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K. Nazir Ahamed and Another Vs. The Commissioner, Tiruchirappalli Municipal Corporation, Tiruchirappalli and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberW.P.(MD)No. 18261 of 2014 & M.P.(MD)No. 1 of 2014 & W.P.(MD)No. 14333 of 2016 & WMP(MD)No. 10630 to 10632 of 2016 & WMP(MD)No. 15686 of 2016
Judge
AppellantK. Nazir Ahamed and Another
RespondentThe Commissioner, Tiruchirappalli Municipal Corporation, Tiruchirappalli and Others
Excerpt:
.....the fifth respondent has only obtained permission for conversion work and it is not a building plan permission. after obtaining the plan permission for conversion work, the fifth respondent demolished the existing building and constructed the new building in violation of the purpose of planning permission granted by the respondents 1 and 2. 5. the writ petitioner also states that on 07.08.2014, the third respondent has issued notice to the 5th respondent vide na.ka.no.f1/thi a 09/2014 under section 284 of tiruchirappalli corporation act, 1994 and through which, the 5th respondent was directed to stop all construction work as the construction is going on without obtaining planning permission and the construction is in violation of building construction rules and acts and further the.....
Judgment:

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for the issuance of Writ of Mandamus, direction, directing the Respondents 1 to 3 to initiate an appropriate severe action against the 5th Respondent and demolish the entire constructions made by the 5th Respondent which are made without obtaining planning permission in respect of T.S.No.51, Ward No.G (P), Block:6, Door No.29, Kilaydar Street, Srirangam Zone, Tiruchirappalli by implementing the order of the 3rd Respondent dated 09.07.2014 vide F/1/Thi A 28/2014 and final order dated 07.08.2014 vide F1/Thi A/28/2014.

Writ Petition filed under Article 226 of the Constitution of India, for the issuance of Writ of Certiorarified Mandamus, to call for the records of the 2nd respondent in its impugned proceeding in Na.Ka.No.219/2015 thi u thi ku 2 dated 11.04.2016 and the consequential proceeding of the 3rd respondent in F1/thi.A.ka.A.En.28/2014/sri dated 21.07.2016 and quash the same and consequently restrain the respondents from resorting to eviction proceedings in respect of property bearing Door No.29, Kiledar Street, Big Bazar Street, Tiruchirappalli pending disposal of the application dated 30.06.2015 pending on the file of the 3rd respondent.)

Common Order:

(M.V. Muralidaran, J.)

By consent both the writ petitions filed in W.P.(MD)No.14333 of 2016 filed by one Mrs.S.Fathima Beevi and writ petition in WP(MD)No.18261 of 2014 filed by one Mr.K.Nazir Ahamed were taken up for final hearing.

2. The case of the writ petitioner Mr.K.Nazir Ahamed in W.P.(MD)No.18261 of 2014 is that the fifth respondent by namely Mrs.S.Fathima Beevi had unauthorisedly and illegally and without obtaining any planning permission had made construction in her property at T.S.No.51, Ward No.G (P), Block-6, Door No.29, Kiledar Street, Srirangam Zone, Tiruchirappalli. Hence, the petitioner sent several representations to the respondents 1 to 3 for this illegal and unauthorized construction. Pursuant to his representation, the respondents 1 to 3 were issued regarding demolition, but no fruitful steps are taken in order to prevent the fifth respondent from making further construction and also for demolish the same. But, the fifth respondent with the help of the fourth respondent is continuing the illegal construction and hence the petitioner states that he has approach this Court file the writ petition individually capacity and not on the Public Interest Litigation.

3. The writ petitioner further states that he residing at Kiledar Street, Tiruchirapalli for several years and the Kileder Street is a very narrow lane with a width of about only 1.4 meters i.e. 4.5 feet only. He has also states that the Kiledar Street is situated at Srirangam Division, Survey Ward, Ward-G, B Block-6 and Election Ward bearing Survey No.53. The construction of the fifth respondent s building is unauthorized and it is violation of Tiruchirappalli Corporation Act and also the Tamil Nadu Town and Country Planning Act.

