Madras High Court
Balasubramanian vs The Executive Officer on 26 May, 2022
W.P(MD) No.12271 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the order Date of Pronouncing the order
17.06.2022 06.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
W.P.(MD) No.12271 of 2022
and
W.M.P(MD) No.2728 of 2022
Balasubramanian ... Petitioner
-vs-
1.The Executive Officer,
Palanichettipatti Town Panchayat,
Theni District.
2.A.Mithun Chakaravarthi ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India,
to issue a writ of Certiorari calling for the records related to the
impugned order of the first respondent made in Na.Ka.No.449/2014/A2,
dated 26.05.2022 and quash the same as it is illegal.
For Petitioner : Mr.R.Suriya Narayanan
For Respondents : Mr.J.Ashok,
Addl. Govt. Pleader for R1
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W.P(MD) No.12271 of 2022
ORDER
(Made by P.N.PRAKASH, J.)
This writ petition has been filed by the petitioner for issuance of a
Writ of Certiorari, to quash the impugned notice, dated 26.05.2022.
2. The minimum facts that are required for deciding this writ
petition are as under:-
2.1. The petitioner is the owner of a land measuring around 3504
Sq.Ft. in Survey No.1432/3 in Palanichettipatti Village. Sometime in the
year 2001, he applied for planning permission for constructing a
residential building in the said property. He was given permission to
construct a residential building comprising ground floor (547 Sq.Ft.) and
first floor (547 Sq.Ft.) on 02.08.2001.
2.2. According to the petitioner, he constructed a residential
building with two floors in accordance with the plan but, he is using it as
a commercial complex. Subsequently, sometime in the year 2012, the
petitioner sought permission to construct a commercial complex in the
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W.P(MD) No.12271 of 2022
vacant land adjacent to the residential building, for which, he submitted a
plan which was approved vide Ka.Oo.No.124/2012-13, dated
16.11.2012.
2.3. According to the petitioner, he has constructed a commercial
complex in the said property which is in accordance with the sanctioned
plan. The petitioner became the Chairman of Palanichettipatti Town
Panchayat sometime in the year 2011 defeating Ammavasi, who is the
father of the second respondent herein. The second respondent filed a
public interest litigation in W.P(MD) No.2253 of 2015 alleging that the
petitioner has constructed a commercial complex instead of residential
complex and therefore, a direction was sought for demolishing the same.
The said writ petition came to be dismissed with costs of Rs.25,000/- on
05.10.2016 on the ground that there were no bona fides in the claim of
the petitioner therein (the second respondent herein). The Division Bench
had not given a finding that the petitioner had not violated the planning
permission, but it only found that the public interest litigation that was
filed by the second respondent was a motivated one.
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W.P(MD) No.12271 of 2022
2.4. However, the second respondent approached the Tamil Nadu
Local Body Ombudsman making the same allegation. The Ombudsman,
by a detailed order dated 20.05.2017, directed the Executive Officer,
Palanichettipatti Town Panchayat to take appropriate action against the
petitioner. Challenging the same, the petitioner filed W.P(MD) No.12225
of 2017 which was dismissed by this Court.
2.5. While that being so, the first respondent issued a notice dated
26.05.2022 calling upon the petitioner to demolish the structures put up
by him in violation of the planning permission within seven days from
the date of receipt of the notice or face action under the Tamil Nadu
District Municipalities Act, 1920. Challenging the notice dated
26.05.2022, the present writ petition has been filed.
3. Heard Mr.R.Suriya Narayanan, learned counsel for the petitioner
and Mr.J.Ashok, learned Additional Government Pleader for the first
respondent.
4. At the outset, the learned counsel for the petitioner submitted
that after winning the local body elections that were held in the year
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W.P(MD) No.12271 of 2022
2021, the second respondent has become the Chairman of the said Town
Panchayat and therefore, at his instance, the present notice has been
issued. Though at first blush, this submission appeared to be appealing,
on a closer scrutiny, we observed that the impugned notice refers to all
the earlier proceedings between the petitioner and the Town Panchayat.
In the reference portion of the impugned notice, five previous
proceedings have been referred to in connection with the instant case. In
reference No.2, it is stated that notices were earlier issued in Na.Ka.No.
449/2014 on 09.06.2017 and 24.06.2017. During that period, the second
respondent was not the Chairman of the Town Panchayat. It is true that
the second respondent is a political opponent of the petitioner, but, that
by itself, cannot be a reason to quash the impugned notice.
