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Commissioner, Pattukottai Municipality Vs. Chandrasekaran (Minor), Represented by His Guardian and Father Natanam Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1976Mad50; (1975)2MLJ251
AppellantCommissioner, Pattukottai Municipality
RespondentChandrasekaran (Minor), Represented by His Guardian and Father Natanam Chettiar
Cases ReferredMayandi Chettiar v. Madura Municipality
Excerpt:
- .....1970 he applied to the municipality for permission to put up a godown over the land and submitted building plans for the purpose. before sanction of the plan, the respondent started construction on the 4th of december, 1970 and a door frame on the site was fixed on 15th of december, 1970. as the respondent had commenced building without getting a sanction, a notice under section 216 (1) (i) (a) of the tamil nadu district municipalities act dated 19th december, 1970 was served on him calling on him to demolish the unauthorised construction. this notice was acknowledged by him on 22nd december, 1970. on 3rd december, 1971 the first plan submitted for consideration was rejected on the ground that there was a violation of a specific building requisition. the respondent applied for a second.....
Judgment:

P.S. Kailasam, J.

1. This appeal is preferred by the Commissioner of Pattukottai municipality against the judgment of Ramaprasada Rao, J., in Writ Petition No. 148 of 1972. The writ petition was filed by minor Chandrasekaran represented by his father and guardian Natanam Chettiar for the issue of a writ in the nature of mandamus or any other appropriate writ directing the respondent-municipality to forbear from demolishing the petitioner's building in Section No. 68/A-5 of Pattukottai village.

2. The respondent herein commenced putting up a construction in Section No. 68/A-5 within the municipal limits of Pauttkottai village. On the 4th of December, 1970 he applied to the municipality for permission to put up a godown over the land and submitted building plans for the purpose. Before sanction of the plan, the respondent started construction on the 4th of December, 1970 and a door frame on the site was fixed on 15th of December, 1970. As the respondent had commenced building without getting a sanction, a notice under Section 216 (1) (i) (a) of the Tamil Nadu District Municipalities Act dated 19th December, 1970 was served on him calling on him to demolish the unauthorised construction. This notice was acknowledged by him on 22nd December, 1970. On 3rd December, 1971 the first plan submitted for consideration was rejected on the ground that there was a violation of a specific building requisition. The respondent applied for a second time for approval of the site and for further construction and forwarded fresh plans. The second application was made on 5th April, 1971. On 21st April, 1971 the provisional order issued under Section 216(1) (i) (a) of the Act calling upon the respondent to demolish the construction was confirmed under Section 216 (3). The second plan submitted by the respondent on 5th April, 1971 was also rejected on the ground that the respondent proceeded to construct without permission and he did not obey the provisional order made under Section 216 (1) (i) (a) of the Act. The rejection of the first plan was acknowledged by the respondent on 24th April, 1971. The respondent filed a third plan for sanction of the building plan and approval of the site and furnished fresh plans on 27th April, 1971, but the third plan was returned on 30th April, 1971 on the ground that the building would be an encroachment upon the Government land.

3. It is not in dispute that the site in which the building was sought to be built was kottai poramboke and is Government land. Proceeding for non-compliance with the direction of the municipality was taken and the provisional order under Section 216(1) was confirmed under Section 216(3) of the Act. The respondent was then prosecuted before the Special First Glass Magistrate, Pattukottai, for an offence under Section 216(1), (2) and (3) and Section 317 of the Act and the case is pending. An appeal was filed by the respondent but no order was passed by the municipal council. In the writ petition the respondent contended that after the municipality initiated the criminal proceeding as contemplated under the Act, the municipality is not entitled to pull down the building as it had no jurisdiction to demolish it by itself. According to the respondent the only course open to the municipality for the non-compliance of the direction under Section 216 is to prosecute for an offence under Section 317.

4. Before the learned Judge and before us it was contended that a direction under Section 216(1) to (3) to demolish an unauthorised construction, if not complied with, can only be dealt with as an offence punishable under Section 317 and the municipality cannot on its own force demolish the unauthorised construction. The learned Judge held that the municipality had the power to prosecute a delinquent person but had no power to enforce the demolition of that building because they did not sanction the plan and in the particular case they could not sanction the plan as the building was sought to be put up in a kottai poramboke. The learned Judge was also of the view that it the municipality intended to demolish a construction put up within its precincts then it should initially possess the authority to permit such a construction or in the alternative be of the view that the construction is not in accordance with the content of the permission granted by it to build and if it has no power to give such permission to construct then it follows that it has equally no power to direct a demolition of such a structure unless the Act specially empowers it to do so. The learned Judge further observed that as the land in which the building was put up is kottai poramboke, it is not for the municipality to feel aggrieved about it whatever rights the Government may have as against the encroacher and the municipality cannot take proceedings.

