Decided on October 28,1970

Somasundara Nadar Appellant
The Government Of Tamil Nadu, Represented By The Commissioner, Madurai Municipality And Executive Authorities Respondents


Somasundaram, J. - (1.) THE petitioner herein was prosecuted for an offence under S. 317 of the District Municipalities Act, for having constructed a building in T.S. No. 1948/8, within the Madurai Municipal limits, on 27th December 1968 without obtaining the requisite permissions from the executive authority. The site in question, which is in ward No; 24, was notified under the Town Planning Scheme and it was proposed for a Community Centre. Proceedings for acquisition are said to be pending. On 24th July 1967, the petitioner had presented a petition, with a plus seeking permission for construction a building on this sate. Permission was refused on 7th June 1968 as per Ex. P. 1. P.W. 1, the Building Inspector, submitted his report Ex, P. 2 complaining about the construction to the executive authority. The petitioner was then prosecuted. P.W. 1 deposed to the above facts. The defence of the petitioner was that the Municipal Council has approved his plea and that as such the prosecution was non sustainable. The learned Magistrate convicted and sentenced the petitioner to pay a fine of Rs. 25. The correctness of this conviction is now canvassed in this revision.
(2.) P .W. 1, the Building Inspector, admits in his evidence that this petitioner had promoted a petition to the Municipality, legal for permission for the construction of the building, on 24th July 1967, Permission was refused only on 7th June 1958 as per Ex. P. 1 The inspection of the building was on 31st 1968. Ex, D. 2 dated 20th January 1968 is a resolution passed by the Town planning Committee of this Municipality in respect of this site. This document shows that this Committee had resolved even on 6th September 1967 to grant permission relaxing the rules relating to the scheme. This resolution of theirs was also approved by the Municipal Council on 18th September 1967. The previous resolution of this Committee was again approved by the resolution evidenced by Ex. D, 2 stating, that till then acquisition proceedings were not initiated and that granting of sanction for the construction would be beneficial to the Municipality from the income point of view. Ex. D. 3 dated 15th June 1968 is a resolution passed by the Municipal Council approving the recommendations of the Town Planning Committee. P.W. 1 further admits that the petitioner commenced the construction after obtaining a copy of the resolution passed by the petitioner to the Municipal Counsel. But, Ex. D. 2 shows that the Counsel considered the application together with the plane. The petitioner states that he had in fact sent a petition on 28th May 1968. Under S. 197 of the Madras District Municipalities Act, if any person intends to construct or reconstruct a building other than a hut, he should send to the executive authority, (a) an application in writing for the approval of the site together with a plan of the land, and (b) an application in writing for permission to execute the work, together with a ground plan, elevation and sections of the building and a specification of the work. Under S. 201 , the executive authority should either approve or refuse to grant the application within 30 days after receipt. Under S. 202 , If within the period of thirty days, the executive authority neither grants her refuses his approval for the site or for the construction, the Connell shall be bound on the written request of the applicant, to determine by written order whether such approval or permission shall be seemed to have been given and the applicant may proceed to execute the work, but not so as to contravene any of the provisioned of this Act or any Rules or bye -laws made under this Act. The executive authority in this case neither granted the permission nor refused it within thirty days from the date of receipt. The Municipal Council neither sanctioned nor refused permission on the application of the petitioner within thirty days. On the other hand, we see that it has passed a resolution approving the application for construction, made by the petitioner. Under sub S.(11) of S. 321 of the Act, where the executive authority had felled to act within the period of limitation specified in the section, by way of refusal of the license, It is permissible for the applicant to act on legal action that the license shall be seemed the have been granted -vide Public Prosecutor v. Krishna Rao : (1957) 2 M.L.J. 637.
(3.) THE petitioner in this case has constructed the building after the approval of his plan by the Municipal Council. The prosecution is not sustainable. The conviction and sentence are set aside. The petitioner is acquitted of the offence for which he stood convicted. Fine, if collected, shall be refunded. The revision is allowed.;

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