S.Lakshmipathi Naidu Vs. District Collector of Kancheepuram - Court Judgment

SooperKanoon Citationsooperkanoon.com/1168068
CourtChennai High Court
Decided OnJan-29-2014
JudgeSATISH K.AGNIHOTRI
AppellantS.Lakshmipathi Naidu
RespondentDistrict Collector of Kancheepuram
Excerpt:
in the high court of judicature at madras dated:29. 01.2014 coram: the honourable mr.justice satish k. agnihotri and the honourable mr.justice k.k.sasidharan w.p.nos.9146, 28753 and 35119 of 2013 & connected mps w.p.no.9146 of 2013 s.lakshmipathi naidu .... petitioner vs 1. the district collector kancheepuram.2. the commissioner panchayat union tirupporur kancheepuram district.3. the president mambakkam panchayat previously chengalpattu taluk presently thiruporur taluk kancheepuram district - 600 127.4. m.gajendran5 circle inspector kelambakkam police station kelambakkam kanchipuram district. ...respondents w.p.no.28753 of 2013: m.gajayandran ... petitioner vs 1. the commissioner panchayat union tirupporur kancheepuram district.2. the president mambakkam panchayat previously chengalpattu taluk presently thiruporur taluk kancheepuram district-127. 3 lakshmipathi naidu ...respondents r3-impl as per ord.dt.31/10/13 in mp1/13 in wp287532013. w.p.no.35119 of 2013 m.gajendran ...petitioner vs 1. the district collector kancheepuram district kancheepuram.2. the commissioner thiruporur panchayat union tiruporur kanchepuram district.3. the president mambakkam panchayat previously chengalpattu taluk presently thiruporur taluk kancheepuram district - 600 127.4. s.lakshmipathi naidu ...respondents prayer in w.p.no.9146 of 2013 writ petition filed under article 226 of the constitution of india praying for a writ of mandamus directing the respondents 1 to 3 to remove the illegal/unauthorised construction being carried on by the 4th respondent with the assistance of the 5th respondent in accordance with the tamil nadu panchayat acts and tamil nadu panchayat building rules 1997 and in terms of the proceedings no.na.ka.264/2013/aa1 dated 1.2.2013 na. ka. no.4665/2012/a9/vu e(voo) 4.2.2013 and na.ka.264/2013/aa1 4.3.2013 in the light of the detailed representations of the petitioner dated 14.12.2012, 28.01.2013, 27.02.2013, 2.3.2013 and 22.03.2013 as well. prayer in w.p.no.28753 of 2013 writ petition filed under article 226 of the constitution of india praying for a writ of mandamus directing the respondents to sanction the building plan of the petitioner in respect of property situated in survey nos.55/1, 45/1, 45/2 to an extent of 3500 sq.ft. in plot no.15 & 16 in post office street, mambakkam village, kancheepuram district as per the petitioner representation dated 1.10.2013 prayer in w.p.no.35119 of 2013 writ petition filed under article 226 of the constitution of india praying for a writ of certiorari to call for the records relating to the impugned notice of the 3rd respondent dated 20.12.2013 in respect of property situated in survey nos.55/1, 315/12, 45/1 and 45/2 to an extent of 3500 square feet in plot nos. 15 & 16 in post office street mambakkam village kancheepuram district and to quash the same. w.p.no.9146 of 2013 for petitioner : mr.s.r.sundar for respondents : mr.s.t.s. moorthy, government pleader for rr13 and 5 mr. d. krishnakumar for r.2 mr. ar.l. sundaresan senior counsel for mr. m. rajasekar for r.4 w.p.no.28753 of 2013 for petitioner : mr.ar. l. sundaresan senior counsel for mr.m. rajasekar for respondents : mr. d. krishnakumar for r.1 mr.s.t.s. moorthy, government pleader for r.2 mr. s.r.sundar for r.3 w.p.no.35119 of 2013 for petitioner : mr.ar. l. sundaresan senior counsel for mr.m. rajasekar for respondents : mr.s.t.s. moorthy, government pleader for rr1& 3 mr. d. krishnakumar for r.2 mr. s.r.sundar for r.4 ------------ order satish k. agnihotri, j and k.k.sasidharan, j the petitioner in w.p.no.9146 2013 seeks initiation of enforcement proceedings against the petitioner in w.p.no.28753 of 2013 and 35119 of 2013 on account of the illegal construction made in his land in survey nos.55/1, 315/12, 45/1 and 45/2, mambakkam village.2. the petitioner in w.p.no.35119 of 2013 challenges the notice issued by the president, mambakkam panchayat dated 20 december 2013 directing removal of the illegal construction.3. the very same builder filed the writ petition in w.p.no.28753 of 2013 for a direction to the panchayat to approve the building plan submitted by him after constructing the building. background facts:4. the petitioner in w.p.nos.28753 and 35119 of 2013 (hereinafter referred to as ".builder".) started constructing a building in his land without obtaining planning permission from the local planning authority. since the required set off was not given, the neighbouring owner took up the matter with the local body. the panchayat failed to take any action in the matter. thereafter, the petitioner in w.p.no.9146 of 2013 filed a writ petition before this court. the writ petition no.31379 of 2012 was disposed of by this court giving liberty to the writ petitioner to submit a representation and a direction to the authorities to dispose of the same on merits.5. the president, mambakkam panchayat issued several notices to the builder to stop the work. the builder refused to receive the notices.6. when the writ petitions were taken up for hearing on 16 december 2013, the president of the panchayat appeared in person and submitted that she could not take action against the illegal construction for want of manpower. according to the president, the panchayat has only one employee and being a women, it is difficult for her to take enforcement action.7. mrs. bharathi gnanaprakasam, president of mambakkam panchayat in her affidavit dated 16 december 2013 indicated the action taken against the illegal construction.8. this court passed an order