Madras High Court
Mubarak Ali vs The Municipal Commissioner on 2 November, 2021
W.P. No. 23706 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2021
CORAM
THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE R.VIJAYAKUMAR
W.P. No. 23706 of 2021
Mubarak Ali ..Petitioner
Vs.
1. The Municipal Commissioner,
Mettupalayam Municipal Office,
Housing Unit,
Mettupalayam 641 301.
2. The Deputy Director Town and Country
Planning Corporation Shopping
Complex - 2nd Floor,
Dr.Nanjappa Road,
Coimbatore – 641 018. ..Respondents
Prayer: Petition under Article 226 of the Constitution of India praying
for issue of a Writ of Mandamus directing respondent No.1 to dispose of
petitioner's representation dated 27.07.2021 for regularisation of the
building.
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For Petitioner :: Mr.B.M. Subash
For Respondents :: Mr.B. Anand,
Standing Counsel for R1
Mr.K.Tipu Sultan
Govt. Advocate for R2
ORDER
(Order of the Court was made by S. Vaidyanathan,J.)
The petitioner has come forward with the present writ petition
seeking issue of a Writ of Mandamus directing respondent No.1 to dispose
of petitioner's representation dated 27.07.2021 for regularisation of the
building.
2. The petitioner had purchased a property from one
Senthilkumar in the year 2019, situated at Survey Number 164
Chikkadasampalayam Village, Mettupalayam Taluk and the petitioner's
property is situated at Door No. 147 B8-A/H8A, Ward C, Block No.27, TS
No. 50, Plot No. 33-D6, Kovai Main Road. According to the petitioner,
alleging that the said building has not been constructed in accordance with
the sanctioned plan, a writ petition in W.P. No. 13752 of 2018 was filed
before this Court seeking a direction to the official respondents to take
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appropriate action for demolition and removal of the unauthorised and illegal
construction put up by respondents 6 to 8 therein, wherein the 7th
respondent is the person from whom the petitioner had purchased the
property. The said writ petition was disposed of by order dated 01.07.2021
after impleading the petitioner as the 10th respondent and the operative
portion of the order reads as follows:
"11. Considering the fact that the appeal filed by
respondent Nos. 9 and 10 is pending before the Eleventh
Respondent, this Court directs the Eleventh Respondent to
dispose of the appeal filed under Section 80-A of the Tamil
Nadu Town and Country Planning Act, 1971, within a period
of twelve weeks from the date of receipt of a copy of this
order, after hearing the petitioner. Apart from the Appeal
filed, it is always open to Private Respondent Nos. 9 and 10 to
file an Application for regularization available under the
Act."
Thereafter, the petitioner had submitted an application for
regularisation and made a representation on 27.07.2021 to process his
application for regularisation before the 1st respondent. However, no action
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W.P. No. 23706 of 2021
was taken. Hence, the present writ petition with the aforesaid prayer.
3. Heard both sides.
4. Admittedly, an appeal under Section 80-A of the Tamil Nadu
Town and Country Planning Act, 1971 is pending. When the matter is taken
up for hearing today, the learned Standing Counsel for the 1st respondent as
well as the learned Government Counsel for the 2nd respondent drew the
attention of this Court to the fact that not even an averment has been made
in the affidavit about the pendency of the appeal filed under Section 80-A of
the said Act. When this was pointed out, the learned counsel for the writ
petitioner would submit that the writ petitioner will demolish the building
and construct it in accordance with the plan and bring it in accordance with
the plan.