4. The writ petitioner also states that the fifth respondent has applied planning permission for the purpose of conversion of M.T. Roof into R.C.C. Roof and proposed first floor to the existing building and the Tiruchirappalli City Corporation on 24.02.2014 vide Order No.29/2014 with the condition stipulated in the order under Section-49 of the Tamil Nadu Building Construction Act, 1971 and have it is quite clear that the fifth respondent has only obtained permission for conversion work and it is not a building plan permission. After obtaining the plan permission for conversion work, the fifth respondent demolished the existing building and constructed the new building in violation of the purpose of planning permission granted by the respondents 1 and 2.

5. The writ petitioner also states that on 07.08.2014, the third respondent has issued notice to the 5th respondent vide Na.Ka.No.F1/Thi A 09/2014 under Section 284 of Tiruchirappalli Corporation Act, 1994 and through which, the 5th respondent was directed to stop all construction work as the construction is going on without obtaining planning permission and the construction is in violation of Building Construction Rules and Acts and further the 3rd respondent warned the 5th respondent that if the construction is not stopped, the Corporation would initiate serious action under Section 284 and further the labours engaged in construction work should be removed with the help of police. Thereafter, on 07.08.2014, the third respondent has made a request to the 6th respondent to take immediate action against the 5th respondent from constructing the building without obtaining planning permission despite the order of the Corporation to stop all further construction.

6. Pursuant to the above request on 07.08.2014 the notice was issued under Section 296(3), 282(3), 471 of Tiruchirappalli Corporation Act, 1994, against the 5th respondent and further directed her to submit her explanation within a period of 7 days from the date of receipt of the said notice when the 5th respondent, despite the receipt of temporary order dated 09.07.2014 regarding building permission and the order for stopping further construction, is going on constructing the building and further informed her that the illegal construction are to be demolished and removed the same through the employees of the corporation. Notice was issued on 09.07.2014 to the 5th respondent and calling her to explain why the demolition order is made permanent. Thereafter only on 07.08.2014 the final order has been issued.

7. The writ petitioner also states that admittedly on 24.02.2014, the 5th respondent has obtained a building planning permission from the Tiruchirappalli Municipal Corporation only for conversion of old Madras Terrace Roof into reinforced cement concrete roof and based on their planning permission, the 5th respondent had also demolished the entire old building and started to excavate the ground for putting foundation to construct a new building from the Ground floor. Therefore, the act of the 2nd respondent is quiet contrary to the Tamil Nadu Building Rules and total violation of the planning permission for conversion work alone by the Tiruchirappalli Municipal Corporation Authorities and in accordance with the rules the Tiruchirappalli Municipal Corporation will not give approval for 2nd floor for the new building constructions for the area in which the petitioner is residing since all the buildings in that area are already constructed and in existence which is confined only to 1st floor only.

8. The writ petitioner also states that there is not a single building constructed with 2nd floor in petitioner living street. The respondents 1 and 2 are granting permission depends upon the width of the road.

9. The construction of the building by the second respondent in Survey No.51 is now raised to a height of 40 feet. The enormous height of the building is obstructing the light and air, which is being enjoyed by all persons dwelling in the Kiledar Street long back from the period of formation of the street.

10. The writ petitioner also states that when the entire Kiledar Street turned dark without light and stale without ventilation, this petitioner also sent a representation dated 30.09.2014 to the Municipal authorities requesting them to initiate an action against the illegal construction. The petitioner also sent a reply to the authorities under the Right to Information Act, 2005, about the actions taken by them on the illegal construction.