dated 17 december 2013 directing the president to take enforcement action with the assistance of police.9. the president, mambakkam pamchayat issued notice to the builder dated 20 december 2013 to demolish the illegal structure. the builder immediately filed a writ petition in w.p.no.35119 of 2013 and obtained an interim order to maintain status quo. summary of submissions:10. the learned senior counsel for the builder contended that the panchayat was expected to pass a provisional order under rule 34(1) of the tamil nadu panchyat building rules. however, no such order was passed in the matter and as such, enforcement action has no legal sanction. the learned senior counsel submitted that the builder has already submitted a plan for approval. the builder has no objection for sealing the premises by the panchayat till a decision is taken in the matter.11. the learned counsel for the petitioner in w.p.no.9146 of 2013 by placing reliance on the affidavit filed by the president, and the photographs showing the construction, submitted that the builder has no regard to the laws and even during the pendency of the writ petition he continued with the illegal construction. according to the learned counsel, builders like the petitioner in w.p.no.28753 of 2013 are not entitled to any kind of sympathy. analysis:12. the builder appears to have commenced and continued the construction of a massive building without obtaining planning permission. the notices issued by the local authority have all returned with an endorsement ".refused".. it is not as if the builder was not aware of the proceedings taken by the local body.13. rule 40 of the tamil nadu panchyat building rules 1997 provides for taking prior approval for construction. the builder has no concern to the building laws. he undermined the authority of the local body and without any kind of hesitation continued the construction. it was only when the panchayat issued the demolition notice, he rushed to this court.14. the proceedings taken by the panchayat earlier should be construed as a provisional order issued under rule 34(1) of tamil nadu panchayat building rules. thereafter, the panchayat issued the final order dated 20 december 2013 by confirming the provisional order. therefore it is clear that the panchayat has followed the statutory provisions before taking action for demolition.15. the builder has now submitted an application for planning permission. he has no objection for sealing the building till the disposal of the matter by the panchayat.16. we have considered the entire factual matrix. we are of the view that the builder, who has no regard to the building regulations should pay cost to the panchayat as a condition precedent for entertaining the application for planning permission. accordingly, in the interest of justice, we are inclined to issue the following directions: ".(1) the president, mambakkam panchayat is directed to lock and seal the building constructed by the builder, which is the subject matter of this litigation forthwith, with the assistance of police. (2) the inspector of police, kelambakkam police station is directed to provide necessary assistance to the president, mambakkam panchayat to carry out the process of locking and sealing the building. (3) the builder is directed to pay a sum of rs.2 lakhs as cost of this litigation to the panchayat. the amount of cost should be deposited within one week from the date of receipt of a copy of this order. (4) the builder is permitted to make an application for planning permission before the panchayat after remitting the cost. the application should be submitted within a period of one week from the date of payment of cost as indicated above. (5) the president, mambakkam panchayat is directed to process the application for building plan and permit in accordance with the tamil nadu panchayat building rules and dispose of the same on merits within a period of four weeks from the date of receipt of application. (6) in case the panchayat is of the view that part of the building should be demolished to make the construction legal, the builder should demolish such portion immediately. (7) the builder is restrained from occupying the building till the issuance of completion certificate by the local body. (8) the tamil nadu electricity board is restrained from giving electricity connection to the building without the completion certificate issued by the panchayat. (9) in case the petitioner failed to deposit the cost amount and submit the application for plan, it is open to the panchyat to proceed further to demolish the illegal structure with police protection. (10) the district collector, kancheepuram and commissioner, panchayat union, thirupporur are directed to provide necessary assistance to the president, mambakkam panchayat to comply with the above direction. (11) it is open to the petitioner in w.p.no.9146 of 2013 to approach this court, in case the builder and panchayat failed to carry out the above direction. disposition:17. the writ petition in w.p.no.9146 of 2013 is disposed of with the above direction. the writ petition in w.p.no.28753 of 2013 and 35119 of 2013 are disposed of with cost payable to the panchayat as indicated above. consequently, connected miscellaneous petitions are closed. no costs. [s.k.a.,j]. [k.k.s., j.]. 29.01.2014 index: yes/no internet: yes/no tr/ to 1. the district collector kancheepuram.2. the commissioner panchayat union tirupporur kancheepuram district.3. the president mambakkam panchayat previously chengalpattu taluk presently thiruporur taluk kancheepuram district - 600 127. satish k. agnihotri, j and k.k.sasidharan, j tr pre-delivery order in w.p.nos.9146, 28753 and 35119 of 2013 & connected mps2901.2014
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

