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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. VAIDYANATHAN, JJ.
P. Selvarajan - Appellant
Versus
The Commissioner of Municipal Administration, Municipal Administration Department, Ezhilagam Annex, Chepauk, Chennai & Others - Respondent
W.P. No. 21639 of 2017
Decided On : 13-02-2018
Tamil Nadu District Municipalities Act, 1920 – Section 205 – Issuance of a Writ of Mandamus – Petitioner has come forward with the above Writ Petition praying for issuance of a Writ of Mandamus to direct the third respondent herein to consider the petitioners representation and reminder representation and comply with the order made in Ka.Vi.No.17/2005/F1 building permission No.45/2005/F1 passed by the third respondent – Held, It is to be remembered that alternative remedy is not a bar to entertain the Writ petition for removal of encroachments, if a person encroaches the public road, Open Space Reserve, lake, park, etc; so also, the alternative remedy is not a bar to seek for demolition of building if constructed in violation of the plan or there is no plan at all. – At the risk of repetition, it is to be noted that the District Municipalities Act, The Tamil Nadu Town and Country Planning Act, The Tamil Nadu Panchayats Act and the Tamil Nadu Land Encroachment Act, are all not dynamic in nature. – Instead of evicting the illegal persons, it gives room for the violators to continue by approaching this Court and stall the entire proceedings. – These Enactments try to regulate the illegalities, rather than curtailing it. – Otherwise, the law abiding citizens who follow the legal procedures, become a mockery before the violators. – Courts cannot Legislate the laws. But however, suggestions can be made by the Courts, as done by the Apex Court in the said decision of Krishna District Co-operative Marketing Society Ltd., extracted above. – It is left to the discretion of the law making authorities (Executive/Legislature) to enact the law or include necessary provisions/amendment in the Enactments to avoid further illegal construction/unauthorised occupation/encroachments. – This will ensure that no building construction can be made without the sanctioned plan. – Order Accordingly
S. VAIDYANATHAN, J.
1. The petitioner has come forward with the above Writ Petition praying for issuance of a Writ of Mandamus to direct the third respondent herein to consider the petitioner's representation dated 05.06.2015, 06.06.2016 and reminder representation dated 02.07.2017 and comply with the order dated 25.08.2014 made in Ka.Vi.No.17/2005/F1 building permission No.45/2005/F1 passed by the third respondent.
2. It is the case of the petitioner that the fourth respondent was the absolute owner of the five-floor commercial complex building bearing S.No.500/8 (T.S.No.50, Ward-D, Block No.43), which is situated in Attur Town and Taluk, Salem District. The fourth respondent has constructed the commercial complex with five floors without obtaining planning permission from the respondents 1 to 3 and that the fourth respondent has suppressed the total extent of the property and that the planning permission for the said building was granted for ground and first floors only. The planning permission was granted for construction of 8300 Sq.Ft., but the fourth respondent, without obtaining any permission, has constructed 33,300 Sq.Ft. As the entire building is constructed in violation of the plan, a notice was issued for removal of the unauthorised construction within seven days. The petitioner submitted that without any other alternative remedy, he has made representations to the authorities and that the same may be considered.
3. Learned counsel appearing for the fourth respondent submitted that the fourth respondent has made an application for regularisation and that during the pendency of the proceedings, this Court, by order dated 11.09.2017, directed disconnection of electricity in respect of basement, second and third floors of the fourth respondent's premises, against which, the matter was taken up to the Supreme Court. The Supreme Court, in Petition for Special Leave to Appeal (C).No.26509 of 2017, by order dated 13.10.2017, did not interfere with the said order of this Court dated 11.09.2017, and permitted the fourth respondent herein to move the High Court. During the pendency of this Writ Petition, the fourth respondent herein has filed W.M.P.No.30495 of 2017 seeking direction to the TANGEDCO to restore the electricity connection to the building of the fourth respondent. This Court, by order dated 07.11.2017, rejected the restoration of electricity supply. Thereafter, once again the matter was taken up to the Supreme Court by the fourth respondent, and the Supreme Court, by order dated 05.01.2018 in Petition for Special Leave to Appeal (C) No.33863 of 2017, has dismissed the Special Leave Petition, by observing as follows:
"Heard learned counsel for the petitioner and perused the impugned order dated 07.11.2017 passed in WMP.No.30495/2017 passed by the Madras High Court.
We are not inclined to interfere in the impugned order and accordingly, the Special Leave Petition is dismissed.
However, we direct the authority concerned before whom the application for regularisation under the DTCP Building Regularisation Scheme 2017 is pending to decide the matter in accordance with law within two months.
Pending application stands disposed of."
Thus, in the said order dated 05.01.2018, the Supreme Court directed that the authority concerned before whom the application for regularisation under the DTCP Building Regularisation Scheme, 2017, is pending, to decide the matter in accordance with law within two months.
4. In this case, it is seen that there is no proper set-back left by the fourth respondent while constructing the building. There is also no proper ventilation as required under Rule 14(2) of the Tamil Nadu District Municipalities Building Rules, 1972. The fourth respondent has combined both the buildings as single unit without the permission from the Attur Municipality.
5. It is not in dispute that the building has been constructed by the fourth respondent in violation of the plan. The Supreme Court has repeatedly held tha
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