Judgment · High Court

1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 24.02.2011CORAM:THE HONOURABLE MR.JUSTICE K.K.SASIDHARANW.P.(MD)No.197 of 2011 Vijayan: PetitionerVs.

The Commissioner, Tirunelveli Municipal Corporation, Tirunelveli, Tirunelveli District.

Soundarapandian: RespondentsPrayer: Writ Petition is filed under Article 226 of the Constitutionof India praying for the issue of a Writ of Mandamus, directing the first respondent to remove the encroachments and unauthorized constructions made by the second respondent in building bearing doorNo.8/728 in 28th Street, Shanthinagar, Palayamkottai violating the Building Rules under the Tirunelveli Municipal Corporation Act. For Petitioner : Mr.V.Kannan For Respondent No.1: Mr.S.P.MaharajanORDERThe petitioner seeks a Writ of Mandamus, directing the first respondent to remove the encroachments and unauthorized constructions made by the second respondent in his building bearingDoor No.8/728 in 28th Street, Shanthinagar within the jurisdiction of Tirunelveli Municipal Corporation. THE FACTS:2. According to the petitioner, the second respondent has constructed a building on the northern side of his residential house. The house was constructed after demolishing the old structure. However, he has not obtained planning permission under the Tirunelveli Municipal Corporation Act. Though the petitioner approached the first respondent, there was no positive action. Therefore, the petitioner was constrained to file the Writ Petition.

Though notice was served on the second respondent, he has not chosen to appear before this Court.

The learned counsel for the first respondent, on instructions, submits that initially planning permission was given to the second respondent to put up a small residential building. Subsequently, the building was inspected and it was found that a very big building was constructed without planning permit. Accordingly, https://hcservices.ecourts.gov.in/hcservices/ 2notice was issued to the second respondent. The learned counsel contended that the Corporation has no power to demolish the building and as such, action would be taken to collect penalty. DISCUSSION:

The first respondent Corporation has very clearly admitted that there was no planning permit to put up the building. Itis true that a building permit was earlier granted. The said permit was pertaining to a small building. The Corporation now admits that apucca building was constructed by the second respondent.

The issue as to whether the construction should be regularized or it should be demolished are all matters to be decidedby the first respondent. However, the first respondent cannot beheard to say that they have no authority under the TirunelveliMunicipal Corporation Act to take action for demolition. This shows the ignorance of the Municipality.

The Coimbatore City Municipal Corporation Act, 1981 has been extended to Tirunelveli Municipal Corporation Act. Section 296of the Coimbatore City Municipal Corporation Act, 1981 deals with the power of the Commissioner. The said provision gives authority to the Commissioner to pass a provisional order for demolition, in case abuilding is constructed without permission. The Commissioner has to serve a copy of the provisional order on the owner or the occupier of the building. In case the owner or the occupier fails to show cause to the satisfaction of the Commissioner, it is open to the Commissioner to confirm the order with any modification and such orders would be binding on the owner or the occupier. Therefore, the Commissioner is armed with powers to demolish the building constructed in an unauthorized manner.

The first respondent admitted that a building permit was granted earlier. Therefore, the question is now confined to the actual construction made by the second respondent. It is for the first respondent to initiate appropriate proceedings and dispose of the same on merits and as per law with notice to the second respondent.