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2019 DIGILAW 319 (MAD)

S. Ramesh v. Local Planning Authority

2019-01-31

K.K.SASIDHARAN, P.D.AUDIKESAVALU

body2019
ORDER : K.K. SASIDHARAN, J. 1. The petitioners filed this Writ Petition for issuance of a Writ to restrain the respondents from taking enforcement action by way of locking and sealing the building put up by them at 161 and 162, K.P. Road, Ramavermapuram, Nagercoil. 2. The petitioners, in their affidavit filed in support of the Writ Petition, contended that the FSI was wrongly calculated and certain violations and deviations were overestimated. 3. The petitioners further contended that enforcement action taken under Section 56 of the Tamil Nadu Town and Country Planning Act, 1971, has already been challenged before the Government under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971. Even then, the Local Planning Authority and the Local Body contemplated further action, resulting in filing this Writ Petition. 4. The Writ Petition was moved before the Vacation Bench on 30 May, 2018. The Division Bench was pleased to grant an order of interim injunction. 5. This Writ Petition was taken up along with a public interest litigation relating to the unauthorized constructions at Nagercoil. 6. Since it is legally not permissible to restrain the statutory authorities from exercising their statutory functions, this Court vacated the interim injunction. Thereafter, the Local Planning Authority took further action for locking and sealing the premises. 7. While so, the petitioners moved the Government for a stay of the enforcement action. The Government, by order dated 22 January, 2019, granted interim stay for a period of one month. However, by way of another order dated 22 January, 2019, the interim stay was vacated stating suppression of material particulars. The building was locked and sealed by the respondents 1 and 2 in the meantime. 8. When the Writ Petition was taken up for consideration on 23 January, 2019, the learned counsel for the petitioners, by placing reliance on the undertaking affidavit dated 23 January, 2019, submitted that the petitioners would comply with the conditions of planning permit and would request the Government to give the benefit of the Amended Development Rules by way of availing premium F.S.I. The learned counsel made a request to deseal the premises. We extract Paragraph Nos.5 and 6 of the affidavit below: "5. I submit that in so far as the additional constructed area, our appeal as well as revised plan is pending with the government as well as local planning authority. We extract Paragraph Nos.5 and 6 of the affidavit below: "5. I submit that in so far as the additional constructed area, our appeal as well as revised plan is pending with the government as well as local planning authority. On the basis of the amended development Rules, we are entitled to avail premium F.S.I. in so far as the additional constructions once our revised plan is approved. 6. I submit that since the building is locked and sealed on account of the alleged deviations, we hereby undertake that in so far as the sixth and seventh floors of the building, we will remove the materials from those floors and keep it under lock without usage. In so far as the fourth and fifth is concerned, we are using it only as packing of storing the textile materials and it is more or less incidental to commercial use and we will abide by any directions of this Hon'ble Court in so far as the usage." 9. Since the affidavit was silent with respect to the other violations, we directed the petitioners to file a better affidavit of undertaking. 10. The additional affidavit dated 23 January, 2019 contain the following undertaking: "4. I further submit that, I will remove the materials from the 4th, 5th, 6th and 7th floors and keep the floors under lock without usage. I further submit that, in so far as the basement 1 is concerned as per the plan approval, I will use the same for parking purposes and shift the Mini Super Market with regard to the plan approved area. I further submit that we will abide by any direction of this Hon'ble Court in so far as the usage of the building and the permissible floors." 11. The revision petition filed by the petitioners is now pending before the Government. 12. The core question is whether the petitioners are entitled to an interim order of protection during the currency of the statutory revision. 13. The Local Planning Authority and the Trichy Corporation initiated action for locking and sealing the unauthorized constructions in the Trichy Corporation, pursuant to certain orders passed in a Writ Petition in W.P.(MD)No.2184 of 2015. The Local Planning Authority issued locking and sealing notices to several buildings and a report was filed before this Court. While so, the builders filed revision petitions and obtained unconditional interim orders from the Government. 14. The Local Planning Authority issued locking and sealing notices to several buildings and a report was filed before this Court. While so, the builders filed revision petitions and obtained unconditional interim orders from the Government. 14. Since the petitioners are similarly placed, we have passed an interim order on 28 January, 2019 for de-sealing the building subject to the following conditions and taking into account the submission made on behalf of the petitioners: (i) The basement floor marked as B1 should be restored as a parking area as undertaken in the additional affidavit filed by the petitioners. (2) The fourth, fifth, sixth and seventh floors must be kept under lock and key by the petitioners as undertaken in para 4 of the additional affidavit dated 23 January, 2019. The key, after such locking, shall be deposited with the Member Secretary, Nagercoil Planning Authority. 15. We have recorded the submission made by the learned counsel for the petitioners on 28 January, 2019 in the following words: "8. The learned counsel for the petitioners submitted that in case the building is de-sealed today, the restoration of car parking area in B1 would be completed, within a period of three days, so as to enable the petitioners to commence business. 9. We direct the respondents 1 and 2 to de-seal the subject premises today itself, taking into account the undertaking given by the petitioners. The petitioners must restore the parking area marked as 'B1' and submit an affidavit before this Court on 31 January, 2019, for the purpose of opening the remaining floors, which are not objectionable." 16. The petitioners have restored the parking area in Basement 'B1', as undertaken earlier and filed an affidavit of compliance dated 30 January. 2019. Similarly, the petitioners have locked fourth, fifth, sixth and seventh floor of the building. The learned Standing Counsel for the Nagercoil Municipality confirmed this factual position. The status quo, as on today, shall be maintained till the disposal of the revision petition pending before the Government. MECHANICAL MANNER OF GRANTING OF INTERIM ORDERS: 17. The Government has been granting interim orders pending disposal of the revision petition under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971 without application of mind. The status quo, as on today, shall be maintained till the disposal of the revision petition pending before the Government. MECHANICAL MANNER OF GRANTING OF INTERIM ORDERS: 17. The Government has been granting interim orders pending disposal of the revision petition under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971 without application of mind. Even in cases, where locking and sealing action was undertaken, pursuant to the order passed by the High Court, the Government has entertained revision petition and granted interim order of stay/ status quo without discussing the merits of the matter. 18. The Government must call upon the revision petitioners in all the cases to file an affidavit as to whether enforcement action was taken, pursuant to the orders passed by the High Court/Supreme Court. In case action was taken pursuant to the intervention of the Courts, the interim order must contain special reasons for the grant of stay or any other kind of interim order. It is found that even in cases, where regularisation is not possible, the Government has stayed the enforcement action without any basis. Such orders would not stand to judicial scrutiny. 19. We make it clear that the order in the stay petitions filed under Sub-Section (3) of Section 80-A must contain reasons. The Government must also impose appropriate conditions while granting interim orders. The order under Section 80(3) is amenable to the writ jurisdiction and in the event of challenging such orders, the Government must prove the trinity tests, prima facie case made out by the petitioners, balance of convenience and the irreparable injury. In short, only on satisfaction of the trinity test, the Government would get jurisdiction to pass interim orders. Before passing orders in a matter, which is pending before the High Court, notice should be issued to the petitioner, who was instrumental in moving the enforcement machinery. 20. The Writ Petition is disposed of with the above direction. No costs. Consequently, the connected miscellaneous petition is closed.