5. Chapter X of the Act deals with building regulations and Sections 197 to 206 deal with buildings other than huts. Section 97 provides that if any person intends to construct or reconstruct a building other than a but, he shall send to the executive authority an application in writing for the approval of the site, together with a site plan of the land and an application in writing for permission to execute the work together with a ground-plan, elevations and sections of the building and a specification of the work. Section 199 provides that the construction or reconstruction of a building shall not be begun unless and until the executive authority has granted permission for the execution of the work. Section 216 confers powers on the executive authority to take certain action if the construction or reconstruction of the building had been commenced without obtaining the permission or canted out or completed contrary to the permission granted or any alternative made contrary to the notice issued. He, the authority may make a provisional order requiring the owner or the builder to demolish the work done in order to bring the construction work in conformity with the Act, bye-laws or rules. Section 216 (2) requires the executive authority to serve a copy of the provisional order made under Sub-section (1) on the owner of the building together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. Under Sub-section (3) if the owner fails to show cause to the satisfaction of the executive authority, the executive authority may confirm the order with any modification he may think fit to make, and such order shall then be binding on the owner. This section, as is seen, enables the executive authority to require the owner to demolish the work done.

6. Section 317 of the Act enables the executive authority to take action against a person who had failed to obey the direction given to him under Section 216 and prosecute him. The person who failed to obey may be fined by the criminal Court up to a sum of Rs. 500 in the case of a building as also a sum of Rs. 100 for each day during which the offence is proved to have continued after the first day. Thus in addition to action taken under Section 216 by passing an order directing the owner to demolish the work done, criminal prosecution can also be taken.

7. Section 339 which comes under Chapter XVI and relates to power to enforce licensing provisions, orders, etc. and Sub-section (1) provides that whenever by any notice, requisition or order under this Act, or under any rule, by law or regulation made under it, any person is required to execute any work or to take any measures or do anything a reasonable time shall be named in such notice, requisition or order within which the work shall be executed, the measures-taken, or the thing done. Under Sub-section (2), if such notice, requisition, or order is not complied with within the time so named the executive authority may cause such work to be executed or may take any measures or do anything which may, in his opinion, be necessary for giving due effect to the notice, requisition or order as aforesaid.

8. Section 339 is a general provision which refers to any notice that may be given under the Act or any rule, by-law or regulation to execute any work or to take any measures or do anything within a reasonable time to be named in such notice. If such notice, requisition or order is not complied within the time so named, the executive authority may cause such work to be executed or may take any measures or do anything which may, in his opinion, be necessary for giving due effect to the notice, requisition or order as aforesaid. Section 339 (2) confers the power on the executive authority to cause such work to be executed or to take measures or do anything which may, in his opinion, be necessary for giving due effect to the notice, etc.

9. Under Section 339 a notice and order under the Act was given and reasonable time was also given requiring the respondent to enable him to carry out the work. The provision of Section 339 has been satisfied. and under Section 339(2) the executive author ties have the right to cause such work to be executed or to take any measures or do anything which may, in their opinion, be necessary for giving due effect to the notice. The attack of the learned Counsel for the respondent against the legality of the order is that the rules relating to building are found under Section 2 6 which are special provisions and as the special provisions always override the general provisions resort could not be made to the general provisions when there are special provisions in regard to a matter. This contention overlooks the fact that while Section 216 provides for a provisional order requiring the owner to demolish the work done followed by a final order confirming the provisional order, Section 339 provides steps to be taken when the owner does not comply with the notice. When the owner neglects to obey the order under Section 216(3) there could be no further obstruction to the executive authority for taking action under Section 339. Section 317 relates to prosecution for failure to comply with the order under Section 216. But that does not in any way affect the right of the executive authority to take action under Section 339 (2).

