IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2010
CORAM
THE HONOURABLE MR.JUSTICE B.RAJENDRAN
W.P. No. 19676 of 2010
and
M.P. Nos. 1 and 2 of 2010
Noorunisha Beham .. Petitioner
Versus
1. The Commissioner
Vaniyambadi Municipality
Vaniyambadi
Vellore District
2. The Chairman
Vaniyambadi Municipality
Vaniyambadi
Vellore District .. Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari calling for the records pertaining to the interim notice in Ka.Ma.No.49/2010/F1, Ka.A.No.24/2010/F1 dated 12.07.2010 and the consequential final order passed in Ka.Ma.No.49/2010/F1, Ka.A.No.24/2010/F1 dated 09.08.2010 passed by the first respondent and quash the same as illegal, improper, unreasonable, arbitrary and against the rule of law.
For Petitioner : Mr. C.V. Kumar
For Respondents : Mr. G. Jeremiah
ORDER
By consent of counsel for both sides, the writ petition itself is taken up for final disposal.
2. The petitioner would contend that she had obtained permission from the first respondent by his proceedings dated 08.03.2010 to put up a construction in her property. In the affidavit filed in support of the writ petition, the petitioner would state that she had obtained permission to put up residential houses. According to the petitioner, on 12.07.2010, the first respondent issued a notice under Sections 205 (1 & 2), 339 (2), 340 (1) and 344 of the Tamil Nadu District Municipalities Act, 1920 on the ground that instead of constructing residential house, she is putting up commercial building. In and by the said notice dated 12.07.2010, the petitioner was asked to show cause within seven days as to why the building permission granted in her favour should not be cancelled. The petitioner sent a reply on 14.07.2010 requesting the first respondent to grant her time for a period of one week. Thereafter, on 21.07.2010, she sent a reply reiterating that she is putting up construction as per the building permission granted by the first respondent on 19.03.2010. It is also stated in the reply that the petitioner is only constructing residential houses and not any other commercial area. According to the petitioner, inspite of such an explanation offered by her, without even conducting any site inspection, the first respondent passed a final order dated 09.08.2010 directing the petitioner to comply with the order of removal of the building. Even after the receipt of the final order dated 09.08.2010, the petitioner had sent a representation dated 11.08.2010 reiterating that she is putting up construction only as per the permission granted by the first respondent and that therefore the building should not be demolished. After submitting such a representation, the petitioner has come forward with this writ petition to quash the notice dated 12.07.2010 as well as the final order dated 09.08.2010 passed by the first respondent.
3. The respondents have filed a petition to vacate the interim stay granted by this Court. In the vacate stay petition, among other things, it was contended that the petitioner had put up the construction in total violation of the permission granted to her on 19.03.2010 by the first respondent. The petitioner, instead of putting up residential building, constructed seven shops, which is nothing but a non-residential building. Therefore, the notice dated 12.07.2010 was issued to the petitioner calling upon her to show cause as to why the permission granted to her on 19.03.2010 should not be cancelled. The contention of the petitioner that notices were issued by the first respondent without site inspection is incorrect. Only based on an inspection, the notice was issued. Apart from the seven shops constructed by the petitioner, one shop was constructed in the space earmarked for parking area. After notice, the explanation offered by the petitioner was carefully considered and rejected by a final order dated 09.08.010. The petitioner had fully violated the planning permission granted to her however, she now contends that the building constructed was in confirmity with the planning permission granted to her. Since the construction has been put up by the petitioner is in total deviation as per the permission granted to her on 19.03.2010, the notice dated 12.07.2010 and the final order dated 09.08.2010 passed by the first respondent are perfectly valid and in accordance with law. It is further contended that the respondents/municipality had constructed a bridge known as Jinnah Bridge next to the petitioner’s property and if the petitioner is allowed to put up a commercial construction contrary to the sanctioned plan, it will result in traffic hazard in the locality and prayed for dismissal of the writ petition.
