ORDER S. Mohan, J. 1. The facts leading to the writ petition are as follows: The petitioner submitted a plan for constructing of a premises in No. 8, Ayyamudali Street for basement floor, ground, magazine and first floor. The said plan was sanctioned by the Corporation of Madras, the first respondent herein, in B.A.O. XI/171/82 dated 28.12.1982. In the process of construction the petitioner constructed ground to third floor without basement and magazine floors. The details of the same are given below: Area sanctioned Area constructed. Ground Floor - 1140 s.ft. 2,000 s.ft First Floor - 400 " 2,000 " Second Floor - - 2,000 s. ft. Third Floor - - 800 2. For the unauthorised construction in relation to ground floor and first floor, criminal action was initiated on 2.5.1984. The petitioner was fined Rs. 110. For the illegal construction of second floor criminal action was initiated on 9.7.1984. The petitioner was fined a sum of Rs. 100 by the 19th Metropolitan Magistrate. With regard to both these notice under Section 244-A of the Tamil Nadu City Municipal Corporation Act, 1919, (hereinafter called the Act) was sent by registered post on 18.7.1985. As regards the illegal construction of the third floor criminal action was initiated on 29.7.1984 and the case is now pending in the Court. It is, under these circumstances, a notice under Section 256(1) and (2) of the Act was issued to the petitioner on 4.9.1985. The same was served on the petitioner on 10.9.1985. It was pointed out therein that the petitioner was constructing a building unauthorised by viz., second and third floors without sanctioned plan. Hence, she was informed to stop the work and remove the same at once. Otherwise, the same would be removed at her risk and cost. It was further stated in the notice that she was required to show cause within seven days from the receipt of the order why the provisional order should not be confirmed. To this on 10th September, 1985 the petitioner replied stating inter aha that in view of the scanty land space available and in view of the large family under engineer's advice she proceeded with the construction and there has been a deviation of the sanctioned plan. Further, in two criminal cases the Court levied fine and penalty for deviation and unauthorised construction. Further, in two criminal cases the Court levied fine and penalty for deviation and unauthorised construction. The said fine and penalty was paid on 30th May, 1985 itself for all the floors. The construction so far made and completed had been assessed to property tax of Rs. 3,262.35. Therefore, in view of the levy and payment of fine/penalty for unauthorised construction and in view of the assessment of the property to property tax, the unauthorised construction must be deemed to have been condoned and no further action was called for. However, for, the purpose of regulari-sation, she was submitting a revised plan for permission to construct the additional portions which have been already constructed. Without prejudice to the foregoing she would state that by the passing of the Act entitled 'Town and Country Planning Act of 1975", the provisions of the Madras City Municipal Act relating to the construction of buildings and the permission thereof have been superseded and the provisions of the Town and Country Planning Act in relation to the construction of the buildings alone will apply. Hence, the provisional order made under Section 256(1) of the Act was ultra vires and has no legal effect. On 19.9.1985, a notice was issued and the same was received by the petitioner on 26.9.1985. It is thereafter the petitioner wrote a letter dating it as 14.9.1985 which was received by the Corporation on 20.9.1985, stating that she has submitted a revised plan pertaining to the premises to the Madras Metropolitan Development Authority on 13.9.1985 in P.P.A.No. 668/85. By a notice dated 29.10.1985 which was affixed to the premises of the petitioner on 2.11.1985 issued under Section 378 of the Act, the petitioner was informed that the officers of the Corporation would enter the premises for the purpose of demolition of the unauthorised construction in the second and third floors. On 4.11.1985 the demolition of the unauthorised construction was commenced. It was at this stage the petitioner came forward with this writ petition for certiorari to quash the notice dated 19.9.1985 and the order of demolition dated 3.11.1985. 3. The learned Counsel for the petitioner Mr.T.Chengalvaroyan, urges the following for my consideration: (1) An application under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the Planning Act) has been filed by the petitioner before the Madras Metropolitan Development Authority. 