Sriramulu Naidu vs The Commissioner, Coimbatore Municipality

Ramakrishnan, J.—The Petitioner herein Sriramulu Naidu, son of Munuswami Naidu applied for permission to the Coimbatore Municipality under exhibit P-2 on 9th November 1961, for constructing a building within the limits of the Coimbatore Municipality. P.W. 1, the building inspector inspected the proposed site for the building, and his report exhibit P-4, dated 16th November 1961, showed that the Petitioner had already commenced the construction even before he had applied to the Municipality for permission for the construction. On the same date, 16th November 1961, the Commissioner of the Coimbatore Municipality issued a notice, exhibit P-5 to the Petitioner under Sections 19(1)(2) of the Madras Town Planning Act (which is in force in the Coimbatore Municipality) read with Clause 13(a) of the Ramanathapuram Town Planning Scheme framed under that Act, directing the Petitioner to demolish the construction commenced by him without permission within seven days of the receipt of the notice, failing, which steps would be taken for the demolition by the Municipality of the building under Sections 339, 340 and 344 of the District Municipalities Act. The Commissioner of the Municipality also considered that the unauthorised construction of the building contravened the provisions of Sections 317(a) of the District Municipalities Act (Madras Act V of 1920), which reads:

If the construction or re-construction of any building or well:

(a) is commenced without the permission of the executive authority...the owner of the building or well...shall be liable on conviction to a fine....

and ordered on 24th November 1961, the prosecution of the Petitioner. A criminal complaint was filed in the Court on 23rd January 1962, for the said offence. The application exhibit P-2 filed by the Petitioner for permission to construct the building was rejected formally on 24th March 1962.

It would appear that the Petitioner also filed a second application on 19th January 1962, for constructing a second building and this second application was also rejected by the Municipality on 23rd April 1962.

The trial Court, viz., the Third City Sub-Magistrate, Coimbatore, found that the Petitioner had committed an offence u/s 199 of the Madras District Municipalities Act read with Section 317 of that Act and fined him rupees one hundred with a default sentence of simple imprisonment for one month. Section 199 of the District Municipalities Act states 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. The Appeal of the Petitioner to the learned District Magistrate, Coimbatore, was dismissed. He has filed the present Revision case to this Court.

Learned Counsel Sri Ramaprasada Rao appearing for the Petitioner urged a ground of legal objection to the sustainability of the conviction. He referred to the notice exhibit P-5, dated 16th November 1961 issued to the Petitioner under Sections 19(1) and 19(2) of the Madras Town-Planning Act directing him to demolish the building within seven days of the notice. This notice was served on the Petitioner on 27th November 1961. It was urged that after the Municipality had decided to resort to the aforesaid provision of the Madras Town Planning Act for dealing with the construction put up by the Petitioner, the Municipality should have followed the procedure under the Madras Town Planning Act for dealing with such a matter. Section 19(1) of the Town Planning Act provides that after the scheme comes into force the responsible authority (defined under the Town Planning Act as the authority or person who is specified in a scheme as responsible for carrying out or enforcing the observance of the principles of the scheme) which in this case is the Municipality may make a provisional order requiring an owner to remove, pull down or alter any building. The responsible authority is required u/s 19(2) to serve a copy of the provisional order made u/s 19(1) on the owner together with a notice requiring him to show cause within a reasonable time to be specified in such notice why the order should not be confirmed. Section 19(3) states that if the owner fails to show cause to the satisfaction of the responsible authority the responsible authority may confirm the order granting such further period as it may deem fit and this order may be enforced at the expense of the owner. There is a provision for Appeal to the State Government against the order of the responsible authority. The learned Counsel appearing for the Petitioner contended that the Municipality after it had decided to issue a notice purporting to be u/s 19(1) of the Town-Planning Act should have given him an opportunity u/s 19(2) of that Act for showing cause against the demolition, and thereafter if necessary, an order for demolition should have been passed u/s 19(3) of the Act. It was also urged by the learned Counsel that in such circumstances, it was not open to the Municipality to resort to the provisions of Section 199 read with Section 317 of the District Municipalities Act for prosecuting the Petitioner. The prosecution should have been initiated, according to the learned Counsel, only u/s 44(b) of the Town Planning Act, and that too only after the formalities prescribed u/s 19 of the Town Planning Act had been followed.

Learned Counsel for the Petitioner also referred to the scheme framed in this case under the Madras Town Planning Act and in particular Clauses 8(g) and 13(a) of it. Clause 8(g) reads:

Sections 178 and 179 of the District Municipalities Act, 1920, and the rules u/s 308(8)(a) shall apply to the area....

Clause 13(a) reads:

Except in respect of matters dealt hereunder, Section 191 and the Building Rules and Regulations made thereunder and Sections 192 to 217 of the Municipal Act shall apply to thin scheme.

