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Judgment
K. Sampath, J.—The Writ Petition is for a certiorari calling for the records relating to the order of the first Respondent in No. 81759, dated 26.6.1989 relating to C-34, Second Avenue, Aringnar Anna Nagar, Madras - 40, and quash the same on the following allegation:
The Petitioner applied for N.O.C. to the Housing Board for construction of a Commercial Complex with ground floor, the first floor and the second floor with a plinth area of 69 x 30 ft. with 3 ft. balcony all round in the first and the second floors with 10 ft. set back and N.O.C. was granted. He was not in a position to carry out the building work and therefore he applied for planning permission from the second Respondent and a building plan from the first Respondent for the construction of basement ground, first, second and third floors with terraced rooms, water tanks and other structures with balcony on all the floors. Permission was granted on 14.1.1988 and the building plan was sanctioned by the first Respondent on 1988 in B.A. No. 341/88. The building was at finishing stage when the Petitioner received a provisional order No. 6461 dated 29.5.1989 purporting to be issued by the Commissioner, Corporation of Madras, u/s 256(1) of the Madras City Municipal Corporation Act (hereinafter referred to as the Act) stating that the building work was carried on or completed otherwise than in accordance with the sanctioned plan. The notice issued as part of the said provisional order required the Petitioner to show cause within seven days of receipt of the order as to why the provisional order should not be confirmed. This was signed by the Assistant Engineer, Executive Engineer and also by the Circle Officer describing himself as A.C.III. The last of the signatures was on 2.6.1989. The notice was served on the maistry at the site some time on the 4th or the 5th of June, 1989. The Petitioner was given the notice on 6.6.1989. The order required the Petitioner to demolish the said unlawfully executed works as per details on the reverse of the order, and on the reverse it was mentioned as deviations from the sanctioned plan. There were no particulars or details mentioned. The Petitioner sent a reply dated 6.6.1989 to the Commissioner by post and also served a copy to the Assistant Executive Engineer on 9.6.1989. The reply required the authorities to furnish the details of the alleged deviations. The reply had also requested deferring of further action in the matter. However, without the details being furnished the Petitioner received a notice No. 81759 dated 26.6.1989 purporting to be a final order u/s 256(3) of the Act and also signed in a similar manner as the provisional order saying "no satisfactory cause having been shown why the provisional order No. 6461 dated 29.5.1989 should not be confirmed and made binding on the Petitioner. This was served on the Petitioner some time on 20th July, 1989 along with a notice in Form-I dated 15.7.1989 and signed by the A.E.E. on 17.7.1989 in the same manner as was done previously on the maistry at the site threatening action of prosecution etc. In these circumstances, the writ came to be filed.
The grounds raised in the petition and submitted in the course of arguments are as follows:
Each and every step contemplated u/s 256 had to be done only by the Commissioner of Corporation. He had to be satisfied, formed an opinion, served the provisional order and notice and satisfied himself in regard to the costs shown and also modification as he might think fit. It would appear from the provisional order, notice and the final order that the Commissioner had nothing to do with them. Only the subordinate officers who had no authority, power or jurisdiction over the matter had acted as if they were the Commissioner. There could also be no provisional order in the eye of law, which would form the basis of further action u/s 256(2) and Section 256(3). The notice as well as the order had not been properly signed by the competent authority. Legal provisions not having been complied with they are void. There had been no valid compliance with the provisions of Section 256(1), (2) and (3), which spoke of the Commissioner alone as the competent authority and none else. There could also be no delegation of powers u/s 16 of the Act as Section 256 was outside the scope of Section 16 and therefore no subordinate officer could act on behalf of the Commissioner. By the proceedings of the Commissioner in or about 14.9.1988 the powers had been delegated only to Circle Officers u/s 16 and not to any other officer. The action u/s 256 was not competent of the Subordinate Officers. As far as the Petitioner could learn, there had been no delegation of power under any other Section of the Act for the Circle Officer to take action u/s 256. The provisional order did not mention in what way the building had been carried on and completed otherwise than in accordance with the sanctioned plan. It was only a printed notice showing total non-application of mind. The extent of the deviation or the particulars of the deviation had not been disclosed. The provisional order itself was vague and unenforceable. When the Petitioner had demanded the particulars from the authorities, he has not been provided with any reply. He had been denied a statutory right provided under the Act itself. Consequently, the purported final order u/s 256(2) and (3) was null and void. The said notice and action were violative of the Petitionerr''s right to property under Article 300A of the Constitution of India.
No counter has been filed in the Writ Petition by the Respondents, though notice had been served as far back as 12.9.1989.
The impugned proceedings have to go on the sole ground of want of particulars and details regarding the alleged deviation Since the Writ Petition is decided on merits, the technical objections are not taken note of for coming to a conclusion. The provisional order and the notice contained more blanks and they do not show whether there was any application of mind by the authorities. The Petitioner had been demanding the authorities for particulars of the alleged deviation or completion of the building otherwise than in accordance with the sanctioned plan. Instead of furnishing the details, a further final notice was being issued. The Petitioner had not been heard before final orders were passed.
In B.M. Habibullah, etc. etc. Vs. State of Tamil Nadu and Others, the matter arose under Tamil Nadu Land Encroaachment Act (III of 1905). While dealing with Section 5 of the said Act the learned single Judge observed as follows:
A notice u/s 5 of the Act was issued to the Petitioner. It does not bear any date. In the said notice it was mentioned that the property will be forfeited u/s 6 of the Act and the Petitioner was called upon to show cause and on or before 1990. There is also some over-writing. This hardly satisfies the legal requirement of the provisions of the Act. There cannot be any of the fact that the right of hearing given as the unauthorised occupant u/s 7 of the Act is a valuable right and it has to be strictly in conformity with the Act.
In AIR 1940 185 (Lahore) the Lahore High Court dealing with the power vested with the Municipality Committee to require the demolition of a building which was erected without the necessary sanction, held that,
this power was vested with the Committee to meet extreme cases of defiance or cases in which encroachments were made on municipal lands or rules framed by the Committee on hygienic or sanitary grounds are flagrantly ignored. In such cases, the law provided an alternative remedy and it was to penalise the offender in such sum as the committee might deem reasonable.
In Purusottam Lalji and Others Vs. Ratan Lal Agarwalla and Others, , a Full Bench of the High Court of Calcutta held that,
even in respect of matters which involved violation of an unrelaxable building rule the Commissioner had discretion not to order demolition if the violation was not of serious nature and that the discretion must however be used bona fide stating reasons therefor.
In the instant case, the nature of violation or deviation is not disclosed. These are blanks. The period within which the Petitioner should comply with the requirements is not disclosed. In these circumstances, the writ Petitioner is entitled to succeed and the Rule Nisi already issued is made absolute. However, there will be no order as to costs.