11. The writ petitioner also states that in his letter under the Right to Information Act, 2005, a reply has been given to the petitioner on 19.09.2014 by the Municipal Corporation Authorities as follows:

a. The stop work notice given by the 1st Respondent to the 2nd Respondent on 07.08.2014.

b. The notice given under sections 272, 289 of the Tiruchirappalli Municipal Corporation Act.

c. The demolition notice given under Section 471 of the above said Act.

d. The notice given under 296 (1and2), 282 (1and2) of Tiruchirappalli Municipal Corporation Act, 1994.

e. Copy of the approved building plan in F1/Thi.A.No.289/2014 dated 24.02.2014.

12. The writ petitioner also states that though as per the above proceedings, it is made clear that on 07.08.2014 the Corporation authorities issued the stop work notice and also issued notice under Sections 296(1and2), 282(1and2) of Tiruchirappalli Municipal Corporation Act, 1994.

13. The writ petitioner also states that in fact in his representation dated 30.09.2014, he has pointed totally 15 violations on the part of the 5th respondent. Though the representation sent through the registered post received by the respondents 1 to 4 and 6, despite the representation, no severe action was taken against the 5th respondent for construction. Therefore, on 15.10.2014, this petitioner has sent another representation, but even then no action was taken. Therefore, he approached this Court for the above prayer.

14. A counter affidavit has been filed by the third respondent in which the third respondent has denied the allegations as set out in the affidavit. It is also sought for the writ petition is not maintainable either in law or facts.

15. The third respondent states that the writ petitioner is the brother-in-law of the 5th respondent Fathima Beevi. Originally, the property was belongs to the father of the Fathima Beevi and after the demise of her father, the same was partitioned between Fathima Beevi and her sister Smt.Rahamath, wife of the petitioner Nazeer Ahamed. The writ petitioner has filed the present petition to take action to demolish the building constructed by the 5th respondent by violating the planning permission granted by the Corporation. In this regard, the 5th respondent has submitted a planning permission for conversion of their old building into ground plus one building. For which, she applied before the Corporation and the said building plan was approved by the authorities for the construction of ground plus one floor alone vide proceedings PP No.28 of 2014 dated 24.02.2014. The third respondent also states that though the 5th respondent obtaining the planning permission for conversion and after demolished the old building and started construction of new building without prior permission from the authorities. Hence, the Corporation for lease has issued a notice dated 09.07.2014 under Section 282 (1and2) of Trichirappalli City Municipal Corporation Act to the 5th respondent, show causing her to the illegal construction made by her. Even after the said notice, the 5th respondent has not stopped the illegal construction. Hence, the Corporation authorities are constrained to issue a Stop Work notice under Section 284 of the Tiruchirappalli City Municipal Corporation Act to the 5th respondent on 07.08.2014, as per the Act under Section 282(3) and 471 of the Trichirappalli City Municipal Corporation Act.

16. The third respondent also states that when the 5th respondent has not stopped the construction she was charge sheeted before the Court of the Judicial Magistrate No.1 in STC.No.2014 of 2014 dated 08.10.2014 and the 5th respondent has pleaded guilty and paid a fine amount of Rs.1,000/-before the Judicial Magistrate No.1 Court, Trichy. Thereafter, on 05.11.2014, the 5th respondent has submitted a revised application for planning permission to the Corporation. The said application was returned with an endorsement that the application cannot be forwarded for approval since the building violates the several rules of building regulations. Thereafter also the 5th respondent has continued the construction. Hence, she was once again charge sheeted before the Judicial Magistrate No.1, Trichy in STC.No.446 of 2015 dated 15.04.2015. At that time, the 5th respondent pleaded guilty and paid the fine amount of Rs.1,000/-. Thereafter the 5th respondent has submitted another request dated 30.06.2015 to consider her planning permission, the same was rejected by the Corporation vide Na.Ka.F1/3231/2015/SRI dated 18.07.2015. Thereafter, the 5th respondent was served with the notice in Form-II under Sections 56 and 57 of Town and Country Planning Act, 1971 by the 2nd respondent dated 20.07.2015 on the complaint of the petitioner herein dated 12.02.2015 and 11.03.2015. Thereafter, the second respondent has issued a letter in Na.Ka.No.219/2015/TLPA/2 dated 11.04.2016 directing the Commissioner of Trichy Corporation to take action against the 5th respondent for sealing the premises of the 5th respondent as per Sections 56 and 57 of Town and Country Planning Act. The third respondent also states that on receipt of the same the third respondent has issued a notice to the 5th respondent under Sections 49, 56 and 57 of the Town and Country Planning Act in Na.Ka.F1/28/2014 dated 27.04.2016 and the same was acknowledged by the 5th respondent on 02.05.2016.

