Dr. P. Selvaraj v. The Commissioner Namakkal Municipality
2012-01-23
VINOD K.SHARMA
body2012
DigiLaw.ai
Judgment :- 1. The petitioner has moved this Court with a prayer for issuance of a writ in the nature of certiorari, to quash the order dated 11.8.2010. 2. The petitioner is the owner of the building bearing Door No. 10, Co-operative Colony, Gandhi Nagar, Namakkal situate in T.S.No. 5, Block 23, Ward D of Namakkal Municipality. The second respondent is the owner of next plot of land on the east of the house of the petitioner where she has started raising construction. 3. The case of the petitioner is that she was not entitled to construct the building as the construction being raised is against the sanctioned plan. 4. It is the pleaded case of the petitioner that the second respondent is trying to put up a hospital, against which the petitioner issued legal notice through his counsel requiring the first respondent to give details of the sanctioned plan issued in her favour. 5. To the notice, reply was sent stating therein that the building permission has been issued to the second respondent to construct a dwelling house on 21.8.2007. 6. The case of the petitioner is that as per the approved plan, the second respondent was given permission to build ground + 2 floors each measuring about 4000 sq.ft. The said plan also revealed existence of set backs on all sides. That the second respondent commenced construction by raising pillars abutting the petitioners compound wall without leaving any set back space and the constructed area is more than 4000 sq.ft. That on enquiry it was revealed that a hospital is being constructed by the second respondent, in contravention of the approved plan, which will put the petitioner to irreparable loss and hardship. 7. The petitioner filed W.P.No. 36060 of 2007 with a prayer for issuance of a writ in the nature of mandamus to direct the first respondent to take necessary action to stop the illegal construction. By way of an interim order, injunction was granted in favour of the petitioner and against the second respondent. 8. Thereafter, the Municipality also issued notice on 29.10.2007 pointing out that the construction of the building was not in accordance with the sanctioned plan. An order has also been passed to remove the offending structures. 9. The second respondent filed an appeal against the order passed by the Municipal Committee under the statute. 10.
8. Thereafter, the Municipality also issued notice on 29.10.2007 pointing out that the construction of the building was not in accordance with the sanctioned plan. An order has also been passed to remove the offending structures. 9. The second respondent filed an appeal against the order passed by the Municipal Committee under the statute. 10. The admitted facts show that the proper procedure has been followed. The first respondent has also performed his statutory function in ordering demolition of the illegal construction, which is the subject matter of appeal. It is only after exhausting the statutory remedies, a party can come to this Court by filing the writ petition against the statutory orders, if aggrieved. 11. The writ petition is totally misconceived being outcome of civil dispute between the parties. It cannot be said that there is any failure on the part of the first respondent in performing his statutory function which could entitle the petitioner to maintain this writ. Once the matter regarding construction is pending before the statutory authority in appeal, it is not open to continue parallel proceeding by invoking the writ jurisdiction. 12. The learned counsel for the petitioner prays that a direction be issued to the third respondent to expedite the hearing of the appeal. This prayer is not the prayer in the writ petition. The petitioner is not entitled to any relief. 13. No merit. Dismissed. No costs.