29. 01.2014 CORAM: The Honourable Mr.Justice SATISH K. AGNIHOTRI AND The Honourable Mr.Justice K.K.SASIDHARAN W.P.Nos.9146, 28753 and 35119 of 2013 & connected Mps W.P.No.9146 of 2013 S.LAKSHMIPATHI NAIDU .... PETITIONER Vs 1. THE DISTRICT COLLECTOR KANCHEEPURAM.

2. THE COMMISSIONER PANCHAYAT UNION TIRUPPORUR KANCHEEPURAM DISTRICT.

3. THE PRESIDENT MAMBAKKAM PANCHAYAT PREVIOUSLY CHENGALPATTU TALUK PRESENTLY THIRUPORUR TALUK KANCHEEPURAM DISTRICT - 600 127.

4. M.GAJENDRAN5 CIRCLE INSPECTOR KELAMBAKKAM POLICE STATION KELAMBAKKAM KANCHIPURAM DISTRICT. ...RESPONDENTS W.P.No.28753 of 2013: M.GAJAYANDRAN ... PETITIONER Vs 1. THE COMMISSIONER PANCHAYAT UNION TIRUPPORUR KANCHEEPURAM DISTRICT.

2. THE PRESIDENT MAMBAKKAM PANCHAYAT PREVIOUSLY CHENGALPATTU TALUK PRESENTLY THIRUPORUR TALUK KANCHEEPURAM DISTRICT-127. 3 LAKSHMIPATHI NAIDU ...RESPONDENTS R3-IMPL AS PER ORD.DT.31/10/13 IN MP1/13 IN WP287532013. W.P.No.35119 of 2013 M.GAJENDRAN ...PETITIONER Vs 1. THE DISTRICT COLLECTOR KANCHEEPURAM DISTRICT KANCHEEPURAM.

2. THE COMMISSIONER THIRUPORUR PANCHAYAT UNION TIRUPORUR KANCHEPURAM DISTRICT.

3. THE PRESIDENT MAMBAKKAM PANCHAYAT PREVIOUSLY CHENGALPATTU TALUK PRESENTLY THIRUPORUR TALUK KANCHEEPURAM DISTRICT - 600 127.

