No notice u/s 56 of the Act is required to be issued for removal of unauthorised construction.

This Second Appeal is directed against the decree and judgment dated 19.04.1993 in A.S.No.213 of 1992 of the VI Additional Judge, City Civil Court, Madras, in confirming the decree and judgment passed on 18.12.1990 in O.S.2533 of 1988 by the IV Assistant Judge, City Civil Court, Madras.

2. While admitting the Second Appeal, the following substantial question of law was framed:

"When application to regularise unauthorised construction has been refused by an order dated 5-4-1988, and there was not even a further appeal to the Government, are the Courts below right in granting the prayer in the suit?"

3. The suit was for declaration that notice dated 21.02.1988 issued to one Padmanabhan, father of plaintiffs under section 56 of Tamil Nadu Act 35 of 1972 (Tamil Nadu Town and Country Planning Act, 1971) as illegal and for permanent injunction not to demolish the suit building by virtue of the above said notice. The suit was decreed by both the courts below.

4. It is not in dispute that the suit land belongs to the plaintiffs by virtue of a sale deed in their favour dated 15.12.1986, marked as Ex.A-5. Admittedly, the plaintiffs have constructed ground floor and three floors in the premises, measuring to an extent of 556 sq.ft., which is roughly equivalent to 60 sq.metres. The said building was completed and assessed to tax on 28.12.1987 and this is evident from Ex.A-4. The plaint was presented on 08.03.1988.

5. The counsel for the respondents / plaintiffs pointed out that a notice like Ex.A-1 under section 56 of Act 35 of 1972 shall be issued within three years of such development and that shall be served on the owner requiring him within such period, being not less than one month, to take steps as may be specified in the notice. Section 56 of the above Act further provided that, in cases specified in class (a) or (c) above, to restore the land to its condition before the said development took place. Proviso (2) to section 56 provides that in particular, any such notice may, require the demolition or alteration of any building, and the discontinuance of any use of land or building. Proviso (3) to section 56 provides that any person aggrieved by such notice may, apply for permission under section 49 for the retention of the land, or any buildings or for the continuance of any use.

6. Counsel for the respondents / plaintiffs also drew my attention to section 107 of the said Act, which provides the service of notice how to be effected, according to which when any notice is required by this Act, to be served upon or issued or presented to any person, such service shall be effected by tendering the said document to such person and if such person is not found, by leaving such document at his last known place of abode; or if his address elsewhere is known, by forwarding such document to him by registered post and if none of the means aforesaid is available, by causing a copy of such document to be affixed on some conspicuous part of the land or building, if any, to which the document relates.

7. Counsel for the respondents / plaintiffs again pointed out that without adhering to the means provided under section 107 of the Act, publication was effected by the appellant / defendant in one issue of INDIAN EXPRESS, through Ex.A-1. Thus, it was argued that the notice was not also properly served and that it was not addressed to the proper owner, namely, the plaintiffs, whereas it was found addressed to one Padmanabhan, the father of the plaintiffs. He is not connected with the ownership of the property.

8. Counsel for the respondents / plaintiffs also relied upon S.RADHAKRISHNAN AND OTHERS ..vs.. GOVERNMENT OF TAMIL NADU, ETC. (1994 WRIT L.R.365), wherein it was mentioned that for a notice to demolish unauthorised construction, the limitation period is three years from construction within which it should be issued and issue of notice beyond the period is illegal. Thus, the contention of the respondents / plaintiffs is that first of all, the