construction activities have been enacted to achieve a larger purpose of public health, safety and general welfare. Any violation of zoning and regulation laws, takes a toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building. Though municipal laws permit deviation from sanctioned constructions being regularised by compounding but that is by way of exception. 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. At the time of planning, experts in the field of town planning take into account various aspects, such as, healthy living, environment, lung space need, land use intensity, areas where the residential houses are to be built and where the commercial buildings are to be located, the need of household industries etc. Regularising the constructions erected in violation of the regulations has serious consequences. Regularisation in many cases for the violation of the front setback, will not make it easily feasible for the Corporation to widen the abutting road in future and bring the incumbent closer to the danger of the road. The waiver of requirement of side set back will deprive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight fire in a high-rise building. The violation of the floor space index, will result in undue strain on the civil amenities such as water, electricity, sewage collection and disposal. The waiver of requirements regarding fire stair case and other fire prevention and fire fighting measures would seriously endanger the occupants resulting in the building becoming a very veritable death trap. The waiver of car parking and abutting road width requirements would inevitably lead to congestion on public roads causing severe inconvenience to the public at large. Such grant of exemption and the regularisation is likely to spell ruin for any city as it affects the lives, health, safety and convenience of all its citizens. The Court cannot remain a mute spectator when the violations also affect the environment and healthy living of law-abiders. If the laws are not enforced and the orders of the Court to enforce and implement the laws are ignored, the result can only be total lawlessness.

27. In CONSUMER ACTION GROUP'S CASE, cited supra, the Supreme Court upheld the constitutional validity of section 113-A of the Act on the premise that it was a power to be exercised as a one-time measure and the legislature cannot extend the scheme contrary to the order of the Supreme Court. It is not open to the Government to keep on amending schemes or bring new schemes by frequently extending the cut-off date thereby virtually making a complete mockery of the provisions of the Act. As pointed out by the Supreme Court, the exemption clause may properly apply only to excessive and genuine hardship and not to exempt the violators from the application and control of the Act thereby allowing them a free hand to violate the rules which are enacted in the interest of the community and for the orderly development of the city. By virtue of amended Section 113-A of the Act, buildings which have been constructed after 1999 in violation of the Town Planning Law, zoning regulations and the Development Control Rules, are now eligible to get those violations regularised and this would in effect defeat the object of the legislation itself and the order of the Supreme Court directing the respondents to nip the violations in the bud. To repeatedly enable an authority to grant dispensation of the application of the Rules is to create a situation which would virtually encourage the consistent pattern of abuse of the provisions of the Act and the Rules. The objective of the Act is to promote planned development in the city. The frequent amendments effected to section 113-A suggest that the Government expects to check and curb unplanned development only by imposing a fee. The power of exemption cannot operate to destroy the substantive provisions of the statute and these exemption clauses can be applied only to remove excessive and genuine hardship and not to virtually allow the builders a free hand in violating the rules which are enacted in the interest of the community and for the orderly development of the city.

28. We are unable to find either in the exempting provision or in the method of its application, any discernible reason as to why the exemption should be granted in favour of the violators. Having regard to the purpose of the Act, Rules and the necessity for their observance in regulating building growth in the city, it is imperative that the Rules should be scrupulously and strictly applied. Section 113-A by offering priced amnesty to violators at the cost of public interest and scientific town planning reduces the status of such regulations to a purchasable privilege from that of mandatory safeguards designed to ensure the orderly growth of the city. All violations are grouped together and the Rules only provide for different categorisation for differential pricing only. The application and observance of the development control rules is vital for the proper and planned growth and development of the city. If these rules are given a go-by, the inevitable result will be shortage of water and electricity, choked roads and ecological and environmental imbalance. Such hardship would be suffered by every resident of the city. The impugned amendments to the section are thus in gross violation of Articles 21 & 14 of the Constitution of India, inasmuch as they arbitrarily affect the constitutional guarantee of ensuring a decent and planned environment.

