AI Structured Summary
Not yet generated for this judgment
Judgment
Bakthavatsalan, J.—The Petitioner in both the Writ Petitions is one and the same person. The prayer in W.P. No. 338 of 1988 is to issue a
writ of Mandamus or other order or direction in the nature of Mandamus directing the respondents 3 and 4 to have the unauthorized construction
made by respondents 1 and 2 in the premises at No. 26, Chitrakulam North Street, Mylapore Madras-4 demolished and to prevent the
respondents 1 and 2 from making further construction at the aforesaid premises. The prayer in W.P. No. 12882 of 1988 is to issue a Writ of
declaration declaring that the sanction accorded by the 4th Respondent to 1st respondent for making construction at No. 26, Chitrakulam, North
Street, Mylapore, Madras-4 is arbitrary and illegal and violative of Art. 14 of the Constitution of India.
The petitioner is the owner of the house and premises at No. 27, Chitrakulam North Street, Mylapore, Madras-4. The 1st Respondent
Vaideeka Mahajana Sabha and Sankaralayam is situate at No. 26, Chitrakulam North Street, Mylapore, Madras-4 to the west of the house and
premises of the petitioner. On the north, the house of the elder and younger brothers of the petitioner are situate. There is a compound wall on the
western side of the petitioner''s premises which runs about 183 feet north to south and to the height of 6 feet. It is alleged in the affidavit that the
first respondent has erected column foundation very close to the aforesaid compound wall even without providing set back as contemplated by the
building rules and regulations. The allegation is that such erection of columns has been made very close to the western compound wall of the
petitioner and the 1st respondent has also projected a sun shade measuring in length about 2 feet. It is further stated that the proposed construction
is intended to be a hall for public gatherings and also intended to be used for religious festivities to be performed with Homams, such as
Sashtiapthapoorthi, Sadhabishekham, Upanayanam, etc. As such, it will produce a lot of smoke fumes, creating breathing problems to the inmates
of the petitioner''s family, besides creating perpetual noise, nuisance and disturbance to the petitioner and his brothers. It is further alleged in the
affidavit that the 1st respondent has been attempting to erect a terrace resting practically on the southern part, and the western part compound wall
belonging to the petitioner''s premises. It is stated that the proposed construction by the 1st respondent will reduce air, light and other natural
amenities to which the petitioner and his business are entitled in law.
It is further alleged in the affidavit of the petitioner that the 1st respondent has not got any plan sanctioned from the 3rd respondent and the 4th
respondent, and it is without obtaining the plan duly sanctioned, the 1st respondent erected the column without providing for the set back, quite
adjacent to the compound wall belonging to the petitioner and his brothers. Hence, the construction already made and further purported to be
made is unauthorized under the Madras Corporation Act and the Tamil Nadu Town and Country Planning Act, 1971. As such, the petitioner
alleges that the construction already made is liable to be demolished and respondents 1 and 2 are liable to be prevented from making further
construction.
It is further alleged in the affidavit that the petitioner''s elder brother Mr. R.K. Balasubramaniam sent a letter on 1-12-1987 to the 3rd
respondent to which a reply dated 4-12-1987 was sent to him stating that a notice under S.236 of the Madras Corporation Act was issued to the
1st respondent to stop further construction work in the premises of the 1st respondent. Since respondents 1 and 2 did not stop the work, the
petitioner''s elder brother filed a suit in O.S. No. 11510 of 1987 on the file of the City Civil Court Madras and that suit is pending. It is further
alleged in the affidavit that in the said suit and in the interim application, the corporation (3rd respondent) has filed a counter stating that the building
plan No. 117/ Unit 27 dated 14-12-1987 (P.P.A. No. 152/U/27) has been sanctioned for the change of the roof of the existing structure at No.
26 Chitrakulam North Street to the 1st respondent, but the 1st respondent deviated from the sanctioned plan by construction of fresh pillars. It
was also stated in that counter that the side open space was only 3 feet 6 inches instead of 6 feet 3 inches shown in the plan. It is further alleged in
the affidavit that inspite of the fact that the deviation in the matter of construction being pointed out by the 3rd respondent, the 1st respondent
proceeded with the constructions.
It is the further allegation in the affidavit that the petitioner therefore preferred W.P. No. 338 of 1988 for issuance of a writ of Mandamus
directing the respondents 3 and 4 to have the unauthorized construction made by respondents 1 and 2 demolished. When that Writ was pending,
the 1st respondent applied to the 4th respondent for planning permission. The 4th responds has granted the permission. It is also (sic) in the
affidavit that the grant of permission by the 4th respondent is contrary to the rules and instructions and it is stated that the grant of permission by the
4th respondent is not correct, when the construction is illegal as stated by the Corporation Authorities. It is further stated in the affidavit that the
building which is sought to be constructed is a public building viz., a community hall and as such, R.13 of the Tamil Nadu Town and Country
Planning Act 1971�Development Control Rules, side set back of 2 metres has to be left on both sides. It is stated that this side set back has not
been given, and there is no space left between the construction sought to be made by the first respondent and the premises of the petitioner and his
brothers as required under the aforesaid Development Control Rules and the Tamil Nadu Town and Country Planning Act, 1971.
