Second appeal by construction defendants against a permanent and mandatory injunction granted to the Municipality. The High Court dismissed the appeal, upholding lower courts that found no deemed approval existed due to failure to resubmit plans after rejection.
Second appeal dismissed; decrees and judgments of both lower courts upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.(MD)No.409 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.06.2022
CORAM
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
S.A.(MD)No.409 of 2005
1.M.L.Syed Ahamed Salih
... Appellants/Defendants/Appellants
Vs.
The Tuticorin Municipal Council, Through its Commissioner, Tuticorin.
... Respondent/Plaintiff/Respondent
PRAYER : Second Appeal filed under Section 100 of the Code of Civil Procedure against the Decree and Judgment dated 01.04.2005 passed in A.S.No.94 of 2004, on the file of the Sub Court, Thoothukudi, upholding the Decree and Judgment, dated 10.11.2003 passed in O.S.No.218 of 2002, on the file of the Principal District Munsif Court, Thoothukudi.
For Appellants : Mr.S.Kadarkarai For Respondent : No appearance
J U D G M E N T
The defendants, who failed before both the Courts below have filed the present appeal. The respondent / Tuticorin Municipality through its Commissioner filed a suit in O.S.No.218 of 2002 before the Principal Distric t Munsif, Thoothukudi for a permanent injunction restraining the appellants, their men and agents from putting up any construction in the suit property without getting licence from them and also for a mandatory injunction directing the appellants to remove the unauthorized construction put up by them in the suit property.
2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places their ranks in this appeal would also be indicated, if necessary.
The defendants filed an application before the Tuticorin Municipal Corporation to grant permission to construct a building in T.S.No.2879/1part, Tuticorin Ward No.2, Block No.22. As per Town https://hcservices.ecourts.gov.in/hcservices/ Survey Register, the suit property has been classified as G.R.Natham
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and Municipal Water Works and Reservoir. Therefore, the defendant's application was returned by the plaintiff on 18.06.2002. However, the defendants started putting up construction in the suit property unauthorizedly without getting any planning permission from the plaintiff. Though notices were issued to the defendants under Sections 199, 216(i)(ii) and 317 of Tamil Nadu District Municipalities Act, 1920 to the defendants to stop putting up construction, they failed to do so. Hence the suit.
The defendants have purchased the suit property from one Khetrpal through three registered sale deeds on 05.03.2001. There were shops in the suit property which were demolished by the original owner. What was sold to the defendants was a vacant land. The property claimed by the Municipality lies on the south of the suit property and is in Survey No.2879/1A. The defendants got the plan approval from the Local Planning Authority on 29.05.2002. The second application filed by the defendants for approval of the plan was refused by the Commissioner of Municipality, Thoothukudi, for the reason that the defendants did not file necessary documents to prove their ownership. An application to build along with the plan was given to the Municipality and Local Planning Authority on 10.04.2002 and hence, Section 189 of the Tamil Nadu District Municipalities Act (hereafter called as 'the Act') is not applicable in the teeth of the legal provisions contained in the said Act. In fact under Section 202(2) of the Act, permission is deemed to have been granted.
(i) Whether the plaintiff is entitled to the relief of permanent injunction against the defendants restraining them from putting up an unauthorized construction in the suit property? (ii) Whether the plaintiff is entitled to the relief of mandatory injunction to remove the unauthorized construction?
(iii) To what relief the plaintiff is entitled?
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(i) the DW1, who was examined on the side of the defendants clearly admitted that the Municipality had returned the plan submitted by the defendants and thereafter, it was never resubmitted for getting planning permission.
(ii) It was also admitted by DW1 that even without obtaining planning permission, the defendants put up the construction in the suit property.
(iii) DW1 though acting as a power agent of the defendants, is not an ordinary person and is an Engineer, doing construction business and he must be knowing about the building plan approval.
(iv) Without re-submission of the plan, there cannot be any deemed approval, as contended by the defendants.
(v) As per Section 199 of the Tamil Nadu District Municipalities Act, no one shall start putting up construction or renovation of a building unless and until the concerned authorities grant permission for the execution of the work.
(vi) The defendants did not adduce any documentary evidence to show that they got the permission after paying necessary fee to the Municipal Corporation. Hence, the defendants are bound to remove the unauthorized construction put up by them in the suit property.
(a) Whether the Courts below are right in decreeing the suit when Section 111 of the Tami Nadu Town and Country Planning Act States that when permission for development in respect of any land or building has been obtained under this Act such development shall not be deemed to be unlawfully undertaken or carried out by reason only to the fact that permission, approval or sanction required under such other law for such development has not been obtained?
(b) Whether the Courts below are correct in decreeing the suit when the suit itself is not maintainable when the deeming provisions under Section 202(2) of the Municipalities Act came into effect?
