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Judgment
A. Kulasekaran, J.—This writ petition has been filed by the petitioners herein seeking for a Writ of Mandamus forbearing the respondent from doing or causing to be done any act or acts in pursuance of its notice No.EN2/16096/94 dated 4.4.95 and notice No.EN2/16096/94 dated 8.2.96 issued in respect of the property of the petitioners bearing D.No.40, Mafuzkhan Garden Street, Madras-600 001.
The learned counsel for the petitioners advanced his arguments as follows:-
The property consisting of house and ground bearing present D.No.40, Mafuzkhan Garden Street, Madras-1 belongs to the petitioners herein which they have purchased from one Mrs. Fathima Bai alias Zubeida Bai under a deed of sale deed dated 20.10.94. The said property consists of ground, first, second and third floors. In Annexure-1-A of the sale deed dated 20.10.94 it is mentioned that the property consists of three upper floors and the ground floor. The site underlying the building is measuring an extent of 1070 sq. ft. On account of the property being bounded on the East by Mufuzkhan Garden Street and on the west by Sahib Nazarath Street door numbers were being given to the property by the corporation of Madras in both the streets. However, the property always remained one single unit despite it having been two different door numbers. The predecessor-in-title of the petitioners had put up the present constructions in the 3rd floor in the year 1977. Prosecution was launched against her husband Mr. Mohamed Usman alleging that the constructions were made without a license from the commissioner, Corporation of Madras and that offence punishable under Sec.357 of the Madras City Municipal Corporation Act, 1919 was committed by him. The then XX Metropolitan Magistrate, Madras imposed a fine of Rs.100/- on the said Mr. Mohamed Usman after finding him guilty and the said fine amount was also paid on 21.6.1977. It was about 17 years after the constructions the building was sold to the petitioners. The respondent herein sent a letter on 25.8.1994 to one of the tenants of the building by name "Vinodha Lorry Service" requiring the proprietor thereof to produce the approved plan for construction of ground and three floors of the premises bearing D.No. 40, Mafuzkhan Garden Street, Madras-1. Again on 4.4.1995 the respondent sent a notice under Sec.56of the Tamil Nadu Town and Country Planning Act, 1971 requiring the said tenant to restore the land to its conditions existed before the alleged unauthorized construction within 30 days from the date of receipt thereof. The said tenant was also warned that in the event of his failure to comply with the requirements action would be taken u/s 56(5)(b)(i) and (ii) of the Town and Country Planning Act, 1971, to restore the land to its condition without any further notice. The said notice was sent to the tenant by the respondent about 5 months after the purchase of the property by the petitioners. Immediately on the service of the said notice a letter dated 26-05-1998 was sent to the respondent by the petitioners objecting to the threatened action being initiated which was received and acknowledged by the respondent on 29.5.95. In spite of the said letter the respondent sent a notice to the said tenant on 16.10.95 asking it to produce certain documents indicated therein. The petitioners sent copies of the required documents to the respondent with a covering letter dated 25.10.95. In the meanwhile the respondent despatched a notice purportedly under Sec.56 (2) of the Tamil Nadu Town and Country Planning Act, 1971 requesting the occupiers of the building to vacate the same enabling it to carry out the demolition in due course. The proceedings of the respondent is neither valid nor warranted. The initial notice sent under Sec.56 (1) of the Act itself is contrary to law. The proceedings were initiated about 18 years after the alleged unauthorized construction. Sec.56 (1) fixes a time limit for initiation of action under the said provision, the limitation so fixed being "three years of such development". Further the notice has not been served on the "owner" of the building as required under Sec.56 (1) of the Act. On the other hand it has been served on an occupant thereof who has no manner of interest in the property. Even after sending of a letter by the real owners of the property disclosing to the respondent that the property was purchased by them in October, 1994 in its present condition, the respondent went on addressing letters and notices to one of the tenants of the premises and the notices dated 16.10.95 and 8.2.96 have been issued by the respondent long after the receipt of the petitioner''s letter dated 26.5.95. The respondent has no authority or jurisdiction to invoke the provisions of Sec.56 of the Tamil Nadu Town and country Planning Act, 1971 at this distance of time. It is also clear that what were found to be unauthorized were the constructions in the 3rd floor of the building only. The third floor was put up by the petitioners'' predecessor sometime in 1977 probably without the sanction of the Corporation of Madras. It was for the said reason the husband of the petitioners'' predecessor in title was prosecuted and fined. At no point of time the owners of the property have been extended any opportunity to put forth their case. Notices were being issued by the respondent to one of the tenants and that too in a mechanical way without any application of mind.