3. The learned Counsel for the petitioner Mr.T.Chengalvaroyan, urges the following for my consideration: (1) An application under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the Planning Act) has been filed by the petitioner before the Madras Metropolitan Development Authority. It is open to that authority to sanction the permission required under certain conditions. Even if it refuses, there is an appeal provided to the Government. For aught one knows, the Government might sanction the permission. Therefore, by reason of Section 49 of the Planning Act, the provisions relating to obtaining the building plan under the Act do not have any operative force. (2) In this case, admittedly there was no sanctioned plan for the second and third floors. Only when there is a plan and there is a deviation, it would amount to unauthorised construction. Where no plan was submitted for these two floors, it is not possible for the Commissioner to take action under Section 256(1) of the Act, much less under Section 256(3) of the Act. Therefore, this is a jurisdictional issue and the notice itself is per se bad; (3) The failure to consider whether this is a case in which imposition of penalty under Section 244-A of the Act could be, sufficient to meet the ends of justice, vitiates the order. The very section was introduced by way of amendment to mitigate hardship. The power of demolition is to be exercised in extra-ordinary cases, not arbitrarily, unreasonably or whimsically. In this case, it is nothing more than administrative vengeance without waiting for the orders of the Madras Metropolitan Development Authority for permission sought under Section 49 of the Planning Act. By demolition who is benefited? Whereas, the imposition of a fine which is a recurring one will certainly fill the coffers of the Corporation. Therefore, resort to demolition could only satisfy the whims of the officers, but will not render any benefit. 4. The learned Counsel for the Corporation who appears on notice of motion produces the records and argues that a mere submission of an application for permission under Section 49 of the Planning Act cannot in any manner affect the operation of the Act. The scope of the two Acts is totally different. 4. The learned Counsel for the Corporation who appears on notice of motion produces the records and argues that a mere submission of an application for permission under Section 49 of the Planning Act cannot in any manner affect the operation of the Act. The scope of the two Acts is totally different. The Madras Metropolitan Development Authority is only an authority to give permission for planning, while the building plan has to be sanctioned by the Corporation under the relevant provisions of the Act. It is not that the petitioner is unaware of this, because she had submitted a plan earlier and obtained sanction for building ground floor and first floor on 28.12.1982. This is without prejudice to the important fact that the Madras Metropolitan Development Authority has not officially intimated to the Corporation about the submission of the application. 5. Section 256 of the Act deals with two aspects i.e. constructing without obtaining the permission or completing the construction otherwise than in accordance with the approved plan. The case of the petitioner will squarely fall under Clauses (a) and (b) of Sub-section (1)(i) of Section 256 of the Act. In law, even if a deviation is not permitted, it is not open to the petitioner to claim that the law could not be set in motion against her where there is a total lack of permission, which permission is a pre-requisite for a building under the Act. Therefore, this argument is incorrect. Section 244-A was no doubt introduced by the Amending Act of 1981. But where in this case there is utter disregard of the provisions of the Act and the Rules and the petitioner was convicted before the Magistrate for these violations on two occasions and yet one more prosecution is pending, certainly by no stretch of imagination could it be contended that Section 244-A would apply. Besides, that section clearly states 'notwithstanding any action taken under Section 244 or Section 357(1)... Section 244 speaks of the power of the Commissioner to require alteration of work when the work has been carried on otherwise than in accordance with the plans or specifications or the work, contravenes any of the provisions of the Act, any rule, by-law etc., while Section 357 is a general provision regarding imposition of penalty. Therefore, the power under Section 256 is not in any manner controlled by Section 244-A of the Act. 6. Therefore, the power under Section 256 is not in any manner controlled by Section 244-A of the Act. 6. With reference to the statutory provisions occurring under the Act, I will provide the legal background. The Act was passed in the year 1919 repealing the Madras City Municipal Act, 1904, the Madras City Municipal Act (Amendment Act), 1907, the Madras City Municipal Act (Amendment Act), 1981 and Section 34 of the Madras Port Trust Act, 1904, as seen from schedule I to the Act. Chapter X deals with building regulations. Section 230 states: (1) The State Government may make rules- (a) for the regulation or restriction of the use of sites for building, and (b) for regulation or restriction of building. Section 234 requires that if any person intends to construct or reconstruct a building, he will have to apply to the Commissioner (1) for the approval of the site and (2) permission to execute the work. Section 236(1) is categoric in its terms. That may be extracted. The construction or re-construction of a building shall not be begun unless and until the Commissioner has granted permission for the execution of the work. A time limit of 30 days is prescribed for the Commissioner to signify the approval of disapproval of the site under Section 237. Similarly, under Section 238 a time limit within which the Commissioner is to grant or refuse to grant permission to execute the work is prescribed as 30 days. Before I go to the powers of the Commissioner with regard to demolition or alteration it is necessary to find out the reason for incorporation of such a provision in respect of buildings. These provisions to my mind are intended (1) to secure a reasonable provision of light and air and of means or access to buildings which may be newly put up; (2) to preserve such provision for old buildings in the proximity of which new structures might be erected. (3) to ensure adequate facilities for sanitation and (4) to achieve and maintain a certain degree of architectural harmony in the locality. 