G.Krishnamoorthy vs The Assistant Director Of Panchayats on 12 November, 2018

[Cites 8, Cited by 0]

Madras High Court

G.Krishnamoorthy vs The Assistant Director Of Panchayats on 12 November, 2018

W.P.(MD).No.15771 of 2016 has been filed by the petitioner challenging the order passed by the third respondent, dated 03.08.2016, http://www.judis.nic.in 3 whereby and whereunder the third respondent has directed the petitioner to lock and seal the lodge, being run by him on his own on or before 05.08.2016 or otherwise action would be taken to seal the building, as the building is used without obtaining proper permission from the Tahsildar, Fire Service Department, Police Department and Public Health Department, as provided under Public Buildings Act and the Tamil Nadu District Municipalities Act.

2. Contempt Petition No.1033 of 2016 has been filed by the very same petitioner alleging that the respondents have not complied with the order of this Court, dated 22.03.2016, passed in W.P.(MD).No.9527 of 2015, whereby and whereunder, this Court had directed the first respondent herein to appoint an Officer equal to the rank of the second respondent to enquire into the matter and the appointed officer should conclude the enquiry proceedings within a period of 30 days from the date of appointment.

3. Since the issue involved in both the petitions are interrelated to each other, both the petitions heard together and disposed of by way of this common order. For better appreciation, the ranks of the respondents assigned in the writ petition are taken up consideration.

4. The brief facts, which are necessary for the disposal of the cases, are as follows:

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(a) The petitioner and his two brothers viz., Manickavasagan and G.Chandramohan / 5th respondent constructed a commercial building in the year 1998 in the name and style of “V.V.Tower”, at Madurai Main Road, Batlagundu Town, in which they started a lodging business on

05.06.1998. The petitioner has been looking after business and property, with the consent of the other partners. The income derived from the said property were shared among the partners. Till 2013, the functioning of the business went smoothly.

(b) During the year 2014, the 5th respondent started to create problems in the business alleging that the profits were not shared equally. On 11.04.2014, the 5th respondent, along with their sisters viz., respondents 7 & 8 herein, filed a suit for partition in O.S.No.32 of 2014. After failing to get any interim order before the trial Court, the respondent Nos.5, 7 and 8 sent various complaints against the petitioner before various authorities alleging that though the building plan approval was obtained for running Guest House, the petitioner has been running lodging business without proper maintenance. Based on one such complaint, the 4th respondent / Tahsildar conducted an enquiry and sent a report to the District Collector for taking suitable action against the petitioner for not obtaining building license. Seeking explanation to the said report, the second respondent / Executive Officer has sent a notice dated 10.12.2014 to the petitioner.

(c) While so, the petitioner has filed a writ petition in W.P. http://www.judis.nic.in 5 (MD).No.1299 of 2015 seeking a direction to the Executive Officer to furnish certain documents referred to in the notice, dated 10.12.2014. This Court, by order dated 03.02.2015, directed the second respondent to furnish the documents sought by the petitioner within a period of one week and on receipt of the same, the petitioner shall give reply within a period of one week thereafter. Subsequently, the petitioner filed W.P. (MD).No.7673 of 2015 seeking a direction to the second respondent herein to provide sufficient opportunity to him to produce documents and to rectify the defects. This Court, by order dated 30.04.2015, permitted the petitioner to produce all the necessary documentary evidence so as to prove his claim within a period of two weeks from the date of receipt of that order and directed the second respondent herein to consider the same and pass appropriate order after within a period of four weeks thereafter.