It is also stated in the affidavit that the grant of permission by the 4th Respondent is illegal when W.P. No. 338 of 1988 filed by the petitioner
was pending before this court. It is further stated in the affidavit that the petitioner and his brothers have not been heard by the 4lb respondent and
their objections were not taken note of before granting sanction to the first respondent. It is further alleged in the affidavit that for any construction
such as Community Hall in a primary residential zone, even special sanction cannot be granted by the 4th respondent. It is further stated that
special sanction can be granted only to sites occupying a floor area of not exceeding 300 square metres. With these allegations, the petitioner has
come up to this court with the prayers aforestated.
It is not necessary for me to refer to the allegations made in the affidavit filed in support of W.P. No. 338 of 1958, since both these writ
petitions are connected and the grievance of the petitioner is one and the same.
A counter affidavit has been filed by the 1st respondent in W.M.P. No. 19169 of 1988 in W.P.No. 12882 of 1988 and the learned counsel for
the 1st respondent states that it could be treated as counter-affidavit in this Writ Petition.
It is stated in the counter of the 1st respondent that the allegation of the petitioner that the column foundation erected very close to the
petitioner''s compound wall on the eastern side without providing set back as contemplated by the Building Rules and Regulations is not correct
and the entire work is carried out in accordance with the sanctioned plan granted by the 4th respondent. It is stated that the first respondent sabha
is maintained under the control of His Holiness Shri Jagadguru Sankaracharya Swamigal of Kancheepuram with the grants and other donations
contributed by several philanthropists in and around the area, and the 1st respondent Sabha exists in the premises at No. 26, Chirakulam North
Street, Mylapore for performing all religious and charitable functions for several decades and the nature of the construction at the premises is only
an alteration with change of roofing. The 1st respondent denies allegations that the Homam will create breathing problems to the inmates of the
petitioner''s family. It is stated that for several years the homams and other ceremonies have been performed in the premises and the petitioner''s
family had also performed similar functions in the 1st respondent''s Sabha Premises and at no point of time, it caused breathing problems to the
inmates of the petitioner''s family or anybody in the locality. It is also stated that they have made proper arrangements for the outlet of the smoke
by providing exhausts and chimney and it is utter falsehood that the smoke causes breathing problem. It is further stated that the premises of the 1st
respondent is situate in a street area and all the buildings are continuous and in accordance with the Development Control Rules, and it is not
required to provide side open set back, as applicable to other areas. It is further stated that the construction was commenced only after the plan
was sanctioned by respondents 3 and 4. It is also pointed out in the counter at the petitioner has already filed a suit for permanent injunction and
interim injunction against the respondents from proceeding with further construction, and the said suit is still pending. A reference to the pendency
of the Writ Petition No. 338 of 1988 is also made in the counter. It is further stated that the present writ petition has been filed with ulterior motive,
since the petitioner or his family members did not find a place in the office-bearers of the 1st respondent Sabha. It is also stated that the petitioner
has approached the Civil Court in challenging the plan sanctioned and the present writ petition is therefore liable to be dismissed on that ground of
availability of alternative remedy. It is further stated that the 1st respondent is not encroaching into the petitioner''s property and the constructions
are made in accordance with the sanctioned plan.
The 4th respondent has filed a counter. It is stated therein that 1st respondent submitted an application on 14-12-1987 for the proposed
additional construction of the building for Sankara Madam in S.No. 2697/17 and it was examined by the 4th respondent and found approvable
and the approval was also given in Ref. Lr. No. C/147/88 and in Planning Permit No. C/PP/89/88 on 23-5-1988. It is stated that the proposal
was examined by taking into account the fact that the construction of ground floor was already approved in Ref. No. BA/177/87 by the
Corporation of Madras, and at the time of approval of the above said reference, no setbacks were required since it fell in the continuous building
area and the approval was also for the change of roof for the existing building in the ground floor. At the time of issuing the planning permission by
this 4th respondent, the only violation was the car-parking, requirements and the same was considered for relaxation, since in the old construction
there was no provision for car-parking and the proposed construction was meant for purely religious purposes. It is stated that the planning
permission granted is in accordance with the rules and relaxation for car-parking was given factually verifying the nature of the construction, its
utility and purpose and other facts of the case. The issue of planning permission, it is stated, is not arbitrary and illegal and it does not violate any
rights of the petitioner guaranteed under Art. 14 of the Constitution of India.
