Commissioner, Pattukottai Municipality vs Chandrasekaran, represented by his guardian and father Natanam Chettiar

P.S. Kailasam, J.—This appeal is preferred by the Commissioner of Pattukottai municipality against the judgment of Ramaprasada Rao, J.,

in Writ Petition No. 148 of 1972. The writ petition was filed by minor Chandrasekaran represented by his father and guardian Natanam Chettiar

for the issue of a writ in the nature of mandamus or any other appropriate writ directing the respondent-municipality to forbear from demolishing

the petitioner''s building in Section No. 68/A-5 of Pattukottai village.

The respondent herein commenced putting up a construction in Section No. 68/A-5 within the municipal limits of Pauttkottai village. On the 4th

of December, 1970 he applied to the municipality for permission to put up a godown over the land and submitted building plans for the purpose.

Before sanction of the plan, the respondent started construction on the 4th of December, 1970 and a door frame on the site was fixed on 15th of

December, 1970. As the respondent had commenced building without getting a sanction, a notice u/s 216 (1) (i) (a) of the Tamil Nadu District

Municipalities Act dated 19th December, 1970 was served on him calling on him to demolish the unauthorised construction. This notice was

acknowledged by him on 22nd December, 1970. On 3rd December, 1971 the first plan submitted for consideration was rejected on the ground

that there was a violation of a specific building requisition. The respondent applied for a second time for approval of the site and for further

construction and forwarded fresh plans. The second application was made on 5th April, 1971. On 21st April, 1971 the provisional order issued

u/s 216(1) (i) (a) of the Act calling upon the respondent to demolish the construction was confirmed u/s 216 (3). The second plan submitted by the

respondent on 5th April, 1971 was also rejected on the ground that the respondent proceeded to construct without permission and he did not

obey the provisional order made u/s 216 (1) (i) (a) of the Act. The rejection of the first plan was acknowledged by the respondent on 24th April,

1971. The respondent filed a third plan for sanction of the building plan and approval of the site and furnished fresh plans on 27th April, 1971, but

the third plan was returned on 30th April, 1971 on the ground that the building would be an encroachment upon the Government land.

It is not in dispute that the site in which the building was sought to be built was kottai poramboke and is Government land. Proceeding for non-

compliance with the direction of the municipality was taken and the provisional order u/s 216(1) was confirmed u/s 216(3) of the Act. The

respondent was then prosecuted before the Special First Glass Magistrate, Pattukottai, for an offence u/s 216(1), (2) and (3) and Section 317 of

the Act and the case is pending. An appeal was filed by the respondent but no order was passed by the municipal council. In the writ petition the

respondent contended that after the municipality initiated the criminal proceeding as contemplated under the Act, the municipality is not entitled to

pull down the building as it had no jurisdiction to demolish it by itself. According to the respondent the only course open to the municipality for the

non-compliance of the direction u/s 216 is to prosecute for an offence u/s 317.

Before the learned Judge and before us it was contended that a direction u/s 216(1) to (3) to demolish an unauthorised construction, if not

complied with, can only be dealt with as an offence punishable u/s 317 and the municipality cannot on its own force demolish the unauthorised

construction. The learned Judge held that the municipality had the power to prosecute a delinquent person but had no power to enforce the

demolition of that building because they did not sanction the plan and in the particular case they could not sanction the plan as the building was

sought to be put up in a kottai poramboke. The learned Judge was also of the view that it the municipality intended to demolish a construction put

up within its precincts then it should initially possess the authority to permit such a construction or in the alternative be of the view that the

construction is not in accordance with the content of the permission granted by it to build and if it has no power to give such permission to

construct then it follows that it has equally no power to direct a demolition of such a structure unless the Act specially empowers it to do so. The

learned Judge further observed that as the land in which the building was put up is kottai poramboke, it is not for the municipality to feel aggrieved

about it whatever rights the Government may have as against the encroacher and the municipality cannot take proceedings.

