Madras High Court
Life Insurance Corporation Of India vs Member Secretary on 8 February, 2018
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, J.Nisha Banu
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT
Dated: 08.02.2018
Reserved on: 04.09.2017
Delivered on: 08.02.2018
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HONOURABLE MS.JUSTICE J.NISHA BANU
W.P.(MD) Nos.9286 of 2013, 9312 and 8169 of 2013
W.P.(MD) No.9286 of 2013
Life Insurance Corporation of India,
rep. By its Manager (Legal),
Divisional Office,
Sellur,
Madurai ... Petitioner
versus
1.Member Secretary,
Local Planning Authority,
Nagercoil
2.M/s.RC Diocese of Kottar,
rep. By its Bishop,
Bishop's House,
Nagercoil 629 001. ... Respondents
Writ Petition filed under Art.226 of the Constitution of India praying
for a Writ of Certiorarified Mandamus calling for the records relating to the
impugned order dated 6.5.2013 issued by 1st respondent locking and sealing
the premises known as Xavier Building, Assissi Campus, PWD Road, Nagercoil
and quash the same and consequently permit the Nagercoil Branch of LIC to
function in the said building.
W.P.(MD) No.9312 of 2013
M/s.United India Insurance Co.Ltd.,
rep. By its Regional Manager,
Regional Office,
7A West Veli Street,
Madurai ...Petitioner
versus
1.Member Secretary,
Local Planning Authority,
Nagercoil
2.M/s.RC Diocese of Kottar,
rep. By its Bishop,
Bishop's House,
Nagercoil 629 001. ...Respondents
Writ Petition filed under Art.226 of the Constitution of India praying
for a Writ of Certiorarified Mandamus calling for the records relating to the
impugned order dated 6.5.2013 issued by 1st respondent locking and sealing
the premises known as Xavier Building, Assissi Campus, PWD Road, Nagercoil
and quash the same insofar as the premises in D.No.243L situated in 2nd floor
of the building and consequently permit the Nagercoil Branch of the
petitioner company to function in the said building.
W.P.(MD) No.8169 of 2013
The South Indian Bank Ltd.,
rep. By its Assistant General Manager,
Madurai Regional Office,
No.3, LIC Building,
West Marret Street,
Madurai 625 001 ...Petitioner
versus
1.Member Secretary,
Local Planning Authority,Nagercoil
2.M/s.RC Diocese of Kottar,
rep. By its Bishop,
Bishop's House,
Nagercoil 629 001. ...Respondents
Writ Petition filed under Art.226 of the Constitution of India praying
for a Writ of Certiorarified Mandamus calling for the records relating to the
impugned order dated 6.5.2013 issued by 1st respondent locking and sealing
the premises known as Xavier Building, Assissi Campus, PWD Road, Nagercoil
and quash the same and consequently permit the Nagercoil Branch of the
petitioner Bank tofunction in the 1st floor of the said building.
Appearance:-
!For Petitioner: Mr.Anwar Sameem,
for Mr.T.Antony Arul Raj, for petitioner in W.P.(MD)
Nos.9286/2013 and 8169 of 2013
Mr.R.Maheswaran, for petitioner in W.P.(MD) No.9286/2013
^ForRespondent: Mr.M.Govindan, Special G.P.,
for R-1 in all Writ Petitions.
Mr.R.T.Arivu Kumar, for R-2 in W.P.(MD) No.8169 of 2013
:COMMON ORDER
K.K.SASIDHARAN, J.
These Writ Petitions are at the instance of the tenants and the challenge is to the lock and seal notice dated 6 May 2013 issued by the Secretary, Local Planning Authority, Nagercoil, locking and sealing the building unauthorizedly constructed by the second respondent at Nagercoil.
The facts:-
2. The second respondent without taking planning permission, constructed a multi-storied building at D.No.243 L, within the jurisdiction of Nagercoil Municipality. The building was taken on rent by the petitioners.
The Life Insurance Corporation of India, petitioner in W.P.No, 9286 of 2013 is occupying the 1st and 3rd floor of the building. The United India Insurance, petitioner in W.P.(MD) No.9312 of 2013 is a tenant of the 2nd floor of the building. The South Indian Bank Ltd., petitioner in W.P.(MD) No.8169 of 2013 is a tenant in respect of the 1st floor in Block A of the said building.
3. The Nagercoil Local Planning Authority initiated enforcement action against the unauthorized structures put up by the builders. Since the second respondent constructed the building without obtaining planning permission, proceedings were initiated under the provisions of the Tamil Nadu Town and Country Planning Act. The Member Secretary, Local Planning Authority issued the lock and seal notice under Section 56(2) of the Tamil Nadu Town and Country Planning Authority Act, 1971. The notice was challenged by the tenants on the ground that they were not aware of the illegal construction put up by the second respondent and that they are in occupation on the basis of valid lease. This Court, taking into account the contentions taken by the petitioners, stayed the operation of the lock and seal notice.
