Madras High Court
Smt. Sumathi Devi, W/O. Shri. T. ... vs State Of Tamil Nadu, Rep. By Its ... on 29 January, 2004
Equivalent citations: AIR2004MAD231, 2004(2)CTC48, AIR 2004 MADRAS 231, (2004) 2 MAD LJ 159, (2004) WRITLR 459, (2004) 3 MAD LW 142, (2004) 2 CTC 48 (MAD)
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. The petitioner is the absolute owner of the premises bearing Door No.39, Nattu Pillaiyar Koil St., Chennai - 600 001 in R.S.No.6663, Block No.56, V.O.C.Nagar, within the Sub-registration office of Sowcarpet, Chennai - 600 001.
2. The second respondent by proceedings dated 28.08.1990, pointing out the deviations in the construction put up by the petitioner, issued the demolition notice under Section 56 read with Section 85 of Town and Country Planning Act, 1971, requiring the petitioner to comply with the planning permission granted under Section 49 of the Act. On receipt of the said notice, the petitioner submitted an application under Section 49 of the Act, seeking building permission and for regularisation of the deviated construction of the building. However, the second respondent by proceedings dated 05.10.1993 rejected the application of the petitioner holding that the first floor construction is in deviation to the earlier approved plan and Second Floor construction is an unauthorised one.
3. As against the same, the petitioner preferred an appeal before the first respondent under Section 79 of the Town and Country Planning Act 1971. The first respondent by G.O.D.No.158 Housing and Urban Development (UD.V) Department dated 26.02.1997 rejected the appeal. Aggrieved by the said order, the petitioner has filed this writ petition for issuance of a Writ of Certiorari to call for the records and to quash the same.
4. Heard learned counsel for the petitioner, learned Additional Government Pleader for the Government and learned counsel for respondents 2 and 3.
5. The main contention of the learned counsel for the petitioner is that no opportunity as contemplated under Section 79(3) of the Act was given to the petitioner, which itself vitiates the proceedings and therefore, the same has to be quashed.
6. Learned Additional Government Pleader appearing for the first respondent has not disputed the fact that the first respondent passed the impugned order by exercising the powers conferred under Section 79 of the Act. He further contended that as per Section 79(3) of the Act, no personal hearing need be given to the petitioner. Section 79(3) of the Act only contemplates to make a representation. Therefore, learned Additional Government Pleader contended that there is no violation under Section 79(3) of the Act.
7. I have carefully considered the rival submissions of both the parties.
8. For better appreciation, Section 79(3) of the Act is extracted as below:-
"In disposing of an appeal, the prescribed authority may, after giving the parties an opportunity of making their representations, pass such order thereon as the prescribed authority may deem fit".
9. In my considered view, it is not necessary to give a personal hearing to the writ petitioner when the statute does not contemplate such personal hearing. An opportunity given to the petitioner to make a representation is, in my considered view, a sufficient compliance of Section 79(3) of the Act and therefore, I do not find any violation of Section 79(3) of the Act.
10. It is also not disputed that as per Section 113 of the Act, the Government has got every right of exemption with regard to any violations of the building permission. Learned counsel for the petitioner also requested this court to give liberty to approach the Government for exemption.
11. In that view of the matter, suffice it to permit the petitioner to approach the Government, seeking exemption of the conditions of the building permission. Accordingly, the writ petition is disposed of with a permission to the petitioner to approach the Government for exemption within a period of 90 days from the date of receipt of a copy of this order and to seek any further incidental relief thereto. On receipt of the representation, the Government shall pass appropriate orders on merits and in accordance with law within a period of 90 days thereafter. Till that date, the impugned order of demolition shall be kept in abeyance. No costs. The connected W.M.P.No.10444 of 1997 is closed.