Madras High Court
M.Kuppusamy vs Union Of India Rep.By Its Secretary on 4 August, 2021
Author: T.Raja
Bench: T.Raja, V.Sivagnanam
W.P.No.7376 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.08.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.P.No.7376 of 2021
1. M.Kuppusamy
2. K.Srinivasan .. Petitioners
-vs-
1. Union of India rep.by its Secretary
to Government
Department of Cultural Affairs
Room No.501, “C” Wing, Shastri Bhavan
New Delhi 110 015
2. The District Collector
Kancheepuram District
Collectorate Office
Thaiyar Kullam
Kancheepuram 631 501
3. The Superintendent/Conservator
Archaeological Survey of India
Fort St.George
Chennai 600 009
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W.P.No.7376 of 2021
4. The Conservation Assistant
Archaeological Survey of India
Kancheepuram Sub Circle
Vaikundaperumal North Mada Street
Kancheepuram 631 502
5. The Commissioner
Kancheepuram Municipality
Kancheepuram District 631 502
6. The Tahsildar
Kancheepuram Taluk Office
Kancheepuram District 631 501
7. The Superintendent of Police
Office of the Superintendent of Police
Thaiyar Kullam
Kancheepuram District 631 501
8. The Inspector of Police
B-1, Kancheepuram Police Station
Kancheepuram District 631 502
9. A.Aruljothi .. Respondents
Petition under Article 226 of the Constitution of India, praying for
issuance of a Writ of Mandamus, directing the respondents 1 to 6 to
demolish the illegal construction put up by the 9th respondent in his property
bearing Door No.38, Arutperum Selvi Street, Kancheepuram which falls
under the Prohibited Area of Archaeological Survey of India Monument Sri
Vaikuntaperumal Temple, Kancheepuram, in violation of the provisions of
Ancient Monuments and Archaeological Sites and Remains (Amendment
and Validation) Act, 2010 and without planning permit and building permit
from the 5th respondent herein.
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W.P.No.7376 of 2021
For Petitioners :: Mr.Venkateswaran for
Mr.K.Manikandan
For Respondents :: No appearance for R1
Mr.T.Arunkumar
Government Advocate for
R2, R6 to R8
Mr.G.Karthikeyan
for R3 & R4
Mr.G.B.Rajesh for R5
Mr.G.Punniakoti for R9
ORDER
(Order of the Court was made by T.RAJA, J.) Mr.M.Kuppusamy and Mr.K.Srinivasan, the petitioners herein, being the father and son, have approached this Court praying for issuance of a writ of mandamus, directing the respondents 1 to 6 to demolish the illegal construction put up by Mr.A.Aruljothi, the 9th respondent herein in his property bearing Door No.38, Arutperum Selvi Street, Kancheepuram, which falls under the Prohibited Area of Archaeological Survey of India Monument Sri Vaikuntaperumal Temple, Kancheepuram, in violation of the provisions of Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 and without planning permit and building permit from the 5th respondent herein. 3/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021
2. Heard learned counsel for the parties.
3. At the time of entertaining the writ petition on 22.3.2021, this Court has passed the following order:-
“5. The learned counsel for the petitioners has drawn the attention of this Court to the typed set of documents and would submit that the 9th respondent, challenging the proceedings of the Archaeological Survey of India, filed WP.No.5616/2014 and it came to be dismissed and challenging the same, he filed WA.No.636/2014 and it was admitted on 07.05.2014 and pending disposal of the writ appeal, prayed for an order of ad-interim injunction, restraining the respondents, their subordinates, from demolishing and from interfering with the peaceful possession and enjoyment of his house property bearing Door No.111/38 comprised in S.Nos.927 and 928, Arutperumselvi Street, Kancheepuram, in pursuant to the proceedings of the 2 nd respondent therein, dated 17.12.2013 and interim injunction has been granted and the said order would not confer any right upon the 9th respondent to put up an 4/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021 additional construction without any planning permission and therefore, prays for interim orders.
6. Since it has been brought to the knowledge of this Court as to the pendency of the writ appeal in WA.No.636/2014, this Court has also summoned the English Bundle [EB] relating to the said case and verified the typed set of documents.
7. A perusal of the Reply dated 13.02.2021 sent by the 9th respondent herein to the 3rd respondent would disclose that his application for planning permission came to be returned on 18.09.2010 and she intend to apply for revised plan for getting approval of the existing building, though it prima facie appears that not only the existing construction is unauthorised, but also the additional construction being put up by the 9 th respondent, as evidenced from the photographs made available from pages No.66 to 69 of the typed set of documents.
8. Therefore, this Court is of the considered 5/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021 view that a prima facie case has been made out for grant of interim orders ; otherwise the 9th respondent may proceed further with the construction and in that event, not only the petitioners, but also the official respondents, viz., respondents 3 and 4, would also be put to hardship and difficulties and the balance of convenience, as on date, lies in favour of the petitioners.
9. Hence, there shall be an order of ad-
interim injunction as prayed for till 22.04.2021.