29. Learned Advocate General submitted that pursuant to the scheme framed under Section 113-A, not enough applications were received by the authorities as the fees were highly excessive and, therefore, the State Government with an intention to enable the people to apply for regularisation considered it necessary to extend the cut-off date from time to time. He submitted that since it was not possible for the authorities to ascertain the exact date of construction, having regard to the large number of applications, and also having regard to the fact that it was not possible for the authorities to ascertain as to whether the construction was before the cut-off date i.e., 28.02.1999, it was necessary to enact a law to cover all the violations up to the extended date/s as per the scheme. It is not possible to accept the submission of the learned Advocate General. If enough applications were not received by the State Government, then the State Government could have extended the date of making applications. But there was no justification for extending the cut-off date so as to cover the violations after 28.2.1999. This is especially so when the Supreme Court has up-held the validity of Section 113-A, as a one-time measure. We hasten to add that the extension of date for making applications for regularisation, as well as the reduction in fees cannot be said to be illegal and the construction made prior to 28.2.1999 may be regularised, provided the application for regularisation has been preferred before the extended date i.e. 30.06.2002.

30. Both the C.M.D.A and Corporation have submitted elaborate charts to show that the provisions of the Act and the Rules have been grossly violated by the builders and buildings have been constructed in total violation of the Rules. Buildings have been either constructed without any permission or additional floors have been raised in violation of the FSI Regulations. In none of these buildings, the mandatory safeguards relating to the car-parking area and fire safety measures have been observed. On the other hand, the basement and stilt portions, which are exclusively made for car parking, have been illegally converted into shops for commercial use. It appears that in some cases the authorities have taken action and demolition notices have been issued. However the builders have obtained stay on the ground that their applications for regularisation are pending before the competent authority. It is also seen that some of the violators have encroached upon the roads by constructing steps, platforms etc., right on the pavements or on the roads. It is brought to our notice that there are encroachments on busy streets like Ranganathan Street, Natesan Street, Madley Road etc. It is necessary to direct the municipal authorities to clear the encroachments in order to ensure smooth flow of traffic on these streets and roads. It is needless to say that there is no necessity of issuing notice for the removal and demolition of the encroachment in public streets and roads, as such encroachment shall be liable to be removed forthwith. So also the electricity connection or sewerage connection facilities shall be liable to be disconnected forthwith.

31. We are inclined to appoint a Monitoring Committee with sufficient staff and infrastructure to oversee the demolition of unauthorised construction put up in violation of the planning permit, master plan, CRZ and other laws. It is also necessary to identify professional builders of such buildings so as to enable the flat purchasers to proceed against the builders for recovery of damages. It is also high time that the CMDA and the Corporation should identify the officers responsible for the failure to enforce the FSI laws and to initiate disciplinary action against them. It is also necessary to direct that the regularisation fee collected should be kept aside in a separate fund and not merged with the general account of the State of Tamil Nadu and its agencies. These funds should be used for the purpose of alleviating the sufferings caused to the public by the violations committed by the builders. Further certain violations like failure to provide adequate car parking area, fire safety measures within the building premises, should be viewed seriously as it has a larger societal impact and these violations cannot be ordinarily condoned by collecting the fees, especially in regard to the commercial buildings. Owners of such premises must be directed to demolish the unauthorised construction and provide parking area and fire safety measures within the premises. Similarly, violations in FSI potentially impact the larger community and must not be condoned particularly in commercial complexes. Violation in FSI result in a massive strain on the existing infrastructure facilities like road network, drainage, water etc. and also impact the neighbourhood. Similarly, the violations in Open Space Reservation (OSR) or illegal buildings put up on lake-beds, water catchments, flood plains, CRZ areas, etc. have ecological repercussions and must not be condoned and violations in such cases must be demolished

32. In the result, in view of the foregoing discussion, we pass the following order:-


 i) The amendments to Section 113-A of the Tamil Nadu Town and Country Planning Act, 1971 by Amending Acts 31 of 2000, 17 of 2001 and 7 of 2002 and the consequential amendments to the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as far as applicable to the constructions made after 22.2.1999 are hereby declared ultra vires Articles 14 and 21 of the Constitution. All orders for regularisation of such buildings (constructed after 28.2.99) passed pursuant to the amending provisions stand quashed.


 ii) A Monitoring Committee is hereby constituted consisting of the following :- a) The Vice Chairman, CMDA; b) The Commissioner, Corporation of Chennai; c) The Managing Director, Chennai Metro Water Supply and Sewerage Board; d) The Chairman, Tamil Nadu Electricity Board; e) The District Collector, Chennai; f) The Director of Fire Services; g) Mr.Louis Menezes (former Commissioner, Corporation of Chennai); h) Mr.M.G.Devasahayam (IAS retd.) (former Secretary, Housing and Urban Development); i) P.T.Krishnan, (Architect); j) Prof.Suresh Kuppuswamy, (School of Architecture and Planning, Anna University); k) Durganand Balsaver (Architect and Urban Planner); and l) Dr.A.Srivatsan (Architect and Urban Planner).