4. S.LAKSHMIPATHI NAIDU ...RESPONDENTS Prayer in W.P.No.9146 of 2013 Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the Respondents 1 to 3 to remove the illegal/unauthorised construction being carried on by the 4th Respondent with the assistance of the 5th Respondent in accordance with the Tamil Nadu Panchayat Acts and Tamil Nadu Panchayat Building Rules 1997 and in terms of the proceedings No.Na.Ka.264/2013/Aa1 dated 1.2.2013 Na. Ka. No.4665/2012/A9/Vu E(VOO) 4.2.2013 and Na.Ka.264/2013/Aa1 4.3.2013 in the light of the detailed representations of the petitioner dated 14.12.2012, 28.01.2013, 27.02.2013, 2.3.2013 and 22.03.2013 as well. Prayer in W.P.No.28753 of 2013 Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondents to sanction the building plan of the petitioner in respect of property situated in Survey Nos.55/1, 45/1, 45/2 to an extent of 3500 sq.ft. in Plot No.15 & 16 in Post Office Street, Mambakkam Village, Kancheepuram District as per the petitioner representation dated 1.10.2013 Prayer in W.P.No.35119 of 2013 Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records relating to the impugned notice of the 3rd Respondent dated 20.12.2013 in respect of property situated in Survey Nos.55/1, 315/12, 45/1 and 45/2 to an extent of 3500 Square feet in Plot NOs. 15 & 16 in Post Office Street Mambakkam Village Kancheepuram District and to quash the same. W.P.No.9146 of 2013 For petitioner : Mr.S.R.Sundar For Respondents : Mr.S.T.S. Moorthy, Government Pleader for RR13 and 5 Mr. D. Krishnakumar for R.2 Mr. AR.L. Sundaresan Senior Counsel for Mr. M. Rajasekar for R.4 W.P.No.28753 of 2013 For petitioner : Mr.AR. L. Sundaresan Senior Counsel for Mr.M. Rajasekar For Respondents : Mr. D. Krishnakumar for R.1 Mr.S.T.S. Moorthy, Government Pleader for R.2 Mr. S.R.Sundar for R.3 W.P.No.35119 of 2013 For petitioner : Mr.AR. L. Sundaresan Senior Counsel for Mr.M. Rajasekar For Respondents : Mr.S.T.S. Moorthy, Government Pleader for RR1& 3 Mr. D. Krishnakumar for R.2 Mr. S.R.Sundar for R.4 ------------ ORDER

SATISH K. AGNIHOTRI, J AND K.K.SASIDHARAN, J The petitioner in W.P.No.9146 2013 seeks initiation of enforcement proceedings against the petitioner in W.P.No.28753 of 2013 and 35119 of 2013 on account of the illegal construction made in his land in Survey Nos.55/1, 315/12, 45/1 and 45/2, Mambakkam Village.

2. The petitioner in W.P.No.35119 of 2013 challenges the notice issued by the President, Mambakkam Panchayat dated 20 December 2013 directing removal of the illegal construction.

3. The very same builder filed the writ petition in W.P.No.28753 of 2013 for a direction to the panchayat to approve the building plan submitted by him after constructing the building. Background facts:

4. The petitioner in W.P.Nos.28753 and 35119 of 2013 (hereinafter referred to as ".builder".) started constructing a building in his land without obtaining planning permission from the local planning authority. Since the required set off was not given, the neighbouring owner took up the matter with the local body. The panchayat failed to take any action in the matter. Thereafter, the petitioner in W.P.No.9146 of 2013 filed a writ petition before this Court. The writ petition No.31379 of 2012 was disposed of by this Court giving liberty to the writ petitioner to submit a representation and a direction to the authorities to dispose of the same on merits.

5. The President, Mambakkam Panchayat issued several notices to the builder to stop the work. The builder refused to receive the notices.

6. When the writ petitions were taken up for hearing on 16 December 2013, the President of the Panchayat appeared in person and submitted that she could not take action against the illegal construction for want of manpower. According to the President, the Panchayat has only one employee and being a women, it is difficult for her to take enforcement action.

7. Mrs. Bharathi Gnanaprakasam, President of Mambakkam panchayat in her affidavit dated 16 December 2013 indicated the action taken against the illegal construction.

8. This Court passed an order dated 17 December 2013 directing the President to take enforcement action with the assistance of police.

9. The President, Mambakkam Pamchayat issued notice to the builder dated 20 December 2013 to demolish the illegal structure. The builder immediately filed a writ petition in W.P.No.35119 of 2013 and obtained an interim order to maintain status quo. Summary of Submissions:

10. The learned Senior Counsel for the builder contended that the panchayat was expected to pass a provisional order under Rule 34(1) of the Tamil Nadu Panchyat Building Rules. However, no such order was passed in the matter and as such, enforcement action has no legal sanction. The learned Senior Counsel submitted that the builder has already submitted a plan for approval. The builder has no objection for sealing the premises by the panchayat till a decision is taken in the matter.