(d) Thereafter, making allegations against the 3rd respondent herein, the petitioner filed a writ petition in W.P.(MD).No.9527 of 2015 seeking transfer of the enquiry proceedings from the 3 rd respondent to any other equivalent Officer. This Court, by order dated 22.03.2016, directed the first respondent herein to appoint any one of the equivalent Officers to enquire into the matter and that appointed officer should conclude the enquiry proceedings within a period of one month. Pursuant to the said order, the first respondent herein appointed the sixth respondent herein as an enquiry officer. After completion of enquiry, the http://www.judis.nic.in 6 6th respondent has submitted his report. Based on the report of the 6th respondent, on 20.07.2016, the 3rd respondent directed the petitioner to produce the building license obtained by him for running a lodge within seven days or otherwise action would be taken as per legal opinion. On 25.07.2016, the petitioner had sent a letter requesting the 3rd respondent not to proceed against the order passed in W.P.(MD).No.9527 of 2015. While so, the third respondent has passed the impugned order directing the petitioner to lock and seal the lodge. Pursuant to the same, the lodge was sealed by the 3rd respondent on 05.08.2016. Hence, the petitioner filed Cont.P.No.1033 of 2016 alleging that the 1 st and 3rd respondents herein violated the order passed in W.P.(MD).No.9527 of 2015.

(e) It is seen that though this Court granted an interim order of injunction at the time of admission, it was subsequently modified by order, dated 19.09.2016, to the effect that the lock and seal put up on the premises can be removed and till the disposal of the writ petition, the petitioner shall not use the building for public lodging house and allied purposes.

5. Though very many contentions have been raised by the learned counsel appearing for the petitioner, the core contention insisted by the learned counsel for the petitioner is that the 3rd respondent has no authority to issue the impugned order. In this regard, the learned counsel for the petitioner submitted that the petitioner has been running lodging business from 1999 onwards, for which license has also been issued by http://www.judis.nic.in 7 the then Executive Officer till 2012 and thereafter, the applications filed for extension of license has been pending before the 2nd respondent and the same were not rejected till date. Therefore, as per Section 7 of the Tamil Nadu Buildings (Licensing) Act, 1965, building license deemed to have been granted for three years and extended till 13.03.2019. By inviting the attention of this Court to the enquiry report of the 6th respondent, the learned counsel appearing for the petitioner submitted that even according to the enquiry officer, the petitioner has obtained building plan approval for construction of shopping complex and guest house, and it is not an illegal construction and therefore, Section 216 of of the District Municipalities Act would not attract. With regard to the license for running a lodge is concerned, even according to the enquiry officer, the application filed by the petitioner for extension of license has been pending and due to the intervention of the 5th respondent, the said applications were not considered by the concerned authorities. He would further submit that after inspection of the property, the 6th respondent has stated that the guest house is in a clean environment and the rooms are in hygienic condition. Without considering the above report of the 6 th respondent and in violation of the order passed in W.P.(MD).No.9527 of 2015, the third respondent has passed the impugned order and therefore, the same may be set aside.

6. The learned counsel appearing for the respondents in unison submitted that the petitioner, without obtaining license for running a http://www.judis.nic.in 8 lodging business from the 4th respondent / Tahsildar, had been running business and further he has filed application for approving / extending the license, without any valid documents and therefore, they were not considered by the official respondents. As the petitioner was running the lodging business without any license and the lodging business clearly comes in the purview of Schedule V to Section 249 of the Act, the third respondent has power to issue such order. Thus, they prayed to dismiss the writ petition.

7. Heard the learned counsel appearing for both sides and perused the records carefully.

8. From the materials on record, it is seen that the dispute arose only when the brother of the petitioner, namely, the 5th respondent, started to make complaints to the authorities, including the 2nd respondent, the Executive Officer, Batlagundu Town Panchayat, who has issued the impugned order, dated 03.08.2016, directing the petitioner not to run the business of “lodge” in the disputed building and close the building. The grounds on which the 2 nd respondent has issued the impugned order is that the petitioner is using the building in question, as a public building by running a lodge, in violation of Section 216 of the Tamil Nadu District Municipalities Act and without obtaining proper permission from the Tahsildar, Fire Service Department, Police Department and Public Health Department, as provided under Public Buildings Act.

