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High Court of Judicature at Madras
THE HONOURABLE MR JUSTICE BAKTHAVATSALAM
R.K. Jaganathan
Versus
Vaidheeka Mahajana Sabha, Sankaralayam Represented by its President Madras & Others
Writ Petition Not.338 & 2882 of 1988
Decided On :Decided On : 01-03-1990
CONSTRUCTION - UNAUTHORIZED CONSTRUCTION - DEMOLITION - MANDAMUS - SANCTION - ARBITRARY AND ILLEGAL - VIOLATION OF ART. 14 - DEVELOPMENT CONTROL RULES - CONTINUOUS BUILDING AREA - SIDE SET BACK - ALTERNATIVE REMEDY - SUIT FOR INJUNCTION - EXHAUSTION OF REMEDIES - DISMISSAL OF WRIT PETITION.
Fact of the Case:
Petitioner, the owner of a house adjacent to the premises of the 1st Respondent, Vaideeka Mahajana Sabha and Sankaralayam, alleged that the 1st Respondent had erected unauthorized construction without providing the required set back and had obtained illegal sanction from the 4th Respondent, the Madras Metropolitan Development Authority (MMDA). The petitioner sought a writ of mandamus directing the 3rd and 4th Respondents to demolish the unauthorized construction and prevent further construction, and a declaration that the sanction granted by the 4th Respondent was arbitrary, illegal, and violative of Article 14 of the Constitution.
Finding of the Court:
The court found that the construction in question was located in a continuous building area, where side setbacks were not required as per Rule 17(c) of the Tamil Nadu Town and Country Planning Act, 1971 Development Control Rules. The court also found that the sanction granted by the 4th Respondent was in accordance with the rules and that there was no violation of the Development Control Rules. The court further held that the petitioner had an alternative remedy available under Section 79 of the Act, which provided for an appeal to the prescribed authority in case of grievances against decisions or orders of the Planning Authority.
Issues: 1. Whether the construction carried out by the 1st Respondent was unauthorized and in violation of the Development Control Rules. 2. Whether the sanction granted by the 4th Respondent was arbitrary, illegal, and violative of Article 14 of the Constitution. 3. Whether the petitioner had exhausted all available remedies before filing the writ petition.
Ratio Decidendi: 1. The court held that the construction in question was not unauthorized as it was located in a continuous building area, where side setbacks were not required as per Rule 17(c) of the Tamil Nadu Town and Country Planning Act, 1971 Development Control Rules. 2. The court found that the sanction granted by the 4th Respondent was in accordance with the rules and that there was no violation of the Development Control Rules. 3. The court held that the petitioner had an alternative remedy available under Section 79 of the Act, which provided for an appeal to the prescribed authority in case of grievances against decisions or orders of the Planning Authority. The petitioner had not exhausted this remedy before filing the writ petition.
Final Decision: The court dismissed both writ petitions, holding that there was no merit in the petitioner's claims. The court also noted that the petitioner had an alternative remedy available under the Tamil Nadu Town and Country Planning Act, 1971, which he had not exhausted.
(Prayer: Petitions under Art. 226 of the Constitution of India, praying that in the circumstances stated therein, acid in the respective affidavits filed therewith the High Court will be pleased to issue writ of
(i) Mandamus directing, the. Respondents Nos. 3 and 4 to have the unauthorised construction made by the Respondents Nos. 1 and 2 in the premises at No. 26, Chitrakulam, North Street, Mylapore, Madras-4 demolished and to prevent the respondent Nos. 1 and 2 from making further construction at the above said premises (WP. No. 338 of 1988); and(ii) Declaration declaring that the sanction accorded by the fourth respondent to the first respondent for making construction at No. 26, Chitra-kulam North Street, Mylapore, Madras-4 is arbitrary and illegal and violative of Art. 14 of the Constitution of India (W.P. No. 12882 of 1988) respectively.)
1. The Petitioner in both the Writ Petitions is one and the same person. The prayer in W.P. No. 338 of 1988 is ‘to issue a writ of Mandamus or other order or direction in the nature of Mandamus directing the respondents 3 and 4 to have the unauthorised construction made by respondents 1 and 2 in the premises at No. 26, Chitrakulam North Street, Mylapore, Madras-4 demolished and to prevent (he respondents 1 and 2 from making further construction at the aforesaid premises’
2. The prayer in W.P. No. 12882 of 1988 is ‘ to issue a Writ of declaration declaring that the sanction accorded by the 4th Respondent to 1st respondent for making construction at No. 26, Chitrakulam, North Street, Mylapore, Madras-4 is arbitrary and illegal and violative of Art. 14 of the Constitution of India’
3. The petitioner is the owner of the house and premises at No. 27, Chitrakulam North Street, Mylapore, Madras-4. The 1st Respondent Vaideeka Mahajana Sabha and Sankaralayam is situate at No. 26, Chitrakulam North Street, Mylapore, Madras-4 to the west of the house and premises of the petitioner. On the north, the house of the elder and younger brothers of the petitioner are situate. There is a compound wall on the western side of the petitioners premises which runs about 183 feet north to south and to the height of 6 feet. It is alleged in the affidavit that the first respondent has erected column foundation very close to the aforesaid compound wall even without providing set back as contemplated by the building rules and regulations. The allegation is that such erection of columns has been made very close to the western compound wall of the petitioner and the 1st respondent has also projected a sun shade measuring in length about 2 feet. It is further stated that the proposed construction is intended to be a hall for public gatherings and also intended to be used for religious festivities to be performed with Homams, such as Sashtiapthapoorthi, Sadhabi-shekham, Upanayanam, etc As such, it will produce a lot of smoke fumes, creating breathing problems to the inmates of the petitioners family, besides creating perpetual noise, nuisance and disturbance to the petitioner and his brothers. It is further alleged in the affidavit that the 1st respondent has been attempting to erect a terrace resting practically on the southern part and the western part compound wall belonging to the petitioners premises. It is stated that the proposed construction by the 1st respondent will reduce air, light and other natural amenities to which the petitioner and his business are entitled in law.
4. It is further alleged in the affidavit of the petitioner that the 1st respondent has not got any plan sanctioned from the 3rd respondent and the 4th respondent, and it is without obtaining the plan duly sanctioned, the 1st respondent erected the column without providing for the set back, quite adjacent to the compound wall belonging to the petitioner and his brothers. Hence, the construction already made and further purported to be made is unauthorised under the Madras Corporation Act and the Tamil Nadu Town and Country Planning Ac
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