Case Note & Summary
The petitioner, a construction company, challenged a removal notice issued by the Chennai Metropolitan Development Authority (CMDA) dated 28.11.2023, which directed demolition of unauthorized floors (fourth to eighth, part ninth, and part tenth) in a commercial building at T. Nagar, Chennai, and also sought a direction to demolish an alleged illegal structure by the fifth respondent in the setback area. The planning permission originally granted on 09.02.1990 was for basement, ground, mezzanine, and three floors. The petitioner, however, constructed up to the tenth floor (part), a large-scale deviation. The petitioner applied for regularization in 1995, but the applications were rejected on 09.02.2007 and again on 27.02.2014. Despite the rejections, the petitioner continued to occupy the additional floors. Notices for locking, sealing, and demolition were issued in 2014 and 2019, and the unauthorized portions were locked and sealed on 24.10.2019. The petitioner filed an appeal under Section 80-A of the Tamil Nadu Town and Country Planning Act before the Government, which rejected the appeal on 13.02.2020. This rejection order was not challenged, but the petitioner argued that since no fresh enforcement action was taken, it was not necessary to challenge it. The petitioner then filed earlier writ petition No.13097 of 2018, where the court recorded the locking and sealing. The CMDA subsequently issued the impugned removal notice on 28.11.2023, leading to the present writ petition. The main legal issue was whether the removal notice was valid and whether the petitioner was entitled to regularization. The court examined the provisions of the Tamil Nadu Town and Country Planning Act and the Constitution of India, Article 226. The respondents contended that large-scale unauthorized commercial construction in a busy area cannot be regularized and that the appeal rejection had attained finality. The court emphasized that regularization of unauthorized construction is not an absolute right; it is a concession granted through one-time schemes and cannot be claimed as a matter of routine. Power to grant exemption is an exception and must not defeat the object of building regulations. Unauthorized constructions cause environmental harm, threaten public safety, and must be dealt with strictly. Citing the Supreme Court’s decision in Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad, the court reiterated that illegal constructions cannot be protected by passage of time or expenditure, and must be demolished. The court also noted that the petitioner had not challenged the Government’s appellate rejection order under Section 80-A. In light of these findings, the court found no merit in the writ petition and dismissed it, upholding the removal notice and refusing to grant any relief.
Headnote
A) Town and Country Planning – Unauthorized Construction – Regularization – Tamil Nadu Town and Country Planning Act, Sections 80-A – The petitioner constructed basement plus ground plus eight floors plus ninth floor (part) and tenth floor (part) in place of approved basement, ground, mezzanine plus three floors. Applications for regularization filed in 1995 were rejected on 09.02.2007 and 27.02.2014. The Government also rejected the appeal under Section 80-A on 13.02.2020, which order remained unchallenged. Held, regularization of unauthorized construction cannot be claimed as an absolute right; it is a concession granted only through special schemes and not as a matter of routine (Paras 3-6, 8-9). B) Town and Country Planning – Enforcement Action – Locking, Sealing and Demolition – Tamil Nadu Town and Country Planning Act – After rejection of regularization, locking and sealing and demolition notices were issued on 10.07.2014 and 04.07.2019, and the unauthorized floors were locked and sealed on 24.10.2019. The impugned removal notice dated 28.11.2023 was passed pursuant to the appellate order. Held, the enforcement action was consistent with law and the petitioner’s failure to produce any building plan permission for the unauthorized construction justified the demolition notice (Paras 5, 8). C) Constitutional Law – Writ Jurisdiction – Judicial Review – Constitution of India, Article 226 – The petitioner sought certiorarified mandamus to quash the removal notice without challenging the earlier Government rejection order under Section 80-A. The petitioner was unable to show any valid plan for the extra floors. Held, the writ court will not interfere where unauthorized construction is manifest and the petitioner has not availed or exhausted statutory remedies effectively (Paras 6-8). D) Interpretation of Statutes – Building Regulations – Exemption and Public Interest – Tamil Nadu Town and Country Planning Act – The power to grant exemption from building regulations is an exception and cannot be used to routinely legalise illegal constructions. Unauthorized commercial structures in busy areas cause environmental damage, threaten safety, and defeat the Master Plan. The Supreme Court in Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad reiterated that illegal constructions must be demolished and cannot be protected by passage of time or expenditure incurred. Held, building authorities must strictly enforce approved plans and cannot be mute spectators (Paras 9-11).
Issue of Consideration
Whether the CMDA's notice dated 28.11.2023 for removal of unauthorized construction is illegal and invalid; Whether the petitioner is entitled to regularization of the unauthorized fourth to tenth floors; Whether a direction should be issued to demolish the alleged illegal construction of the fifth respondent in the setback area.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Regularization of unauthorized construction is not an absolute right
- Illegality of unauthorized construction cannot be perpetuated
- Exemption power under Town Planning Act is an exception and cannot be exercised routinely
- Unauthorized constructions must be dealt with strictly not with kid gloves
- Building plan permission must be strictly adhered to