5. The following observations of the Supreme Court made in
K. Anbazhagan vs The Superintendent Of Police & Ors., [(2008) 3 SCC
767], would be an answer to this contention and the relevant paragraph
Nos.12 and 13 read as follows:-
“12. ... The petitioner being a political opponent, is
vitally interested in the administration of justice in the State
and is a "party interested" within the meaning of sub-
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W.P(MD) No.12271 of 2022
section 2 of Section 406 Cr.P.C. Even otherwise Mr.
Subramanium Swamy was the original complainant. He
supports these transfer petitions.
13. It has also been urged that the petitioner being a
political opponent of respondent No.2, these petitions have
been launched against respondent no.2 on ground of
political vendetta. This submission has also no force. In a
democracy, the political opponents play an important role
both inside and outside the House. They are the watchdogs
of the government in power. It will be their effective weapon
to counter the misdeeds and mischieves of the government
in power. They are the mouthpiece to ventilate the
grievances of the public at large, if genuinely and
unbiasedly projected. In that view of the matter, being a
political opponent, the petitioner is a vitally interested party
in the run of the government or in the administration of
criminal justice in the State. The petition lodged by such
persons cannot be brushed aside on the allegation of a
political vendetta, if otherwise, it is genuine and raises a
reasonable apprehension of likelihood of bias in the
dispensation of criminal justice system. This question has
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W.P(MD) No.12271 of 2022
been set at rest by this Court in Sheonandan Paswan v.
State of Bihar, (1987) 1 SCC 288 (SCC p. 318, para 16),
where it is said:
"It is a well established proposition of law that a
criminal prosecution, if otherwise justifiable and
based upon adequate evidence does not become
vitiated on account of mala fides or political
vendetta of the first informant or the complainant."
6. This decision has also been reiterated in E.Sivakumar vs Union
of India & Ors., [(2018) 7 SCC 365] and the relevant paragraph No.15
read as follows:-
“... The Court, while entertaining public interest
litigation at the instance of respondent No.14, has relied
upon the dictum in K. Anbazhagan Vs. Superintendent of
Police and Ors.,7 wherein it is observed that the political
opponents play an important role both inside and outside
the House and are the watchdogs of the Government in
power. They are the mouthpiece to ventilate the grievances
of the public at large, if genuinely and unbiasedly projected.
Referring to this decision, the Court noted in paragraph 70
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W.P(MD) No.12271 of 2022
of the impugned judgment that a petition filed by such
persons (such as respondent No.14) cannot be brushed
aside on the allegation of political vendetta, if otherwise, it
is genuine and raises a reasonable apprehension of
likelihood of bias in the dispensation of (2004) 3 SCC
767 criminal justice system. Accordingly, the ground of
challenge under consideration, in our opinion, is devoid of
merits.”
7. Learned counsel for the petitioner contended that the petitioner
is only using the residential building as a commercial building and has
not deviated the approved plan. When this Court suggested to the
petitioner that it would appoint an Advocate Commissioner to visit the
spot and find out the correct state of affairs, the learned counsel for the
petitioner was a little reluctant. Learned counsel for the petitioner
submitted that without prior notice under Section 216 of the Tamil Nadu
District Municipalities Act 1920, the present impugned notice is bad in
law.
8. Admittedly, this issue has not cropped up now. The issue of the
petitioner having constructed a commercial building has been under
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W.P(MD) No.12271 of 2022
contest between the petitioner and the respondents from the year 2017
onwards as could be seen from the various proceedings that have been
referred to in the reference portion of the impugned notice.
9. Learned counsel for the petitioner contended that the
construction has been regularized inasmuch as the Town Panchayat has
levied property tax of Rs.36,048/- vide receipt dated 05.03.2018.
10. A perusal of the receipt shows that in the foot note, it is clearly
stated as follows:-
“Fwpg;G: mDkjpapd;wp fl;lg;gl;l fl;lplj;jpw;F 12
miuahz;LfSf;fhd nrhj;Jthp tuT (nrhj;Jthptpjpg;G vz;.
6291>6292)”
11. That apart, collection of property tax shall not be construed as
regularization of such unauthorized construction. On the other hand,
when this Court is frowning upon unauthorized constructions, it should
not tie the hands of the Executive Authorities by staying such notices.
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W.P(MD) No.12271 of 2022
12. In the result, this writ petition is devoid of merits and hence,
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
[P.N.P., J.] [R.H., J.]
06.07.2022
Index : Yes / No
Internet : Yes / No
pkn
To:
The Executive Officer,
Palanichettipatti Town Panchayat,
Theni District.
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https://www.mhc.tn.gov.in/judis
W.P(MD) No.12271 of 2022
P.N.PRAKASH, J.
and
R.HEMALATHA, J.
pkn
W.P.(MD) No.12271 of 2022
06.07.2022
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