Chapter X of the Act deals with building regulations and Sections 197 to 206 deal with buildings other than huts. Section 97 provides that if any

person intends to construct or reconstruct a building other than a but, he shall send to the executive authority an application in writing for the

approval of the site, together with a site plan of the land and an application in writing for permission to execute the work together with a ground-

plan, elevations and sections of the building and a specification of the work. Section 199 provides that the construction or reconstruction of a

building shall not be begun unless and until the executive authority has granted permission for the execution of the work. Section 216 confers

powers on the executive authority to take certain action if the construction or reconstruction of the building had been commenced without obtaining

the permission or canted out or completed contrary to the permission granted or any alternative made contrary to the notice issued. He, the

authority may make a provisional order requiring the owner or the builder to demolish the work done in order to bring the construction work in

conformity with the Act, bye-laws or rules. Section 216 (2) requires the executive authority to 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. Under Sub-section (3) if the owner fails to show cause to the satisfaction of the executive authority,

the executive authority may confirm the order with any modification he may think fit to make, and such order shall then be binding on the owner.

This section, as is seen, enables the executive authority to require the owner to demolish the work done.

Section 317 of the Act enables the executive authority to take action against a person who had failed to obey the direction given to him u/s 216

and prosecute him. The person who failed to obey may be fined by the criminal Court up to a sum of Rs. 500 in the case of a building as also a

sum of Rs. 100 for each day during which the offence is proved to have continued after the first day. Thus in addition to action taken u/s 216 by

passing an order directing the owner to demolish the work done, criminal prosecution can also be taken.

Section 339 which comes under Chapter XVI and relates to power to enforce licensing provisions, orders, etc. and Sub-section (1) provides

that whenever by any notice, requisition or order under this Act, or under any rule, by law or regulation made under it, any person is required to

execute any work or to take any measures or do anything a reasonable time shall be named in such notice, requisition or order within which the

work shall be executed, the measures-taken, or the thing done. Under Sub-section (2), if such notice, requisition, or order is not complied with

within the time so named the executive authority may cause such work to be executed or may take any measures or do anything which may, in his

opinion, be necessary for giving due effect to the notice, requisition or order as aforesaid.

Section 339 is a general provision which refers to any notice that may be given under the Act or any rule, by-law or regulation to execute any

work or to take any measures or do anything within a reasonable time to be named in such notice. If such notice, requisition or order is not

complied within the time so named, the executive authority may cause such work to be executed or may take any measures or do anything which

may, in his opinion, be necessary for giving due effect to the notice, requisition or order as aforesaid. Section 339 (2) confers the power on the

executive authority to cause such work to be executed or to take measures or do anything which may, in his opinion, be necessary for giving due

effect to the notice, etc.

u/s 339 a notice and order under the Act was given and reasonable time was also given requiring the respondent to enable him to carry out the

work. The provision of Section 339 has been satisfied. and u/s 339(2) the executive author ties have the right to cause such work to be executed

or to take any measures or do anything which may, in their opinion, be necessary for giving due effect to the notice. The attack of the learned

Counsel for the respondent against the legality of the order is that the rules relating to building are found u/s 2 6 which are special provisions and as

the special provisions always override the general provisions resort could not be made to the general provisions when there are special provisions

in regard to a matter. This contention overlooks the fact that while Section 216 provides for a provisional order requiring the owner to demolish the

work done followed by a final order confirming the provisional order, Section 339 provides steps to be taken when the owner does not comply

with the notice. When the owner neglects to obey the order u/s 216(3) there could be no further obstruction to the executive authority for taking

action u/s 339. Section 317 relates to prosecution for failure to comply with the order u/s 216. But that does not in any way affect the right of the

executive authority to take action u/s 339 (2).

The learned Counsel for the respondent relied on a decision of the Bench of this Court in Mayandi Chettiar Vs. The Madura Municipality, .