11. The learned counsel for the petitioner in W.P.No.9146 of 2013 by placing reliance on the affidavit filed by the President, and the photographs showing the construction, submitted that the builder has no regard to the laws and even during the pendency of the writ petition he continued with the illegal construction. According to the learned counsel, builders like the petitioner in W.P.No.28753 of 2013 are not entitled to any kind of sympathy. Analysis:

12. The builder appears to have commenced and continued the construction of a massive building without obtaining planning permission. The notices issued by the local authority have all returned with an endorsement ".refused".. It is not as if the builder was not aware of the proceedings taken by the local body.

13. Rule 40 of the Tamil Nadu Panchyat Building Rules 1997 provides for taking prior approval for construction. The builder has no concern to the building laws. He undermined the authority of the local body and without any kind of hesitation continued the construction. It was only when the panchayat issued the demolition notice, he rushed to this Court.

14. The proceedings taken by the Panchayat earlier should be construed as a provisional order issued under Rule 34(1) of Tamil Nadu Panchayat Building Rules. Thereafter, the panchayat issued the final order dated 20 December 2013 by confirming the provisional order. Therefore it is clear that the panchayat has followed the statutory provisions before taking action for demolition.

15. The builder has now submitted an application for planning permission. He has no objection for sealing the building till the disposal of the matter by the panchayat.

16. We have considered the entire factual matrix. We are of the view that the builder, who has no regard to the building regulations should pay cost to the panchayat as a condition precedent for entertaining the application for planning permission. Accordingly, in the interest of justice, we are inclined to issue the following directions: ".(1) The President, Mambakkam Panchayat is directed to lock and seal the building constructed by the builder, which is the subject matter of this litigation forthwith, with the assistance of police. (2) The Inspector of police, Kelambakkam police station is directed to provide necessary assistance to the President, Mambakkam Panchayat to carry out the process of locking and sealing the building. (3) The builder is directed to pay a sum of Rs.2 lakhs as cost of this litigation to the panchayat. The amount of cost should be deposited within one week from the date of receipt of a copy of this order. (4) The builder is permitted to make an application for planning permission before the panchayat after remitting the cost. The application should be submitted within a period of one week from the date of payment of cost as indicated above. (5) The President, Mambakkam Panchayat is directed to process the application for building plan and permit in accordance with the Tamil Nadu Panchayat Building Rules and dispose of the same on merits within a period of four weeks from the date of receipt of application. (6) In case the panchayat is of the view that part of the building should be demolished to make the construction legal, the builder should demolish such portion immediately. (7) The builder is restrained from occupying the building till the issuance of completion certificate by the local body. (8) The Tamil Nadu Electricity Board is restrained from giving electricity connection to the building without the completion certificate issued by the panchayat. (9) In case the petitioner failed to deposit the cost amount and submit the application for plan, it is open to the panchyat to proceed further to demolish the illegal structure with police protection. (10) The District Collector, Kancheepuram and Commissioner, Panchayat Union, Thirupporur are directed to provide necessary assistance to the President, Mambakkam Panchayat to comply with the above direction. (11) It is open to the petitioner in W.P.No.9146 of 2013 to approach this Court, in case the builder and panchayat failed to carry out the above direction. Disposition:

17. The writ petition in W.P.No.9146 of 2013 is disposed of with the above direction. The writ petition in W.P.No.28753 of 2013 and 35119 of 2013 are disposed of with cost payable to the panchayat as indicated above. Consequently, connected miscellaneous petitions are closed. No costs. [S.K.A.,J]. [K.K.S., J.]. 29.01.2014 Index: Yes/no Internet: Yes/no Tr/ To 1. THE DISTRICT COLLECTOR KANCHEEPURAM.

2. THE COMMISSIONER PANCHAYAT UNION TIRUPPORUR KANCHEEPURAM DISTRICT.

3. THE PRESIDENT MAMBAKKAM PANCHAYAT PREVIOUSLY CHENGALPATTU TALUK PRESENTLY THIRUPORUR TALUK KANCHEEPURAM DISTRICT - 600 127. SATISH K. AGNIHOTRI, J and K.K.SASIDHARAN, J Tr Pre-delivery order in W.P.Nos.9146, 28753 and 35119 of 2013 & connected MPS2901.2014