7. The building regulations have for their purpose not only the protection of life, limb and property, but also the preservation of public health as stated in Amer, Ency. Vol.28, page 736. (3) to ensure adequate facilities for sanitation and (4) to achieve and maintain a certain degree of architectural harmony in the locality. 7. The building regulations have for their purpose not only the protection of life, limb and property, but also the preservation of public health as stated in Amer, Ency. Vol.28, page 736. These building regulations are necessary because through the capacity or negligence of property owners, a building may become unsafe for use and the building may become not only unhealthy and unsafe to the occupants themselves but also to persons in the immediate vicinity. In exercise of the police power by Municipal Corporations, they may, if so authorised by statute, regulate, erection, alteration and repair of buildings within their local limits. The regulations of houses and other buildings so as to secure their proper sanitation, structure and safety are amongst the most important duties which have been entrusted to local authorities. 8. This being the object of these building regulations, for the effective exercise of the police power mentioned above, Section 256 of the Act provides the Commissioner with the power of demolition or to alter the building unlawfully commenced, carried on or completed. 8. This being the object of these building regulations, for the effective exercise of the police power mentioned above, Section 256 of the Act provides the Commissioner with the power of demolition or to alter the building unlawfully commenced, carried on or completed. Sub-section (1) of Section 256 may now be extracted: (1) If the Commissioner is satisfied-- (i) that the construction or reconstruction of any building; (a) has been commenced without/ obtaining the permission of the Commissioner or (where an appeal or reference has been made to the central committee) in contravention of any order passed by the central committee; or (b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based, or (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or by-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or by-laws, or (ii) that any alterations required by any notice issued under Section 244 have not been duly made, or (iii) that any alteration of, or addition to, any building or any other work made or done for any purpose in, to, or upon any building, has been commenced or is being carried on or has been completed in breach of Section 255, he may make a provisional order requiring the owner or the builder to demolish the work done, or so much of. it as, in the opinion, of the Commissioner, has been unlawfully executed, or to make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, by-laws direction or requisition as aforesaid, or with the plans or particulars on which such permission or order was based, and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building. It is this notice which was issued to the petitioner on 4.9.1985 and the same was served on 10.9.1985. Thereafter, finding that no satisfactory cause has been shown, a notice under Section 256(3) of the Act came to be issued on 19.9.1985 which was served on 26.9.1985. It is this notice which was issued to the petitioner on 4.9.1985 and the same was served on 10.9.1985. Thereafter, finding that no satisfactory cause has been shown, a notice under Section 256(3) of the Act came to be issued on 19.9.1985 which was served on 26.9.1985. At this stage, comes the objection from the petitioner that the plan has been submitted under Section 49 of the Planning Act. It requires to be seen what exactly is contemplated under the said section. First of all, the Planning Act was enacted for planning the development and the use of rural and urban land in the State of Tamil Nadu. Section 49 of the Planning Act says if a person intends to carry out any development of any land or building, he shall make an application to the appropriate authority for permission in such form and containing such particulars as may be prescribed. Under Sub-section (2) of Section 49 it is stated that the appropriate authority in deciding whether to grant or refuse such a permission shall have regard to the following matters: (a) the purpose for which the permission is required; (b) the suitability of the place for such purpose; (c) the future development and maintenance of the planning area. This section appears in Chapter VI which deals with the control of development and use of land. Therefore, obviously, this has absolutely nothing to do with the building regulations, the