The facts of the case are that the owner applied to the municipality for sanction on 25th June, 1931 to erect a building and on 17th July, 1931 the

Sanitary Inspector reported no objection to the erection of the building, but without waiting for the sanction of the executive engineer, the

appellant-owner commenced the building and completed the work. On 20th July, 1931 the executive authority called upon the appellant to submit

a plan of the lay-out of the whole survey number. This requirement was, however, not complied with until 9th May, 1932. After the executive

engineer had on 20th July, 1931 called for a plan of the lay-out of the whole survey number, no further communication was addressed to the

appellant until 5th May, 1932, when the Special Officer issued a notice purporting to be pursuant to Sections 338 and 339, by which he required

the appellant to demolish his building within four days on the ground that it had been erected without municipal licence. On 7th June, 1932 the

Special Officer sent men to the site for the purpose of demolishing the building and this work was carried out in the presence of officials of the

municipality. On the facts the Bench after considering the provisions of Section 216(1), (2 and (3) held that an order passed u/s 216(3) would be

binding on the owner, for if an order under Sub-section (3) becomes effective, it can be enforced by virtue of the provisions of Section 339. The

learned Counsel for the respondent relied on the following passage in the aforesaid Bench decision which runs as follows:

The Act does not direct any special procedure to be followed for remedying breaches of the law with regard to licence''s, permissions,

registrations, apart from that to be found in the chapter relating to building regulations. Therefore, except in the case of buildings, direct action may

be taken under Sections 338 and 339.

We do not find that this passage, in any way, helps the respondent for what is stated is that except in the case of buildings, direct action may be

taken u/s ?39; but in the case of buildings, action should be taken u/s 216 before proceedings were taken u/s 339 This is made specific by the

observation, ''if an order under subsection 3) becomes effective, it can be enforced by virtue of the provisions of Section 339. This decision

therefore not only does not support the respondent''s contention but clearly negatives his contention.

The learned Counsel for the respondent also relied on the decision of the Andhra Pradesh High Court in Kakinada Municipality v.

Satyanarayana (1955) 1 A.WR. 384. In that case the Court held that the provisions of Section 216 do not enable the municipality to direct

demolition of a building merely because the building ultimately erected is not in accordance with the approved plan. It held that it is necessary for

the municipality, and if the matter comes to the Court--for the Court, to satisfy itself whether the building is not in conformity with the Act, by-laws,

rules, direction or requisition as aforesaid. These observations do not help the respondent, for the decision was based on the facts of that case.

In Kallianikutty Amma Vs. State of Kerala, the Court held that Chapter X of the Act contains what are called building regulations and so long

as that Chapter contains provisions as to how contraventions thereof should be dealt with, the municipality cannot have recourse to the general

provisions in Section 3 38 for such contraventions. In coming to the conclusion the learned Judge relied on the decision of the Bench of this Court

(already referred to) in Mayandi Chettiar Vs. The Madura Municipality, but the passage which we have underlined, namely, that proceedings u/s

339 can be taken after action was taken u/s 216(1) to (3) has not been noticed by the learned Judge. We therefore find that the three decisions

cited by the learned Counsel for the respondent do not support his contention.

It was next urged that when several persons are allowed to put up buildings in kottai poramboke the respondent was denied permission. The

respondent has alleged in para. 6 of his affidavit that the municipality had declined to grant him permission while various owners were given

permission to build about 40 houses in S. No. 68/ A-5. This allegation was denied in the counter affidavit. But in the reply affidavit the respondent

had given particulars about 40 houses; but as the municipality had no opportunity to deny the specific allegations, nothing was done further. On the

allegations on record we are unable to say that the respondent was discriminated against.

We feel therefore that u/s 339 the executive authority have the right to cause such work to be executed or to take any measures or do anything

which may, in their opinion, be necessary for giving due effect to the notice. Having found so, we asked the learned Counsel for the municipality to

inform us whether the building rules had in any way been contravened. The learned Counsel informed us that the building rules had not been

contravened. The only contravention is that that the building is put upon a poramboke. As the building rules have not been contravened, we do not

think we would be justified in interfering with the order of the learned Judge to enable the municipality to demolish the building

In the circumstances, while setting out the position of law so far as the powers of the municipality are concerned, we refrain from reversing the

order of the learned Judge granting a writ directing the municipality to refrain from demolishing the building. We feel on the facts of the case it is not

necessary that the relief prayed for by the municipality should be granted. The only objection is that the building is on a poramboke. It will be open

to the Government which will be the affected party to take such steps as are open to it to redress their grievances, if any. The prosecution that is

filed by the municipality will go on and will be disposed of according to law. With these observations, we dismiss the writ appeal. There will be no

order as to costs.