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Judgment
A. Raman, J.—The plaintiffs are the appellants. The plaintiffs filed a suit for declaration and injunction, on the following allegations:
The plaintiffs purchased the property bearing door No. 95, Coral Merchant Street, Madras-1, on 4.4.1984. The plaintiffs submitted plans to the
defendant for demolition and reconstruction and the plans were sanctioned by the defendant on 18.1.1985. The plaintiffs put up a building
consisting of ground floor, 1st floor, 2nd floor and 3rd floor. But, the plans was sanctioned only for ground and 1st floors. The defendant
prosecuted the 1st plaintiff for the unauthorised construction and the plaintiff was also fined with a sum of Rs. 490 and he paid the same. The
officials of the Corporation of Madras affixed two notices on the premises under Sections 256(3) and 256-A of the City Municipal Corporation
Act. There was no order preceding u/s 256(3) as contemplated u/s 256(2) of the City Municipal Corporation Act. The orders were not signed by
the Commissioner as enjoined by Section 256 of the Act, since the Commissioner cannot delegate his powers to his subordinate. Hence, the order
passed u/s 256(3) of the Act is in violation of the City Municipal Corporation Act. The defendants are threatening the plaintiffs that they would
demolish the 2nd and 3rd floor of the premises pursuant to the notice. Notice was not served upon the plaintiffs but only affixture was made. Both
the notices were served simultaneously. Hence, the plaintiffs pray for a permanent injunction restraining the defendant from demolishing any portion
of the premises No. 95, Coral Merchant St., Madras-1.
The defendant filed a written statement, pleading as follows:-
The plan was sanctioned only for construction of ground and 1st floors, while the plaintiff started constructing the 2nd floor unauthorisedly. Notice
u/s 236 read with Rule 379 (A) was served to stop the unauthorised construction. But, the plaintiff continued to carry on the unauthorised
construction. For the unauthorised construction, the plaintiff was proceeded against before the XIX Metropolitan Magistrate, whereby he paid a
fine amount of Rs. 490. Provisional Order u/s 256(1) and (2) of the Act was served upon the plaintiffs on 30.10.1985. Inspite of it, the plaintiff
continued to carry on the construction work. Subsequently, the final show cause notice u/s 256(3) and 256-A were served by affixture. The
notices were signed by the Assistant Commissioner under delegation of powers issued by the Commissioner. The notices are in compliance with
the provisions of law. The construction of 2nd and 3rd floors are illegal. The plaintiffs have refused to receive the notice and therefore, it was
served by affixture. Hence, the defendant prays that the suit may be dismissed with costs.
The IV Assistant Judge, City Civil Court, by his Judgment dated 31.7.1986, dismissed the suit with costs. Aggrieved by the same, the plaintiffs
preferred an appeal against the same, which was disposed of by the XIII Additional Judge, City Civil Court, on 2.7.1987 in A.S.No. 371 of
1986. Thus, this second appeal came to be preferred by the plaintiffs.
At the time, when the second appeal was admitted, the following substantial questions of law were formulated for consideration :-
(i) Whether the provisions 256 (1) (2) (3) of the City Municipal Corporation Act have not been substantively and effectively complied with by the
Corporation of Madras?
(ii) Whether the Corporation of Madras is entitled to issue notice when the appeal is pending before the Government.
THE POINTS: Learned counsel for the appellant raised three main contentions. Firstly, he contended that the provisions of Section 256(1)(2)
(3) of the City Municipal Corporation Act had not been complied with. As to this statement, it has become necessary to refer to Section 256 of
the Madras City Municipal Corporation Act. Section 256 of the Act specified the powers of the Commissioner to order demolition or alteration of
building unlawfully commenced, carried on or completed. Learned counsel for the appellant would contend that there is no provisional order
requiring the owner or the builder to demolish the work done, and therefore, in the absence of provisional order, any further proceeding by the
Commissioner will be vitiated.