iii) The Monitoring Committee shall be provided with sufficient staff and infrastructure and all files pertaining to illegal constructions to be placed before it.

iv) The Committee shall first take up the multi-storied commercial complexes for consideration. This should cover all buildings which are more than four floors in height. Where the construction of the entire building is illegal, the building has to be demolished. Where an extra floor has been put up illegally, the same should be demolished. Necessary modifications/demolitions must be done for satisfying the norms for fire safety and car parking facilities within the building premises.

v) Special buildings should be categorized as those with actual construction of ground plus three floors. In the case of commercial special buildings, the same measures that apply to multi-storied buildings as above should be followed. In the case of residential multi-storied buildings and special buildings, the monitoring committee may suggest less stringent measures, bearing in mind the impact of retaining the building.

vi) The professional builders of illegal multi-storied and special buildings should be identified for imposition of heavy penalties. This amount should be used to compensate the unwary purchasers and to take remedial measures for alleviating the harm caused to the society.

vii) The Committee shall identify the officers at the CMDA and the Corporation, who are responsible for the failure to enforce the planning laws and make appropriate recommendation for prosecution and/or disciplinary action.

viii) The CMDA and the Corporation are directed to take action against the illegal multi-storied and special buildings, as per the recommendation of the Monitoring Committee. The Commissioner of Police, Chennai is directed to provide necessary police protection for taking action against illegal constructions.

ix) To avoid future violations, buildings should be certified as having been constructed in compliance of planning permit and other applicable laws. The Certifying Officer will be personally responsible if any illegal building is certified. Electricity, water connection and occupation should be contingent on such certificate. In respect of the builders who have been identified by the Monitoring Committee as having put up illegal buildings, constructions by such builders should be certified for compliance only by the Chief Planner, who shall bear personal responsibility.

x) The Chief Planner is directed to decide the applications for exemption pertaining to constructions prior to the cut-off date, i.e. 28.2.1999 and dispose of all the applications within a period of three months. It is needless to say that all the applications claiming exemption under the amended provisions of Section 113-A of the Act in respect of constructions made after 28.2.1999 shall stand dismissed and those applications shall not be entertained by the Government and/or the authority or officer authorised by the Government under Section 113-A of the Act. The Chief Secretary is directed to allot the hearing of appeals atleast to two officers in addition to the Housing and Urban Development Secretary.
 

 xi) Where claims are made that the unauthorised/deviated constructions were eligible for protection under the 1999 scheme - to determine the veracity of claims and evolve criteria for such identification which may include the following:-

a) Date of planning permission and proof of completion; b) Electricity service connection and water connection; and c) Registration of sale deed conveying constructed area.

xii) The Monitoring Committee shall be consulted for applications claiming exemption under section 113-A of the Act as well as appeals under section 113-A(6). The Monitoring Committee shall also be consulted for changes in the Master Plan and Development Control Rules, which affect construction activity in the city.

xiii) The regularisation fee collected should be kept aside in a separate fund and not to be merged with the general account of the State of Tamil Nadu or its Agencies and this fund shall be used to alleviate the sufferings of the affected citizens in consultation with the Monitoring Committee.

xiv) The Corporation is directed to forthwith take steps to remove the encroachments on all busy streets like Ranganathan street, Natesan street, Madley road, etc. and the Commissioner of Police is directed to provide adequate police force at the disposal of the Corporation for the purpose of carrying out work of removal of encroachments.

xv) No Civil Court shall entertain any suit or proceedings or application in respect of the action taken by the CMDA or Corporation in respect of the illegal construction and encroachments on roads and pavements. All pending and future petitions filed/to be filed against CMDA and the Corporation relating to the illegal and unauthorised construction of buildings and or encroachment, and the demolition notice shall be placed before the special bench to be nominated by the Chief Justice.

33. The writ petitions are accordingly allowed. Consequently, the connected miscellaneous petitions are closed. No costs.

