V. Deenadayalan vs The Commissioner Corpn. of Chennai, The Member Secy. C.M.D.A. and Smart Homes

P. Jyothimani, J.—The writ petition is for a direction against the 1st and 2nd respondents to remove unauthorised construction stated to have

been put up by the 3rd respondent, who is the owner of the neighbouring land at No. 12, Krishnapuram Street, Choolaimedu, Chennai 94.

The case of the petitioner is that he is the owner of the land and building situated at Plot No. 7, measuring about 1 ground and 80 Sq.ft. situated

at No. 109, Puliyur village, Kodambakkam, Chennai in Old Paimesh No. 227, Block No. 21, New T.S. No. 59, Narayanapuram, having

purchased in the year 1973 in the name of his wife. It is stated that the adjoining backyard of the petitioner''s house was a vacant site belonging to

one Neelakanta Rao and his elder brother Nagaraja Rao. It is the case of the petitioner that the said adjacent owners having decided to put up a

structure through Contractors ''Smart Homes'' has requested the petitioner to render all help and assistance and the petitioner infact helped the

neighbour to put up the construction. However, the petitioner came to know later on that the neighbour has put up construction with deviations

from the approved plan by which the window of the adjacent owner has been put up vertically in line with the compound wall of the petitioner with

the result, the right of free air and light which has been enjoyed by the petitioner hitherto has been obstructed. It is also stated that in the adjacent

house when the 3rd respondent has put up construction, the sewerage pipes and sewerage chambers were put up by knocking down the

compound wall belonging to the petitioner, about which the petitioner has made a complaint to the Corporation. Therefore, the case of the

petitioner is that the 3rd respondent has put up the unauthorised construction against the approved plan, which has obstructed the right of the

petitioner in having free air and light.

It is stated by the petitioner that on a complaint to the 2nd respondent Corporation, the 2nd respondent has informed that notice has been issued

to the 3rd respondent under the provisions of the Municipal Corporation Act and infact, the Corporation has informed the petitioner that after the

notice was issued u/s 236 of the Corporation Act, the construction work has been stopped by the 3rd respondent. It is the complaint of the

petitioner that in the meantime, the 3rd respondent has put up construction and the construction has been completed and while putting up

construction, the 3rd respondent has failed to leave set back area and also during construction the 3rd respondent has filled up debris by

encroaching upon the petitioner''s land and therefore, the present writ petition has been filed for a direction to remove the unauthorised

construction.

Admittedly, as on today, the construction stated to have been put up by the 3rd respondent has been completed. A reading of the affidavit

shows that the claim made by the petitioner in this writ petition is based on a right of easement, since it is his case that by the conduct of the 3rd

respondent in putting up construction, his free air and light has been obstructed. Inasmuch as it is not in dispute that as on date, the construction has

been completed, the relief sought for in this writ petition cannot be granted. If really the petitioner is affected by the construction put up by the

adjacent owner, resulting in the obstruction of his right of free air and light, it is for him to approach the competent authorities in the manner known

to law, since such right and enjoyment of the same for a long required period is a matter to be ascertained on production of evidence. Therefore, it

is for the petitioner to file appropriate Civil suit to claim his right. In addition to that, since it is stated that the Corporation has given notice to the

3rd respondent u/s 236 of the Corporation Act, it is always open to the petitioner to pursue the said efforts taken by him through the Corporation.

However, it is relevant to point out that in the letter of the Corporation dated 31.10.2002 addressed to the petitioner, the Corporation has taken

note of the complaint given by the petitioner that the adjacent owner Karunanidhi has attempted to put up some sewerage pipe affecting the right of

the petitioner and as directed by the Corporation, the said Karunanidhi has removed the Sewerage line which has already been laid without

affecting the right of the petitioner. Inspite of the said reply by the Corporation, if the petitioner is still affected, it is for him to approach the

competent authorities complaining about the unauthorised construction put up by the 3rd respondent.

In such view of the matter, the relief sought for in this writ petition cannot be granted to the petitioner. The writ petition fails and the same is

dismissed, however, with liberty to the petitioner to work out his remedy in the manner known to law either by approaching the Civil Court or by

preferring a complaint to the Corporation, in which event, it is for the authorities to take appropriate action in the manner known to law. No costs.