4. The Member Secretary, Local Planning Authority, Nagercoil, filed a detailed counter affidavit indicating the high handed manner in which the building was constructed by the second respondent. There was no planning permission given by the Planning Authority for construction of the building much less a multistoreyed. According to the Local Planning Authority, the building was constructed without planning permission and it violated the statutory provisions. In short, the building was constructed in total violation of the planning regulations.
5. We have heard the learned counsel for the petitioner in the respective Writ Petitions. We have also heard the learned Standing counsel for the Local Planning Authority and the learned counsel for the second respondent.
Analysis:-
6. The second respondent constructed a multi-storied building without permission from the Local Planning Authority. It is a matter of concern that the Dioceses of Kottar, in total violation of the building laws, constructed the multi-storied building and inducted tenants without obtaining building permission. The lease deed produced by the petitioner in the respective writ petitions does not contain even the building number. The second respondent appears to have no concern to the building regulations. The Member Secretary, Local Planning Authority called upon the second respondent to produce the sanctioned plan. Since the approved plan was not produced by the second respondent, statutory proceedings were initiated, invoking the provisions of the Tamil Nadu Town and Country Planning Act, 1971.
7. The following table indicates the nature and extent of violation. Sl. No. Description of Rule Present Condition at Site Violation District Municipal Building Rules, 1972 1 11(4) One Fourth Open Space Not provided 100% 2 12 Parking Space Not provided 100% 3 14(1) One eight ventilation Not provided 100% 4 15(2)(g) staircase ventilation 1.50sqm Not provided 100% Multi storied and Public Building Rules, 1973 1 4(a) declared as MSB Not provided 100% 2 4(b) minimum width of site Minimum area of plot 4 grounds Not provided 100% 3 9 FSI 1.00 PC 50% Not provided 100% 4 11(1)(b) Open Spare around 5m Not provided 100% 5 Since Site abuts Highways front setback 7.0m Not provided 100% 6 12(2) emergency exit Not provided 100% 7 13 parking facilities for every 200 sqm 20sqm for shops and for 6 beds ? 20sqm for lodging Not provided 100% 8 14 fire N.O.C. Not provided 100%
8. We are informed that several buildings were constructed at Nagercoil by builders without obtaining planning permission. It was only at a later point of time, the authorities woke up from slumber and initiated action against such unauthorized construction. The officials of the Local Planning Authority appears to have colluded with the builders. It would not be possible for the builders like the second respondent to put up illegal construction overnight. The authorities without taking action, assisted the second respondent in giving the building on lease to the petitioner in the respective Writ Petitions.
9. The petitioners have no case that the building was constructed by the second respondent after obtaining planning permission. Even though notice was served on the second respondent, sanctioned plan was not produced. The fact remains that even before this Court, the builder has not produced the approved plan and permit. Therefore, it is clear that the building was constructed without obtaining planning permission from the Planning Authority.
10. The building was taken on lease by Public Sector Undertakings. The general Public are visiting the building in connection with their matters. Since it is a public building, the builder should obtain permission from the authority under the Tamil Nadu Buildings Licensing Act, 1965. No such permission was taken by the second respondent.
11. There is a remedy available to the aggrieved under Section 80(a) of the Tamil Nadu Town and Country Planning Act, 1971. There is nothing on record to show that the impugned order was challenged by the second respondent before the Government. The second respondent is conducting proxy litigation through the public sector undertakings.
12. The Hon'ble Supreme Court in Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation [2013(5) SCC 336], observed that illegal and unauthorized construction of buildings and other structures not only violate the Municipal Laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons.
13. The Local Planning Authority initiated enforcement proceedings only after verifying the factual position that the building was constructed without obtaining planning permission. The impugned order was issued after giving an opportunity to the second respondent to produce the approved plan. This Court is not concerned with the decision as such. Since there was procedural compliance by the first respondent before issuing the impugned notice, there is no question of invoking the discretionary jurisdiction under Section 226 of the Constitution of India to quash the impugned order. We are therefore of the view that there is no merit in the contention taken by the petitioners in the respective Writ Petitions.
14. In the upshot, we dismiss the Writ Petitions. No costs. Consequently, M.P.(MD) No.2 of 2013 is also dismissed.
To
1.The Secretary to Government, Department of Town and country Planning, Secretariat, Chennai 9
2.The Director of Town and Country Planning, Chennai
3.The Member Secretary, Local Planning Authoirty, Nagercoil, Kanyakumari District
4.The Commissioner, Nagercoil Municipality, Nagercoil, Kanyakumari District .