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K.VIJAYAN versus THE COLLECTOR OF NILGIRIS

High Court of Madras

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K.Vijayan v. The Collector of Nilgiris - W.P. No.32129 of 2002 [2002] RD-TN 555 (5 August 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 05/08/2002

Coram

The Honourable Mr.Justice F.M. IBRAHIM KALIFULLA W.P. No.32129 of 2002

and

WP.M.P.No.46754 of 2002

K.Vijayan .. Petitioner vs.

1. The Collector of Nilgiris,

Collector's Office,

Udhagamandalam Nilgiris.

2. The Executive Officer,

Nelliyalam Town Panchayat.

Pandalur P.O. 643 233.

The Nilgiris. .. Respondents Writ Petition under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr.N.P.K.Menon

For Respondents : Mr.P.S.Jayakumar,

Govt. Advocate.

:O R D E R



The petitioner seeks for the issuance of writ of certiorarified mandamus, to call for records of the first respondent in RC.DC No.21222/2002-13 dated 17.7.2002, to quash the same and consequently, direct the first respondent to issue the building li e as per the application of the petitioner dated 15.6.1999.

2. According to the petitioner, by virtue of the definition contained under the Tamil Nadu District Municipalities (Hill Station) Building Rules, 1993, the land in which the construction had been put by the petitioner would not come within the defin n of hill station and therefore, there is no question of the respondents invoking the provision of Section 217(j)(1)(c) of the District Municipalities (Amendment) Act, 1992 by referring to the non-approval by the HACA, that the petitioner having submitt ed an application as early as in the year 1999 and the respondents either having not granted or rejected the application for planning permission, by virtue of application of Section 202 of the Tamil Nadu District Municipalities Act, 1920, the approval sought for by the petitioner should be deemed to have been granted and in the said circumstances, the impugned proceedings seeking to demolish the construction of the petitioner cannot be justified.

3. I am not able to appreciate either of the contention of the petitioner. Even assuming that the approval of the authorities concerned in relation to the construction to be carried out in hill station may not be applicable to the case of the petit r, it is a matter of fact that the petitioner went ahead with the construction of the building in question without a sanctioned plan as well as necessary planning permission from the concerned authorities.

4. A perusal of the records placed before the Court discloses that after the submission of the application by the petitioner on 15.6.1999 along with the plan and the receipt of the same by the concerned Panchayat on 18.6.1999, communications were anged between the petitioner and the respondents from July, 1999 to May, 2001. Even thereafter, the petitioner was corresponding with the first respondent. In fact, in the communication dated 4.5.2001, the petitioner's application was returned for com pliance of certain defects found in the plan and also after pointing out certain defects in the ownership of the land. Therefore, in the above said background, if the application of the provisions of the Tamil Nadu District Municipalities Act, 1920 is c onsidered, it will have to be held that the petitioner cannot by merely relying upon Section 202(2) of the Act contend that the petitioner was justified in assuming deemed approval for having proceeded with the construction without a sanctioned plan.

5. Sections 200 to 203 of the Tamil Nadu District Municipalities Act deal with the situation regarding the grant of approval in respect of any construction to be made. Under Section 200 of the Act, the executive authority has been vested with the p to grant approval of a site or to reject the same for the grounds mentioned in Section 203 of the Act. Under Section 201, the same executive authority has been vested with the power to grant approval in 30 days for granting permission or to refuse the same on one or more of the grounds mentioned in Section 203. Under Section 202 of the Act, if the executive authority delays the grant or refusal of approval or permission within the period prescribed under Section 200 or 201, as the case may be, the Co uncil is invested with the power to determine by a written order as to whether such an approval or permission should be given or not and in the event of the Council not granting such approval within one month from the date of receipt of a written request , then under sub-Section (2) of Section 202, it is provided that such approval or permission should be deemed to have been given and that the applicant may proceed to execute the work. Section 203 of the Act lists out the grounds on which the approval can be rejected.

6. Therefore, on a conspectus reading of the above stated provisions, it is crystal clear that the petitioner, in the event of the executive authority not exercising its power within the stipulated period of 30 days, as provided under Sections 200 a 01 of the Act, can approach the Council with a written request and even thereafter, if the Council does not exercise its power within one month from the date of receipt of such a written request, there would be scope for the applicant to contend that the approval or sanction was deemed to have been granted. In the case on hand, where the second respondent herein was pointing out certain defects from the date of the application and upto May, 2001 and in the absence of any written order of approval either by the executive authority or by the Council, it cannot be held that the petitioner was justified in proceeding with the construction by relying upon Section 202(2) of the Act.

7. There is nothing on record to show that aggrieved against the inaction of the executive authority, the petitioner approached the Council with a written request and that inasmuch as even to the said written request, there was no response from the cil within one month from the date of receipt of such written request, the petitioner proceeded with the construction. Therefore, when the consideration of the petitioner's application for approval was very much in controversy and the same did not had t he approval of either the executive authority or the concerned Council inasmuch as the petitioner's application did not satisfy the stipulations contained in Sections 200 to 203 of the Tamil Nadu District Municipalities Act, 1920, it is too much for the petitioner to contend that he proceeded with the construction on the assumption that the permission was deemed to have been granted. In the absence of satisfactory compliance of Section 202 of the Act, there is no scope to proceed on the basis of deemed approval.

8. In the case on hand, the petitioner took the risk of proceeding with the construction without necessary sanction or permission of the plan applied for in June, 1999. In such circumstances, de-hors the provisions relating to approval by the HACA en going by the well laid down provisions as contained in Sections 200 to 203 of the Tamil Nadu District Municipalities Act, the action of the petitioner in having proceeded with the construction without a sanctioned plan cannot be justified.

9. I, therefore, do not find any scope to interfere with the proceedings impugned in this writ petition. The writ petition, therefore, fails and the same is dismissed. Consequently, WP.M.P.No.46754 of 2002 is also dismissed.

5-8-2002

Index: Yes/No

Website: Yes/No

dpp

Copy to:

1. The Collector of Nilgiris,

Collector's Office,

Udhagamandalam The Nilgiris.

2. The Executive Officer,

Nelliyalam Town Panchayat.

Pandalur P.O. 643 233.

The Nilgiris.

F.M. IBRAHIM KALIFULLA, J.

W.P.No.32129 of 2002;

&

WP.M.P.No.46754 of 2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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