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9.The first ground is that the petitioner has violated Section 216 of the Tamil Nadu District Municipalities Act, 1920. Section 216 of the Act reads as under:

“216.Demolition or alteration of building work unlawfully commenced, carried on or completed.- (1) If the executive authority is satisfied-

(i) that the construction or reconstruction of any building or well

(a) has been commenced without obtaining the permission of the executive authority or where an appeal or reference has been made to the council in contravention of any order passed by the council; or

(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or

(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or by law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or by- laws, or

(ii) that any alterations required by any notice issued under Section 205 have not been duly made; or

(iii) that any alteration of or addition to any building or any other work made or done for any purpose, in, to or upon any building, has been commenced or is being carried on or has been completed in breach of Section 215, he may make a provisional order requiring the owner or the builder or demolish the work done or so much of it as, in the opinion of the execution authority has been unlawfully executed or to make such alterations as may in the opinion of the executive authority be necessary to bring the work into conformity with the Act, by-laws, rules, direction or requisition as aforesaid, or with the plans and particulars on which such permission or order was based, and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well.

(2)The executive authority shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be http://www.judis.nic.in 10 confirmed.

(3) If the owner fails to show cause to the satisfaction of the executive authority, the executive authority may confirm the order with any modification he may think fit to make, and such order shall then, be binding on the owner.”

10. A plain reading of the above provision indicates that it will apply to cases where the owner of the building has unlawfully commenced, carried on or completed the work of demolition or alteration of building and if the Executive Authority of the local body is satisfied, he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it has been unlawfully executed.

11. Here, in this case, it is not in dispute that the petitioner obtained permission for construction of shopping complex and guest house from the concerned authorities. It is not the case of the respondents, especially the 2nd respondent, that the petitioner has made constructions or demolition or alteration in violation of the building plan issued by the authority concerned. Even according to the respondents, though the petitioner constructed commercial complex and guest house after obtaining building plan permission, he has been running the lodging business without getting building license from the 4th respondent / Tahsildar and permissions from other departments, such as Fire Service, Police and Health Departments. The usage of the building for some other purpose without getting proper permission alone is in dispute. In such http://www.judis.nic.in 11 circumstances, the impugned order passed by the third respondent under Section 216 of the Act cannot be sustained.

12.0. The next ground on which the impugned order was passed is that the petitioner has not obtained proper licence under the Tamil Nadu Public Buildings (Licensing) Act, 1965. It is the contention of the petitioner that pursuant to the Memorandum, in Na.Ka.No.16600/2012/Aa. 3, dated 27.09.2012, issued by the Tahsildar, Nilakottai Taluk, the 4th respondent herein, he made his application on 27.12.2012, enclosing all the requisite documents, along with a copy of challan, issued by Sub- Treasury Officer evidencing payment of Rs.5,000/- towards licence fee, but, however, no licence was issued by the 4th respondent. It is the submission of the learned counsel for the petitioner that as per Section 7 of the Tamil Nadu Public Buildings (Licensing) Act, 1965, if no order either granting or refusing a licence is communicated to the applicant within a period of three months from the date of receipt of the application, it should be deemed that licence have been granted. Therefore, according to the learned counsel for the petitioner, though the petitioner has made an application with necessary enclosures, the 4th respondent has not passed any orders either granting or refusing a licence within three months and therefore, it is to be deemed that such a licence has been granted to the petitioner to carry on the business in the building in question and therefore, it cannot either be stated or contended that the petitioner was running lodge business without licence under the Tamil http://www.judis.nic.in 12 Nadu Public Buildings (Licensing) Act. We see considerable force in the contention of the learned counsel for the petitioner.