objects of which are totally different as stated above. How the land in the metropolitan development area is to be controlled for the purpose of development and use can have nothing to do with the actual building which is still covered only by Section 234 of the Act and the permission obtained from the Commissioner thereof. The positive prohibition contained in Section 256(1) of the Act, is not diluted or deviated from by Section 49 of the Planning Act. The two Acts viz., the Tamil Nadu City Municipal Corporation Act and the Tamil Nadu Town and Country Planning Act, operate in two different spheres, the letter dealing with the development and the use of the land, while the former dealing with regulating the construction of buildings. Therefore, I am totally unable to accept the argument of Mr.T.Chengalvaroyan that Section 49 of the Planning Act supersedes the provision of the Act with regard to the construction of the building. Therefore, I am totally unable to accept the argument of Mr.T.Chengalvaroyan that Section 49 of the Planning Act supersedes the provision of the Act with regard to the construction of the building. Nowhere does the Planning Act talk of building at all. The provisions of the Act occurring In Chapter X retained all the vigour and force notwithstanding the passage of time; notwithstanding the enactment of the Planning Act. 9. The next argument of Mr. T. Chengal-varoyan is it is a jurisdictional issue in that the petitioner never submitted a plan for second and third floors. Only when the plan is submitted for construction of these two floors and if there is a deviation or departure, action could be taken under Section 256 of the Act. This argument overlooks the comprehensive nature of Section 256(1) of the Act which I have already set out. That provides for all possible contingencies. Clause (a) of Section 256(1)(i) of the Act talks of commencing without obtaining permission of the Commissioner or in contravention of any order passed by the control committee. Clause (b) speaks of work being carried on or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was passed. Lastly, Clause (c) deals with such of those cases where the work is being carried on or has been completed in breach of any other provisions of the Act or the rules or by-law etc, This is the reason why the notice dated 4.9.1985 issued under Section 258(1) of the Act clearly refers to the construction of the building without obtaining the permission as well as completing the construction in breach of the provision. On the back of the notice. It was clearly stated that the petitioner was constructing a building unauthorisedly in the second and third floors without sanctioned plan. This squarely falls under the above clauses of Section 256(1) of the Act. Even for a deviation there could be an action, much more so in a case where as rightly contended by the learned Counsel for the Corporation there has been an utter defiance of the provisions of , the Act. Therefore, there is no lack of jurisdiction at all in this case and the contrary contention of Mr. T. Chengalvaroyan has to be rejected. 10. Therefore, there is no lack of jurisdiction at all in this case and the contrary contention of Mr. T. Chengalvaroyan has to be rejected. 10. The last of the arguments advanced by the learned Counsel for the petitioner is that it would not benefit anybody by resorting to demolition excepting to satisfy the whims of the Corporation officials. Therefore, an imposition of a fine under Section 244-A of the Act would be enough. Further, the action in this case is nothing more than administrative vengeance. Such an action is arbitrary and unreasonable; At this stage, I will refer to the context in which Section 244-A appears. It has already been seen that without the permission for execution of work neither construction nor reconstruction of the building shall begin. Therefore in Section 244 of the Act it is stated that should the Commissioner find the work is (1) otherwise than in accordance with the plan or specification which has been approved or (2) contravenes any of the provisions of the Act or any rule, by-law etc., he may require the owner to make such alterations as may be specified by him. Then comes Section 244-A which was introduced by the Amending Act 56 of 1961. That section is extracted below: Notwithstanding any action taken under Section 244 or Section 357(1), where in the opinion of the Commissioner any building has been constructed or altered otherwise than in accordance with the plans and specifications which have been approved or in contravention of any of the provisions of this Act or any rule, by-law, order or "declaration made under this Act, the Commissioner may direct the owner of such building to pay by way of penalty a sum not exceeding fifty rupees for every half year or part thereof in respect of every one hundred square feet or part thereof covered by the portion or portions of the building so constructed or altered, the area of the ground floor and the other floors, if any, being reckoned separately. Such penalty shall be recovered in the same manner as the property tax until the portion or portions aforesaid are removed or rectified by the owner and the resulting construction is approved by the Commissioner. Such penalty shall be recovered in the same manner