17. Challenging the order dated 21.07.2016, the 5th respondent has filed the writ petition in WP(MD)No.14333 of 2016 before this Court for quashing the notice dated 21.07.2016 and also the proceedings of the 2nd respondent dated 11.04.2016. This Court by order dated 21.10.2016, an interim injunction was granted restraining the respondents from demolishing the property in question till 05.11.2016 and hence the third respondent stated that thus being the situation, the respondents are taking all the steps as per law against the illegal construction put up by the 5th respondent. Hence, he sought for the dismissal of the writ petition.

18. The third respondent also filed his counter in WP(MD)No.14333 of 2016, filed by the 5th respondent, who is the writ petitioner in WP(MD)No.14333 of 2016. The 3rd respondent has extracted the same averments of counter made in WP(MD)No.18261 of 2014.

19. The 5th respondent in WP(MD)No.18261 of 2014 has filed the present writ petition in WP(MD)No.14333 of 2016, challenging the order dated 11.04.2016 and 21.07.2016. The writ petitioner in WP(MD)No.14333 of 2016 stated that the petitioner is the absolute owner of the residential property bearing Door No.29, Kiledar Street, Big Bazaar Street, Tiruchirappalli. The petitioner has purchased the said property from her father vide registered sale deed dated 07.12.2000. The said residential property comprises of ground floor and first floor and it was constructed in the year 1955, though the petitioner has applied for planning permission with the respondents seeking for conversion of Madras Terrace Roof into RCC Roof in the ground floor and for construction of first floor. The 3rd respondent had granted planning permit vide PP.No.28/2014 dated 24.02.2014 where under the petitioner was permitted to convert the existing Madras Terrace roof in the ground floor and to raise first floor. The petitioner had carried out the renovation/development and construction work in her existing building strictly in accordance with approved plan sanctioned by the 3rd respondent. The planning permission issued by the 3rd respondent is valid until 23.02.2017.

20. The writ petitioner in WP(MD)No.14333 of 2016 has stated that during the course of constructions, the petitioner had raised additional 2nd floor in order to meet her family s additional requirements. The petitioner also submits that the petitioner had submitted revised plan before the 3rd respondent, but the 3rd respondent in its proceedings in Thi.Vi.No.F1/293 /2014 Sri dated 15.12.2014 had refused to forward the plan on the ground that there is no frontage and that the building height is 12.19 meter and that side set back is not there and that underground drainage deposit and planning permit penalty and another deposit towards Local Planning Authority and Labourers Welfare Scheme was not paid. Therefore, the petitioner has filed the revised plan along with her representation dated 30.06.2016, but the 3rd respondent has failed to consider the representation of the petitioner dated 30.06.2015. Hence, the petitioner filed the writ petition in WP(MD)No.12955 of 2015 and this Court by order dated 24.07.2015 has passed the following order:

In the view of the limited scope of the prayer, without expressing any opinion on the merits of the issue involved, the respondent is directed to consider the representation of the petitioner dated 30.06.2015, and pass appropriate orders in accordance with law, within a period of two months from the date of receipt of a copy of this order, after affording the petitioner an opportunity of being heard. If on a specified date the petitioner does not appear for personal hearing, orders may be passed based on the available records after recording the absence of the party/parties.

With the above direction, this Writ Petition stands disposed of. No costs.