 

js/sm/pv

To

1. The Secretary to Government,
Law Department,
Fort St.George,
Chennai-600 009.
2. The Secretary to Government,
Housing and Urban Development
Department, Fort St.George,
Chennai-600 009.
3. The Member Secretary,
Chennai Metropolitan Development
Authority,
Thalamuthu Natarajan Malegai,
Egmore, Chennai-600 008.
4. The Secretary to Government,
Municipal Administration,
Government of Tamil Nadu,
Secretariat,
Chennai-600 009.
5. The Commissioner,
Corporation of Chennai,
Ripon Building,
Chennai-600 003.
6. The Commissioner of Police,
Greater Chennai City,
Egmore, Chennai-8.
7. The Chairman,
Tamil Nadu Electricity Board,
800, Anna Salai, Chennai-2.
8. The Chairman,
Chennai Metropolitan Water supply
and sewerage Board, Pumping
Station Road, Chennai-2.

[VSANT 7675]

Top

 

SC Chennai unliveable due to illegal constructions- The Times of India

NEW DELHI:   In contrast to its approach towards unauthorised buildings in Delhi, Supreme Court on Friday dismissed a petition filed by Tamil Nadu government challenging a Madras High Court order directing bulldozing of illegal and encroached premises in Chennai.

   The building bye-laws and the rules and regulations thereof have been thrown to the winds because government allowed unauthorised buildings to come up, a Bench comprising Justices H K Sema and P K Balasubramanyan said rejecting the TN government's plea.

   The HC had declared the general amnesty plan legislated by the state assembly to be illegal and said that the apex court had allowed such an amnesty brought about by the government as a one-time measure in 2000.

   Thus, the HC allowed regularisation of all unauthorised buildings constructed prior to February 28, 1999 and formed a monitoring committee, similar to the one set up by the apex court for the sealing drive in Delhi, for demolishing illegal structures and force building owners to make provisions for car parking and safety measures.

It had also directed identification of professional builders of illegal multi-storeyed buildings and imposition of heavy penalty on them to compensate the unwary purchasers.

A battery of counsel led by senior advocate K Parasaran pleaded that the legislative intent to give amnesty to the unauthorised structures cannot be summarily dismissed by the high court as that would result in the judiciary encroaching into the legislative domain.

But the Bench paid no heed to the arguments. Terming the HC order to have been passed with good intent, the apex court said: "Compare the past and the present of Chennai. The whole city is now unlivable. Let the people live in peace. Let the country survive and let there be some discipline."

Top


BBCNEWS: Madras buildings face demolition
Friday, 24 November 2006

India's Supreme Court has ordered the demolition of tens of thousands of illegal buildings in Madras (Chennai) the capital of Tamil Nadu state.

The court also declared illegal a Tamil Nadu law allowing buildings that breach regulations to stand if a fee is paid.

A BBC correspondent in Madras says the city is notorious for violations of building by-laws - both by big builders and individual house owners.

Judges said widespread breaches of these laws had made Madras unliveable.

More than 60,000 structures are likely to be affected by the Supreme Court ruling.

The BBC's L R Jagadheesan says that between 1990 and 2005, the state government regularised thousands of illegal buildings under the Tamil Nadu Town and Country Planning Act.

The law then allowed regularisation of illegal construction if the owner paid a fee to the local government.

The court has ordered the city administration to refund all fees collected for illegal buildings up to now, a sum estimated at about $ 72m.

A similar Supreme Court ruling has led to the demolition of several illegally constructed buildings in Delhi.

Top


CNN-IBN: Chennai has become unliveable SC Chennai, Supreme Court, bulldoze, illegal shops

Chennai: "Where am I supposed to go? I had built a house, not a hut in a slum. I had put all mu life's earnings into this house and now all is lost."

The lament comes from Velli, whose house in Porur has been razed down by Corporation officials in their fresh drive to remove encroachments.

The bulldozing began after the Supreme Court upheld the Madras High Court's order to remove 32,000 illegal and unauthorised constructions in the city. The Supreme Court had said:

"The whole city of Chennai is now unlivable because you allowed unauthorised constructions to flourish in violation of all building Laws. Let the people live in peace. Let there be some discipline."

Unauthorised buildings started springing up everywhere in Chennai as they were routinely regularised by the local administration.

With the regularisation law declared unconstitutional by the court, an estimated Rs 800 crore of regularisation fee collected till now is to be refunded.

The Supreme Court order focuses more on the large-scale violators - the commercial establishments, and multi-storeyed apartments that have enjoyed a free rein till now.

But experts worry that the Chennai Metro Development Authority might bulldoze petty shops and helpless residents in a show of obeying court orders and let the big fish slip away.

