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Judgment
P. Jyothimani, J.—The applicant has filed W.P. No. 19102 of 2007 for direction against the respondents in the writ petition to prevent and
remove all illegal constructions in Survey No. 77/2C2B (formerly part of S. No. 77/2C2) as well as Survey No. 77/2C2C (part) of No. 135,
Okkiam Thoraipakkam Village, to prevent the encroachment of the public road on the northern side of the property adjoining old Mamallapuram
Road.
The 4th respondent in the writ petition, who is the respondent in the contempt petition No. 566 of 2007 is stated to be the owner of the
adjoining property and the complaint is that the 4th respondent in the guise of putting up construction in his property has extended the construction
into the property of the applicant and on the basis that the respondents 1 to 3 may illegally grant licence to the 4th respondent for running the
hotel/restaurant in the above said property, the petitioner has filed the said writ petition.
Pending the writ petition, she has also filed an interim application in M.P. No. 1 of 2007, praying for an order of injunction against the 4th
respondent in the writ petition from putting up any construction contrary to law in the property comprised in S. No. 77/2B2C and 77/2C2C of
Okkiam Thoraipakkam Village, Tambaram Taluk, Kancheepuram District. This Court by an order dated 30.05.2007, has granted an order of
interim injunction for a period of three weeks.
It is the case of the petitioner in the contempt applications that even after the receipt of the injunction order, the 4th respondent continued to
construct the building in disobedience of the order with the help of one Mangal Booshanam, Project Manager, Savera Hotel, Chennai 4. It is also
the case of the petitioner that the Commissioner of St. Thomas Mount Panchayat Union has issued a notice dated 30,05.20(27 under Sections 56,
57 and 85 of the Tamil Nadu Town and Country Planning Act, 1971 to the 4th respondent to stop further construction. According to the
petitioner, the said notice dated 30.05.2007, issued by the respondent in contempt petition No. 571 of 2007, viz., Commissioner-cum-Block
Development Officer, St. Thomas Mount Panchayat Union is only an empty formality and he has not further proceeded to stop the construction by
the 4th respondent and all his subsequent activities are only presumed to be in connivance with the owner of the land and his tenant to get along
with the construction which is in disobedience of the order of the Court and therefore, the petitioner has filed Contempt Petition No. 571 of 2007
against the first respondent in the writ petition.
In the counter affidavit filed by the respondent in Contempt Petition No. 571 of 2007, viz., the Block Development Officer, it is stated that
based on the complaint of the petitioner dated 23.05.2007 and after inspection by the Extension Officer (Planner), who has submitted his report on
28.05.2007 finding out some unauthorised construction made by the 4th respondent, he has issued a stop work notice on 30.05.2007 by
registered post with acknowledgement due and the said notice was returned unserved as addressee not available. In the meantime, after receipt of
the order from the High Court, the 4th respondent''s permanent address was found and again a copy of stop work notice was sent on 22.06.2007
to the 4th respondent and on 25.06.2007 the construction was periodically directed to be inspected by the Extension Officer (Planner) and report
was collected. It is also stated that based on the instruction issued by the Assistant Director (Panchayats), Kancheepuram, a demolition notice
dated 02.07.2007 was also served on the 4th respondent. It is also stated that the 4th respondent has obtained trade licence from President cum
Executive Officer, Okkiam Thoraipakkam for running a hotel in the name of Delhi Dhabha and paid licence fees on 13.05.2007 and therefore,
according to the respondent he has not disobeyed the order of the Court.
Likewise, the respondent in Contempt Petition No. 566 of 2007 has also filed counter affidavit stating that he is the absolute owner of land at
Survey No. 77/2C2, Plot Nos. 1 and 2, Customs Colony, Okkiam Thoraipakkam Village. Originally, he wanted to put up a Kalyana Mandapam
and thereafter, he has changed his mind and entered into a lease agreement with one M/s. Nivi Enterprises of Savera Group on 23.05.2006, who
were doing the interior work to start a restaurant. The 4th respondent has stated that the CMDA has already given the construction completion
certificate on 14.05.2003 itself and thereafter no further construction was done and only the use of the premises was converted to that of
restaurant. After receiving the notice from the counsel for the petitioner indicating about the order of the Court and on verification from the tenant,
who is in possession, he found that there was no construction activity going on. According to the respondent, the notice issued for stop work is at
the instance of the petitioner to harass the 4th respondent to obtain money. It is the further case of the respondent that after the demolition notice
dated 02.07.2007 was issued, he has filed W.P. No. 24671 of 2007 and final order was passed by this Court directing the Vice-chairman of
CMDA to hear and dispose of the representation. The respondent also admits that he has received a lawyer''s notice dated 30.05.2007 and he
came to know about the Court order on 02.06.2007 and according to him even before the order of the Court there was no construction activity.
The 4th respondent would state that the tenant has installed a generator for the restaurant for which he has done some earth work and put up a
foundation and this was completed much prior to the knowledge about the Court order.
