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No restriction on demolishing erring buildings
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Courts have ruled that action could be taken even three years after completion of buildings, writes C.H. Gopinatha Rao
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Many take comfort in the idea that authorities in Chennai cannot take action against unauthorised buildings and rule violations if they have gone undetected or unnoticed for three years after the completion. However, the courts in the recent past have set aside such interpretation . Action can be taken on erring buildings even three years after their completion. The perception in favour of erring buildings comes from favourably interpreting Section 56 of the Town and Count
ry Planning Act.
Amongst other things Section 56 discusses, it also sates that in contravention of any permission which has been modified, the appropriate authority may, within three years of such development serve to the owner a notice requiring him within such period ,being not less than one month, as may be specified therein after the service of the notice, after the service of the notice to take such action specified in the notice
A promoter in T.Nagar applied for planning permission for constructing a residential complex comprising ground plus three floors with four flats in each floor and the ground floor earmarked for parking. The Chennai Corporation issued planning permission in 1981. After getting the permission, the promoter converted the ground floor parking for commercial purposes and put up office rooms. He also built constructed four flats in the fourth floor without proper permission. Those who had bought flats in the approved floors of the complex were aggrieved by this and filed complaint with the CMDA. Based on the complaint, the CMDA issued demolition notices in 1988 under section 56 and section 85 of the Town and Country Planning Act directing the owners./developer/ occupiers to demolish the unauthorised construction . This notice was challenged by those who had purchased the unauthorised offices. A writ petition was filed in the court. The other occupiers of the sanctioned flats got themselves impleaded in the writ petitions.
In 1994, the single Judge of the Madras High Court concluded that the conversion of the ground floor parking space into commercial area and the construction of the fourth floor over and the above the third floor was unauthorised and illegal. However the Court quashed the demolition notices served by the CMDA on the ground the said notices were not issued within the period of three years of the offending construction.
The CMDA and the impleaded respondents preferred to file a writ appeal with Division bench of the High Court. The Division bench (CMDA vs S. Radhkrishnan and others) in their order in 2005 observed that “ a harmonious reading of the provisions in section 47,48,56 and 85 of the Town Planning Act clearly reveals the intention of the legislature is not to permit unauthorised and illegal development in contravention of the planning permission issued by the appropriate planning authority.
The court observed that appropriate authority has got powers to order demolition of unauthorised development under section 85 (i) (c)of the Act. The Court further said that in matters of this nature, the offences is to be treated as continuing one till the offending structure is demolished or altered The planning authority is perfectly within its right to issue a notice to proceed against unauthorized development even after three years and take appropriate steps.
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