And as predicted, the first casualty is this lower middle class locality. Hopefully, the local administration will be as law-abiding in the case of the big violators too.

Top


Money Control India: Illegal buildings in Chennai to face bulldozers
27-11-2006

After Delhi and Bangalore, it is the turn of illegal buildings in Chennai to face the corporation's bulldozers. CNBC-TV18 reports that here also, fears are being expressed that the big fish may escape the court-ordered drive.

Houses in Porur have been razed down by corporation officials in their fresh drive to remove encroachments. The bulldozing began after the Supreme Court upheld the Madras High Court's order to remove 32,000 illegal and unauthorized constructions in the city.

The Supreme Court had said that the whole city of Chennai is now unlivable because unauthorized constructions have been allowed to flourish in violation of all building laws.

Unauthorized buildings started springing up everywhere in Chennai as they were routinely regularised by the local administration. With the regularisation law declared unconstitutional by the court, an estimated Rs 800 crores of regularization fees collected till now is to be refunded.

The Supreme Court order focuses more on the large-scale violators like the commercial establishments, and multi-storeyed apartments that have enjoyed a free rein
till now. But experts worry that the Chennai Metro Development Authority might bulldoze petty shops and helpless residents in a show of obeying court orders and
let the big fish slip away.

And as predicted, the first casualty is the lower middle class localities. Hopefully, the local administration will be as law-abiding in the case of the big violators too.

Top


NDTV : SC allows 18,500 small traders to function
Thursday, November 23, 2006 (New Delhi):

The Supreme Court on Thursday spared 18,500 traders from sealing and allowed them to continue to run their commercial establishments till the disposal of the cases.
The breather is their reward for following court orders and filing affidavits, which declared they would stop misusing residential areas as places of business.
The shopkeepers spared can stay where they are till early next year. Also saved for now are 1700 schools in neighbourhoods with eight lakh students.
They don't have to move till the academic session ends in May.

Solution likely

The new concession is a sign that the government and court are finally reaching a compromise zone.
Around 44,000 shops were shortlisted for the current sealing drive and the court on Thursday said that those who did not file affidavits have no escape route. However, the government promises otherwise.
"We will look for some scheme for them also," said Jaipal Reddy, Urban Development Minister.
The Court has repeatedly attacked the government for exactly these sorts of promises, accusing it of ignoring court orders.
In September, the government cleared 2000 roads for commercial use to allow traders there to stay open for business.
The Court will decide on whether that's okay early next year and the shops spared on Thursday will now be a part of that final verdict.

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Friday, November 24, 2006 (New Delhi):
 
Chennai unfit to live in? The Supreme Court certainly thinks so. After Delhi, Chennai has been criticised for allowing unauthorised construction to flourish in complete violation of building laws.

India's fourth largest city is a picture of unplanned growth. Its seven million citizens are bearing the brunt.

The Chennai Metropolitan Development Authority (CMDA), a body responsible for urban planning, admitted in 1998 that roughly 3 lakh buildings are violative of Development Control Rules.

These include such constructions as a government school built in the middle of a lake or malls that just shot up like the proverbial Jack's beanstalk.

But instead of demolishing them, the government simply legalised them through a regularisation scheme that's clearly been not time bound.

This is when the Consumer Action Group went to court. The Madras High Court sought to punish offenders on both sides, builders and government officials.

CMDA found napping

It set up a monitoring committee comprising representatives from the government and prominent citizens to tackle the problem.
But the CMDA, found napping all these years, won't allow this. And the Supreme Court is on the citizen's side.
"I think we need a demolition of attitudes. I just hope the SC observation leads to greater compliance in future," said Barath Jairaj, Director, Consumer Action Group, Chennai.
"The government has been regularising violations. Why punish buyers? It's like the IT Department's Voluntary Disclosure Scheme. You pay a fine and make your black money white," said Sohail Sarushi,Vice President, Chennai Real Estate Agents Association.
In Chennai's T Nagar, only half the road is available for traffic to flow. Most of the buildings along this stretch have flouted rules.
In a similar case in 1998, the TN government had admitted in the Supreme Court that 50 per cent of the buildings in Chennai are unauthorized.

The Hindu : Court asks CMDA for fee details

CHENNAI: The First Bench of the Madras High Court has directed the Chennai Metropolitan Development Authority (CMDA) to file details of the regularisation fee collected from building violators after three amendment Acts were enacted by the State Government in 2000, 2001 and 2002.

