@JUDGMENTTAG-ORDER
Elipe Dharmarao, J.@mdashSince all the matters are inextricably interconnected with each other, they are heard in common and are being
disposed of by this common order.
2. For easy reference, the Petitioner in W.P. No. 8785 of 2004 will be referred hereinafter as the ''Residents Association'' and the Petitioner in the
other two Writ Petitions No. 35914 of 2007 and 36684 of 2007 will be referred hereinafter as the ''School Trust'' and the other official party
Respondents will be referred in their official capacity.
3. On a perusal of the entire materials placed on record, it is seen that the School Trust is the owner of the property situated at Plot No. 480, III
South Main Road, Kapaleeshwarar Nagar, Neelankarai wherein a school was running under the name and style of ''Hail Mary Academy School''
and after purchaser of the said plot, the School Trust decided to construct ground +1 Floor superstructure in addition to the existing superstructure
by way of additional constructions and they have submitted an application for planning permission to the Chitlapakkam Panchayat Union and
according to the School Trust, the Panchayat Union passed the resolution to accord sanction and recommended the same to the concerned
authorities for further action and anticipating the planning permission, the School Trust started construction of the building. The officials of the
Chennai Metropolitan Development Authority (CMDA) have inspected the property on 18.3.2004 and served a notice under Sections 56 and 57
read with Section 85 of the Tamil Nadu Town and Country Planning Act, 1971 calling upon the School Trust to stop construction and the CMDA,
has returned the file on the ground that the site falls within Coastal Regulatory Zone-III and hence permission/No Objection Certificate from the
Coastal Zone Management Authority has to be obtained. The School Trust''s efforts to get regularisation of their unauthorised construction ended
in vain, since the CMDA, relying on the recommendations of the District Coastal Zone Management Committee on the ground that the the school
is located at a distance of 437 meters from the HTL and thus attracts the Coastal Regulation Zone Notification, 1991, has turned down the plea of
the School Trust and even the appeal preferred by the School Trust to the Government was rejected by the Government by G.O.(D) No. 182,
Housing and Urban Development (UD.VI) Department, dated 3.8.2007. Aggrieved by the said rejection order, the School Trust has filed W.P.
No. 35914 of 2007. The School Trust has also challenged the Minutes of the Meeting of the District Coastal Zone Management Committee for
Chennai Metropolitan Area, dated 21.9.2007, where under they have decided not to recommend the clearance of the School Construction under
the CRZ Notification, 1991, by filing W.P. No. 36684 of 2007.
4. In the meantime, in fact even before the filing of both the above said writ petitions by the School Trust, Sri Kapaleeswarar Nagar Welfare
Association (hereinafter referred to as the Residents Association) has filed W.P. No. 8785 of 2004, praying to direct the Respondents to demolish
the illegal construction put up by the School Trust. Their contention is that the said construction by the School Trust violates the CRZ notification,
since falls within the CRZ-III area.
5. When the above W.P. No. 8785 of 2004, which has been filed as a Green Bench matter was listed before us, since it came to be known that
the School Trust has also filed two writ petitions in W.P. Nos. 35914 of 2007 and 36684 of 2007 and are pending before a learned single Judge
of this Court, we have directed the Registry to club all the matters together, so as to pass a comprehensive order in all the matters. Accordingly, all
these matters are clubbed together and heard together.
6. In W.P. Nos. 35914 of 2007 and 36684 of 2007 filed by the School Trust, the Residents Association has filed two separate petitions to
implead them as party Respondents and having allowed those two impleadment petitions, the Residents Association was also brought on record as
party Respondent to these writ petitions filed by the School Trust.
