Technical pleas cannot come in way of High Court exercising jurisdiction under Article 226 of Constitution of India.

Markandey Katju, CJ.

Heard learned counsel for the parties. This writ appeal has been filed against the impugned order of the learned single Judge dated 3.1.2005.

2. The parties are referred in this judgment as per the array of parties in the writ petition. First and Second respondents are the writ petitioners and the appellant is the 3rd respondent in the writ petition.

3. The writ petitioners Mr.P.T.Prabhakar and Mrs.Nalini Prabhakar filed a writ petition for a mandamus directing the Member Secretary, CMDA, Chennai and the Commissioner, Corporation of Chennai to proceed against the appellant Mr.Salahudeen Babu and take immediate action by way of demolition of the construction pursuant to the notice dated 4.11.2004 issued by the Member Secretary, CMDA, Chennai under sections 56 and 57 of the Tamilnadu Town & Country Planning Act, 1971 and also pursuant to the notice issued by the Commissioner, Corporation of Chennai under section 256 of the Chennai City Municipal Corporation Act.

4. The petitioners are the owners of the premises bearing old door No.14, New No.15 and presently bearing No.5, Sivasamy Street, Mylapore, Chennai-4 comprised in R.S.No.1146/2. The petitioners purchased the land measuring 4934 sq.ft. under a sale deed dated 8.6.1987 and after purchase of the land the petitioners constructed a bungalow on the land after getting permission from the Corporation of Chennai as per building permission No.438/1987 dated 14.7.1987 and planning permission No.330/1987 dated 14.7.1987. The petitioners constructed ground floor and first floor as per the sanctioned plan and the premises is being personally used by the petitioners.

5. The third respondent in the writ petition (the present appellant) is the owner of the plot of land on the north of the petitioners' premises. It is alleged that the said third respondent for the purpose of construction of a building actually closed all sides with tin sheets giving a small opening for carrying construction materials. It is alleged that the third respondent was carrying on construction activity and only after erection of the concrete columns to a height of 30 ft. the petitioners found that the columns and pillars erected by the third respondent are very close to the petitioners' premises. The petitioners made enquiries and found that the Commissioner, Corporation of Chennai had granted permission to the third respondent (appellant in this appeal) for construction of ground floor and first floor only wherein the third respondent is bound to provide on front and rear a setback of 3 meters. In the plan submitted to the Commissioner, Corporation of Chennai the third respondent had shown the necessary set back as per the rules and regulations provided by the CMDA and Corporation of Chennai and on that representation the Commissioner appears to have sanctioned the construction of the building and granted planning permission to the third respondent on 3.12.2003. However, it is alleged that during the process of actual construction it was found that the third respondent has violated the sanctioned plan and has not provided set back not only on the rear and front side but also on all four sides as per the planning permission and left only about 3'6" instead of 3 metros as set back. It is alleged that the entire construction of the building was in contravention of the planning permission granted by the Commissioner and by reason of this illegal construction the petitioners have been put to great hardship. The construction of the building of the third respondent came very close to the petitioners' building leaving only 3'6" instead of 3 meters as set back which is about 11 feet. As soon as the writ petitioners came to know about this illegal construction by the third respondent they contacted the third respondent and the builder pointing out that necessary set back had not been given, which is mandatory and requested them to remove the unauthorised construction. However, this has not been