S. Thayashankar (Died) v. The District Collector

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.8248 of 2013 and M.P.(MD) Nos.1 and 2 of 2013 1.S.Thayashankar (Died) 2.S.Nagarathinam 3.T.Saroja 4.T.Srisushanth (P2 to 4 are substituted of the deceased sole petitioner vide Court order dated 19.01.2016 in WMP(MD) No.825/2016) ... Petitioners Vs.

1.The District Collector, Kanyakumari District, Kanyakumari.

2.The Commissioner, Nagercoil Municipality, Nagercoil, Kanyakumari District.

3.The Member Secretary, Local Planning Authority, No.11A, Ramanpillai Street, Ramavarmapuram, Nagercoil - 629 001, Kanyakumari District.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings of the 3rd respondent dated 29.11.2012 in Notice No.82/2012 eh.c.jp.F and the consequential impugned notice dated 11.02.2013 in Na.Ka.No.916/11 eh.c.jp.F and quash the same and forbearing the 3rd respondent in anyway seal the premises bearing Door No.56, 57 & 57A, M.S.Road, Ozhugunesery, Nagercoil Town in Survey No.C15/7, 8 & 9, Vadasery village.

For Petitioner : Mr.M.P.Senthil For Respondents : Mr.M.Govindan, Spl. G.P. For R1 & 3 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 third 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 Ground + 1 floor Ground + floors 1.

11(4) 1/4th set back Not provided 100% 2.

12-Parking provision Not provided 100% 3.

14(1) 1/8th ventilation Not provided 100% 4.

15(1)stair case provision Not provided 100% 5.

14(3) Set back provision Not provided 100% 6.

Location of Site 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 declared 100% 2.

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

Not declared 100% 3.

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

9 Plot Coverage 50% Not declared 100% 5.

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

Not declared 100% 6.

12(a) Access Way Not declared 100%

7.

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

13-Parking facilities Not declared 100% 9.

14, 18 -Fire Safety norms to be adopted No NOC obtained 100% 10.

16(2)(b) Two exists 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 petitions are also dismissed.

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

To 1.The District Collector, Kanyakumari District, Kanyakumari.

2.The Commissioner, Nagercoil Municipality, Nagercoil, Kanyakumari District.

3.The Member Secretary, Local Planning Authority, No.11A, Ramanpillai Street, Ramavarmapuram, Nagercoil - 629 001, Kanyakumari District.

+1cc to The Special Government Pleader, SR.No.55697 Arul RL/5C/4P/SKN/RSK/SAR1/19/4/2018 ORDER MADE IN W.P.(MD)No.8248 of 2013 and M.P.(MD) Nos.1 and 2 of 2013 13.03.2018