S. Rajamanickam v. Executive Officer, Veerappanchatram Town Panchayat and Others
1998-06-12
S.S.SUBRAMANI
body1998
DigiLaw.ai
Judgment :- Petitioner seeks the issuance of writ of mandamus, directing respondents 1 and 2 to furnish the petitioner copies of the sanctioned plan, site approval and planning permit in respect of the proposed construction in R. S. No. 409/6, 409/1 Part, 409/1 B Part and 409/4 Part at Veerappanchatram (Sanjay Nagar) and pass such further or other orders as this Court may deem fit and proper. 2. Petitioner has filed this writ petition as President of Sanjay Nagar House Owners Welfare Society. Reason for filing this writ petition is that respondents 4 and 5 have started constructing apartments in the property mentioned above. It is the case of the petitioner that the proposed construction, apart from being violative of the provisions of the Tamil Nadu Town and Country Planning Act and the Rules framed thereunder, is inherently dangerous as there are certain high-tension wires running north south on the eastern side of the proposed apartments within a distance of 1-5 metres. It is said that foundation has been laid and certain pillars have been constructed. Sufficient space as set back has not been provided and no parking space has been provided. There is also no proper ventilation. Therefore, petitioner filed a representation on 19-11-1997 before respondents 1 and 2, requesting them to take necessary action to stop the construction and to furnish a copy of the sanctioned plan, a copy of the site approval and planning permit. Respondents 1 and 2 did no oblige the petitioner which necessitated the filing of the writ petition. 3. Respondents 1, 4 and 5 have filed separate counter-affidavits. 4. In the counter-affidavit filed by 1st respondent, it is said that a construction is being put up by respondents 4 and 5 and the same is according to the building plan approved by the Authorities. It is said that the various averments regarding violation of Building Rules are not correct, and the Authorities have made inspection, and it was found that the entire construction was only in accordance with the sanction plan, and there is no deviation. It is also said that they are not duty bound to issue copy of the approved plan to the petitioner, who has nothing to do with the construction. 5.
It is also said that they are not duty bound to issue copy of the approved plan to the petitioner, who has nothing to do with the construction. 5. In the counter-affidavit of respondents 4 and 5, it is stated that the petitioner who has filed this writ petition has not been authorised to do so, and the Association is also unregistered, and, therefore, it is incompetent to file a writ petition. Apart from the same, an unregistered association is also not a legal person and, therefore, the writ petition is not maintainable. It is further said that for issuance of writ of mandamus, the petitioner must have a legal right, and respondents 1 to 3 also must have a public duty to supply the documents. Petitioner has also no legal right and, therefore, writ of mandamus cannot be issued. It is also said that there is another litigation as O.S. 154 of 1997 filed by respondents 4 and 5 against the petitioner-Association in which the Town Panchayat is also a party. Even at that time, petitioner was aware that the construction was going on, and on the date of this writ petition, the construction work was already over. The allegation in the writ petition that respondents 4 and 5 are proposing to construct and they have laid foundation and pillars alone, are not true. It is further said that the construction has been made only in accordance with the approved plan and licence, and the Authorities have also made inspection and they were satisfied about the progress of the work and also the manner of construction. They were also satisfied that there was no violation of any of the licensing conditions of the Building Rules. It was prayed that the writ petition may be dismissed. 6. After hearing learned counsel for all the parties, I feel that this writ petition has been filed only to collect evidence for the purpose of filing another writ petition in future. Petitioner himself has admitted that he has not seen the approved plan or licence or the site plan. At the same time, he alleges that the construction has been made violating the Building Rules and Approved Plan. The said contentions themselves are inconsistent. It is settled law that a writ of mandamus could be issued only if the petitioner can establish that he has got a legal right.
At the same time, he alleges that the construction has been made violating the Building Rules and Approved Plan. The said contentions themselves are inconsistent. It is settled law that a writ of mandamus could be issued only if the petitioner can establish that he has got a legal right. The exercise of a legal right is the foundation of the exercise of jurisdiction under Article 226 of the Constitution. The High Court can issue a mandamus, order or direction for the enforcement of any legal right and the performance of any legal duty. The object of Art. 226, being the enforcement of fundamental and other statutory rights and not the establishment of a legal right, the right of petitioner to the performance of a statutory duty must be clear and the applicant must satisfy the Court that he had a legal right to compel the performance of the duty and the person against whom the right is sought was under a legal obligation to perform that duty. The applicant for such a writ must show that there resides in him a legal right to the performance of a legal duty of the party against whom mandamus is sought. (Vide - Chaudhury's Law of Writs - 4th Edn. page 408). It is also settled that directions in the nature of a writ of mandamus should not issue except to a public, quasi-judicial body or officer which is under an obligation, statutory or otherwise to do or refrain from doing anything which is likely to interfere with the rights of persons. The issue of mandamus is to compel the performance of a plain and positive duty. The duty must both be peremptory and plainly defined. The law must not only authorise that act but it must require it to be done. Before a Court would issue mandamus, it must ascertain what the statutory obligations are and whether the authority concerned has failed to discharge the obligations.' (vide - Chaudhury's Law of Writs" - 4th Edition (1990) page 411). 7. Durga Das Basu in 'Shorter Constitution of India' - 12th Edition (1996), at pages 597 and 598, has expressed the same view. 8.
7. Durga Das Basu in 'Shorter Constitution of India' - 12th Edition (1996), at pages 597 and 598, has expressed the same view. 8. Learned counsel for petitioner was at pains to satisfy this Court that the petitioner has got a legally enforceable right and the respondents 1 to 3 were also under an obligation towards him to comply with his request to furnish copies of documents which do not relate to his property, nor to which he is an applicant. Petitioner has no interest in the property or in the building under construction by respondents 4 and 5. So long as the petitioner does not satisfy the statutory requirements for issuance of writ of mandamus, the writ petition is only to be dismissed. 9. As rightly pointed out by learned Senior Counsel for respondents 4 and 5, petitioner herein has come to this Court as President of an Association which is admittedly not recognised. It is not a legal person. Therefore, the writ petition is also not maintainable. No document is also made available before this Court that the Association has authorised the petitioner to file this writ petition. In fact, even the affidavit does not disclose such a statement. The writ petition has to fail on that ground also. Even on merits, I do not think that the petitioner has a case to urge before this Court. There is no allegation against the respondents 1 to 3 that they are colluding with respondents 4 and 5 or that their acts are tainted withmala fides.Those public authorities have filed affidavits before this Court. Respondents 4 and 5 are proceeding with the construction and the same is almost over. They have inspected the construction so far made and have also found that there is no deviation from the approved plan. It is also laid that the plan was approved on the basis of the Rules, and there is no violation of the Rules. When statutory authorities, after inspection have declared that the construction is in accordance with plan, and there is no violation of the Building Rules, I do not think that the Court should suspect their conduct in any manner. Consequently, the writ petition is without any merit, and the same is accordingly dismissed. No costs. W.M.P. 134 of 1998 for interim direction is also dismissed consequently. Petition dismissed.