Madras High Court
Muthu Ganesh And Ors. vs The Commissioner, Corporation Of ... on 27 December, 2004
Equivalent citations: (2005)1MLJ235
Author: A. Kulasekaran
Bench: A. Kulasekaran
ORDER A. Kulasekaran, J.
1. Prayer in the writ petitions are to issue a writ of certiorarifed mandamus calling for the records of the respondent made in Notice Nos. 0108, 0106, 0112, 0118, 0110, 0117 and 0115, respectively, dated 14.12.2004, issued under Section 378 of The Chennai City Municipal Corporation Act IV of 1919 and to quash the same and forbearing the respondent from taking any further proceedings of demolition consequent to the Impugned Notice Nos. 0108, 0106, 0112, 0118, 0110, 0117 and 0115, dated 14.12.2004.
2. These are all the matters relating to demolition of superstructure at Door Number New No. 14, Old No. 15/11 Vembuliamman Koil Street, Virugambakkam. It is to be noted that this court by order dated 15.03.2004 in W.P. No. 6147 of 2004 directed the Member Secretary, CMDA; The Commissioner, Corporation of Chennai; District Collector, Chennai; and Tahsildar, Mambalam Guindy Taluk; to take action on the unauthorised construction. Following the said order, the respondent has issued notice under Section 256(1) and (2) to the owners of the property viz., Mr. Subbiah and Mr. Ethiraj. Thereafter, the respondent has passed an order of demolition under Section 256(3) of The Chennai City Municipal Corporation Act, 1919. Section 256(1), (2) and (3) reads as follows:
"256. Demolition or alteration of building work unlawfully commenced, carried on or completed.- (1) If the commissioner is satisfied-
(i) that the construction or re- construction of any building,-
(a) has been commenced without obtaining the permission of the commissioner or where an appeal or reference has been to the standing committee, in contravention of any order passed by the standing committee, 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 244 have not been duly made, or
(iii) that any alternation of, or additions 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 255, he may make a provisional order requiring the owner or the builder to demolish the work done, or so much of it as, in the opinion of the commissioner, has been unlawfully executed, or to make such alterations as may, in the opinion of the commissioner, be necessary to bring the work into conformity with the Act, rules, by-laws, direction or requisition as aforesaid, or with the plans or 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.
(2) The commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner of the building 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 confirmed.
(3) If the owner fails to show cause to the satisfaction of the commissioner, the commissioner may confirm the order with any modification he may think fit to make and such order shall then be binding on the owner."
3. It is seen from the above said section that the respondent herein can issue notice only to the owner or to the builder. It is pertinent to mention that all the petitioners before me are neither the owner nor builder, but tenants, who are all in occupation of the said premises. After exercising Section 256 the respondent has chosen to execute the work of demolition. Hence the respondent has caused notice under Section 378 of the said Act. Section 378 of the Act reads as follows:
"378. Power of entry to inspect, survey or execute the work.- The commissioner or any person authorized by him in this behalf may enter into or on any building or land with or without assistants or workmen, in order to make any inquiry, inspection, test, examination, survey, measurement or valuation, or for the purpose of lawfully placing or removing meters, instruments, pipes or apparatus, or to execute any other work which is authorized by the provisions of this Act or of any rule, by-law, regulation or order made under it or which it is necessary for any of the purpose of this Act or in pursuance of any of the said provisions, to make or execute:
Provided that-
(a) except when it is in this Act otherwise expressly provided, no such entry shall be made between sunset and sunrise;
(b) except when it is in this Act otherwise expressly provided, no dwelling house and no part of a public building or hut which is used as a dwelling place, shall be so entered without the consent of the occupier thereof, unless the said occupier has received at least twenty-four hours' previous notice of the intention to make such entry;
(c) sufficient notice shall be, in every case, given even when any premises may otherwise be entered without notice, to enable the inmates of any apartment appropriated to females to withdraw to some part of the premises where their privacy may be preserved;
(d) due regard shall be paid, so far as may be compatible with the exigencies of the purpose of the entry, to the social and religious usages of the occupants of the premises."
4. The above said Section 378 contemplates power of entry to inspect, survey and execute the work. It is not in dispute that the petitioners before me have received the notice under Section 378 of the Act, which is challenged in these writ petitions.
5. It is clear from the facts mentioned above that the respondent has initiated action only in terms of Sections 256 and 378 of the Act pursuant to the direction issued in W.P. No. 6147 of 2004, dated 15.03.2004. Hence, I do not find any reason to interfere with the action initiated by the respondent herein.
6. Mr. Gunaraj, learned counsel appearing for the petitioners, prayed this court to permit the petitioners to remove the movables in the premises by granting sufficient time of four weeks, which was strongly opposed by Mr. Ravichandran, standing counsel appearing for the respondent stating that such long period is not required for removal of their movables.
6. Taking into consideration the facts and circumstances of the case and also the submission made by Mr. Gunaraj, learned counsel for the petitioners, I am of the view that the petitioners herein may be permitted to remove the movables, for which time of three weeks is required. Accordingly, I grant three weeks time to the petitioners for removing the movables, provided they should file an affidavit of undertaking to the respondent within a period of three days from today stating that they will vacate the said premises within a period of three weeks from the date of receipt of a copy of this order, failing which the respondent is at liberty to proceed in accordance with law.
7. The writ petitions are disposed of accordingly. No costs. Consequently connected W.P.M. Ps. are closed.