4. Heard both sides. When the writ petition was taken up for hearing on 22.11.2010, the learned counsel for the petitioner mainly contended that the impugned notices were not in accordance with law inasmuch as the respondents have not conducted any site inspection before issuing the notices. The learned counsel for the petitioner also contended that if an inspection is conducted and if there is any violation found, let the respondents proceed against the petitioner in accordance with law. Therefore, based on the submission of the learned counsel for the petitioner, a detailed order was passed by this Court on 22.11.2010, which is as follows:-
“The learned counsel for the petitioner submits that the building is being constructed only in accordance with the approved planning permission. His only grievance is that the impugned notice does not refer to any personal inspection made by the authorities concerned. He would further state that there is no deviation at all and every thing is done only in accordance with the plan. He seeks for personal inspection in his presence by the authorities.
Learned counsel for the respondents submits that the authorities are ready to have a re-inspection in the presence of the petitioner and if there is any violation, then it is liable to be demolished. Only because of the interim order, they are not proceeding further.
Taking into consideration the limited request made by the petitioner to have a joint inspection of the authorities in his presence and the submission made by the respondents, the respondents will inspect the premises on 24.11.2010 in the presence of the petitioner for which the petitioner counsel takes notices and submits that the petitioner would be present in the property at the time of inspection at 11.00 am and the Inspecting Authorities will see whether the constructions are made in accordance with the approved plan. If there is any deviation at the time of inspection in the presence of the petitioner, it is open to the respondents to take necessary action as contemplated under law for any violations.
Report on 24.11.2010.”
5. Pursuant to this order, in the presence of the petitioner, the authorities of the respondents municipality have conducted an inspection on 24.11.2010. The respondents have also filed a rough sketch, which would indicate that the petitioner had constructed seven commercial shops and it was also found that the following deviations have been committed by the petitioner
VERNACULAR (TAMIL) PORTION DELETED
6. It is clear from the report filed by the respondents that only shops are being constructed by the petitioner and the constructed portion is in no way in confirmity to the planning permission granted to the petitioner. The violations are patent. Therefore, immediately, the respondents municipality also given a further notice on 24.11.2010 soon after the inspection and such violations were also brought to the notice of this Court by the respondents by filing a report. Whereas, the petitioner had sworn to an affidavit before this Court falsely by stating that she had put up construction only as per the approved plan. The petitioner also stated before this Court that no inspection at all was conducted by the respondent and therefore, to dispel with the same, this Court directed the respondents to carry out an inspection and accordingly an inspection was conducted on 24.11.2010 and report submitted before this Court.
7. As stated above, when the writ petition was taken up for hearing on 22.11.2010, the petitioner had stated that if there is any deviation, it is for the respondents to take necessary action in accordance with law. Inasmuch as the respondents have carried out inspection in the presence of the petitioner and during such inspection it was found that there is flagrant violation of the planning permission granted to the petitioner by the first respondent, the only ground raised by the petitioner is found to be incorrect. In fact, in the explanation dated 21.07.2010 given by the petitioner to the notice issued by the first respondent, it was only stated that she is not putting up any shops but on inspection, it was found that the petitioner is only putting up commercial construction which is contrary to the planning permission granted to her. In any view of the matter, when the petitioner had sworn to a false affidavit before this Court that she is putting up the construction without any deviation and as per the planning permission granted to her, but on the contrary she had put up commercial shops in flagrant violation to the planning permission granted to her, this Court is not inclined to grant any relief to the petitioner. More over, the impugned notices issued by the respondents are in accordance with law and I do not find any reason to interfere with the same. Therefore, the respondents municipality shall proceed further against the petitioner in terms of the final notice dated 09.08.2010 of the first respondent.
8. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
rsh
To
1. The Commissioner
Vaniyambadi Municipality
Vaniyambadi
Vellore District
2. The Chairman
Vaniyambadi Municipality
Vaniyambadi
Vellore District