21. At the instance of one Mr.Nazir Ahamed, who is the brother-in-law of the petitioner and who is inimical to the petitioner s family and who is having several civil disputes with the petitioner s brother and sisters is issuing one notice after another to the petitioner and the petitioner has lost her peace of mind on account of actions and repeated notice sent by the respondents at the instance of the said Nazir Ahamed. In fact, Nazir Ahamed has addressed several petitions to the respondents against the petitioner to make them take coercive action against the petitioner and also filed a writ petition in WP(MD)No.18261 of 2014, which is pending on the file of this Court.

22. The writ petition also states that the petitioner s representation along with revised plan dated 30.06.2015 is pending and the 2nd respondent also issued proceedings dated 20.07.2015 to remove the additional second floor. On perusal of the order dated 20.07.2015 revealed that the 2nd respondent subsequent to site inspection and perusal of approved plan submitted by the petitioner had recorded only the second floor construction to be in deviation of approved plan. The 3rd respondent again at the instance of Nazir Ahamed even without any site inspection and even without taking any measurements had issued notice dated 27.04.2016 wherein the petitioner was required to comply with the alleged deviations. Even as the petitioner was appealing to the respondent to consider her representation dated 30.06.2015 along with the revised plan, the 3rd respondent by proceedings dated 21.07.2016 had required the petitioner to vacate the premises within 7 days. In the said communication dated 21.07.2016, the 3rd respondent had referred to order dated 11.04.2016 passed by the 2nd respondent, where under the 2nd respondent had required the 3rd respondent to initiate proceeding to lock and seal the residential property of the petitioner. The petitioner became aware of the 2nd respondent s order dated 11.04.2016 only after perusing the communication of the 3rd respondent dated 21.07.2016. The 2nd respondent dated 11.04.2016 was not served on the petitioner. The petitioner subsequent to the communication dated 21.07.2016, was able to get a copy of the order dated 11.04.2016. The 2nd respondent s order dated 11.04.2016 which is impugned in the present writ petition is illegal and suffers for violation of principles of natural justice. The impugned order passed by the 2nd respondent is contradictory to its earlier order dated 20.07.2015. As per the proceedings of the 2nd respondent dated 20.07.2015, only the second floor of the petitioner s building was found to be in violation of the approved plan. That being so, the respondents 2 and 3 cannot require the petitioner to vacate the entire building, the respondent if at all can confine their actions only in respect of the 2nd floor of the petitioner s building. The impugned order also suffers for non-application of mind and impugned order has been passed at the instance of Nazir Ahamed. Therefore, challenging the order dated 11.04.2016 and 21.07.2016, the writ petition has been filed by the writ petitioner seeking to quash the said orders.

23. We heard Mr.V.R.Venkatesan, learned counsel appearing for the petitioner in WP(MD)No.18261 of 2014 and 4th respondent in WP(MD)No.14333 of 2016, Mr.N.S.Karthikeyan, learned Additional Government Pleader appearing for the respondents 1 to 4 in WP(MD)No.18261 of 2014 and respondents 1 to 3 in WP(MD)No.14333 of 2016, Mr.Aayiram K.Selvakumar, learned Government Advocate appearing for the 6th respondent in WP(MD)No.18261 of 2014 and 2nd respondent in WP(MD)No.14333 of 2016 and Mr.M.Vallinayagam, learned Senior Counsel for M/s.J.Maria Roseline, appearing for the 5th respondent in WP(MD)No.18261 of 2014 and petitioner in WP(MD)No.14333 of 2016.

24. Admittedly, the writ petitioner in W.P(MD)No.14333 of 2016 is the absolute owner of the residential property in question. The building in question was originally constructed in the year 1955. Later on the writ petitioner Mrs.Fathima Beevi has purchased the said property from her father as per the document dated 07.12.2000. Later on, she has applied for planning permission to the respondents seeking for conversion of Madras Terrace Roof into RCC Roof in the ground floor and for construction of first floor. Pursuant to her request, the 3rd respondent has granted planning permission in PP.No.28of 2014 dated 24.02.2014.

