Only strict law will end encroachments: Madras High Court

In case of violations, the liability will have to be foisted on the errant persons, the bench added.

Chennai: The Madras HC has said unless the law is strict, there will not be any solution for removal of encroachment and the violators will continue to violate, thereby making the law abider a laughing stock. A division bench comprising Justices M. Venugopal and S. Vaidyanathan passed the interim order on a contempt petition filed by C. Prabhakaran relating to encroachment and an unauthorised construction in Avadi.

The bench said in this petition, this court has to see as to whether the building has been brought back in accordance with the sanctioned plan or not and the court does not want to go into the question regarding the empowerment of the authority concerned to sanction the ground floor area with regard to the special building. In this case, there were violations with regard to the set back area and that in our earlier order, this court had held that the G.O Nos 110 and 111 passed by the government, pursuant to insertion of section 113-C of the Town and Country Planning Act, were not valid and cannot stand in the eye of law, in the light of the judgment of the SC, when there were no set backs. It was poignant to state that when Section 113-A was upheld, the regularisation was to be one time measure, while considering the grant of regularisation. Hence, leaving the issue open as to the legality of the sanction of ground floor area by the authorities, the contesting respondent was directed to bring the building in accordance with the plans of the year 2001 and 2004, otherwise, the entire building will have to be razed to the ground, if no set backs were maintained, the bench added.

The bench said, however, it was open to the building owners to bring the building/flat in accordance with the plan within the stipulated time, failing which, the E.B and water supplies to the building have to be disconnected with immediate effect. The parties could be asked to produce the sanctioned plan along with the sketch of the property within one week and thereafter, inspection shall be done based on the statement made by the parties to ascertain its genuineness. In case of violations, the liability will have to be foisted on the errant persons, the bench added.

The bench said, “The government should also think of amending Acts, such as the TN Town and Country Planning Act, District Municipalities Act and other enactments that deal with the removal of illegal constructions and encroachments., to the effect that wherever buildings are constructed in violation of the plan, the charges, like electricity, property and water tax, etc., should be collected not less than five times at the rate applicable to commercial buildings even to residential houses, so that monies collected in that way could be utilised by the government and the government can avoid financial emergency. Though no court can legislate or amend any Act, suggestion for amendment of the Act can be extended to suit the present context and to make the law simpler”.

Till framing of such amended Act/Rules etc., the government shall exercise this direction with effect from the second half of the accounting year. If anyone brings out the failure of the authorities in imposition of 5 times penalty on the defaulters, the court will itself initiate contempt for the willful and deliberate disobedience of the order of this court and impose imprisonment other than fine, as extraordinary situation warrants extraordinary remedial measures, the bench added.

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