Mr. Venkataraman, learned counsel for the petitioner refers me to the facts of the case and contends that the side set back of 2 metres has not
been left out by the 1st respondent and special sanction is necessary since the area is a primary residential area. The learned counsel argues that
the Corporation has accepted before the City Civil Court in their counter-affidavit that there was deviation and the sanction given by the 4th
respondent cannot be said to be legal. The learned counsel refers to paragraph 3 of the affidavit wherein it is shown as to how the construction of
the building is injurious to the petitioner and his family. The learned counsel also points out that no counter-affidavit has been filed by the
Corporation.
Mr. Mohan, learned counsel appearing for the 1st respondent submits that more than one metre has been left out as side set-back on both
sides and further under R. 12 of the Development Control Rules, for continuous building area no side set back need be given. Learned counsel
also contends that it is only an alteration of the existing building and as such, the Development Control Rules will not apply strictly. The learned
counsel points out that the building has been in existence for the last forty years and all leading public functions are conducted in the building and
the petitioner has been a neighbour for all these years, and what has been done now is only to change the roof, which was tin sheet. As such, it is
contended that the petitioner cannot have any grievance.
R.17(c) of the Tamil Nadu Town and Country Planning Act, 1971 Development Control Rules reads as follows :�
(17) Area for buildings of special character
(a) ... ...
(b) ... ...
(c) Continuous buildings:�-Buildings without side open space to be left shall not be permitted except in areas specifically set apart for
construction of such buildings. A description of the areas set apart for such construction is given in annexure XI. From time to time the Authority
may, at its discretion, add to or delete areas from this Annexure.
As pointed out by the learned counsel for the 4th respondent-Madras Metropolitan Development Authority and learned counsel for the 1st
respondent, no side set back is necessary for a continuous building area. The learned counsel for the petitioner is not able to show the necessity for
the same.
I called for the file of the 4th respondent and I have gone through it entirely. It seems a building for a construction of ground floor was
approved by Commissioner, Corporation of Madras in BA/177/87 and at that time no set backs have been insisted upon, due to the reasons that
the site under reference fell in continuous building area. Further it appears that what was envisaged at that time was only a change of roof of
existing building in the ground floor. When the applicant has proposed a ground plus two structure, an inspection was conducted and it was found
that the entire area is continuous building in nature and there was an existing building in the site, being used for the purpose of conducting rituals for
the dead which is an activity restricted to a single family and their close relatives who are likely to participate in the funeral rituals. It was observed
during inspection that there was an old shed which was being used for a public purpose only, the ground floor construction was permitted which
would amount only to change of roof. I find that the request of the applicant for the first and second floor had been negatived. I also find that what
has been approved by the 4th respondent is one and the same plan as approved by the Commissioner, Corporation of Madras, who is the 3rd
respondent, excepting for regularising a small existing toilet in ground-floor, As such 1 do not find any merit in the contention raised by the learned
counsel for the petitioner. The contentions of the petitioner are based upon the assumption that all the rules under the Development Control Rules
apply to the building in question. In my view, it is not so. I find that the site was inspected on 5-4-4988 and it was observed that the site lies in a
continuous built area. Further, even during the inspection in October, 1989 it was noticed that there has not been any additional construction at all
beyond the stage at which the construction was in 1988. It was found that the columns and beams that were raised were as per the plans approved
by the Madras Metropolitan Development Authority, and that no roof also has been laid.
Having gone through the entire file, I am satisfied that there is no violation of the Development Control Rules and the complaint made by the
petitioner is purely imaginary. As already stated the building is in existence for more than 40 years and all the ceremonies are being carried out in
the very same hall and 1 do not see how and why the petitioner should take an objection now when the roof alone is changed in the building, and
the very same ceremonies are going to be conducted as before. I do not see any basis for the contention of the petitioner that it is injurious to the
health and there will be a lot of noise and pollution. The complaints made by the petitioner are not supported by any material from the files
produced before me by the Madras Metropolitan Development Authority, Farther I am inclined to hold that this writ petition has to fail on the
ground that there is an effective alternative remedy which is provided for in the Act viz., The Tamil Nadu Town and Country Planning Act, 1971.
Under S.79 of the Act, any person aggrieved by any decision or order of the Planning authority under S.49 or Sub-S.(1) of S.54 may appeal to
the prescribed authority. The petitioner has not exhausted that remedy provided for under the Act. On this ground also, the Writ Petition is liable to
be dismissed.
One other ground on which this writ petition has to fail is that for the very same relief, one of the brothers of the Petitioner has already
preferred a suit in the City Civil Court and it is also pending. If the petitioner feels so aggrieved, it is open to him to join along with his brother in
that suit or prefer another suit to abate nuisance if so advised. I am of the view that no side set back is necessary on the facts and circumstances of
the case and that the construction has been only a change of the roof alone, i.e., from tin-sheet to R.C. roofing and therefore, there is no merit in
these two writ petitions and they are accordingly dismissed. There will be no order as to costs.