S. Radhakrishnan and others vs Govt. of Tamil Nadu and others

These four writ petitions raise an interesting question which has a considerable impact on the present day developments of land and/or building

in the City of Madras vis-a-vis. The Tamil Nadu Town and Country planning Act 1971 and the Development Control Rules. In particular the

construction of flats by promoters offering attractive benefits and convenient living and attracting purchasers and allottees and later on going back

on the promises and causing all kinds of inconvenience to the flat owners, is one of the aspects which is brought out in this case.

The petitioners in W.P. No. 5670 of 1988 claim to be the flat purchasers in respect of two flats, one in the ground floor and the other in the

third floor of Door No. 16, Saravana Mudali Street, T. Nagar, Madras-17. Respondents 4 to 10 are the other flat owners who got themselves

impleaded in these writ petitions. I do not think that it is seriously disputed that the writ petitioners are speaking for and on behalf of one R. Raju

who is carrying on business under the name and style of ""R.R. Construction."" It is stated that the said ""R.R. Construction"" applied to the authorities

for planning permission to construct 12 flats, four fiats in each floor, (first, second and third floors), the ground-floor being left for the use of

parking vehicle for the fiat owners. The claim of the promoters of the fiats was that as and when the 12 fiats are purchased by 12 persons, the

entire building shall stand vested with the flat owners in common. Each of the fiat owners purchases an undivided share in the land thus giving him

an indefeasible right in the block of fiats and the land over which it is constructed. In this case the sale deeds were executed in or about 1982 in

respect of the undivided share to the respective purchasers. The sanction for the construction of the fiats seems to have been obtained in 538/80

dated 3-12-1980.

After the completion of the fiats, the ground floor which was meant for Car Parking had been partly converted for certain commercial purpose

and partly for two additional residential portions. For this purpose there was absolutely no sanction from the second or third respondents. The fiat

purchasers of the 12 fiats were also prevented from going to the terrace portion of the building and have been greatly handicapped by this

obstruction. It is stated that the promoter of the building has put a shed with asbestos sheet and some strangers are allowed to stay in the said

terrace portion. Apparently intrigued by this action of the promoter, respondents 4 to 10 had made a complaint to the second respondent, on 9-3-

1988. Based on the said complaint the second respondent had issued a notice on 20-4-1988 which is said to be notice u/s 56 read with Section

85 of the Act requiring demolition of the construction which had been carried out without permission of the authority u/s 49 of the Act. In the

subject portion of the notice, reference is made to the additional residential ground-floor construction in the said premises. The writ petition is for

the issue of a writ of certiorari to quash the said notice dated 20-4-1988 with regard to the construction in the ground-floor of the premises.

The petitioner in W.P. No, 5671 of 1988 is seeking the same relief and he claims to be the flat owner of Flat No. 14 in the third floor. The said

fiat is said to have been leased ou! to a tenant. The petitioner in W.P. No. 5672 of 1988 claims to be flat owner of Flat No. 16 and I6A in the

third floor of the premises. The petitioner in W.P. No. 5673 of 1988 claims to be the fiat owner of Flat No. 13 in the third floor of the premises.

Even a bare perusal of the facts set out above will disclose that there are several contradictions because the original sanction was only for 12

flats. It is rather surprising how there can be a 13th flat or 16th fiat in the premises. Apparently, the promoter has unauthorisedly increased the

number of fiats and it is only the allottees of such unauthorised flalts who are supporting him in these writ petitions. In effect the fight is between the

flat owners who are occupying the authorised flats as per the original sanction dated 3-12-1980 on the one hand and the promoter as well as the

persons who had subsequently inducted upon the property by virtue of the mechanisation of the promoter, on the other. There is little difficulty in

finding out where the equity lies and which are the persons who are entitled to get relief from the Court. Without proceeding to discuss the

arguments advanced on both sides and without going into the legal provisions, common sense tells us that the rights of the fiat owners who are

occupying the 12 sanctioned flats should be protected from the invasion sought to be made by the promoter and the subsequent allottees. The

conversion of the ground-floor into commercial and residential portions is totally unauthorised and can never be permitted. I would like to make it

clear that I have absolutely no sympathy for the writ petitioners or the promoter who tries to safeguard the subsequent additions made in the

ground floor.

Let me now consider the arguments of the learned counsel for the petitioners and the learned counsel for the respondents. The argument is that

the construction was completed during 1981-82 and therefore, the second respondent has no right to issue the notice u/s 56, after the passage of

three years after the development. The other point raised in the writ petitions relating to the power of the second respondent to take action on the

ground that the third respondent has already assessed the property and the Electricity Board has given electricity supply to the premises, not have

any substance and learned counsel for the petitioners has not seriously pressed those points. The only other point that requires mention is that no

notice was given before the impugned action. The last ground can also be disposed of easily because the notice u/s 56 itself is an information given

to the petitioner to rectify the unauthorised construction or to have it ratified by filing an application under subsection (3) by seeking permission u/s

49 of the Act, for the retention of the land and the buidling. Therefore, as soon as a notice u/s 56 is issued, it is not necessary for the persons

receiving such a notice to rush to the court and seek redress on the ground that the building is going to be demolished. On the other hand it is open

to the receipients of such notices, either to convince the authorities that the development is in accordance with the sanction or to apply sub-section

(3) of Section 56. It cannot therefore, be said before the issue of the notice u/s 56. there must be a prior notice giving an opportunity to the

persons concerned. In other words, the issue of notice u/s 56 itself provides necessarily opportunity to convince the concerned authorities.