7. In W.P. No. 8785 of 2004, the 7th Respondent therein viz.G. Arthi, The Trustee of the School Trust, has filed W.P.M.P. No. 25377 of 2004,
praying to implead one Dr. V. Suresh, the Secretary of the Residents Association, as the party Respondent to the proceedings in his individual
capacity. It is the case of the School Trust that the said Dr. V. Suresh himself has constructed his house in total violation of CRZ Notification after
the same came into force and more than 200 new bungalows have been constructed and being in the process of construction and the Association
did not turn their eye on those constructions nor implead them as party and that the Association has filed the writ petition only to black mail the
School Trust and not on public interest and this can be gathered from their past conduct and correspondence to the vendor of the School Trust
and the Residents Association kept quite when the vendor of the School Trust put up the construction. But, however, since the said Dr. V. Suresh
himself is the deponent to the affidavit filed on behalf of the Residents Association and since he has also filed an additional affidavit repudiating the
allegations made by the School Trust, we do not find any necessity to implead him as a party Respondent, in his individual capacity, to the writ
proceedings initiated by the Residents Association. Hence, this impleadment petition filed by the School Trust is dismissed.
8. Heard Mr. Muthukumaraswamy, learned senior counsel appearing for the School Trust and Mr. T. Mohan, learned Counsel appearing for the
Residents Association and Mr. C. Kathiravan, learned standing counsel for CMDA.
9. Mr. Muthukumaraswamy, learned senior counsel appearing for the School Trust would vehemently argue that the place where the construction
has been made by the School Trust lies in an approved layout and since the Roads are laid long back and are being maintained by the local body,
the clarification issued by the Government of Tamil Nadu, vide their letter dated 3.10.2005, to the effect that such layout sites may be taken as
developed area for the purpose of Coastal Regulations Zone Notification, and since now, by the subsequent notification issued by the Government
of India, the area has been reclassified from CRZ-III to CRZ-II, the action of the Respondents in rejecting regularisation of the construction made
by the School Trust is illegal.
10. On the other hand, Mr. T. Mohan, the learned Counsel appearing for the Residents Association would argue that the School Trust has raised
the unauthorised construction, that too in a prohibited area, since the area falls within CRZ-III and hence, such unauthorised constructions should
be viewed very seriously, as has been advocated by the upper forums of law. The learned Counsel would rely on the following judgments:
Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (1991) 3 SCC 341 : AIR 1991 SC 1453,
G.N. Khajuria (Dr.) v. Delhi Development Authority (1995) 5 SCC 762 : AIR 1996 SC 253;
L Piedade Filomena Gonsalves v. State of Goa and Ors. (2004) 3 SCC 445
M.C. Mehta v. Union of India (2006) 3 SCC 399 : AIR 2006 SC 1325 and
Consumer Action Group v. The State of Tamil Nadu 2006 (4) CTC 483
11. In the first judgment cited above, the Honourable Apex Court has held that ''builders'' tendency of raising such unlawful construction which is
against public interest and hazardous to safety must be dealt with firmly.'' By holding so, the Honourable Apex refused to interfere with the order of
demolition of eight floors substantially carried out by the Municipal Corporation.
12. In the second judgment cited above, reported in (1995) 5 SCC 762, the Honourable Apex Court has observed as follows:
In the present case it was found that at the site at which the DDA (Delhi Development Authority) allowed Respondent 2 to open a nursery school,
there was a park. It was not open to the DDA to carve out any space meant for a park for a nursery school. The allotment in favour of
Respondent 2 was a misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, where the allotment in favour of
Respondent 2 should be cancelled. The fact that Respondent 2 has put up some structure stated to be permanent is not relevant, as the same has
been done on a plot of land allotted to it in contravention of law. The submission that dislocation from the present site would cause difficulty to the
tiny tots, had been advanced only to get sympathy from the court. Therefore, the allotment made in favour of Respondent 2 is ordered to be
cancelled. It would be open to this Respondent to continue to run the school at this site for a period of six months to enable it to make such
alternative arrangements as it thinks fit to shift the school, so that the children are not put to any disadvantageous position suddenly.
13. In the third case cited above, the Honourable Apex Court has observed as follows in Para Nos. 4 to 6:
4. ...Admittedly, the construction which the Appellant has raised is without permission. Assuming it for a moment that the construction, on
demarcation and measurement afresh and on HTL being determined, is found to be beyond 200 meters of HTL, it is writ large that the Appellant
has indulged in misadventure of raising a construction without securing permission from the competent authorities. That part, the learned Counsel
for the Respondents has rightly pointed out that the direction of the High Court in the matter of demarcation and determination of HTL is based on
the amendment dated 18.8.1994 introduced in the notification dated 19.2.1991 entitled the Coastal Regulation Zone Notification issued in exercise
of the power conferred by Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986, while the Appellant''s construction was
completed before the date of the amendment and therefore, the Appellant cannot take benefit of the order dated 25.9.1996 passed in Writ Petition
No. 102 of 1996.
