Pusba Arthur, 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.8452 of 2013 and M.P(MD)Nos.1 to 3 of 2013 Pusba Arthur ... Petitioner vs.

1. The District Collector, Kanyakumari District, Kanyakumari.

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

3. The Member Secretary, Local Planning Authority, 11-A, Ramanpillai Street, Ramavarmapuram, Nagercoil, Kanyakumari District.

... Respondents Prayer : Writ Petition is filed under Article 226 of the Constitution of India, Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings issued by the 3rd respondent in his proceedings in Notice No.67/2012 NLA dated 30.11.2012 and the proceedings of the 3rd respondent dated 06.05.2013 and quash the same as illegal and consequently direct the 3rd respondent to unseal the building belonging to the petitioner in "Addoneskar", Door No.47, Palace Road, Nagercoil, Kanyakumari District forthwith.

For Petitioner : Mr.M.Ajmalkhan, Sr.Counsel for M/s.Ajmal Associates For Respondents : Mr.M.Govindan, Spl.G.P. For RR1 and 3 Mr.P.Aathimoolapandian 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 Presen t Sl.No Description of rule

Present

condition at site Violati on District Municipal Building Rules, 1972 1.

11(4) 1/4th Set back Not provided 100% Ground floor Cellar + Ground + 5 floors 15(2)(g) stair case ventilation Not Provided 100% 2.

12-Parking provision Not provided 100% 14(1) 1/8 ventilation Not provided 100% 3.

15(1) stair case provision Not provided 100% 4.

14(3) Set back 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.

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% 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(T&P) /True Copy/ Sub Assistant Registrar To

1. The District Collector, Kanyakumari District, Kanyakumari.

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

3. The Member Secretary, Local Planning Authority, 11-A, Ramanpillai Street, Ramavarmapuram, Nagercoil, Kanyakumari District.

+ 1 cc TO M/S.Ajmal Associates , Advocate in SR No. 55049 Arul AE/KKR/SAR4/20.04.2018/4P/5C Order made in W.P(MD)No.8452 of 2013 and M.P(MD)Nos.1 to 3 of 2013 13.03.2018