Kailasam, J:-This appeal is preferred by the Commissioner of Pattukottai municipality against the judgment of Ramaprasada Rao, J., in Writ Petition No. 148 of 1972. The writ petition was filed by minor Chandrasekaran represented by his father and guardian Natanam Chettiar for the issue of a writ in the nature of mandamus or any other appropriate writ directing the respondent-municipality to forbear from demolishing the petitioner’s building in Section No. 68/A-5 of Pattukottai village.

2. The respondent herein commenced putting up a construction in Section No. 68/A-5 within the municipal limits of Pauttkottai village. On the 4th of December, 1970 he applied to the municipality for permission to put up a godown over the land and submitted building plans for the purpose. Before sanction of the plan, the respondent started construction on the 4th of December, 1970 and a door frame on the site was fixed on 15th of December, 1970. As the respondent had commenced building without getting a sanction, a notice under section 216 (1) (i) (a) of the Tamil Nadu District Municipalities Act dated 19th December, 1970 was served on him calling on him to demolish the unauthorised construction. This notice was acknowledged by him on 22nd December, 1970. On 3rd December, 1971 the first plan submitted for consideration was rejected on the ground that there was a violation of a specific building requisition. The respondent applied for a second time for approval of the site and for further construction and forwarded fresh plans. The second application was made on 5th April, 1971. On 21st April, 1971 the provisional order issued under section 216(1) (i) (a) of the Act calling upon the respondent to demolish the construction was confirmed under section 216 (3). The second plan submitted by the respondent on 5th April, 1971 was also rejected on the ground that the respondent proceeded to construct without permission and he did not obey the provisional order made under section 216 (1) (i) (a) of the Act. The rejection of the first plan was acknowledged by the respondent on 24th April, 1971. The respondent filed a third plan for sanction of the building plan and approval of the site and furnished fresh plans on 27th April, 1971, but the third plan was returned on 30th April, 1971 on the ground that the building would be an encroachment upon the Government land.

3. It is not in dispute that the site in which the building was sought to be built was kottai poramboke and is Government land. Proceeding for noncompliance with the direction of the municipality was taken and the provisional order under section 216(1) was confirmed under section 216(3) of the Act. The respondent was then prosecuted before the Special First Class Magistrate, Pattukottai, for an offence under section 216(1), (2) and (3) and section 317 of the Act and the case is pending. An appeal was filed by the respondent but no order was passed by the municipal council. In the writ petition the respondent contended that after the municipality initiated the criminal proceeding as contemplated under the Act, the municipality is not entitled to pull down the building as it had no jurisdiction to demolish it by itself. According to the respondent the only course open to the municipality for the non-compliance of the direction under section 216 is to prosecute for an offence under section 317.

4. Before the learned Judge and before us it was contended that a direction under section 216(1) to (3) to demolish an unauthorised construction, if not complied with, can only be dealt with as an offence punishable under section 317 and the municipality cannot on its own force demolish the unauthorised construction. The learned Judge held that the municipality had the power to prosecute a delinquent person but had no power to enforce the demolition of that building because they did not sanction the plan and in the particular case they could not sanction the plan as the building was sought to to be put up in a k

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