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2018 DIGILAW 4521 (MAD)

V. Rupesh Kumar v. Rajesh Lakhoni IAS

2018-12-17

M.VENUGOPAL, S.VAIDYANATHAN

body2018
JUDGMENT : S. Vaidyanathan, J. The Petitioner has come forward for non-compliance of the Order dated 05.01.2018 in W.P.No.15313 of 2017. 2. One V. Rupesh Kumar filed a Writ Petition being W.P.No.15313 of 2017, which was disposed of by this Court on 05.01.2018 with the following direction:- “7. In view of the illegal construction being made by the third respondent, as pointed out by the petitioner, as affirmed by the second respondent-Municipality in the counter, which has also been deemed to have been admitted by the third respondent, as he did not respond to the notice sent by the second respondent, the unauthorised portion in question in respect of the building, will have to be demolished. Accordingly, the respondents 1 and 2/authorities concerned are directed to ensure that the unauthorised portion in question in respect of the building is demolished within a period of one month from the date of receipt of a copy of this order. If any police protection is sought for, the same has to be extended to the authorities to carry out the demolition. If for any reason, the petitioner prevents, the TANGEDCO/TNEB may be asked to disconnect the electricity supply and the electricity supply has to be disconnected forthwith.” 3. One of the persons, who is an Encroacher has approached this Court, by filing Writ Petition in W.P.No.6799 of 2018 and this Court on 26.03.2018 granted one month's time for removal of encroachment as the Petitioner's child was suffering from chicken pox. In the meantime, other persons viz., Saranya, Pushpalatha, Y. Pondurai, M. Asraf Ali, M. Ajmal Khan, K. Raghu Kumar and N.K. Raja have approached this Court by filing Writ Petitions in W.P.Nos.12979 to 12983 of 2018 and this Court on 30.05.2018 passed the following order:- “3. Though an appeal/special revision petition had been preferred before the appellate/revisional authority, the petitioners have come before this Court seeking some relief in the meanwhile. Though an appeal/special revision petition had been preferred before the appellate/revisional authority, the petitioners have come before this Court seeking some relief in the meanwhile. In the circumstances of the case, the appellate/revisional authority is directed to consider the appeal/special revision petition said to have been filed by the petitioners under Sections 80-A and 80-A(3) of the said Act, as the case may be, on merits and in accordance with law and after affording an opportunity of hearing to the petitioners, and dispose of the appeal/special revision petition within a period of three months from the date of receipt of a copy of this order or on production of a copy of this order, whichever is earlier. However, in the meanwhile, there shall be a direction to maintain status-quo as on today by the parties. The petitioners also shall not create any encumbrance or third party rights over the properties in question till then. 4. Firstly, this Court has already passed an Order on 26.03.2018 and that Order has come into effect as early as on 27.04.2018. The Order dated 30.05.2018 passed in W.P.Nos.12979 to 12983 of 2018 was not there. In any event, the appeal under Tamil Nadu Town and Country Planning Act, 1971 is not disposed of within three months' time and as on date the order passed by this Court on 26.03.2018 in W.P.No.6799 of 2018 is still in force. 5. The disposal of Writ Petition on 30.05.2018 in W.P.Nos.12979 to 12983 of 2018 or pendency of the appeal under Tamil Nadu Town and Country Planning Act, 1971 is not a bar for disconnecting the electricity to the violated portions in the building even if an appeal is filed under Sections 80-A and 80-A(3) of the Tamil Nadu Town and Country Planning Act, 1971 and the same is pending. 6. We have repeatedly held in several matters that the appellate authority shall pass an interim order of disconnection of electricity to the violated portions during the pendency of the appeal. As the appeal is not disposed of within the time stipulated, it is the duty cast upon the contemnor to comply with the order as per the direction of this Court. 7. As the appeal is not disposed of within the time stipulated, it is the duty cast upon the contemnor to comply with the order as per the direction of this Court. 7. By an Order dated 16.10.2018 in W.P.No.27499 of 2018, this Court has also called for the details pertaining to number of cases that are pending before the Appellate Authority and also the number of cases where this Court has given direction, which are not disposed of in compliance of the order passed by this Court. 