WP/44732/2016 of R.Masilamani, Vs The Government of Tamil Nadu, on 29 December 2016

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.12.2016CORAMTHE HON'BLE MR. JUSTICE S.VAIDYANATHANandTHE HON'BLE MR. JUSTICE V.PARTHIBANW.P. No.44732 of 2016andW.M.P.No.38550 of 2016

R.Masilamani..Petitioner Vs.1.The Government of Tamil Nadu rep. By its Secretary, Housing and Urban DevelopmentDepartment, Fort St. George, Chennai – 9.2.The Chennai Metropolitan DevelopmentAuthority rep. By its Member Secretary, Thalamuthu Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai – 8.3.The Corporation of Chennai rep. By its Commissioner, Ripon Buildings, Park Town, Chennai – 3.4.The Corporation of Chennai, Zonal Office VII, Thiruvalluvar High Road, Opp. Dunlop, Ambattur, Chennai – 53...Respondents Petition filed under Article 226 of The Constitution ofIndia praying for the issuance of a writ of certiorarifiedmandamus to call for the records relating to the impugnedorder pertaining to the letter No.17795/UD-VII(1)/2016-3 dated

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07.12.2016 issued by the first respondent, rejecting theappeal and quash the same and consequently direct the firstrespondent to dispose of the Appeal Petition on merits and inaccordance with the provisions of Tamil Nadu Town and CountryPlanning Act, 1971 under Sec.80A(2).

For Petitioner .. Mr.R.ThiagarajanFor Respondents.. Mr.M.K.Subramanian,Govt. Pleader for R1Mr.N.Sampath Standing Counsel for R2Mr.V.C.Selvasekaran for R3 and R4

ORDER(Order of the Court was made by S.VAIDYANATHAN, J.)

Heard the learned counsel appearing for the parties.

2.Writ petition has been filed seeking for the issuance ofcertiorarified mandamus to call for the records relating tothe impugned order pertaining to the letter No.17795/UD-VII(1)/2016-3 dated 07.12.2016 issued by the first respondent,rejecting the appeal and quash the same and consequentlydirect the first respondent to dispose of the Appeal Petitionon merits and in accordance with the provisions of Sec.80A(2)of the Tamil Nadu Town and Country Planning Act, 1971.

3.The main grievance of the petitioner is that he was notgiven an opportunity of personal hearing before passing of theimpugned order which is mandatory under Section 80A(2) of theTamil Nadu Town and Country Planning Act, 1971.

4.A reading of the impugned order, more particularlyparagraphs 2(b) and 3 that an opportunity was given but itappears that he was absent on that day and it was representedon his behalf that due to ill health, he could not be present.

5.Be that as it may, now the learned counsel appearing forthe petitioner seeks an opportunity of personal hearing to thepetitioner to putforth his case before the first respondent.During the course of arguments, the learned counsel appearingfor the petitioner also undertakes to rectify the violation,if any, within a week's time. Therefore, the petitioner ispermitted to approach the first respondent within a week fromthe date of receipt of copy of this order and in such event,the first respondent shall afford an opportunity of personalhearing to the petitioner to putforth his claim andthereafter, pass orders afresh, on merits and in accordancewith law. In case the petitioner fails to utilise theopportunity of personal hearing, it is open to the authoritiesthe petitioner seeks an opportunity of personal hearing to thepetitioner to putforth his case before the first respondent.During the course of arguments, the learned counsel appearingfor the petitioner also undertakes to rectify the violation,if any, within a week's time. Therefore, the petitioner ispermitted to approach the first respondent within a week fromthe date of receipt of copy of this order and in such event,the first respondent shall afford an opportunity of personalhearing to the petitioner to putforth his claim andthereafter, pass orders afresh, on merits and in accordancewith law. In case the petitioner fails to utilise theopportunity of personal hearing, it is open to the authorities

to proceed in furtherance of the order passed by the firstrespondent.

6.Before parting with, this Court observes that inChennai, there are lot of violations with regard toconstruction and also, there are land encroachments which hasgot to be curbed with iron hands and there is no reason whythe authorities are ineffective in taking steps and even ifsteps are taken, it moves in a snail's pace. We are of theview that the authorities must take dynamic action to decimatethe violated buildings without standing on any technicalities.

7.Whenever it is brought to notice that there is landencroachment on the roads or in any other place or violationof construction, it is open to the authorities concerned tocall for the following details from the violator by issuingappropriate notice:

8.It is the bounden duty of the person, who receives thenotice to furnish all the details called for, failing which,it has to be presumed that there are violations and it is opento the authorities to act as per law. Wherever there areencroachments on road, road width has got to be restored. Ifthere is no Building Plan, deviations if any, have got to beremoved by the petitioner. If not, the authorities areentitled to remove the same in accordance with law, recoveringthe demolition costs from the petitioner.

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