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2025 DIGILAW 2342 (MAD)

M. D. Lokeswari v. Chennai Metropolitan Development Authority

2025-04-28

K.RAJASEKAR, S.M.SUBRAMANIAM

body2025
JUDGMENT : S.M.Subramaniam, J. The Writ of mandamus has been instituted to direct the first respondent to take action on the representation of the petitioner dated 31.01.2024, for removal of unauthorised construction. 2. It is not in dispute that in pursuant to the complaint lodged by the petitioner, CMDA conducted an inspection and issued FORM-IV Notice for compliance of Planning Permission in respect of the unauthorised development carried out in contravention of the Planning Permission in proceedings dated 10.11.2023. 3. Mrs.Fathima Sulthana, the learned Counsel for the petitioner would submit that entire IVth Floor is an unauthorised construction and it is to be removed. However, the Authorities are not continuing their action despite the fact that the notice was issued on 10.11.2023. 4. Mr.R.Sivakumar, the learned Standing Counsel for CMDA would submit that subsequently, another notice was issued on 18.03.2025, requesting the private respondents to secure compliance with the set back as per the planning permission issued by CMDA. In response, the private respondents have submitted their reply to CMDA on 17.04.2025. However, further actions are yet to be taken. 5. The lapses on the part of CMDA in continuing the enforcement action cannot be approved by this Court. Once enforcement actions are initiated against the unauthorised constructions/deviations, it must be pursued continuously, so as to ensure that the unauthorised constructions/deviations are demolished and the building is restored in consonance with the Building Plan Permission. Contrarily, the Authorities are committing lapses and dereliction of duty in complying with the provisions of law for which they must be held responsible and accountable and more-so, those Officials must be subjected to disciplinary proceedings. 6. The Hon'ble Supreme Court of India in the case of Rajendra Kumar Barjatya Vs. U.P.Avas Evam Vikas Parishad reported in 2024 INSC 990 passed Judgment in rem. Paragraph No.21 of the Judgment reads as under: "Directions in the matter of demolition of structures (supra): (i) While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned. (ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records. (iii) Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential/commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified. (iv) All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider/Board to the buildings only after the production of the completion/occupation certificate. (v) Even after issuance of completion certificate, deviation/violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder/owner/occupant; and the official, who is responsible for issuance of wrongful completion/occupation certificate shall be proceeded departmentally forthwith. (vi) No permission/licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building. (vii) The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment. (viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge. (ix) In the event of any application/appeal/revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals/revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided. (x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal/Courts relating to house/building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law. (xi) Banks/financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned. (xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws." 7. Unauthorised constructions made cannot be regularised or mere pendency of application seeking regularisation would not be a bar for the Authorities to continue and conclude enforcement actions. Under the guise of pendency of regularisation application, the violators are attempting to escape from the clutches of enforcement proceedings with the assistance of the competent Authorities. The in-action on the part of the Authorities would be a ground to draw a factual inference that there is a collusion between the parties. The Authorities are not expected to pave way for such inference to be drawn and the enforcement action once commenced must be concluded at that earliest possible. 8. In the present case, actions are prolonged on the ground that the application seeking regularisation is pending, which is otherwise not entertainable. That being so, the first respondent is directed to proceed with the enforcement actions by following the procedures and demolish the unauthorised constructions/deviations and complete the enforcement actions within a period of eight (8) weeks from the date of receipt of a copy of the order. That being so, the first respondent is directed to proceed with the enforcement actions by following the procedures and demolish the unauthorised constructions/deviations and complete the enforcement actions within a period of eight (8) weeks from the date of receipt of a copy of the order. Accordingly, the Writ Petition stands allowed . No costs.