8. The concerned Appellate Authority is not party to this Contempt before this Court. The Authorities are trying to hoodwink the Court. The Appellate Authority or the Notified Authority under the Tamil Nadu Town and Country Planning Act, 1971 is shirking their responsibility, on the ground of pendency of writ petitions and other proceedings before the Court even without an order of stay of proceedings. When there is a specific order to dispose of the matter or there is no stay of further proceedings, mere quoting of the pendency of writ petitions or any other matters subjudice would amount to a fraction of deviation, thereby not maintaining absolute integrity and devotion to duty, which is unbecoming of a member of the service and such irresponsible Officials should be dismissed from service. Before initiating action and dismissing from service, they must be transferred to a non-sensitive post and place and their dereliction should be entered into the Service Register, so that their promotions and other terminal benefits could be deprived. Before depriving the gratuity, an opportunity shall be given to the person concerned, as on technical ground, on the failure to give an opportunity, the persons, who are involved in the act of moral turpitude, etc., may be allowed to succeed to get the benefits. 8.1. The relevant portion of the Order dated 16.10.2018 is extracted below:- “6. It is pertinent to note that the First Bench of this Court (S.K.Kaul, C.J., and R.Mahadevan, J.) in Contempt Petition No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo motu) took up a matter pertaining to demolition of the violated portions of a building and insisted that the unauthorised constructions are decimated. Relevant portion of the said order reads thus: ''4. We have also perused the report of the Commissioner, who is present in Court. Relevant portion of the said order reads thus: ''4. We have also perused the report of the Commissioner, who is present in Court. We have impressed upon him the importance of ensuring that there is atleast no continuing unauthorised construction by issuing stop work notices immediately when such unauthorised construction is detected rather than waiting for comparison of the plans. We have also emphasised the importance of: (a) Checking the buildings from the basement, ground floor onwards, so that the set backs are adhered to; (b) Ensure that the on-going construction complies with the norms; (c) The delinquent officers are brought to book not by mere censure, stoppage of increment, but by more severe consequences like compulsory retirement and dismissal from service. We say so, as despite, mammoth amount of unauthorised construction, we are informed that not a single person has suffered the punishment of dismissal from service or even compulsory retirement atleast for the last five years. (d) Not to let any unnecessary interference with his work by the persons, who have nothing to do with his job and that he should be able to do his task without fear or favour, for which necessary Court protection is available.'' 7. Following the ratio laid down in the said decision, a Division Bench of this Court, in W.P.No.5862 of 2018, by an order dated 15.03.2018, held as under: "12. Further, it is to be observed that while passing the order under Sections 6 and 10 of the Tamil Nadu Land Encroachment Act, the respective authorities must mention in the order that the aggrieved person has got right to Appeal/Revision and that the same has to be preferred within the time prescribed under the said Encroachment Act, 1905. This will enable the aggrieved person not to file Appeal/Revision before a different authority, as we come across several orders of return passed by the Government authorities that they are not the Appellate/Revisional authority. Till the Appeal time is over, without there being a delay, even though there is a provision to condone the delay, the aggrieved persons shall not be disturbed. Till the Appeal time is over, without there being a delay, even though there is a provision to condone the delay, the aggrieved persons shall not be disturbed. If there is any delay in filing the Appeal or Revision, this will not preclude the authorities from proceeding further in the matter beyond the time prescribed under the Act, even though an Appeal can be entertained, till the delay is condoned, there is no Appeal/Revision in the eye of law and the authorities can bring the issue to a logical conclusion by removing the encroachment by using Police force, and disconnecting the electricity supply and water connection. Further, it has to be mentioned that if the complainant is not made a party, the Authorities shall throw the Appeal/Revision