10. The 5th respondent, upon putting the 9th respondent on notice, shall cause inspection of the existing construction as well as the alleged on- going construction in old Door No.38, New No.111, Arutperumselvi Street, Kanchipuram- 631501 and file a Status Report with supporting documents and photographs, as to the authorised/deviated/unauthorised construction.
11.The Registry, after obtaining appropriate orders, is to list WA.No.636/2014 along with this writ petition and call on 22.04.2021.” 6/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021
4. As directed by this Court, after giving opportunity to all the parties, inspection was undertaken by the Commissioner, Kancheepuram Municipality, the 5th respondent herein and he has also filed the status report with supporting documents and photographs. Mr.Venkateswaran, learned counsel appearing for the petitioners has also drawn our attention to paragraph-8 of the status report showing the deviated unauthorised construction made by the 9th respondent herein in the prohibited area.
5. Mr.G.Karthikeyan, learned counsel appearing for the respondents 3 & 4, supporting the learned counsel appearing for the petitioners, also stated that the 9th respondent has no regard or respect to abide by the law. Therefore, the status report submitted by the 5th respondent can be taken on record and a direction can be given to the District Collector, Kancheepuram and other competent authorities to proceed further for taking appropriate action against the 9th respondent to remove the illegal unauthorised construction in the building in question that is noted.
6. Since the notice of inspection was also given to the 9th respondent- 7/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021 A.Aruljothi on 25.3.2021 preceding the inspection, we have no hesitation to accept the status report filed by the 5th respondent on 20.4.2021, more particularly, paragraph-8, which reads as follows:-
“8. I submit that thereafter as per the Hon'ble High Court's Order dt.22/3/2021, the Inspection Notice was given on 25-3-2021 to the 9th respondent and inspected the property and on inspection, it is founded that the construction of the building is unauthorised one. The violations are as follows:-
(a) In the year of 2010 in the Ground Floor the unauthorised construction is about 1889 sq.ft and (b) now in the year of 2020 & 2021 also in the first floor the unauthorised further illegal construction is about 1189 sq.ft and (c) the Staircase & Head room area is about 100 sq.ft and while during inspection, it is also further founded that already there was (d) an old existing building in the Ground Floor constructed in the year of 2004 situated behind the present unauthorised construction which is about 952 sq.ft and (e) also in the First Floor which is about 952 sq.ft. Hence the entire building is constructed without planning permission from this respondent 8/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021 an No Objection Certificate from the Superintendent/Conservator, Archaeological Survey of India, the 3rd respondent herein and the Conservation Assistant, Archaeological Survey of India, Kancheepuram Sub-Circle, the 4th respondent herein. Thereafter this respondent issued a Confirmation Notice dt.30-3-2021 under Sections 216(3) and order under Sections 338, 339(2), 340(1), 344 to the 9th respondent. I submit that I am ready to oblige the orders passed by this Hon'ble Court.“
7. A perusal of the status report clearly shows that in the ground floor, unauthorised construction has been found to an extent of 1889 sq.ft put up in the year 2010 by the 9th respondent. Subsequently, in the year 2020 & 2021, when the first floor was put up, again the 9th respondent has continued to raise the unauthorised illegal construction to an extent of 1189 sq.ft. Besides, an extent of 100 sq.ft has been illegally constructed between the staircase and headroom area. This has been noticed by the inspecting authority. Moreover, the 5th respondent has also stated that the entire building is constructed without planning permit from the 5th respondent 9/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021 herein and again without obtaining the no objection certificate from the Superintendent/Conservator, Archaeological Survey of India, the 3rd respondent herein, the said deviated construction has been put up by the 9th respondent. Therefore, placing on record the status report filed by the 5 th respondent, the District Collector, Kancheepuram District, the 2nd respondent herein and other competent authorities are directed to proceed further for taking appropriate action against the 9th respondent for removal of the illegal unauthorised construction in the building in question, in accordance with law. With this direction, the writ petition is ordered accordingly. Consequently, W.M.P.No.7886 of 2021 is closed. No costs.
Speaking/Non speaking order (T.R.,J.) (V.S.G., J.)
Index : yes/no 04.08.2021
ss
To
1. The Secretary to Government of India Department of Cultural Affairs Room No.501, “C” Wing, Shastri Bhavan New Delhi 110 015 10/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021
2. The District Collector Kancheepuram District Collectorate Office Thaiyar Kullam Kancheepuram 631 501
3. The Superintendent/Conservator Archaeological Survey of India Fort St.George Chennai 600 009
4. The Conservation Assistant Archaeological Survey of India Kancheepuram Sub Circle Vaikundaperumal North Mada Street Kancheepuram 631 502
5. The Commissioner Kancheepuram Municipality Kancheepuram District 631 502
6. The Tahsildar Kancheepuram Taluk Office Kancheepuram District 631 501
7. The Superintendent of Police Office of the Superintendent of Police Thaiyar Kullam Kancheepuram District 631 501
8. The Inspector of Police B-1, Kancheepuram Police Station Kancheepuram District 631 502 11/12 https://www.mhc.tn.gov.in/judis/ W.P.No.7376 of 2021 T.RAJA, J.
and V.SIVAGNANAM, J.
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