as the property tax until the portion or portions aforesaid are removed or rectified by the owner and the resulting construction is approved by the Commissioner. The opening words of the section are very important in that it states notwithstanding any action taken under Section 244 or Section 357(1)' which means (1) notwithstanding the Commissioner requiring the alteration of work and (2) notwithstanding the general power relating to levy of penalty contained in Section 357, he is enabled under this section to impose by way of penalty a sum not exceeding Rs. 50 for every half year or part thereof, in respect of every 100 sq.ft. or part thereof, covered by the portion or portions of the building so constructed or altered, the area of the ground floor and the other floors being reckoned separately. It is no doubt a recurring fine. But, this in my considered view has absolutely nothing to do with the power of the Commissioner to demolish conferred under Section 256 of the Act. 11. With this background, I will pass on to the. question whether the power is being exercised arbitrarily or whimsically in this case. It cannot be gainsaid that the petitioner has flouted all rules, relating to buildings. In the teeth of Section 236, she constructs in utter disregard of the sanctioned plan. I have already set out the various violations committed by her. When she had an area of 1140 sq.ft. sanctioned on the ground floor, she constructed 2000 sq.ft. For the excess of 860 sq.ft. in the ground floor and for the excess of 1600 sq.ft. in the first floor, criminal action was initiated on 2.5.1984 and she was prosecuted and fined Rs. 110. The second and third floors are not covered by any valid permission. The construction of 2000 sq. ft on the second floor and 800 sq. ft. on the third floor is totally illegal and unauthorised. With regard to the second floor criminal action was initiated on 3.7.1984. The petitioner was prosecuted and fined Rs. 110 by the 19th Metropolitan Magistrate. A notice under Section 244-A of the Act was sent by registered post on 18.7.1985. As regards the third floor criminal action was initiated on 29.7.1984 and the case is still pending. With regard to the second floor criminal action was initiated on 3.7.1984. The petitioner was prosecuted and fined Rs. 110 by the 19th Metropolitan Magistrate. A notice under Section 244-A of the Act was sent by registered post on 18.7.1985. As regards the third floor criminal action was initiated on 29.7.1984 and the case is still pending. This shows the petitioner has absolutely no regard for law, but would like to take umbrage under a mere application for permission under Section 49 of the Planning Act which, as I said, has absolutely nothing to do with the requirement of obtaining permission under the Act. In view of this factual situation, it is impossible for the petitioner to contend that the action taken against her is arbitrary or whimsical. On the contrary, I should hold it is just, proper and reasonable. 12. Another argument now advanced is that inasmuch as proceedings under Section 244-A of the Act have been resorted to no action is permissible under Section 256 of the Act. Otherwise, it will amount to double jeopardy and in any event in so far as a number of other cases nearly 55 are concerned, wherein the remedy under Section 244-A alone has been resorted to without demolition, the petitioner should be accorded the same treatment. In my considered view neither of the arguments could be held to be tenable. I have already given my reasons under what circumstances Section 244-A could be resorted to. Here again, as I observed already, it is the number of days de die diem i.e. day-to-day till the offending construction is brought in conformity with the provisions of the Act. Therefore, that will not in any way take away the power of the Corporation under Section 256 of the Act. As regards the other cases, nearly 55, wherein Section 244-A has been resorted to, without any further details, it is not possible to decide the same. Even otherwise, so long as the petitioner's construction is not only a deviation from the sanctioned plan, the details of which I have already stated, but also an unauthorised construction of second and third floors, the petitioner cannot draw any parallel from other cases. 13. Even otherwise, so long as the petitioner's construction is not only a deviation from the sanctioned plan, the details of which I have already stated, but also an unauthorised construction of second and third floors, the petitioner cannot draw any parallel from other cases. 