12.1. Though the above fact is not disputed by the respondents, it is their contention that the petitioner has not enclosed stability certificate, issued by an engineer and therefore, his application was not considered for issuance of licence. However, Section 5 of the Tamil Nadu Public Buildings (Licensing) Act, 1965 mandates a duty of Inspection before passing orders on an application presented before him seeking grant of licence. Section 5(1) of the Act says that when an application under sub-section (1) or sub-section(2) of Section 4 is not accompanied by a certificate of structural soundness mentioned in sub-section (4) of section 4, the competent authority may obtain the opinion of such engineer, as the Government may specify in this behalf, in regard to the structural soundness of the building mentioned in the application and such engineer shall give his opinion in the prescribed form as expeditiously as possible. Therefore, when the receipt of the application is admitted, if the application was not accompanied by a certificate of structural soundness, the competent authority, in this case the 4th respondent, ought to have called for such certificate from such engineer as notified by the Government. But, there is no record to establish that the 4th respondent undertook such a measure in the case of the petitioner either to grant or refuse to grant licence to the petitioner. Therefore, as provided under Section 7 of the Act, it is to be deemed that http://www.judis.nic.in 13 the petitioner was granted with licence under the Tamil Nadu Public Buildings (Licensing) Act, 1965 and he was carrying on the business of “lodging” in the building in question. It is also seen that the petitioner has made another application on 07.03.2016, in Form-A, appended in the Schedule to the Rules, along with necessary documents. On the above application also, it seems that no order either granting or refusing to grant or renew licence has been issued by the 4th respondent. Therefore, we are of the view that the petitioner has promptly made applications for grant/renewal of licence and since the Competent Authority under the Act has not passed orders either granting or refusing to grant licence within a period of three months from the date of receipt of the application, as per Section 7 of the Act, it is to be deemed that the petitioner has been granted required licence and he is carrying on the business in the building in question with licence.

13. It is settled law that merely because wrong provision has been quoted in the impugned order, the impugned order cannot be vitiated. The learned counsel appearing for the official respondents stated that as per Section 249 of the Tamil Nadu District Municipalities Act, the third respondent has authority to pass the impugned order.

14. Section 249 of the Tamil Nadu District Municipalities Act, 1920 deals with licence which is necessary to use a building for a particular purpose and those purposes are mentioned in Schedule V of the Act. The said section is as follows :--

http://www.judis.nic.in 14 "249. Purposes for which places may not be used without licence.-- (1) The Council may publish a notification in the district gazette and by beat of drum that no places within municipal limits or at a distance within three miles of such limits shall be used for any one or more of the purposes specified in Schedule V without the licence of the executive authority and expect in accordance with the conditions specified, therein.

Provided that no such notification shall take effect

(a) until sixty days from the dale of publication, and

(b) except with the previous sanction of the State Government in any area outside the municipal limits.

(2) The owner or occupier of every such place shall within thirty days of the public action of such notification apply to the executive authority for a licence for the use of such place for such purpose.

(3) The executive authority may by an order and under such restrictions and regulations as he thinks fit grant or refuse to grant such licence.

(4) Every such licence shall expire at the end of the year unless for special reasons the executive authority considers it should expire at an earlier date, when it shall expire at such earlier date as may be specified therein.

(5) Applications for renewal of such licences shall be made not less than thirty and not more than ninety days before the end of every year and applications for licences for places to be newly opened shall be made not less than thirty and not more than ninety days before they are opened.... “ 14.1. Schedule V of T.N. Municipalites Act, 1920 provides premises which may not be used without a licence under Section 249 of the Act. Among other clauses, clause (j) in Schedule V speaks about hotel, restaurant, eating house, lodging house, etc. It runs as follows :--

http://www.judis.nic.in 15 “(j) Keeping a public halting place, choultry or other rest-house for travellers (other than a choultry or rest-house maintained by the . Government or local authority), a hotel, restaurant, eating-house, coffee house, boarding house or lodging house (other than a student's hostel under public or recognised control)."

The above mentioned provision makes it clear that without a valid licence from the executive authority, a building cannot be used for the above purposes, in this case “lodging house”.