Learned Counsel for the Petitioner referred to the aforesaid provisions of the scheme and argued that they would show that the application of Section 317 of the District Municipality Act would be excluded in this case.

I am of the opinion that the above contentions of the Petitioner are wholly untenable. It is a fact that the provisions of the Town Planning Act have been extended to the Coimbatore Municipality. Section 4(o) of the Town Planning Act states:

A Town Planning Scheme may provide for....

....

(o) the suspension, restriction or modification so far as may be necessary for the proper carrying out of the scheme, of any provision in the Madras City Municipal Act, 1919, the Madras District Municipalities Act, 1920, or in the Madras Local Boards Act, 1920, or in any rule, of law or regulation made under the said Acts and in force in the area included in the scheme.

This would show that except in cases where a specific provision is made under the scheme u/s 4(o) of the Town Planning Act for the suspension, restriction or modification of any provision of the Madras District Municipalities Act, the rest of the provisions of the District Municipalities Act will automatically apply to the Coimbatore Municipality. Clauses 8(g) and 13(a) of the scheme are restrictive provisions within the meaning of Section 4(o) of the Town Planning Act restricting the operation of the sections of the District Municipalities Act specified in those clauses. But that will not by their own force exclude the application to the municipal area of the rest of the provisions of the District Municipalities Act including, for example, Section 317 whose contravention is now the subject-matter of the present Revision case. Even under clause 13(a) of the Scheme, the application of Section 199 of the District Municipalities Act is provided for, and that section, which I have already extracted, requires prior permission of the executive authority before an owner can commence the construction of a building. Thus, the mere fact that a notice was issued to the Petitioner purporting to be under Sections 19(1) and 19(2) of the Madras Town Planning Act in respect of the construction, would not automatically exclude the application of Section 199 read with Section 317of the District Municipalities Act to the aforesaid construction.

Section 317 of the District Municipalities Act is an omnibus section providing for the punishment for various contraventions of the provisions of the Act. Sub-section (a) of it deals with the contravention of Section 199. The scope of this contravention is limited to the commencement of a building without prior permission. Sub-sections (b) and (c) of Section 317 deal with other contraventions; but it is not necessary for the purpose of the present case to refer to them at length for examining their scope. The District Municipalities Act contains elaborate provisions for the approval of a building site, for granting permission to execute a work, and for giving various directions as to the manner in which the constructions should be put up. At any one of these stages a contravention of the Act or the rules framed thereunder can take place, and Sections 317(6)(c) are provisions which provide for punishment of such contravention.

Learned Counsel also referred to the sections which succeed Section 199 of the District Municipalities Act. u/s 199 of the District Municipalities Act the executive authority is required to pass an order on the application for permission u/s 197 to commence a building. If the permission is not granted by the executive authority within the prescribed period of thirty days, the Applicant has, u/s 202, the right to make a written request to the Council. Sub-section (2) of Section 202 states that if the Council does not, within one month from the receipt of such written request, pass an order on it, the permission to construct the building shall be deemed to have been given and the Petitioner may proceed to execute the work, but he is not entitled to contravene any of the provisions of the Act or the rules or by laws under the Act in the course of such construction. But there is no scope in this case for resort to these provisions of the District Municipalities Act, because the Petitioner had commenced his construction even before he made the application for permission as found by the Building inspector in his report. Secondly, if he found that within thirty days of the receipt of his application, dated 9th November 1961 no orders had been passed by the executive authority, he had to apply in writing to the Council for necessary orders. This he has not done.

No doubt, the application exhibit P-2 made on 9th November 1961, was rejected by the executive authority only on 24th March 1962, more that three months after the application. Learned Counsel taking up this question of delay in passing an order on his application, referred to Section 17 of the Town Planning Act, which is analogous in some respects to Section 202 of the District Municipalities Act. Section 17 of the Town Planning Act states that after the publication of a notification under the Act no person shall erect or proceed with any building or work within the area included in the scheme unless he has applied for an obtained permission for that work from the Municipal Council or responsible authority provided that if the Council or the responsible authority omits for three months from the date of receipt of such application, to communicate to the Applicant any orders thereon, it shall be deemed to have granted the permission. As already observed, this is a case where the work was commenced even before the permission was applied for. Such a construction cannot be deemed to be one made with permission, even if one were to hold that Section 17 of the Town Planning Act would apply. Such a construction was clearly put up in contravention of Section 199 of the District Municipalities Act, and this plainly attracts the penalty provided in Section 317 of the District Municipalities Act. As already observed nothing in the scheme framed under the Town Planning Act excludes the application of those sections to this case.

For the aforesaid reasons, I confirm the orders of the Courts below and dismiss the Revision Case.