P G VISWANATHAN Vs. GOVT OF TAMIL NADU

JUDGEMENT

(1.) The petitioner has filed this petition under Art.226 of the Constitution for the issue of a writ of certiorified mandamus or other directions calling for the records of the first respondent relating to G.O. Ms. No.742, R.D.and L.A., dt.14th May, 1984 and to quash the same and to direct the third respondent to take action for demolishing the illegal construction put up by the fourth respondent in the premises mentioned in the petition and to prosecute the fourth respondent for the said illegal construction.

(2.) The petitioner's case is to the following effect: The petitioner, who is a leading E.N.T, Specialist owns a house situate at No.10-C, Govind Singh Road, R.S. Puram, Coimbatore. Immediately north of the petitioner's house, there is a plot of land of an extent of 4.300 sq.ft. belonging to the fourth respondent. The fourth respondent began construction work on the said plot some months ago. The petitioner was under the impression that only a single dwelling house was being constructed on the plot as per the conditions laid down in the Town Planning Scheme No.4, Coimbatore, passed in G.O.Ms.No.14, dt. 2nd Jan., 1946 and the Buildings Regulations of the Coimbatore Corporation. As the petitioner is a busy practitioner, he did not have time to check up whether the fourth respondent had obtained a sanctioned plan from the authorities. Seeing the fourth respondent proceeding with the construction work at a rapid pace, the petitioner made enquiries and came to know that he was putting up a multi-storyed complex with four flats in each floor. The construction hastily put up by the fourth respondent poses a threat to the neighbours and is likely to prove dangerous to the future occupants themselves of the building. It came to be known that the fourth respondent was putting up the building without obtaining proper licence. Thereupon, the petitioner approached the third respondent to stop the illegal construction. The third respondent sent the papers to the Deputy Director, Town Planning, Coimbatore. The Deputy Director found numerous irregularities in the construction and he sent the papers to the second respondent together with his remarks. The second respondent, by his order dt.23rd Feb., 1984, declined to relax the relevant rules, viz., the Buildings Rules 14(3), 14(3)(iv)(a), 14(3)(b) and 14(3)(iii) and directed the third respondent to grant licence without relaxation of the rules. In the meanwhile, the fourth respondent proceeded with the construction without waiting for sanction. The petitioner was, therefore, compelled to file a suit, on 9th Jan., 1984, in O.S. No.79 of 1984 on the file of the District Munsifs Court, Coimbatore, to seek an injunction against the fourth respondent proceeding with the construction. An advocate Commissioner inspected the property on 12th Jan., 1984 and found that the construction was to consist of four floors including the ground floor and that the fourth respondent had left vacant space of only 4' 3" on the sides. Apart from this irregularity, the height of the building also exceeded the permitted limit. As per the rules, no building can be constructed at a height exceeding one and a half times the width of the street from which the plot gains access. But, the building put up by the fourth respondent would have a height of 20 feet which is against the rules. Moreover, the fourth respondent has not made provision for proper sanitary facilities, adequate ventilation and area for parking of vehicles. The petitioner's efforts to prevent the illegal construction did not meet with success. In the meanwhile, on 12th Mar., 1984, the fourth respondent had filed an appeal to the Minister for Local Administration against the orders of the second respondent. The first respondent, by G.O.Ms.No. 742, R.D. and L.A. dt. 14th May, 1984, allowed the appeal on the ground that the violations of 40 per cent and 46 per cent on two sides of the building in the matter of leaving open space were marginal and a plot having an extent of 4,300 sq.ft. cannot be expected to be utilised for constructing of one dwelling house alone. As a consequence of the illegal order passed by the first respondent, the third respondent has given exemption to the building put up by the fourth respondent from observance of the relevant provisions. The petitioner would say that the first respondent has passed the order without the requisite jurisdiction and, in any event, the order is wholly illegal and arbitrary. While the technical authorities viz., the Addl. Director and Director of Town and Country Planning, had refused to grant exemption the first respondent has granted exemption on extraneous considerations. While violations of the Building Rules are punishable under S.44(b) of the District Municipalities Act, the first respondent has regularised the violations by granting the exemption. The petitioner, who is the owner of the adjacent building, stands exposed to the danger of infringement and nuisance on account of the illegal order of exemption passed by the first respondent. The fourth respondent had suppressed material facts, viz., the construction of the building having reached the stage of accomplishment when he applied for exemption. Being left with no other remedy, the petitioner has to seek the quashing of the impugned order of the first respondent only by means of a petition under Art. 226 of the Constitution. The petitioner had therefore prayed for the issue of a writ of certiorified mandamus to quash the order of exemption passed by the first respondent by means of the impugned G.O., and to direct the third respondent to take necessary action for demolishing the illegal construction and to prosecute the fourth respondent for having put up the illegal construction.

(3.) The fourth respondent has not filed a counter-affidavit in the main writ petition, but has filed a counter-affidavit only in the petition for injunction, viz., W.M.P.No. 12076 of 1984 and another affidavit in support of an independent petition W.M.P.No. 12702 of 1984 to pray for the interim injunction being vacated.