15. It is not the case of the 2 nd respondent, namely, the Executive Officer, Batlagundu Town Panchayat, that the petitioner has not obtained any licence from the Executive Officer of the Town Panchayat to use the building in question for the purpose of lodging house. On the contrary, the petitioner has produced before this Court copies of licences issued and renewed from time to time by the 2 nd respondent Town Panchayat, upto 2011-2012, which shows that the petitioner had been running the business of “lodging house” after obtaining due licence under Section 249 of the Tamil Nadu District Municipalities Act, 1920 and also paying professional tax to the local authorities. The reason stated by the petitioner for not renewing the licence after 2012 is that at the end of 2013, the 3rd respondent assumed charge of the Executive Officer of the 2nd respondent Town Panchayat and he, without any notice to the petitioner, has made changes in the property tax assessment at the instigation of the 5th respondent, the brother of petitioner, as if the sisters of the petitioner are also the owners of the building and because of the http://www.judis.nic.in 16 petitioner's protest to higher authorities, the 3rd respondent developed grudge against the petitioner. Thereafter, the 3rd respondent, it is alleged by the petitioner, has refused to renew the licence under Section 249 of the Tamil Nadu District Municipalities Act, 1920 stating that dispute regarding the ownership of the building is pending between the petitioner and his brothers and sisters. However, it is the contention of the petitioner that till the filing of the objection by the 5th respondent, there was no prohibitory order whatsoever for renewing the licence of the petitioner under Section 249 Tamil Nadu District Municipalities Act, 1920. Whereas, the impugned order only states that the petitioner has not obtained licence from the competent authority under the Tamil Nadu Public Buildings (Licensing) Act, 1965, which ground has already been dealt with by us in the foregoing paragraph and held that the petitioner was running the business only with the licence issued by the competent authority under 1965 Act.

16. In view of the above conclusion, if at all any action is to be taken against the petitioner on the ground that he has not obtained building license under the Tamil Nadu Public Buildings (Licensing) Act, such power vests only with the Competent Authority under the Tamil Nadu Public Buildings (Licensing) Act, 1965 and not with the Executive Officer of the Town Panchayat under the Tamil Nadu District Municipalities Act, 1920.

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17. So far as the contempt petition is concerned, it is seen that by order dated 22.03.2016, this Court directed the first respondent herein to appoint an enquiry officer and that the appointed enquiry officer must conclude the enquiry within 30 days. It is represented that as per the direction of this Court, the first respondent appointed 6th respondent and the 6th respondent completed the enquiry within the above stipulated time. It is seen that this Court has not specifically directed the appointed officer to pass orders, after completion of enquiry. Therefore, this Court is of the view that the respondents have complied with the order of this Court and the contempt does not arise in this case. Hence, this Court is inclined to close the contempt petition.

18. In the result,

(a) this Writ Petition is allowed and the impugned order passed by the 3rd respondent is set aside on the ground of jurisdiction. No costs consequently, connected miscellaneous petitions are closed.

(b) the Contempt petition is closed. No costs.

                                                              [R.P.S., J.]       [B.P., J.]
                                                                        13.03.2019
                 Index    : Yes / No
                 Internet : Yes / No
                 gcg




http://www.judis.nic.in
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                                                                       R.SUBBIAH, J.
                                                                                AND
                                                                   B.PUGALENDHI, J.
                                                                                  gcg

                 To
                 1.The Assistant Director of Panchayats,
                   Dindigul District,
                   Dindigul.

                 2.The Executive Officer,
                   Batlagundu Town Panchayat,
                   Batlagundu, Nilakottai Taluk,
                   Dindigul District.

                 3.The Tahsildar,
                   Nilakottai,
                   Dindigul District.



                                                             COMMON ORDER MADE IN
                                                             W.P(MD)No.15771 of 2016
                                                                           and
                                                           Cont.P.(MD).No.1033 of 2016




                                                                           13.03.2019



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