13. Apart from the non-application of Section 244-A of the Act to this case, how far the imposition of fine in such a case could be considered proper could be dealt with by reference to Kartick Chandra v. Calcutta Corporation. A similar argument came to be rejected by a Division Bench of the Court as under: I have no hesitation in holding that the ground taken as regards the omission of the learned Magistrate to consider the provisions of Section 394 of the Act is wholly unmerltorious and unsubstantial. Building rules framed by an urban municipality are intended to secure a reasonable provision of light and air and of means of access to buildings which may newly be put up and to preserve such provision for old buildings in the proximity of which such new structures may be erected. They are further intended to ensure adequate facilities for sanitation and to achieve and maintain a certain degree of architectural harmony in the locality. If any structures are erected in violation of the building rules, these objects will, in most cases, be defeated and whenever any offending structures are detected, the obviously right course is to take steps for their demolition. It cannot be right to compound transgressions of this kind with the imposition of a mere fine, because once the authorities start making exceptions in applying the rules, they would not know where to stop and once the public come to know that the only consequence of erecting unauthorised structures would be a liability to pay a small fine, one might find this city, as I have said elsewhere, filled up with structures, indiscriminately built, under the notion that it was possible to buy up the right of infringing the building rules by paying a small fine. There may be, I concede, some very exceptional cases where the infringement has been of so trivial and technical a character that the imposition of a small fine will meet the needs of the case, but, speaking generally, where substantial infringements have taken place and the Corporation has thought fit to institute proceedings for demolition, it cannot be right to allow the offending structures to stand and let the offender off with only a fine. Apart from that, it seems to me to be a mistake to suppose that Section 493 of the Act does not contemplate demolition. That section provides for fines of two kinds, a fine of a lump sum and also a daily fine which is to be paid for each day during which the offence is continued after the first day. Obviously, the object of framing a provision for a double fine of that kind is to make it expensive for the offending builder to maintain the structures concerned and to compel him by the pressure of the monetary penalty to pull them down as quickly as possible. Again, as it appears to have been pointed out in certain decisions and as is clear from the Act itself, the provisions of Section 363 and 493 of the Act are mutually exclusive, for the first section says that where the Corporation has instituted proceedings under Section 493 of the Act, no application shall be made under that section and similarly Section 493 provides that where an application has been made under Section 363 or Section 364 of the Act, no proceedings shall be instituted under that section. It follows, to my mind, as clearly as possible that once the Corporation has started proceedings under Section 363 of the Act and where the proceedings under that section are before this Magistrate, it cannot be open to the Magistrate himself to convert the proceedings into proceedings under Section 493. So to do would be clearly to violate the provisions of the statute. On the other hand, while the Magistrate cannot substitute proceedings under Section 493 for proceedings under Section 363 of the Act, he can, it would appear, both impose a fine arid require the offending owner to demolish the structure concerned. So to do would be clearly to violate the provisions of the statute. On the other hand, while the Magistrate cannot substitute proceedings under Section 493 for proceedings under Section 363 of the Act, he can, it would appear, both impose a fine arid require the offending owner to demolish the structure concerned. That course is warranted by Section 536 of the Act which lays down that when under the Act or under any rule or by-law made thereunder, any person is liable in respect of any unlawful work-- (a) to pay a fine, and (b) to be required to demolish the structure. The Magistrate may, in his discretion, and subject to the provisions of Sections 363, 364 and 493 of the Act, direct the said person to pay the fine and also to demolish the work. What the true import of the qualification 'subject to the provisions of Section 363, 364 and 483' is I need not pause to consider in these rules. Suffice it to say, that while the Act seems to authorise prima fade at least, both imposition of a fine and an order for demolition, it certainly does not authorise the substitution of proceedings under Section 363 of the Act. This ground must also therefore fail. The ratio of the above ruling squarely applies to the facts of this case. Therefore, the mere imposition of a fine will only amount to putting a premium on illegalities which would embolden such activities in violation of rules and regulations, which, as I said above, are intended to ensure adequate facility for sanitation and maintaining a certain degree of architectural harmony in the locality. By stating that a fine alone may be imposed would amount to an aggressor assuming the role of an ascetic. It will mean that the offender is being baptised as a law abider. To regularise such action would amount to nothing more than encouraging illegal activities. Therefore, this argument Is untenable and will have to be rejected. 14. In fine, I say "Mandavilie theory of the pursuit of individual advantage is admirably connected with the universal good of the whole," is more relevant today. 15. Accordingly, the writ petition will stand dismissed, with costs. Counsel's fee Rs. 350. 16. Interim stay granted in W.M.P. No. 17386 of 1985 is hereby vacated.