MENA KAWAR Vs. CORPORATION OF MADRAS

JUDGEMENT

(1.) THE facts leading to the writ petition are as follows: The petitioner submitted a plan for constructing of a premises in No.8, Ayyamudali Street for basement floor, ground, magazine and first floor. The said plan was sanctioned by the Corporation of Madras, the first respondent herein, in B.A.O.XI/171/82 dated 28.12.1982. In the process of construction the petitioner constructed ground to third floor without basement and magazine floors. The details of the same are given below:

(2.) FOR the unauthorised construction in relation to ground floor and first floor, criminal action was initiated on 2.5.1984. The petitioner was fined Rs.110. For the illegal construction of second floor criminal action was initiated on 9.7.1984. The petitioner was fined a sum of Rs.100 by the 19th Metropolitan Magistrate. With regard to both these notice under section 244 -A of the Tamil Nadu City Municipal Corporation Act, 1919, (hereinafter called the Act) was sent by registered post on 18.7.1985. As regards the illegal construction of the third floor criminal action was initiated on 29.7.1984 and the case is now pending in the Court. It is, under these circumstances, a notice under section 256(1) and (2) of the Act was issued to the petitioner on 4.9.1985. The same was served on the petitioner on 10.9.1985. It was pointed out therein that the petitioner was constructing a building unauthorised by viz., second and third floors without sanctioned plan. Hence, she was informed to stop the work and remove the same at once. Otherwise, the same would be removed at her risk and cost. It was further stated in the notice that she was required to show cause within seven days from the receipt of the order why the provisional order should not be confirmed. To this on 10th September, 1985 the petitioner replied stating inter alia that in view of the scanty land space available and in view of the large family under engineer -s advice she proceeded with the construction and there has been a deviation of the sanctioned plan. Further, in two criminal cases the Court levied fine and penalty for deviation and unauthorised construction. The said fine and penalty was paid on 30th May, 1985 itself for all the floors. The construction so far made and completed had been assessed to property tax of Rs.3,262.35. Therefore, in view of the levy and payment of fine/penalty for unauthorised construction and in view of the assessment of the property to property tax, the unauthorised construction must be deemed to have been condoned and no further action was called for. However, for the purpose of regulari -sation, she was submitting a revised plan for permission to construct the additional portions which have been already constructed. Without prejudice to the foregoing she would state that by the passing of the Act entitled -Town and Country Planning Act of 1975", the provisions of the Madras City Municipal Act relating to the construction of buildings and the permission thereof have been superseded and the provisions of the Town and Country Planning Act in relation to the construction of the buildings alone will apply. Hence, the provisional order made under section 256(1) of the Act was ultra vires and has no legal effect. On 19.9.1985, a notice was issued and the same was received by the petitioner on 26.9.1985. It is thereafter the petitioner wrote a letter dating it as 14.9.1985 which was received by the Corporation on 20.9.1985, stating that she has submitted a revised plan pertaining to the premises to the Madras Metropolitan Development Authority on 13.9.1985 in P.P.A.No.668/85. By a notice dated 29.10.1985 which was affixed to the premises of the petitioner on 2.11.1985 issued under section 378 of the Act, the petitioner was informed that the officers of the Corporation would enter the premises for the purpose of demolition of the unauthorised construction in the second and third floors. On 4.11.1935 the demolition of the unauthorised construction was commenced. It was at this stage the petitioner came forward with this writ petition for certiorari to quash the notice dated 19.9.1985 and the order of demolition dated 3.11.1985.

(3.) THE learned Counsel for the Corporation who appears on notice of motion produces the records and argues that a mere submission of an application for permission under section 49 of the Planning Act cannot in any manner affect the operation of the Act. The scope of the two Acts is totally different. The Madras Metropolitan Development Authority is only an authority to give permission for planning, while the building plan has to be sanctioned by the Corporation under the . relevant provisions of the Act. It is not that the petitioner is unaware of this, because she had submitted a plan earlier and obtained sanction for building ground floor and first floor on 28.12.1982. This is without prejudice to the important fact that the Madras Metropolitan Development Authority has not officially intimated to the Corporation about the submission of the application.