WP/50048/2006 of S. VIJAYAKUMAR Vs THE COMMISSIONER on 22 December 2006

1. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai-600 003.

2. The Assistant Engineer, Division 50, Chennai Corporation, Zone-IV, Jawahar Nagar, Chennai-82.

..Respondents

Writ Petition filed under Article 226 of the Constitution ofIndia, for issuance of a Writ of Certiorarifed Mandamus, calling forthe records of the 1[st] respondent relating to the notice issued underSection 378 of Chennai City Municipal Corporation Act, 1919, videNo.110 dated 04.11.2006 and quash the same and consequentlyforbearing the respondents from interfering with the building put upat Door No.26 A, 1[st] Circular Road, Jawahar Nagar, Chennai-600 082,particularly by way of demolition of any portion or portions thereof.

For Petitioner : Mr.R.Kannan

Aggrieved by the Notice issued under Section 378 of the ChennaiCity Municipal Corporation Act, 1919, vide No.110, dated 04.11.2006,the petitioner has filed the above writ petition, to quash the same

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and forbear the respondents from interfering with the building put upat Door No.26A, Ist Circular Road, Jawahar Nagar, Chennai-82,particularly by way of demolition of any portion or portions thereof.

2. On direction, Mr.Mohammed Ghouse takes notice forrespondents.

3. Learned counsel for the petitioner, by drawing our attentionto the first notice dated 02.08.2006 issued under Section 256(1) ofChennai City Municipal Corporation Act, submitted that, though thesaid notice mentions that the construction is not in accordance withthe sanctioned plan, absolutely there is no reference / particularsabout the alleged violation or deviation. According to him, in spiteof the same, the petitioner submitted a representation on 05.10.2006along with the revised plan for approval of the Commissioner ofCorporation of Chennai. The said representation was dulyacknowledged by both the authorities on 16.10.2006. The copies ofrepresentation and the acknowledgment cards are available in thetyped set, vide pages 9 to 11. It is the further grievance of thepetitioner that in spite of the same, now the respondents have issueda notice dated 04.11.2006 under Section 378 of the said Act, todemolish the unauthorised deviated portion in the building inquestion.

4. In the light of the infirmities pointed out, we heard thelearned counsel appearing for the respondents. Learned counsel forthe respondents submitted that a direction may be issued for thedisposal of the representation dated 05.10.2006 and till such time,no demolition will be carried out.

5. We are not inclined to adopt such course, since the noticeissued under provisional Order dated 02.08.2006, which gives anopportunity to the petitioner, does not contain any reference as tonature of deviation / violation. In spite of the same, thepetitioner has made a representation for approval of his revised planeven on 05.10.2006. In such circumstances, it is but proper on thepart of the respondents, while issuing notice dated 04.11.2006 underSection 378 of the said Act, could have considered the objectionsraised by the petitioner in his representation dated 05.10.2006. Suchrecourse has not been followed by the respondents. In suchcircumstances, we are satisfied that the impugned notice cannot besustained. Accordingly, the same is quashed.

6. In view of the fact that the petitioner has made arepresentation even on 05.10.2006 for approval of his revised plan,the Commissioner, Corporation of Chennai, is directed to consider andpass appropriate orders in accordance with law, within a period ofeight weeks from the date of receipt of a copy of this order, afteraffording an opportunity to the petitioner. Depending on the order

to be passed, the respondents are free to take further action. Writpetition is allowed on the above terms. No costs. Consequently,M.P.No.1 of 2006 is closed.

glSd/Asst.Registrar

/true copy/Sub Asst.RegistrarTo1. The Commissioner, Corporation of Chennai, Chennai-600 003.2. The Assistant Engineer, Division 50, Chennai Corporation, Zone-IV, Jawahar Nagar, Chennai-82.1 cc to Mr.R.Kannan, Advocate, SR.645781 cc to Mr.A.Mohammed Gouse, SR.64646bs (co)dv/22.12.06Writ Petition No.50048 of 2006