and the applicants who are encroachers, shall not be shown any indulgence, as there is a habit of those encroachers getting an order behind the back of the complainant and stay in the encroached place forever. Even though the principles of natural justice are not applicable to the encroachers, to enable their children/family members of the violator not to suffer for the mistake committed by the violator, the above observations are made to not to disturb them during the time meant for Appeal/Revision only if the Appeal/Revision is filed within time, without reference to Section 11 of the Tamil Nadu Land Encroachment Act. 11. At this juncture, it is also worth referring to a Division Bench decision of this Court in W.P.No.25931 of 2017, wherein, by an order dated 12.02.2018, this Court has held that electricity connection to unauthorized constructions shall be disconnected and it can be restored only when the building is brought in accordance with the Sanctioned Plan. Relevant portion of the said decision reads thus: "8. Since the building in question is in violation of the Approved Plan, Respondents 7 to 10 have no other option, but to demolish the violated portions and accordingly, they are directed to demolish the violated portions of the building in question, within a period of one week from the date of receipt of a copy of this order. Since the building in question is in violation of the Approved Plan, Respondents 7 to 10 have no other option, but to demolish the violated portions and accordingly, they are directed to demolish the violated portions of the building in question, within a period of one week from the date of receipt of a copy of this order. We make it clear that electricity supply to the building in question, i.e. at Plot No.181, 'C' Block, Easwar Apartment, Kamaraj Nagar 4th Street, Choolaimedu, Chennai 600 094 shall not be restored unless the defects pointed out by the Respondent/Corporation are rectified by the contesting Respondents 7 to 10. 9. It is to be noted that in similar circumstances, the order dated 07.11.2017 passed by a Division Bench of this Court in W.M.P.No.30495 of 2017 in W.P.No.21639 of 2017, refusing to restore the electricity supply to the premises in question therein, was confirmed by the Supreme Court in Petition for Special Leave to Appeal (C).No.33863 of 2017, by order dated 05.01.2018." 12. Since it is represented by the learned counsel for the Petitioner that many Appeals are pending, this Court suo motu impleads the Commissioner, Corporation of Chennai, Ripon Building, Chennai as necessary party to this Writ Petition and passes the following directions: (a) Respondents are directed to de-seal the building constructed by the Petitioner for the purpose of rectifying the defects and the building shall not be occupied for any other purpose, much less residential purpose. (b) If the respondents are unable to demolish the building, then it is left open to them to demolish/remove all the doors, windows, glasses, toilet seats and bidets, kitchen cooking platform, waterline pipes running into domicile from water tank or sump or any other mode to wash basins, kitchen and rest rooms, including the tap/shower. (c) In the event of the building being found locked or closed by the occupants, the respondents shall drill the roof of the building and make a big hole so that the building cannot be occupied any more. (d) Respondents shall ensure that proper set back is maintained in the building in question and also ensure as to whether the building in question has encroached the Road. (e) If the violated portions are not rectified, Respondents are directed to demolish the same. (d) Respondents shall ensure that proper set back is maintained in the building in question and also ensure as to whether the building in question has encroached the Road. (e) If the violated portions are not rectified, Respondents are directed to demolish the same. (f) Till the building is brought in accordance with the Sanctioned Plan, there shall not be electricity supply to the building in question. Though this Court is entitled to disconnect water supply to the building in question, taking note of the fact that the neighbours of the Petitioner will suffer, water supply is not disconnected. (g) The Appellate Authority shall conduct the proceedings once in 15 days and ensure that the building in question is brought in accordance with the sanctioned Plan within six months. (h) If the Officials concerned do not adhere to the procedures mentioned supra, the Government shall post the erring Official in a non-sensitive post. (i) Wherever Appeals are pending before the authorities concerned as regards buildings constructed in violation of the