Full Judgment
Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to entertain, consider and grant approval to the demolition plan and planning permission, planning permit and building permit for construction of Flats in Block Nos.138 to 148 Geethanjali colony, 7th Avenue, Anna Nagar West, Chennai-40 comprised in S.Nos.185 (part), 186 (Part) and 187 (part) in Padi Village, S.Nos.221(Part) in Koyambedu Revenue Village (Koyambedu Revenue Village now comes under Thirumangalam Revenue Village), S.Nos.141 (part), 142(part), 152 (part) and 154 (part) in Villivakkam Village, admeasuring 70618 sq. ft. jointly owned by the petitioners based on the orientation sketch issued by the Tamilnadu Housing Board without insisting patta from revenue authorities.
ORDER
1. This Writ Petition is filed praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to entertain, consider and grant approval to the demolition plan and planning permission, planning permit and building permit for construction of Flats in Block Nos.138 to 148 Geethanjali colony, 7th Avenue, Anna Nagar West, Chennai-40 comprised in S.Nos.185 (part), 186 (Part) and 187 (part) in Padi Village, S.Nos.221(Part) in Koyambedu Revenue Village (Koyambedu Revenue Village now comes under Thirumangalam Revenue Village), S.Nos.141 (part), 142(part), 152 (part) and 154 (part) in Villivakkam Village, admeasuring 70618 sq. ft. jointly owned by the petitioners based on the orientation sketch issued by the Tamilnadu Housing Board without insisting patta from revenue authorities.
2. Mr.P.Tamilmani, learned counsel takes notice on behalf of the first respondent; Mr.V.C.Selvasekaran, learned counsel takes notice on behalf of the second respondent. By consent, the writ petition is taken up for final disposal.
3. Petitioners are the joint owners of the flats with proportionate undivided shares in the land, which was promoted by the Tamil Nadu Housing Board and sold to the individuals. The present owners are either original allottees or subsequent purchasers. The petitioners intended to demolish the superstructure as the building is in a dilapidated condition and further intended to develop the property jointly. The flats already in existence is an ordinary building and the petitioners now want to develop it by putting up construction by utilizing the maximum floor space index for the extent of land available as mandated under the Development Control Rules for residential purpose. After obtaining the orientation sketch, the petitioners prepared the demolition and reconstruction plan and approached the respondents in the month of November 2011. The first respondent declined to even entertain any plea for planning permission on the ground that patta in respect of the property has not been enclosed. Aggrieved by the same, the petitioners have come forward with the present writ petition.
4. Similar issue with regard to the insistence of no objection certificate from Tamil Nadu Housing Board was considered by a Division Bench of this Court in W.A.No.1052 of 2007 (The Managing Director - vs. - Lancor G:Crop Properties Limited & another) where it has been clearly held that the Housing Board has no right over property developed and sold to the individual allottees. The petitioners have enclosed sale deeds to show absolute ownership. The only restriction appears to be that the property developed for residential purpose should not be commercial use. The petitioners' plea is only for demolition and reconstruction as residential property.
5. Petitioners' counsel states that the development of the property is for residential use only and petitioners are willing to file an affidavit to that effect. Following the Division Bench Judgment as above, several orders have been passed by this Court, viz., W.P.No.15170 of 2010 dated 20.7.2010, W.P.No.14784 of 2008 dated 6.8.2008 and W.P.No.19942 of 2012 dated 30.07.2012, where the Chennai Metropolitan Development Authorities were directed to accept the application without insisting on no objection certificate. The learned counsel for the petitioner relied on the Office Order No.5/2002 dated 1.3.2002 issued by the Member Secretary, which is self explanatory. It is relevant to extract the same:-
" E.15 Sub: CMDA Area Plans Unit Processing of Planning Permission cases Tamil Nadu Housing Board allotted/Sold sites sold sites -Patta with FMB/PLR extract not to be insisted Orders Issued.
Ref: 1. Office Order No.15/97 dt. 28.07.1997
2. Office Order No.18/99 dt. 05.07.1999.
In the reference cited, it was noted that when extents given in documents and patta and found at site differ, for allowing Floor Space Index, minimum of the above three extents is taken as the basis. Regarding dimensions, it was ordered that the plans with site dimensions showing as per PLR extract/FMB sketch be accepted even, when the site conditions differ, subsequently, in the reference second cited it was ordered that both the dimensions as per PLR extract/FMB sketch and also as per site conditions have to be shown.
2. The above procedure was reviewed in cases of Tamil Nadu Housing Board allotted sites. It was observed that TNHB is a Government agency, and they issued FMB sketch duly authenticated showing the plot dimensions/extent sold by them. Hence, it could be taken as an evidence for working out Floor Space Index and Permanent Land Record extract/patta issued by the Revenue authorities need not be insisted.
3. In partial modifications of the Office Orders cited, it is ordered that in cases of Tamil Nadu Housing Board allotted/sold plots, for examining Planning Permission applications relating to Special Buildings/Group developments/Multi-storied Buildings/Sub-divisions regarding allowability of Floor Space Index based on least extent and accepting site dimensions, patta with FMB sketch/PLR extract issued by the Revenue authorities need not be insisted and such Planning Permission Applications processed accepting the sale deed and FMB sketch issued by the TNHB as an evidence in lieu of patta/PLR extract."
6. Since the Chennai Metropolitan Development Authority itself has taken a decision not to insist on patta with FMB sketch/PLR namely the patta issued by the Revenue Authorities, the mandamus sought for by the petitioner has to be necessarily granted. The Respondents 1 and 2 are directed to consider and grant approval to the demolition plan and planning permission, planning permit and building permit for construction of Flats based on the orientation sketch issued by the Tamilnadu Housing Board without insisting patta from revenue authorities, subject to condition that the property will be developed only for residential purpose. The petitioners, however, are directed to submit the individual sale deeds of all the land owners to the competent authority to get planning permission.
7. The Writ Petition is ordered as above. No costs.