Therefore, the one and only ground on which the petitioner can prevent the threatened action u/s 56 of the Act is to hang on to the plea of

limitation prescribed in the said section itself. Therefore, it is necessary for me to quote the Section 56(1) of the Act which is necessary for the

purpose of appreciating the argument-

Power to require removal of unauthorised development. (I) where any development oi land or building has been carried out-

(a) without permission required under this act; or

(b) in contravention of any permission granted or of any condition subject to which permission has been granted; or

(c) after the permission for development of land or building has been duly revoked; or

(d) in contravention of any permission which has been duly modified, the appropriate planning authority may within three years of such

development serve on the owner a notice requiring him within such period, being not less than one month, as may be specified therein after the

service of the notice, to take such steps as may be specified in the notice.

(i) in cases specified in clause (a) or (c) above to restore the land to its condition before the said development took place;

(ii) in cases specified in clause (b) or (d) above to secure compliance with the permission or with the conditions of the permission, as the case may

be.

The argument is that the notice can be issued only within three years of the offending development. In this case, the allegation in the affidavit of the

writ petitioners is that the development was made in the year 1981-82. Learned counsel for the second respondent sought to argue that they

became aware of the offending development only by a complaint received from other flat owners on 9-3-1988 and therefore, the impugned notice

dated 20-4-1988 is within the prescribed time, reckoned from 9-3-1988. This contention cannot at all be accepted because the section says that

the notice must be issued within three years form the date of the offending development. Learned counsel appearing for the respondents 4 to 10

gives an ingenious explanation by slating that there was a rectification deed on 8-4-1985 and the offending construction could have taken place

after 8-4-1985. The construction could not have been completed within 12 days from 8-4-1985. Therefore, it is argued that the impugned notice

dated 20-4-1988 is within the time. For this purpose, learned counsel has referred to the rectification deed dated 8-4-1985. A perusal of the said

rectification deed that the first petitioner in W.P. No. 5670 of 1988 had purchased on 27-5-1982 and an undivided share in the land comprised in

Door No. 15, Sarvana Mudali Street, for the construction of a residential portion to the extent of 1100 square feet and the portion in the ground

floor. The rectification deed seeks to amend the incorrect mention of the third floor instead of the ground floor. There is absolutely no scope for

infering that the offending construction could have commenced only after the rectification deed dated 8-4-1985. Therefore, on facts, I am unable to

hold that the development had been completed within three years prior to the impugned notice dated 20-4-1988. There are absolutely no

documents before me to come to the conclusion that the offending developments had been made within three years prior to the impugned notice.

Consequently, 1 have no other alternative except to hold that the impugned notice is barred by limitation.

In this connection must say that parties who seek to uphold their legal rights should be vigilant and should consult legal experts as quickly as

possible. They cannot sleep over the matter and at a later stage seek to enforce their rights which is likely to cause prejudice to the older parties.

This is precisely the reason why periods of limitation are prescribed in many statutes. It is for the authorities also to be vigilant and take action, then

and there, when violations of the development Control Rules are noticed. In this case. I have a feeling that respondents 4 to 10 as well as the

second respondent have missed the bus. Even so 1 have no hestitation in holding that if respondents 4 to 10 and the second respondent have other

remedies to have the offending construction demolished or removed, it is always open to them to pursue such other remedies. All that 1 am saying

is that the action u/s 56 of the Act is barred by limitation. 1 do not see how respondents 4 to 10 cannot take action under the common law seeking

a prayer of mandatory injunction to remove the offending construction. The time spent in this court can be sought to be excluded under the relevant

provisions of the Limitation Act. These observations, are only the result of my anguish, in upholding a totally unauthorised construction.

The judgment in Bakshish Kaur Saini Vs. Union Territory, Chandigarh and others, lays down only this proposition and does not in any way

advance the case of the respondents 4 to 10 on the plea of limitation.

Learned counsel for the respondents 4 to 10 sought to validate the impugned notice by referring to the Section 85 of the Act. 1 am of the

opinion that this is afutile attempt. The primary section under which the notice is issued is Section 56. Secondly, Section 85 refers to contravention

of Sections 47 and 48. Those sections relate to the use and development of a land contrary to a development plan published in the Gazette.

Apparently, that section relates to the user of the land contrary to the zoning of the area under the development plan. Therefore, this argument of

the respondents 4 to 10 are also rejected.

In fine, the argument based on limitation urged by the petitioner is upheld. The writ petitions are allowed. There will however, be no order as to

costs.

Petitions allowed.