H. Shahjahan, v. The Member Secretary

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 29.08.2017 Pronounced on : 13 .03.2018

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN and THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN W.P.(MD)No.8222 of 2013 and M.P.(MD) No.2 of 2013 H.Shahjahan ... Petitioner Vs.

1. The Member Secretary, Nagercoil Local Planning Authority, 11A, Raman Pillai Street, RamavarmaPuram, Nagercoil - 629 001.

2. The Municipal Commissioner, Nagercoil Municipality Nagercoil - 629 001.

3. The Director, Town and Country Planning, No.807, Anna Salai, Chennai - 600 002.

4. The District Collector/Chairman, Nagercoil Local Planning Authority, Office of the District Collector, Nagercoil - 629 001.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari Mandamus, to call for the records of the 1st respondent in O.Mu.Ka.No.154/2013 Na.U.Thi.Ku, dated 08.04.2013, quash the same and consequently direct the 3rd respondent to grant exemption to the petitioner's building consisting Basement, Ground Plus Three Floors, at No.104, 104/1, 104/2, 104/3, Police Station Road, Meenakshipuram, Nagercoil - 629 001, in terms of G.O.(Ms.) No.43 Housind and Urban Development dated 22.02.2013.

For Petitioner : Mr.Mubarak for M/s.Ahamed Associates For Respondents : Mr.M.Govindan, Spl. G.P. For RR1,3 and 4 Mr.P.Athimoolapandian for R2

O R D E R

*********** [Order of the Court was made by G.R.SWAMINATHAN, J.] The petitioner questions the impugned proceedings issued by the Local Planning Authority, Nagercoil.

2.The case of the petitioner is that the building in question was put up only after obtaining approval from the Nagercoil Municipality.

3.The first respondent has filed a typed set of papers, in which the deviations in respect of the building in question has been set out in a tabulated format. The same is as under: Approval Details Violation Details Approval Present Sl.No Description of rule

Present

condition at site Viola tion District Municipal Building Rules, 1972 1.

11(4) 1/4th set back Not provided 100% Ground + 1st floor Basemen t + Ground + floors 2.

12-Parking provision Not provided 100% Multi-storied and Public Building Rules, 1973 1.

4(a) to be declared as MSB since it is beyond 4 storeys Not provided 100% 2.

4(b) Minimum width of plot to be 24.50 Mtr.

Not provided 100% 3.

9-F S.I. - 100 Not provided 100% 4.

9 Plot Coverage 50% Not provided 100% 5.

11(1)(b) Front set back all around atleast 6 mtr.

Not provided 100% 6.

12(a) Access Way Not provided 100%

7.

12(2) Emergency Exit Not Provided 100% 8.

13-Parking facilities Not provided 100% 9.

14, 18 -Fire Safety norms to be adopted Not Provided 100% 10.

16(2)(b) Two exists Not Provided 100% 4.The petitioner has not filed any rejoinder controverting the aforesaid allegations made by the authority with respect to the deviations committed by the petitioner.

5.We have heard the learned counsel on either side and perused the materials available on record.

6.The impugned communication merely calls upon the petitioner to remove the unauthorised constructions. 7.Though in the affidavit filed in support of the petition, the petitioner has contended that the building was constructed after taking permission from the local planning authority, the deviations highlighted in the counter affidavit has not really been explained by the writ petitioner.

8.In any event, there is a statutory remedy available to the petitioner under Section 80(A) of the Tamil Nadu Town and Country Planning Act, 1971. The petitioner without resorting to the specific remedy available under the Act, has rushed to this Court and obtained an interim order.

9.The Hon'ble Supreme Court in Dipak Kumar Mukherjee Vs. Kolkatta Municipal Corporation (2013 (5) SCC 336) observed that illegal and unauthorised construction of buildings and other structures not only violate the Municipal Laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other person. 10.The building in question is used by the public. It is a commercial building. Since the public are using the building, it must have a structurally sound building. There is nothing on record to see that the building was constructed in adherence to the safety standards. In any case, the local authority was correct in taking enforcement action. We are therefore of the view that there is no ground made out in this writ petition. We therefore

dismiss the writ petition. No costs. Consequently, connected miscellaneous petition is also dismissed.

Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar To

1. The Member Secretary, Nagercoil Local Planning Authority, 11A, Raman Pillai Street, RamavarmaPuram, Nagercoil - 629 001.

2. The Municipal Commissioner, Nagercoil Municipality Nagercoil - 629 001.

3. The Director, Town and Country Planning, No.807, Anna Salai, Chennai - 600 002.

4. The District Collector/Chairman, Nagercoil Local Planning Authority, Office of the District Collector, Nagercoil - 629 001.

+ 1 cc TO M/S.Ahamed Associates , Advocate in SR No. 54851 Arul AE/KKR/SAR3/19.04.2018/4P/6C ORDER MADE IN W.P.(MD)No.8222 of 2013 and M.P.(MD) No.2 of 2013 13.03.2018