The Bench, comprising Chief Justice A.P. Shah and Justice K. Chandru, was passing orders on a public interest litigation petition filed by B.L. Jayakandan. It also ordered notices to the Chief Secretary, Member-Secretary of the CMDA and the Chennai Corporation Commissioner. The matter has been posted for December 7.

The petitioner, expressing specific concern at a new demolition notice issued to 27 major commercial establishments, said the notice dated October 31 was not necessary in view of the fact that the three amendment Acts enacted by the State Government had been declared illegal by the court. All orders regularising deviations in constructions too had been struck down by the court, he added.

In order to escape the demolition process, the State Government had issued the present notice to 27 major violators. The inherent purpose of the notice is to allow them to reply and then take up the matter by way of further litigation, he said.

According to the petitioner, who is a practising advocate, persons aggrieved by the notice shall apply for a fresh planning permission within 30 days. Even if refused, they shall prefer an appeal. The Government, which is the appellate authority, shall pass any interlocutory orders which will be deemed fit and proper. The notice issued to the violators will not have any effect till the final determination or withdrawal of the application, he pointed out.

`Attempting to protect'

Alleging that the Government was attempting to protect the major violators by issuing the October 31 notice, the petitioner said that as per the High Court order illegal constructions built after February 28, 1999 need not be given further notice. The notice has been issued "only to thwart any action against deviations, illegal constructions and total violations," the advocate said.

Referring to the High Court order, he further said the Government was yet to convene the monitoring committee meeting as mandated by the court.

"The CMDA is trying to open a further prolonged litigation, and thereby safeguarding the unauthorised building from being demolished," the petitioner said. According to him, over one lakh buildings had been constructed in Chennai in violation of mandatory building norms, and that the Government had collected over Rs. 3,000 crore towards regularisation fee pursuant to the three amendment Acts.

He prayed for the demolition of the buildings without any further notice.

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Delhi Demolitions

The Hindu :  MCD for postponing demolitions in Delhi
Friday, Mar 10, 2006

NEW DELHI: Seeing no relief coming from courts on the three crucial issues that have affected life in the Capital -- demolition of unauthorised constructions, commercialisation of residential areas and illegal operation of hawkers, the Standing Committee of the Municipal Corporation of Delhi on Thursday passed three resolutions urging the Delhi Government and the Centre to give relief to residents by either making changes in the present laws or by bringing in an ordinance.

Leader of the House Jitender Kochar tabled the three resolutions that were supported by all councillors, including the opposition Bharatiya Janata Party.

Through the resolutions, the civic body urged the Centre as well as the State Government to apprise the Supreme Court and Delhi High Court about hardships that the people of Delhi were facing due to the orders passed by them and seek relaxation. The courts should be requested to postpone the ongoing demolition and sealing exercise till the submission of the report of the Khanna Committee formed by the Centre to look into these issues, they demanded.

In its resolution the Standing Committee said: "Since work is going on for framing of the Master Plan 2021, we urge that demolition action by the MCD on unauthorised properties under section 343, 344 and 345 A of the MCD building bylaws be kept on abeyance till the recommendations of the Khanna Committee report are submitted and incorporated in the Master Plan.

Till then, action should be taken only on the ongoing unauthorised constructions and encroachments on Government land." On the action for sealing of commercial units in residential areas, the resolution said implementation of the Supreme Court order would affect livelihood of lakhs of traders and their employees.

"Since many commercial units coming under the purview of the order were shops like those of barbers, confectioners, dry cleaners, general stores, chemist shops, educational institutes, nursing homes, coaching centres and bakeries that met the daily needs of common people, any action for sealing of them should be put on hold till the committee submits its report . In the resolution pertaining to hawkers, the resolution said: "A plan should be framed by the Commissioner to ensure that all the vendors making a living for themselves through unauthorised shops on pavements are not uprooted without working out an alternate source of livelihood for these people."

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SC pronounces interim order on sealing issue
Exempts 22 types of commercial activities from MCD drive

New Delhi, September 29
While questioning the government's actions overreaching judicial orders on enforcing the rule of law, the Supreme Court today formally exempted 22 types of commercial activities from the MCD's sealing drive by segregating them from 'big' business activities.

The Court's order, however, was a mixed bag for big business houses as those covered under the Centre's notifications on mixed land use plan got temporary relief, while others outside it faced immediate sealing.