10. The learned Counsel for the respondent relied on a decision of the Bench of this Court in Mayandi v. Madura Municipality : AIR1941Mad259 . The facts of the case are that the owner applied to the municipality for sanction on 25th June, 1931 to erect a building and on 17th July, 1931 the Sanitary Inspector reported no objection to the erection of the building, but without waiting for the sanction of the executive engineer, the appellant-owner commenced the building and completed the work. On 20th July, 1931 the executive authority called upon the appellant to submit a plan of the lay-out of the whole survey number. This requirement was, however, not complied with until 9th May, 1932. After the executive engineer had on 20th July, 1931 called for a plan of the lay-out of the whole survey number, no further communication was addressed to the appellant until 5th May, 1932, when the Special Officer issued a notice purporting to be pursuant to Sections 338 and 339, by which he required the appellant to demolish his building within four days on the ground that it had been erected without municipal licence. On 7th June, 1932 the Special Officer sent men to the site for the purpose of demolishing the building and this work was carried out in the presence of officials of the municipality. On the facts the Bench after considering the provisions of Section 216(1), (2 and (3) held that an order passed under Section 216(3) would be binding on the owner, for if an order under Sub-section (3) becomes effective, it can be enforced by virtue of the provisions of Section 339. The learned Counsel for the respondent relied on the following passage in the aforesaid Bench decision which runs as follows:

The Act does not direct any special procedure to be followed for remedying breaches of the law with regard to licence's, permissions, registrations, apart from that to be found in the chapter relating to building regulations. Therefore, except in the case of buildings, direct action may be taken under Sections 338 and 339.

We do not find that this passage, in any way, helps the respondent for what is stated is that except in the case of buildings, direct action may be taken under section ?39; but in the case of buildings, action should be taken under Section 216 before proceedings were taken under Section 339 This is made specific by the observation, 'if an order under subsection 3) becomes effective, it can be enforced by virtue of the provisions of Section 339. This decision therefore not only does not support the respondent's contention but clearly negatives his contention.

11. The learned Counsel for the respondent also relied on the decision of the Andhra Pradesh High Court in Kakinada Municipality v. Satyanarayana (1955) 1 A.WR. 384. In that case the Court held that the provisions of Section 216 do not enable the municipality to direct demolition of a building merely because the building ultimately erected is not in accordance with the approved plan. It held that it is necessary for the municipality, and if the matter comes to the Court--for the Court, to satisfy itself whether the building is not in conformity with the Act, by-laws, rules, direction or requisition as aforesaid. These observations do not help the respondent, for the decision was based on the facts of that case.

12. In Kllianikutty Amma v. State of Kerala : AIR1958Ker279 the Court held that Chapter X of the Act contains what are called building regulations and so long as that Chapter contains provisions as to how contraventions thereof should be dealt with, the municipality cannot have recourse to the general provisions in Section 3 38 for such contraventions. In coming to the conclusion the learned Judge relied on the decision of the Bench of this Court (already referred to) in Mayandi Chettiar v. Madura Municipality : AIR1941Mad259 but the passage which we have underlined, namely, that proceedings under Section 339 can be taken after action was taken under Section 216(1) to (3) has not been noticed by the learned Judge. We therefore find that the three decisions cited by the learned Counsel for the respondent do not support his contention.

13. It was next urged that when several persons are allowed to put up buildings in kottai poramboke the respondent was denied permission. The respondent has alleged in para. 6 of his affidavit that the municipality had declined to grant him permission while various owners were given permission to build about 40 houses in S. No. 68/ A-5. This allegation was denied in the counter affidavit. But in the reply affidavit the respondent had given particulars about 40 houses; but as the municipality had no opportunity to deny the specific allegations, nothing was done further. On the allegations on record we are unable to say that the respondent was discriminated against.

14. We feel therefore that under Section 339 the executive authority have the right to cause such work to be executed or to take any measures or do anything which may, in their opinion, be necessary for giving due effect to the notice. Having found so, we asked the learned Counsel for the municipality to inform us whether the building rules had in any way been contravened. The learned Counsel informed us that the building rules had not been contravened. The only contravention is that that the building is put upon a poramboke. As the building rules have not been contravened, we do not think we would be justified in interfering with the order of the learned Judge to enable the municipality to demolish the building

15. In the circumstances, while setting out the position of law so far as the powers of the municipality are concerned, we refrain from reversing the order of the learned Judge granting a writ directing the municipality to refrain from demolishing the building. We feel on the facts of the case it is not necessary that the relief prayed for by the municipality should be granted. The only objection is that the building is on a poramboke. It will be open to the Government which will be the affected party to take such steps as are open to it to redress their grievances, if any. The prosecution that is filed by the municipality will go on and will be disposed of according to law. With these observations, we dismiss the writ appeal. There will be no order as to costs.


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