The respondent has not chosen to file his counter denying the averments made in the writ petition. It is seen from the records placed before me that the notice dated 04-04-1995 u/s 56 read with Sec. 85 of the Town and Country Planning Act 1971 was sent to one Vinodha Lorry Service, which according to the petitioners is one of the tenants in the premises. The petitioners have purchased the property under a registered sale deed dated 20-10-1994. The said Vinodha Lorry Service has handed over the said notice to the petitioner, the petitioner immediately sent a reply dated 26-05-1995 by registered post with acknowledgment due giving particulars about the property. The alleged construction was put up as early as 1977 by the predecessors of the petitioners and it is seen that they have also paid fine on 21-06-1977. It is further mentioned in the said notice that the respondent has wrongly issued the notice to one of the tenants namely Vinodha Lorry Service and not to them. Again, the respondent sent a letter dated 16-10-1995 addressed to the same Vinodha Lorry Service calling upon them to produce some documents and the petitioners have also sent a reply dated 25-10-1995 enclosing Xerox copies of all the tax receipts by registered post with acknowledgment due. Even after receipt of the said letter, the respondent has passed the impugned order dated 08-02-1996 stating that
"M/s. Vinodha Lorry Service has been requested to produce the approved plan for the construction at Door No.40, Maskhan Chavadi Street, George Town, Madras - 1, since they have failed to produce the approved plan as called for, a demolition notice was issued by this office in the 2nd reference.
Meanwhile, the premises at Door No.40, Maskhan Chavadi Street, George Town, Madras - 1 which was occupied by you, had its construction unauthorized.
Therefore, you are requested to discontinue the occupation of the premises enabling this Authority to carry out the demolition in due course."
It is evident from the impugned order dated 08-02-1996 that the respondent has failed to consider the petitioners notice dated 26-05-1995 and 25-10-1995. It is the case of the petitioners that the present superstructure was constructed during 1977 by their predecessors in title and they have also paid fine on 21-06-1977 before the XX Metropolitan Magistrate, Madras for unauthorized construction. It is the bounden duty of the respondent to consider the representation of the petitioners dated 26-05-1995 but unfortunately the respondent failed do so.
The learned counsel for the petitioners relied on a Judgment of this Court reported in 1994 Writ Law Reporter (Madras) - 365 (S. Radhakrishnan and four others Vs. Government of Tamil Nadu, reptd., By the Secretary, Housing and Urban Development Department, Fort St. George, Chennai-9. George, Madras -9 and others) wherein it is stated that :"notice to demolish unauthorized construction should be issued within a period of three years from the period of development and any notice beyond the period is illegal". The said judgment relied on by the learned counsel for the petitioners is applicable to the facts and circumstance of the case. Moreover, the impugned notices were not sent to the petitioners but to one of the tenants.
Considering the facts and circumstance of this case, I feel that the inference of this Court is absolutely necessary. The notices dated 04-04-1995 and 08-02-1996 are liable to be quashed and accordingly quashed.
With the result, this writ petition is allowed. No costs. However, it is open to the respondent to proceed against the petitioners after issuing notice afresh, provided it is permissible under Law. Consequently, connected WMP is closed.