"There cannot be any doubt that the legislature would lack competence to extend the time granted by this court in their purported exercise of law making power," a Bench, headed by Chief Justice Y K Sabharwal, observed while pronouncing an interim order on sealing issue.

It pointed out that any attempt to overreach the Court order would amount to "exercising judicial functions" by the government and added that it would not be in the best interest of enforcing the rule of law. The 22 activities clubbed with related group of trades allowed to function on the ground floor continue in the ground floor covered area of 20 sq meters and above in residential areas notified as mixed land use include vendors of vegetables, fruits, flowers, bakery, confectionary, grocery, stationary, books, book-binding, photostat, phone booths, cyber cafe, LPG booking houses, flour grinders, meat shops, pan and tea stalls, barbar shops and hair dressing saloons, beauty parlour, laundry and sweet shops.

Besides, the exemption is application to chemists, optical shops, tailoring shops, electrical and electronic repair shops, photo studios, cable operators offices, hosiery, readymade garments, cloth shops and ATMs, a Bench of Chief Justice Y K Sabharwal, Mr Justice C K Thakker and Mr Justice R V Raveendran said in its interim order.

The 'big businesses' identified by Monitoring Committee as major violators on 185 roads like automobile show rooms and workshops, branded showrooms, call centres, coaching institutions, business offices, shops selling building materials, godowns, tent houses, guest houses, jewellery shops, restaurants and iron and steel shops and banquet halls got temporary relief from sealing only in those areas notified as mixed land use by the July 21 and September 7 notifications.

All such traders having their shops on the 2,200 roads and streets identified for mixed land use, have to approach the Court appointed Monitoring Committee (MC) to give an undertaking that they would close their ventures if the government action permitting mixed land use was found to be illegal by it in the final judgement.

With no relief to big traders not covered under government notifications, the Court said, "Sealing process will continue in terms of its orders of February 16 and August 10. The direction of sealing premises will also apply to specific properties mentioned in the judgement of February 16 and in the report of the Monitoring Committee of September 14."

Those businessmen whose premises had already been sealed under the order of the Court, also permitted to approach the Monitoring Committee, which would consider each case on merit and make appropriate report to the apex court for any further direction.

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Vijay Times: 72 hrs Trader's Bandh Begins in Delhi
31 October 2006

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Delhi sealing: SC grants relief to 18,000 traders
November 23, 2006

he Supreme Court today gave protection from the sealing drive to over 18,000 traders and professionals who had complied with the undertaking given by them to stop the misuse of residential premises for the commercial activities.

A bench headed by Chief Justice Y K Sabharwal said that those traders and professionals will be temporarily relieved of their undertakings and will be placed at par with others who were covered under the governmentís two notifications of September 7 and September 15.

The Court said they will have to comply with the Sept 29 order and will have to file an affidavit by January 31, 2007 that they will vacate the premises if the Delhi Laws (Special Protection Provisions) Act, 2006 and the two notifications were declared invalid.

However, the court said big establishments, who have complied with undertakings, will be allowed to carry out business activities only if they ensure parking provision near their establishments.

The court declined to grant any protection to those who were carrying out business by encroaching public land. The activities on such land must cease forthwith, the bench said.

The court also provided relief to schools operating from residential areas till the current academic session as suggested by the monitoring committee The court directed sealing of the premises of 34 establishments which on the random checking by the monitoring committee was found to have violated the undertaking given by them.

Sealing: SC gives time to monitoring panel for random checks

The Supreme Court today granted time till tomorrow to the monitoring committee on sealing to complete random checking of the premises of those traders and professionals who have given applications saying they have stopped misuse of residential areas for commercial purposes.

A bench headed Chief Justice Y K Sabharwal posted the matter for hearing on November 23. The Bench will go through the report prepared by the three-member court panel on the matter on the next date of hearing.

Out of the around 25,000 traders who had earlier given undertakings stating they will voluntarily close their shops, about 18,305 have filed the fresh applications after closing down their establishments.

The court, on November 15, had said it would consider giving some relief to about 25,000 traders who have earlier submitted an affidavit to voluntarily close their shops if they filed fresh applications stating that they had stopped the misuse of residential premises.

The apex court had then asked the monitoring committee to conduct random checks at the premises of those who have given undertaking and file its report on or before November 20.

The panel had submitted its report to the court last evening.

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Gowri Lankesh, 22 Nov,2006: Drama in Judicial Layout

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