Madras High Court
P.Selvakumar vs The Executive Engineer(Planning) on 14 December, 2018
Author: R.Subbiah
Bench: R.Subbiah, B.Pugalendhi
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
W.P.(MD)No.24272 of 2018
and
W.M.P.(MD).Nos.21953 and 21954 of 2018
P.Selvakumar ... Petitioner
Vs.
The Executive Engineer(Planning)
(Incharge)
Tirunelveli City Municipal Corporation. ... Respondents
PRAYER: Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, calling for the entire records
pertaining to the proceedings of the respondent initiated vide
Na.Ka.No.75/18/GPI dated 26.10.2018 in connection with the
petitioner's property situated at D.No.60,60A-T.S.Ward; BK-T.S.Block:
5-T.S.No.478/2-Ward No.24, Palayamkottai, Tirunelveli and quash the
same.
For Petitioner : Mr.R.Anand
For Respondent : Mr.Aairam K.Selvakumar
*****
http://www.judis.nic.in
2
ORDER
[Order of the Court was made by R.SUBBIAH, J] Challenging the proceedings dated 26.10.2018 initiated by the respondent vide Na.Ka.No.75/18/GPS in connection with the petitioner's property, the present writ petition has been filed.
2.In the affidavit it has been averred that the petitioner has purchased the property in Door No.60, 60A-T.S.Ward; BK-T.S.Block: 5- T.S.No.478/2 – Ward No.24, wherein the petitioner is functioning a hotel in the name of "Maasa Unavagam" under Sections 56 and 57 of Tamil Naduu Town and Country Planning Act 171. After purchasing the said property for putting up a construction of building, he moved an application before the Member Secretary of Town and Country Planning Department, Tirunelveli and permission was granted on 10.06.2016 and his building plan has also been approved. The said property is consisting of two different door numbers and the said approval was accorded through two different proceedings. While so, on 12.11.2018 it appears that the respondent has issued an impugned notice alleging that there appears to be certain extra construction on the ground floor rather than the permissible extent approved by the Town and Country Planning Authority and further alleged that there is http://www.judis.nic.in 3 no enough space for car parking. Pursuant to the said notice, the respondent directed the petitioner's tenant to clear the said mistake, failing which, coercive steps would be taken to remove the alleged encroachment.
3.We have carefully perused the materials placed before this Court.
4.When the matter is taken up for consideration, the learned Additional Government Pleader produced a copy of G.O.(Ms)No.289, Housing and Urban Development (UD4-1) Department, dated 16.12.2010, which shows that notice has to be issued only by the Commissioner of Corporation and not by the Executive Engineer. The relevant portion is extracted hereunder:
“5.The Government after careful consideration, accept the proposal of the Director of Town and Country Planning in para 3 above for delegation of powers of enforcement actions for curtailing unauthorized construction specified in Sections 56 and 57 of Tamil Nadu Town and Country Planning (Amendment) Act, 2008 to the Commissioners of Corporations / Municipalities and Executive Officers of Town Panchayats in addition to Member Secretary of Composite Local Planning Authorities, New Town http://www.judis.nic.in 4 Development Authorities and Regional Deputy Directors of Town and Country Planning Department. Authorities and Regional Deputy Directors of Town and Country Planning Department. The Director of Town and Country Planning is directed to ensure the issuance of an order by the respective planning authorities themselves under Section 91-A of the said Act, for delegation of powers of enforcement actions for curtailing unauthorized construction specified in Sections 56 & 57 of Tamil Nadu Town and Country Planning (Amendment) Act, 2008 to the Commissioners of Corporations/Municipalities and Executive Officers of Town Panchayats in addition to Member Secretary of Composite Local Planning Authorities, New Town Development Authorities and Regional Deputy Directors of Town and Country Planning Department in their respective jurisdictions as may be necessary.”
5.In view of the above, we are of the opinion that the impugned notice dated 26.10.208 issued by the respondent is liable to be set aside, since the Executive Engineer is not a competent authority to issue notice. Accordingly, the same is set aside. However, the competent authority viz., The Commissioner of Corporation is at liberty to issue a fresh notice, if it is so advised.
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6.With the above observation, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.
[R.P.S., J.] & [B.P., J.] 18.09.2018 Index:Yes/No Internet:Yes/No Ns To:
The Executive Engineer(Planning) (Incharge) Tirunelveli City Municipal Corporation.
http://www.judis.nic.in 6 R.SUBBIAH, J AND B.PUGALENDHI, J Ns W.P.(MD)No.24272 of 2018 14.12.2018 http://www.judis.nic.in