25. Pursuant to the above planning permission dated 24.02.2014, the writ petitioner has demolished the existing building and put up the construction, but he has raised additional second floor without any valid permission.

26. When the notice was issued against this petitioner, he has given a representation dated 30.06.2015 along with her refused plan. When no action was taken by the respondents, the writ petitioner Mrs.Fathima Beevi has approached this Court and filed WP(MD)No.14333 of 2016 and this Court by order dated 24.07.2015 has passed the order directing the respondents to pass orders on her representation dated 30.06.2015.

27. Even after passing the order on 24.07.2015, the respondents have not passed any order on the petitioner s representation dated 30.06.2015 along with the revised plan submitted by the writ petitioner Mrs.Fathima Beevi.

28. Once this Court given direction to the respondents to consider the petitioner s representation dated 30.06.2015 along with the revised plan, it is the bounded duty of the respondents to take action and pass appropriate orders, but till date no action was taken.

29. Apart from this, the impugned order dated 21.07.2016 has been passed by directing the petitioner to vacate the premises within a period of 7 days from the date of receipt of the said notice, which order is totally against the Town and Country Plan Act since this petitioner had resubmitted her revised plan, which was already filed along with representation dated 30.06.2015 and the same is pending till date, without passing any order either to accepting or rejecting.

30. The writ petitioner in WP(MD)No.18261 of 2014, who is the own brother-in-law of the 5th respondent and the writ petitioner in WP(MD)No.14333 of 2016 have the personal motive against this writ petitioner and filed this writ petition to direct the respondents 1 to 3 to initiate an appropriate severe action. Accordingly, the action was taken and notice was issued and the orders were also issued dated 11.04.2016 and 21.07.2016, against which the writ petitioner Fathima Beevi has filed the writ petition in WP(MD)No.14333 of 2016 and the representation dated 30.06.2015 given by the petitioner is still pending before the authority concerned. Therefore, the writ petition in WP(MD)No.18261 of 2014 is infructuous for the reason that he has sought only for the action to be initiated against the 5th respondent namely the writ petitioner in WP(MD)No.14333 of 2016 Fathima Beevi, accordingly, the action was initiated. Therefore, the writ petition in WP(MD)No.18261 of 2014 is infructuous and the same is accordingly dismissed.

31. The writ petitioner in WP(MD)No.14333 of 2016, challenging the order dated 11.04.2016 and 21.07.2016 since the writ petitioner has filed the revised plan along with her representation dated 30.06.2015 and the same is pending for consideration. Therefore, the authority concerned namely the respondents 1 to 3 ought to have consider her revised plan, but without considering the same, the present impugned order has been issued. Therefore, the writ petition is ought to be allowed by setting aside the 2nd respondent impugned proceeding in Na.Ka.No.219/2015 thi u thi ku 2 dated 11.04.2016 and the 3rd respondent proceeding in F1/thi.A.ka.A.En.28/2014/sri dated 21.07.2016.

32. In the result:

(a) both the writ petitions are allowed by setting aside the order of the 3rd Respondent dated 09.07.2014 vide F/1/Thi A 28/2014 and final order dated 07.08.2014 vide F1/Thi A/28/2014 in WP(MD)No.18261 of 2014 and the order of the 3rd respondent in F1/thi.A.ka.A.En.28/2014/ sri dated 21.07.2016 in WP(MD)No.14333 of 2016.

(b) the respondents are hereby directed to consider the petitioner's in (WP(MD)No.14333 of 2016) revised plan submitted on 30.06.2015 within a period of three months from the date of receipt of a copy of this order.

(c) till such time, the respondents are hereby directed not to take any coercive steps on the petitioners land.

33. Accordingly, both the writ petitions are allowed. No costs. Consequently, connected miscellaneous petition is closed.


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