COMMISSIONER, PATTUKOTTAI MUNICIPALITY Vs. CHANDRASEKARAN

JUDGEMENT

(1.) THIS appeal is preferred by the Commissioner of Pattukottai Municipality against the judgment of Ramaprasada Rao, J., in W. P. 148 of 1972. The writ petition was filed by minor Chandrasekharan, represented by his father and guardian Natanam Chettiar for the issue of a writ in the nature of Mandamus or any other appropriate writ directing the respondent -Municipality to forbear from demolishing the petitioner's building in S.No. 68/A -5 of Pattukottai village.

(2.) THE respondent herein commenced putting up a construction in S. No. 68/A -5 within the Municipal limits of Pattukottai village. On 4 -12 -1970 he applied to the Municipality for permission to put up a godown over the land and submitted building plans for the purpose. Before sanction of the plan, the respondent started construction on 4 -12 -1970, and a door frame on the site was fixed on 15 -12 -1970. As the respondent had commenced building without getting a sanction, a notice under Section 216 (1) (i) (a) of the Tamil Nadu District Municipalities Act, dated 19 -12 -1970, was served on him calling on him to demolish the unauthorised construction. This notice was acknowledged by him on 22 -12 -1970. On 3 -12 -1971 the first plan submitted for consideration was rejected on the ground that there was a violation of the specific building requisition. The respondent applied for a second time for approval of the site and for further construction and forwarded fresh plans. The second application was made on 5 -4 -1971. On 21 -4 -1971, the provisional order issued under Section 216 (1) (i) (a) of the Act calling upon the respondent to demolish the construction was confirmed under Section 216 (3). The second plan submitted by the respondent on 5 -4 -1971, was also rejected on the ground that the respondent proceeded to construct without permission and he did not obey the provisional order made under Section 216 (1) (i) (a) of the Act. The rejection of the first plan was acknowledged by the respondent on 24 -4 -1971. The respondent filed a third plan for sanction of the building plan and approval of the site and furnished fresh plans on 27 -4 -1971, but the third plan was returned on 30 -4 -1971, on the ground that the building would be an encroachment upon the Government land.

(3.) BEFORE the learned Judge and before us it was contended that a direction under Section 216 (1) to (3) to demolish an unauthorised construction, if not complied with, can only be dealt with as an offence punishable under Section 317 and the Municipality cannot on its own force demolish the unauthorised construction. The learned Judge held that the Municipality had the power to prosecute a delinquent person but had no power to enforce the demolition of that building because they did not sanction the plan and in the particular case they could not sanction the plan as the building was sought to be put up in a kottai poromboke, The learned Judge was also of the view that if the Municipality intended to demolish a construction put up within its precincts then it should initially possess the authority to permit such a construction or in the alternative be of the view that the construction is not in accordance with the content of the permission granted by it to build and if it has no power to give such permission to construct then it follows that it has equally no power to direct a demolition of such a structure unless the Act specially empowered it to do so. The learned Judge further observed that as the land in which a building was put up is kottai poromboke, it is not for the municipality to feel aggrieved about it whatever rights the Government may have as against the encroacher and the Municipality cannot take proceedings.