P.N. Udani vs Corporation of Chennai

Petitioner/accused in S.T.C.No.1032 of 1998 on the file of learned XX Metropolitan Magistrate, Chennai has-preferred the petition u/s 482 of

the Code of Criminal Procedure, to quash the, proceedings.

The case in brief is as follows:-

The petitioner is the owner of property situated at Villivakkam village measuring about ''1'' acre and 66 cents bearing S. No. 172/2 and executed a

Power of Attorney in favour of Mr.Chirag N Mehar to deal with the property absolutely to apply to authorities for getting-planning permission and

to develop the same by constructing residential apartments. She also executed a Development Agreement on 29.6.96 with Narendra Properties

Limited agreeing for certain terms and conditions. The developer applied to the CMDA and Corporation for planning permission on 25.10.96. The

CMDA requested the developer to pay the development charges and security deposit and the same was paid. The CMDA requested the

developer to gift the OSR area to Corporation of Chennai free of cost. Since the planning permission was delayed for the purpose of executing

bank guarantee, the petitioner filed W.P. No. 1367 of 1997 before this Court and by an order dated 8.9.97 this Court directed the CMDA to

process the application and issue the planning permission. The developer executed bank guarantee and sent a letter on 22.8.97 requesting the

Commissioner, Corporation of Chennai to approve the draft gift deed. After the receipt of the draft deed from the developer on 22.8.97, they did

not take action in approving the draft gift deed, the petitioner once again moved this Court in W.P. 7685 of 1998 for a writ of mandamus directing

the Commissioner of Corporation to take over the OSR land and this Court directed the Corporation authorities to pass final order within two

weeks. The petitioner after getting orders from the court, obtained planning permission and building licence from the respondent. When

W.P.No.7685 of 1998 was filed, the petitioner has stated that the respondent has issued notice u/s 236 of the City Municipal Corporation Act

(hereinafter referred to as ''the acts'') stating that the requirements have not been complied with. The petitioner also sent a reply. The respondent,

however, lodged a complaint before the learned Metropolitan as if without permission from the corporation the petitioner proceeded with the

construction

Once she has executed a power of attorney and development agreement, it is not proper on the part of the respondent to issue any notice and

file a complaint. She, is a lady of 65 years, suffering from hyper tension and also not moving out. She should not be penalised for any offences if at

all any committed by the developer as alleged , in the complaint. It is the duty of the respondent that within 30 days from the date of receipt of the

application, they should either approve or reject the planning papers and if within one month such approval or submission is not granted, it shall be

deemed to be given in view of section 239 (2) of the Act. Since the petition has not been disposed of within one month u/s 239 (2), it is presumed

that the petitioner can proceed with the construction. Accordingly, the developer proceeded with the construction. The developer also paid the

regularisation charges u/s 244-A to the tune of Rs.58, 500 on 9.1.99. Hence, the proceedings are liable to be quashed.

The respondent filed a counter affidavit, stating that the allegations in the petition are not correct. No construction or re-construction can be

commenced without permission of the authorities. The petitioner has commenced construction even prior to the grant of permission. Notice u/s 236

of the Act was given. Moreover, notice u/s 236 of the said Act dated 14.5.98 was also given. No satisfactory reply was given, and, hence, the

prosecution was launched. The petitioner submitted a defective proposal and this can be established before the court. The development changes

and security deposit were not paid in time. As per the Development Control Rules framed under Tamil Nadu Town and Country Planning Act,

open space reserved land is to be gifted to the Corporation of Chennai. The petitioner has not complied with the full requirements. The OSR land

was inspected and found that there-are encroachments. The petitioner has to gift the land free from encroachment and encumbrance. The petitioner

is the principal offender and the power of attorney is only an agent doing the work of the petitioner. The petitioner cannot take shelter u/s 239 (2)

of the Act. Even on her own admission, the OSR land was gifted only on 25.6.98 and possession was given only on 13.8.98. By presenting a

defective application, she cannot take shelter u/s 239 (2) of the Act. Even after executing the bank guarantee, the petitioner has to demarcate the

area left as open space reserved. There are deviations from the plan sanctioned to regularise. Since the point in issue can be decided only on the

basis of proper evidence, the proceedings cannot be quashed.

Heard the learned counsel of both sides.

The petitioner filed this petition to quash the proceedings in S.T.C.No. 1032 of 1998 on the file of learned XX Metropolitan Magistrate.

Learned counsel for the petitioner mainly contended that the developer executed bank guarantee and sent a letter on 22.8.97 requesting the

Commissioner Corporation of Chennai to approve the draft gift deed. The petitioner also filed W.P.7685 of 1998 before this Court and the

Corporation was directed to pass final orders in the application within two weeks from the date of receipt of the order. The respondent issued a

notice u/s 236 of the Act that the requirements have not been complied with and she sent a reply. The papers were, pending from 22.8.97 to

6.4.98 before the Corporation of Chennai for the purpose of taking over the land as well as issuing of building licence. The petitioner also relied

upon section 239 (2) of the Act, which reads as follows:

If the Standing Committee does not within one month from the receipt of such written request, determine whether such approval or permission

should be given or not, such approval or permission shall be deemed to have been given and the applicant may proceed to execute the work, but

not so as to contravene any of the provisions of this Act or any rules or by-laws made under this Act,

Learned counsel mainly contended that based upon this sub-clause only, since no order was received from the Corporation, construction was

started and, as such, the prosecution now launched is not maintainable under law. Even assuming that the Corporation has not passed an order

within the period provided under law, however, the construction should not contravene any of the provisions of the Act, any rules or by-laws is

also relevant to be borne in mind. The counter filed by the respondent indicates that there are deviations from the plan sanctioned and the defaulter

has made the charges only belatedly. It is also clear from the counter that the petitioner has not complied with the full requirements. The OSR and

was inspected and found that there are, encroachments ;but the Government land should be free from encroachment or encumbrance. The

petitioner is the principal person and the power of attorney is only an agent, doing the work on behalf of the petitioner. When the owner of the

property has failed to comply with the legal requirements and there was deviation in the construction also. She is not entitled to take shelter u/s 239

(2) of the Act.

Learned counsel for the respondent contended that there are disputed between the parties even relating to facts, Ultimately, it can be decided

only on proper evidence and documents. The question whether the petitioner has complied with the legal requirements or not can be decided only

on full-fledged evidence. Admittedly, the development charges have not been paid immediately and even in respect of OSR land, it is not free from

encroachment or encumbrance. Section 482 of the Code of Criminal Procedure can be invoked only if the Court comes to the conclusion that

even if the entire case of the prosecution is taken into consideration, it will be an abuse of process of the court; but, now, the materials projected

by the petitioner or not sufficient to quash the proceedings. Moreover, the merits or de-merits of the case cannot be considered at this stage.

For the reasons stated above, the petition is dismissed. It is, however, open to the petitioner to raise these defences before the trial court and the

trial court is directed to consider the same uninfluenced by any of the observations. Consequently, connected Criminal Miscellaneous Petitions are

also dismissed.