It is the admitted case that the plaintiffs herein obtained sanction and permission to put up only the ground floor and the 1st floor. But, in an
unauthorised manner, the plaintiffs have put up the 2nd and 3rd floors for which they were never authorised or granted permission or licence, as the
case may be. Therefore, it is clear that for the unauthorised construction, the plaintiffs were proceeded against before the criminal court and were
sentenced to pay fine. The plaintiffs filed an application, seeking permission for the construction, which was refused by the Corporation, by their
letter dated 7.3.1986. It is now stated that the plaintiffs have preferred an appeal to the Government against the said order. Now, in the above
background, we have to see whether the contention of the learned counsel for the appellants can be accepted at all.
Ex.B1 is the provisional order sent by the Corporation to the plaintiffs regarding the unauthorised construction of the 2nd floor. Since no
satisfactory cause was shown, the provisional order passed was confirmed by the Corporation on 2.10.1985, as seen from Ex.B2. As regards the
unauthorised construction of the 3rd floor, the Corporation passed a provisional order on 21.12.1985 under Ex.B3. To these provisional orders,
no valid cause was shown by the plaintiffs. Therefore, the contention of the learned counsel for the appellants that there was no provisional order
passed as required u/s 256(1) of the Act cannot be accepted at all. The provisional order has been confirmed u/s 256(3) of the Act as we find
from Ex.B2.
Learned counsel for the appellants would contend that the provisional order has not been served upon the plaintiffs. It is the evidence of P.W.1
that the order was served upon the plaintiffs by affixture in the property. Infact, in his evidence, P.W.1 the 1st plaintiff would admit that
He has further admitted in the course of cross-examination that he did not obtain any licence or permission for the construction of the 2nd and 3rd
floors. He also states (tamil sic).
It is stated by the defendant that as the plaintiffs were not available, service was effected by affixture. Section 256(2) of the Act does not specify
that the service should be effected only personally. Law recognises several modes of service. The 1st mode of service is on personal service. If it-
is not possible, service can be effected either by sending it by post or by affixing it at the door. Here in this case, service has been done by
affixture, In fact, the plaintiffs were aware that the provisional orders were affixed on the door and that is why the plaintiffs came to know about the
same. In such circumstances, the contention of the learned counsel for the appellant that there is no provisional order and there is no service of the
said provisional order, in my opinion, is a contention without any substance.
Learned counsel for the appellants would submit that when the plaintiffs have preferred an appeal to the Government, the authorities concerned
are not entitled to proceed further until the appeal preferred is disposed of by the Government. As to what happened to the appeal as on the date,
both the parties have not placed any material before the Court. The mere filing of an appeal by the plaintiffs to the Government cannot stay the
hands of the competent authorities under the Act. For appeal cannot operate as stay. Further, there is nothing to show that a copy of this appeal
was sent by the plaintiffs to the Corporation and the same was acknowledged by them. There is no material placed before the court in that regard.
The provisions of the Madras City Municipal Corporation Act empowers the Commissioner to take further steps such as confirming the order
and take further steps u/s 256-A of the Act. It is not open to the plaintiffs to contend the the minute the appeal is preferred, such power of the
Commissioner comes to an end. As stated already, as a question of fact, it is not established that the Commissioner of Corporation was put on
notice of the appeal preferred by the appellants to the Government. Nothing prevented the plaintiffs from requesting the Government to expedite
the disposal of the appeal. Hence, the mere filing of the appeal by the party concerned cannot shuffle the hands of the Commissioner from
exercising the powers conferred under the relevant provisions viz., 256-A and 257 of the Madras City Municipal Corporation Act.
Learned counsel for the appellants pointed out the provisional order has been passed only by the Assistant Commissioner and the
Commissioner cannot delegate his powers to the Assistant Commissioner and therefore, the order passed is invalid. This argument was raised
before the lower court and the lower court has referred to the Government Order which authorises the Commissioner to delegate his powers under
the relevant provisions to the Assistant Commissioner. This aspect has been specifically dealt with by the lower Court. Therefore, I do not find any
merit in this a submission as well.
On an analysis I am satisfied that there is no merit in this appeal. Hence, this appeal is dismissed with costs, confirming the judgment and
decree of the courts below.