Mr. Rathinadurai, learned Counsel appearing for the applicant in both the cases would vehemently contend that the respondent in Contempt
Petition No. 571 of 2007, after receiving the order from the Court has not taken any effective steps for the purpose of stopping the construction.
He would also refer to the various provisions of the Tamil Nadu Town and Country Planning Act, 1971 to show that the construction put up by the
4th respondent is unlawful and in any event according to him, the steps stated to have been taken by the respondent Officer is only an evasive one
and therefore he should be severely dealt with in the contempt application. He would further submit that as far as the respondent in the contempt
petition No. 566 of 2007, even assuming that the respondent has given it on lease to a third party, he is bound to stop further construction
immediately after it was brought to his notice about the order of injunction passed by this Court.
On the other hand, the learned Government Advocate appearing for the respondent in Contempt Petition No. 571 of 2007 has stated that even
after the order of injunction passed by this Court on 30,05.2007, further inspection has been done and it was periodically checked to find out that
no construction is put up.
Mr. P.R. Raman, learned Counsel appearing for the respondent in contempt petition No. 566 of 2007 would submit that his client has leased
out the property to M/s. Nivi Enterprises of Savera Group and they have not put up any construction and it was only an internal modification which
was done by them to set the place for the purpose of running a restaurant and he has also stated that after 02.06.2007 when he came to know
about the order of injunction passed by this Court he has checked up with the tenant that he has not put up any construction. In any event,
according to the learned Counsel the injunction granted was only for a period of three weeks, which has expired and the writ petition is still
pending and this Court has to finally adjudicate as to whether the petitioner''s case is correct or not.
After hearing the arguments of the learned Counsel on either side, this Court issued a statutory notice to the respondent in both the cases and
they have appeared.
After hearing the learned Counsel on both sides, this Court has directed the learned Government Advocate to produce the files relating to the
construction activities and as to the actions taken by the respondent. Accordingly, the learned Government Advocate has also produced the file.
A perusal of the file shows that the respondent has taken action against the said unauthorised construction and in the Office Note dated
30.05,2007, a direction has been given by the respondent. It is also seen that a notice issued to the respondent in contempt petition No. 566 of
2007 on 30.05.2007 was returned as no such person available and thereafter, as it is seen in the office note, the respondent in contempt
application No. 571 of 2007 has directed the concerned persons to take further action on 13.06.2007. On 22.06.2007, the respondent has
directed by referring the injunction order of this Court to take immediate action against Karunakara Pandian and ultimately, it is seen that a
demolition notice has been issued.
Upon verification of the file it is clear that there is no wilful disobedience on the part of the respondent as official and the contention by the
learned Counsel for the petitioner that there is collusion between the respondents in both the contempt petitions has no basis. It is true that the
Supreme Court has heavily come down against the unauthorised construction put up by various persons, for which one of the reasons is
administrative failure and regulatory inefficiency and laxity on the part of the authorities concerned, which has resulted in the city buildings put up in
an unauthorised manner violating the Town Planning legislation and by passage of time the Government itself is unable to take any action as it is
observed in The Consumer Action Group and Another Vs. State of Tamil Nadu and Others, . In cases where there is an active connivance of
officials for the purpose of putting up unauthorised construction, such cases are to be dealt with strictly in the interest of maintaining the city
atmosphere.
However, in the present case, we are only concerned about the conduct of the respondents in both the contempt petitions as to whether they
have disobeyed the order of injunction passed by this Court. With the above said limited scope and on perusal of the records, I do not see any
wilfulness or carelessness on the part of the respondent in contempt petition No. 571 of 2007, for disobeying the order. It is also relevant to point
out that in fact there was no injunction or direction against the respondent.
Likewise, the petitioner in contempt petition No. 566 of 2007 has admittedly let out the property to another person for running a. restaurant
and in such circumstances even an interior decoration which is made by such a lessee if the same has affected the neighbour viz., the petitioner, it is
not proper to impute that it was done with the knowledge of the respondent in contempt petition No. 566 of 2007, being the owner of the
property. As it is correctly pointed out by the learned Counsel for the respondent in the said contempt petition that in Vidya Charan Shukla Vs.
Tamil Nadu Olympic Association and another, , a Full Bench of this Court has held that a third party to a proceeding can be proceeded with in a
contempt jurisdiction if he has added or cobstructed with the notice or knowledge of the injunction, but on the facts of the present case when it is
not in dispute that some third party lessee is in occupation of the place, the respondent in contempt petition No. 566 of 2007, viz., the landlord
cannot be imputed with any motive of disobeying the order of Court and in any event the respondent is not in physical possession and it is not even
the case of the petitioner that the person who is in possession,. viz., the lessee of the respondent has been informed about the Court order.
Moreover, the respondent has clearly stated in the counter affidavit that immediately on the knowledge of the court order he has pursued it with the
tenant at the place and found that no construction has been put up.
In view of the above said reasons, I do not see any reason and there is no merit in the contempt applications and therefore, both the contempt
applications are dismissed and the respondents are discharged from further obligation in this regard and the connected sub-applications are closed.