High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.12.2007 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.14843 of 19991. P.Prabhu 2. P.M.Imayapathi .. Petitioners vs. 1. The State of Tamil Nadu rep. by its Commissioner and Secy to Government Housing and Urban Development Department, Fort St. George,Chennai-600 0092. The Member Secretary Chennai Metropolitan Development Authority-Thalamuthu Natarajan Maligia, Gandhi Irwn Road Egmore, Chennai – 600 008 .. RespondentsThis writ petition is filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Certiorari to call forthe records of the first respondent in G.O.(D) No.319, Housing andUrban Development Department, dated 3.8.1999 and quash the same. For petitioner : Mr.A.MuthuramanFor respondents : Mr.D.Srinivasan Additional Government Pleader for R1 Mr.C.Kathiravan for R2O R D E RHeard Mr.A.Muthuraman the learned counsel appearing for thepetitioner and Mr.D.Srinivasan, the learned Additional GovernmentPleader appearing for the first respondent as well as Mr.C.Kathiravanthe learned counsel appearing for the second respondent. https://hcservices.ecourts.gov.in/hcservices/

2. It is stated that the petitioners are joint owners of theproperty bearing door No.62, Thayar Sahib Street, Chennai. Thepetitioners have challenged the orders passed by the first respondentconfirming the orders of the second respondent refusing to issue theplanning permit for additional construction in the said property. Thepetitioners had proposed to construct the shop and office building inthe above mentioned property and had therefore, applied for planningpermission. The planning permission had been refused on the groundthat the proposal violates the set back requirements around thebuilding. 3. Challenging the order refusing the planning permission, anappeal had been filed by the petitioners before the first respondent.Even though the petitioners had requested for time to send furtherrepresentation, the first respondent had passed an order, dated21.1.1985, rejecting the appeal accepting the recommendations made bythe second respondent. Thereafter, the petitioners had presented apetition to the Government of Tamil Nadu for reconsideration of thesaid order. However, by an order, dated 17.6.1987, the DeputySecretary, Government of Tamil Nadu, Housing and Urban DevelopmentDepartment, had informed the petitioners that no case had been madeout to revise the orders. Hence, The petitioners had filed a writpetition before this Court in W.P.No.11822 of 1987, challenging theorder passed by the first respondent, on 21.1.1985. By an order,dated 28.1.1997, this Court had allowed the writ petition settingaside the order passed by the first respondent on 21.1.1985 andremanded the matter back to the first respondent for fresh disposal,by giving sufficient opportunity to the petitioners. 4. Pursuant to the order of this Court, dated 28.1.1997, made inW.P.No.11822 of 1987, the first respondent had passed the order inG.O.(D) No.319, Housing & Urban Development(UDV) Department, dated3.8.1999, which reads as follows:ORDER:Tvl. P.Prabhu and P.M.Imayapathi, C/oMr.S.Rangan at No.913, Poonamallee High Road,Chennai-84 have preferred an appeal in thereference first read above against the refusalorders of the Member Secretary, ChennaiMetropolitan Development Authority on theirapplication for issuance of planning permissionfor additional construction of shops and officebuilding at No.62, Thayat Sahib Street, Chennai.2. The appeal was examined under Section 79of the Tamil Town and Country Planning Act 1971,based on the remarks of the Member-Secretary, https://hcservices.ecourts.gov.in/hcservices/ Chennai Metropolitan Development Authority in hisletter second read above and orders issued inG.O.Rt.No.47, Housing & Urban DevelopmentDepartment, dated 21.1.1985, rejecting the appeal.Against these orders, the appellant obtaineddirection from High Court in their judgment on28.1.1997 in W.P.No.11822/87 and W.M.P.No.17308/87setting aside the orders issued in G.O.Rt.No.47,H&UD Dept. dt. 21.1.85 referred to above andremanding the appeal to the respondent for freshdisposal. In the absence of any furtherrepresentation for consideration of the case fromthe appellant after in above judgement, theviolations already pointed ot are taken intoaccount. 3. The Government found that the appellanthas not submitted his further representation andrectified the violations pointed out by Governmentin Letter No.16507/UD-I(2)/85-2 dated 10.7.84 soas to satisfy the DCR. The shortfall in the frontset back not only affect the free movement butalso prevent the overall further development. Itis found that the required set back spacesprescribed with reference to the height of thebuilding for the free flow of light and air tothis building as well as to the neighbouringbuilding is not provided. Also the non provisionof adequate car parking and drive way space andshortage in the width of the road will lead totraffic jam and congestion. The excess FSI and theshortage in the corridor width prescribed willlead to pollution due to excess usage, of existingspace sewerage, water supply, Electricity anddrainage connections provided for use within thelimited surrounding with programmed development.The Government observed the problems involved inthe violated construction and find that theviolations are beyond the relaxable limit andaccordingly they reject the appeal preferred byTvl.P.Prabhu and P.M.Imayapathi. The orders issuedare final and no further appeal shall lie with theGovernment." 5. The main contention of the petitioners is that the firstrespondent had passed the impugned order without giving anopportunity of hearing to the petitioners, as contemplated by thisCourt in its order, dated 28.1.1997. Therefore, the impugned orderof the first respondent, dated 3.8.1999, is invalid in the eye of https://hcservices.ecourts.gov.in/hcservices/ law. 6. At the stage of the hearing of the writ petition, the learnedcounsel appearing for the petitioners had submitted that it wouldsuffice, if the impugned order of the first respondent, dated3.8.1999, is set aside and if a direction is issued to the firstrespondent to dispose of the appeal afresh after giving a reasonableopportunity to the petitioners to represent their case. 7. The learned counsels appearing for the respondents have noobjection for such an order being passed by this Court. 8. In view of the submissions made by the learned counselsappearing for the parties concerned, the impugned G.O.(D) No.319,Housing & Urban Development (UDV) Department, dated 3.8.1999, is setaside and the first respondent is directed to dispose of the appeal,on merits and in accordance with law, within a period of eight weeksfrom the date of receipt of a copy of this order, after givingsufficient opportunity to the petitioners to represent their case.The petitioners are directed to furnish all the relevant recordsrelating to their representation, dated 7.8.1984, to the firstrespondent, along with the copy of this order.The writ petition is ordered accordingly. No costs. Consequently,connected W.M.P.No.23197 of 1999 is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.lanTo:1. The Commissioner and Secy to Government The State of Tamil Nadu Housing and Urban Development Department, Fort St. George,Chennai-600 009 https://hcservices.ecourts.gov.in/hcservices/

2. The Member Secretary Chennai Metropolitan Development Authority-Thalamuthu Natarajan Maligia, Gandhi Irwn Road Egmore, Chennai – 600 008 + 1 CC To Mr. A.Muthuraman, Advocate SR NO.74111 Writ Petition No.14843 of 1999iv[co]gp/9.1.