5. In the light of the above submission made by the learned
counsel for the writ petitioner, the 1st respondent is expected to dispose of
the petitioner's representation dated 27.07.2021 within a period of three
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W.P. No. 23706 of 2021
months from the date of receipt of a copy of this order. Till such time, if
electricity and water connections have not been effected, the same need not
be given till the building is brought or constructed in accordance with the
plan. If the said connections had been given, the lock and seal shall be
removed to enable the petitioner to bring the construction in accordance with
the plan and in the event of failure to do the same, within a period of three
months from the date of receipt of a copy of this order, electricity and water
connections extended to the building shall be disconnected, in the light of the
judgment of the Honourable Apex Court dated 05.01.2018, passed in
Special Leave to Appeal (C) No. 33863 of 2017 which has been
subsequently followed by a Division Bench of this Court, in P.Selvarajan
Vs. The Commissioner of Municipal Administration, Chennai and Others
[W.P.No. 21639 of 2017] decided on 13.02.2018 wherein the relevant
portions read thus:
“3. Learned counsel appearing for the fourth respondent
submitted that the fourth respondent has made an application
for regularisation and that during the pendency of the
proceedings, this Court, by order dated 11.09.2017, directed
disconnection of electricity in respect of basement, second and
third floors of the fourth respondent's premises, against which,
the matter was taken up to the Supreme Court. The Supreme
Court, in Petition for Special Leave to Appeal (C).No.26509 of
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W.P. No. 23706 of 2021
2017, by order dated 13.10.2017, did not interfere with the
said order of this Court dated 11.09.2017, and permitted the
fourth respondent herein to move the High Court. During the
pendency of this Writ Petition, the fourth respondent herein has
filed W.M.P.No.30495 of 2017 seeking direction to the
TANGEDCO to restore the electricity connection to the
building of the fourth respondent. This Court, by order dated
07.11.2017, rejected the restoration of electricity supply.
Thereafter, once again the matter was taken up to the Supreme
Court by the fourth respondent, and the Supreme Court, by
order dated 05.01.2018 in Petition for Special Leave to Appeal
(C) No.33863 of 2017, has dismissed the Special Leave
Petition, by observing as follows:
"Heard learned counsel for the petitioner and
perused the impugned order dated 07.11.2017 passed in
WMP.No.30495/2017 passed by the Madras High
Court.
We are not inclined to interfere in the impugned
order and accordingly, the Special Leave Petition is
dismissed.
However, we direct the authority concerned before
whom the application for regularisation under the DTCP
Building Regularisation Scheme 2017 is pending to
decide the matter in accordance with law within two
months.
Pending application stands disposed of."
Thus, in the said order dated 05.01.2018, the Supreme Court
directed that the authority concerned before whom the
application for regularisation under the DTCP Building
Regularisation Scheme, 2017, is pending, to decide the matter
in accordance with law within two months.
4. In this case, it is seen that there is no proper set-back
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W.P. No. 23706 of 2021
left by the fourth respondent while constructing the building.
There is also no proper ventilation as required under Rule 14(2)
of the Tamil Nadu District Municipalities Building Rules, 1972.
The fourth respondent has combined both the buildings as
single unit without the permission from the Attur Municipality.
5. It is not in dispute that the building has been
constructed by the fourth respondent in violation of the plan.
The Supreme Court has repeatedly held that the building has
got to be constructed without any violation of the plan. In view
of the same, we are of the view that the violated portion(s) will
have to be demolished, as it is not in accordance with the
sanctioned plan.”
6. This Court deprecates the conduct of the writ petitioner in not
making the petitioners in W.P. No. 13752 of 2018 as parties to the present
writ petition. It is made clear that when the appeal under Section 80-A of
the Act and the representation of the petitioner are disposed of, the
petitioners in W.P. No. 13752 of 2018 shall also be heard. The Authority is
expected to act and decide the issue within three months after hearing the
parties. In case of non-passing of orders, any person can file contempt and
Court will punish the Authority, if the said non-compliance is wilful and
deliberate. This Court has already warned the Authorities and also called for
details vide its order dated 16.10.2018 in W.P. No. 27499 of 2018 and the
relevant paragraph is extracted below:
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W.P. No. 23706 of 2021
"(k) The 1st Respondent/Secretary to the Government of Tamil
Nadu, Housing and Urban Development Department and the
S. VAIDYANATHAN,J.
AND
R. VIJAYAKUMAR,J.
nv
th
5 Respondent/Commissioner, Corporation of Chennai,
Chennai are directed to furnish the following particulars to this
Court on or before 18.12.2018:
(i) Number of appeals pending before the authorities;
(ii) Number of cases, wherein directions have been issued by
this Court."
The writ petition is disposed of with the above directions. No costs.
(S.V.N.J.) (R.V.J.)
nv 02.11.2021
To
1. The Municipal Commissioner,
Mettupalayam Municipal Office,
Housing Unit,
Mettupalayam 641 301.
2. The Deputy Director Town and Country
Planning Corporation Shopping
Complex - 2nd Floor,
Dr.Nanjappa Road,
Coimbatore – 641 018.
W.P. No. 23706 of 2021
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