5. It is pertinent to note that during the pendency of the writ petition, the Appellant had moved two applications, one of which is dated 11.7.1995,
for the purpose of regularisation of the construction in question. The Goa State Coastal Committee for Environment, the then competent body
constituted a sub-committee which inspected the site and found that the entire construction raised by the Appellant fell within 200 meters of HTL
and the construction had been carried out on existing sand dunes. The Goa State Coastal Committee for Environment, in its meeting dated
20.10.1995, took a decision inter alia holding that the entire construction put up by the Appellant was in violation of the Coastal Regulation Zone
Notification.
6. The Coastal Regulation Zone Notifications have been issued in the interest of protecting environment and ecology in the coastal area.
Construction raised in violation of such regulations cannot be lightly condoned.
14. In the fourth judgment cited above, reported in (2006) 3 SCC 399, a Three Judge Bench of the Honourable Apex Court, while dealing with
the matter of misuse of urban land, contrary to building and land use laws, has issued direction for taking immediate steps to seal residential
premises in Delhi which are being used for commercial purpose.
15. In the fifth judgment cited above, the First Bench of this Court, has dealt with the constitutional validity of amendments to Section 113A of the
Tamil Nadu Town and Country Planning Act, 1971 by Amending Acts 31 of 2000, 17 of 2001 and 7 of 2002 and the consequential amendments
to the Application, Assessment and Collection of Regularisation Fee (Chennai Metropolitan Area) Rules, 1999 as far as applicable to the
constructions made after 22.2.1999 and held them ultra vires Articles 14 and 21 of the Constitution, further ordering that all orders for
regularisation of such buildings (constructed after 28.2.99) passed pursuant to the amending provisions were quashed.
16. The case of the School Trust is that the entire village is an approved layout having been carved out long back (for this purpose they have also
submitted the approved layout for Sri Kapaleeswarar Nagar) by Approved Layout L.P.DM. No. 24/74, and since already in the same place a
school was running, they have purchased the property and since to their knowledge, there was no obstacle in getting the clearance for their
construction, they started constructing the buildings without waiting for the approval of the CMDA. It is also their case that now since the area has
been re-classified as CRZ-II, their action could very well be ratified. It is also the case of the Trust that the deponent of the affidavit in W.P. No.
8785 of 2004 viz.V. Suresh, who is the Secretary of the Petitioner Association has constructed his house after the notified date, which is a
prohibited activity, and if really the Petitioner Association has concern about the environment and ecological problem, he should demolish his house
first and stand as an example for others
17. But, on the part of the Residents Association, it has been strongly contended that the construction of the Trust is well within 500 mts. and thus
falling within the prohibited area, as has been mentioned in CRZ and the School Trust having put up an entirely illegal and unauthorized construction
cannot now seek legal protection under a subsequent change in the categorization and that there can be no ex post facto permission especially as
the Honourable Apex Court has repeatedly held that unauthorized construction must be dealt with severely.
18. From the materials placed on record, it is clear that Sri Kapaleeswarar Nagar is an approved layout in Approved Layout L.P.DM. No. 24/74,
a copy of which has been submitted by the learned senior counsel appearing for the School Trust before us and that in the property in which now
the School Trust has raised construction for school purpose, there was a School run under the name and style of Hail Mary Academy School.
After purchase of the said school building, with a view to improve the infrastructure facility, it seems, the School Trust has proposed to construct
Ground+ First floor with a built up area of 38,000 sq.ft. and not a multi-storeyed building as has been dubbed on the part of the Residents
Association. But, one thing is clear that without waiting for the approval of the concerned authorities, the school Trust proceeded with the
construction and seems to have even completed the construction.