Sanctioned Plan, there shall be an interim order by the Appellate Authority and there shall be disconnection of electricity supply to the said violated portion, if the building is not brought as per the Sanctioned Plan within the time limit. (j) whenever an appeal or any petition is filed under the Tamil Nadu Town and Country Planning Act, 1971, the said application should reflect the very same number and in case of appeal, the original number should also find place. That apart, the owner of the house/flat shall exhibit in a notice board outside the premises that appeal is pending before the authority, by giving necessary details/numbers, like original application, appeal, writ petition, if any and the authorities concerned shall also forward a copy of the same to the Metro Water and Tamil Nadu Electricity Board for appropriate action. (k) The 1st Respondent/Secretary to the Government of Tamil Nadu, Housing and Urban Development Department and the 5th Respondent/Commissioner, Corporation of Chennai, Chennai are directed to furnish the following particulars to this Court on or before 18.12.2018: (i) Number of appeals pending before the authorities; (ii) Number of cases, wherein directions have been issued by this Court. 13. It is needless to mention that the 1st respondent will have to follow the guidelines, while passing orders in all the applications filed under the Tamil Nadu Town and Country Planning Act, 1971. 13. It is needless to mention that the 1st respondent will have to follow the guidelines, while passing orders in all the applications filed under the Tamil Nadu Town and Country Planning Act, 1971. Even though the Act empowers to grant an interim order, the interim order cannot be absolute. If there are any violations, as the Act is silent, the authority concerned is bound to order disconnection of electricity till the building is altered in accordance with the plan. That apart, the 1st respondent has to ask the occupier to rectify the defects and for that purpose alone, the building could be unlocked or unsealed and not for continuation of occupation in the violative portion. When the Court is empowered to inspect the site under Order XVIII Rule 18 of CPC, nothing prevents the authority to inspect the place, as the same will ensure removal of encroachment/violations of constructions and that Government lands are restored. The purpose of the Act is to ensure that the buildings are constructed in accordance with the plan and not in violation of the plan. The deviations could be permissible in accordance with Rules to some extent and not in its entirety. There cannot be any encroachments on roads, OSR, parks, lakes, Odai and other public places. 14. When there is a demand by the Applicant or Complainant that he/she has got to be heard with regard to violations/encroachments, it is the duty bound on the part of the authorities concerned to inspect the site so that different considerations by authorities may not arise. If any proceedings are started based on the application, the same should be conducted on day to-day basis without adjourning the matter beyond seven working days at any point of time. 15. The above directions shall be followed in all the pending appeals or in other matters pending before the 1st respondent or before the notified authority under the Tamil Nadu Town and Country Planning Act, 1971.” 9. Since the order passed by this Court on 26.03.2018 in W.P.No.6799 of 2018 is in force and disposal of the Writ Petitions in WP Nos.12979 to 12983 of 2018 is not an hindrance for removal of encroachment or disconnection of electricity, we issue statutory notice for the Second Respondent/Commissioner, Avadi Municipality to appear before this Court on 04.02.2019. 10. Since the order passed by this Court on 26.03.2018 in W.P.No.6799 of 2018 is in force and disposal of the Writ Petitions in WP Nos.12979 to 12983 of 2018 is not an hindrance for removal of encroachment or disconnection of electricity, we issue statutory notice for the Second Respondent/Commissioner, Avadi Municipality to appear before this Court on 04.02.2019. 10. Issue Statutory Notice to the Second Respondent/Commissioner, Avadi Municipality on or before 21.12.2018, mentioning the date of hearing as 04.02.2019 at 2.15 p.m. Post the matter on 04.02.2019 at 2.15 p.m. In the meanwhile, the Secretary, HUD Department, Government of Tamil Nadu, Chennai and the Additional Secretary (Technical), HUD Department, Government of Tamil Nadu, Chennai are directed to send a report pertaining to the Appeals under Sections 80-A and 80-A(3) of the Tamil Nadu Town and Country Planning Act, 1971, pursuant to the directions of this Court in W.P.Nos.12979 to 12983 of 2018 dated 30.05.2018.