19. In the meanwhile, during the pendecy of these writ petitions, the Government of India, Ministry of Environment and Forests, in their
proceedings No. J.-17011/16/93-IA-I Il, dated 31.1.2008, addressed to the Member Secretary of the Tami Nadu State Coastal Zone
Management Authority and Director, Department of Environment, Chennai, has approved the Coastal Regulation Zone reclassification proposal of
the Government of Tamil Nadu, recommending as follows:
1. Map No. 1,2,3 pertaining to Chennai Metropolitan Development Area - The reclassification proposal as suggested by Tamil Nadu Coastal
Zone Management Authority can be agreed upon since, the area is already substantially developed prior to 19.2.1991. In view of the above, the
areas namely, Kotivakkam, Neelankarai and Palavakkam falling in the above maps shall be classified as Coastal Regulation Zone-II from Coastal
Regulation Zone-III.
20. From these proceedings, it is also seen that the Government of Tamil Nadu has forwarded this re-classification proposal as early as in the year
2003, as could be seen from the opening para of these proceedings of the Government of India. For easy reference, we shall extract the said para
hereunder:
This has reference to your letters No. 1497/99/11, dated 11.8.2003; No. 1683/2001/P1, dated 11.9.2003 and No. 1683/2001P1, dated
2.1.2004 regarding the subject mentioned above. The proposal for reclassification with revised maps has been examined in the Ministry and the
rational furnished was also considered.
21. Therefore, it follows that even as early as in the year 2003, taking into consideration the fact that certain areas falling within the Coastal
Regulatory Zone were substantially developed even prior to 19.2.1991, the date on which the Coastal Regulatory Zone Notification came into
effect, the Government of Tamil Nadu has proposed re-classification of the Zones, which was approved and accepted by the Government of
India, in the above referred proceeding dated 31.1.2008.
22. One more thing which needs to be pointed out by us that by the letter No. 21995/EC 3/2005-2, dated 3.10.2005, the Government of Tamil
Nadu, to a clarification sought for by the Chennai Metropolitan Development Authority on the question ''whether development can be permitted in
the layouts approved in Coastal Regulation Zone III areas prior to Coastal Regulation Zone Notification 1991'' has replied that the said question
was considered at the 33rd Meeting of the Tamil Nadu State Coastal Zone Management Authority held on 9.9.2005 and the following decisions
were taken:
After due deliberations, the Authority resolved to issue the following clarification to Chennai Metropolitan Development Authority - in respect of
layouts approved before the Coastal Regulation Zone Notification of 1991, if the roads of the said layouts are laid and maintained by the local
bodies, the said layout sites may be taken as developed area for the purpose of Coastal Regulation Zone Notification. It is also informed that
certificate from the Town and Country Planning Department and local bodies on the above will be obtained before consideration by the Chennai
Metropolitan Development Authority.
23. As has already been observed by us supra, since the layout in question viz. Sri Kapaleeswarar Nagar was an approved one and in view of the
further fact of re-classification of the area as a CRZ-II by the Government of India, pursuant to the recommendation of the State Government and
further in view of the fact that in the area in question there was already a school running, wherein, after purchasing the property, the School Trust
has constructed the buildings, we are not in a position to approve the contentions urged on the contra by the Residents Association. No doubt, the
CMDA has got the power to ratify such of the actions taken by the building owners in raising constructions without obtaining permission. But, since
in the case on hand, the School Trust has no reason to think that their proposal will not be considered by the CMDA, in view of the fact that
already a school was running in the same premises, and in view of the subsequent development of re-classification of the Zone and efflux of time,
we do not propose to go into the other aspect as to whether there can be any ex post facto permission for such constructions. In view of the above
peculiar circumstances of the case, since the area has already been re-classified, the above judgments cited on the part of the Residents
Association are not applicable to the facts of the case on hand. In view of the above discussed circumstances of the case, we have no hesitation to
hold that the CMDA can very well ratify the action of the School Trust in raising the construction, since they are empowered to do so u/s 49 of the
Act, in view of the changed circumstances.
In this view of the matter, the writ petition filed by the Residents Association in W.P. No. 8785 of 2004 is dismissed and the writ petitions filed by
the School Trust in W.P. Nos. 35914 of 2007 and 36684 of 2007 are allowed. No costs. Consequently, connected Miscellaneous petitions are
closed.