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analyzed the oral and documentary evidence adduced on both sides in a proper perspective and had come to a conclusion that the defendants cannot put up construction without any planning permission. The observation made by the trial Court is extracted hereunder:
"8. The facts of the case in hand is very simple. The defendants have applied for building plan approval to the plaintiff. The plaintiff has returned the same for want of title. According to the plaintiff the defendants have not resubmitted the plan for approval. But the defendants denied the allegation that they have applied properly, but the Municipality has miserably failed to give the approval. Hence non approval beyond the prescribed period, the defendants took it as 'deemed to be approved' and proceeded further and completed the construction. To prove the case of the plaintiff the plaintiff has produced Exs.A1 to A3. These are the documents produced by the plaintiff filed by the defendants for approval i.e., Exs.A1 and A2 which were returned with queries i.e., Ex.A3. Ex.A3 was clearly admitted by the defendants. The defendants have also admitted Ex.A4. According to the plaintiff T.S.No.2879/1A stands as G.R.Nathan and Municipal Water Works and reservoir. To prove the same they have produced Ex.A5 and also produced Ex.A6 to prove that there is no sub division. But on the side of the defendants to prove the title they have produced Exs.B1 to B3. They have also produced sub division documents to prove that T.S.No.2879/1 was sub divided as 2879/1A and 2879/1B and 2879/1A belongs to the father of the defendants and 2879/1B belongs to the Municipality. The defendants have also produced documents from the plaintiff Municipality itself. The plaintiff has not disputed the sub division in this case. The plaintiff's case is very simple. The defendants miserably failed to resubmit the building plan after compliance of return dated 18.06.2002.
That is the specific case. D.W.1 has also clearly and categorically admitted as follows:
Kjy; kD 10/04/2002y; bfhLj;njd;/ efy; vd;dplk; ,y;iy/ me;j tiuglk; jahh; bra;jth; bgah; "hgfk; ,y;iy/ Kjy; kDit bjhiyj;J tpl;lJ Fwpj;J efuhl;rpf;F mwptpg;g [ bfhLf;ftpy;iy/ ,uz;lhtJ kD bfhLf;Fk ; nghJ Kjy; kDtpd; bjhlh;r ;rp vd;W Fwpg;gpl;Lr ;brhy;ytpy;iy vd;why; rhpjhd;/ 10/04/2002y; Jhj;Jf;Fo efuhl;rpapy; kD bfhLf;ftpy;iy vd;Wk ; bgha;ahf brhy;fpnwd; vd;Wk ; brhd;dhy; rhpay;y/ 29/05/2002y; mDkjp tH';ff ;nfhhp kDt[k ; tiuglKk; https://hcservices.ecourts.gov.in/hcservices/
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nrh;j ;J jhf;fy ; bra;njd; vd;why; rhpjhd;/ mjpy; moj;jsk; Kjy; Kjy; jsKk; fl;Ltjw;F mDkjp nfhhpapUe;njd;/ moj;jsj;jpy; h P o' ;Fk ;. Kjy; jsj;jpy; bghGJ nghf;F fpsg; fl;Ltjw;F mDkjp nfhhp kD jhf;fy ; bra;njd;/ vdJ kDt[k ; tiuglKk; Jhj;Jf ;Fo efuhl;rpahy; jpUg;gg ;gl ;lbjd;why; rhpjhd;/ FiwghLfis Rl;of ;fhl;o mjid epgh;j ;jp bra;J Mtz';fSld; jhf;fy ; bra;a Fwpg;gpl;Ls ;s bjd;why; FiwghLfis Fwpg;gpl;L brhy;yhjjhy; v';fshy; k P z ;Lk ; jhf;fy ; bra;a Koatpy;iy/ vd;bdd;d FiwghLfSf;fhf jpUg;gg ;gl ;lbjd;W efuhl;rpaplk; nfl;ftpy;iy/ FiwghLfs; Fwpj;J efuhl;rpapy; nfl;l nghJ cl;gphpt[ bra;ag ;gl ;l Mtzk; efuhl;rpf;F tutpy;iy vd;W brhd;dhh;fs ;/ cl;gphpt[ Mtzj;Jld; jpUg;gg ;gl ;l kDit k P z ;Lk ; ehd; jhf;fy ; bra;atpy;iy/
Dw1 has clearly admitted that the Municipality has returned the plan to show the sub division and further he admitted that the defendants have not resubmitted building plan along with sub division records. DW1 further deposed as follows:
Jhj;Jf;Fo efuhl;rpapy; fl;olj;jpw;F kl;Lk ; mDkjp bgwntz;Lk ;/ Jhj;Jf ;Fo efuhl;rpapy; fl;olk; fl;l ntz;Lbkd;why; Jhj;Jf ;Fo efuhl;rpapYk; cs;S :h ; jpl;l FGkj;jpYk; mDkjp th';fntz;Lk ; vd;why; rhpjhd;/ vjhtJ xd;wpy; mDkjp th';ftpy;iy vd;why; mJ mDkjp bgwhj fl;olk; vd;why; rhpjhd;/
The above said admission is a substantial evidence. The defendants' side witness himself admitted that it is the construction made by the defendants which is in existence is certainly unauthorised construction. The defendants themselves know that without getting approval from the Municipality the defendants cannot construct building. If it is constructed it should be treated as only un- authorised construction. The version of D. W.1 is supported by Ex.B.13. Ex.B.13 is the Local planning Authority approval order along with plan. In that order it has been stated as follows:
ghh;itapy; fz;Ls ;s foj';fspy; go bgwg;gl ;l Mtz';fs ; ghpr P ypf ;fg ;g ;lL kid cl;gphpt[ ,lj;jpw;F vd vy;ifapl;L kid cl;gphpt[fFk; t/-c/br/(Jh)vz;38-02 vd vz;zp kid cl;gphpt[f ;F xg;g [jy ; mspf;fg ;gLfpwJ/ kid cl;gphpt[ ,lj;jpw;F mjpy; fl;l cj;njrpf;fg ;gl ;Ls ;s fl;olj;jpw;Fk ; 1971k; Mz;L efh;
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Cuikg;g [r ;rl ;lk ; gphpt[ 49y; f P H ;f ;fz ;l epge;jidfSf;Fl ;gl ;L ep/m/f/t/-Jh/c/jp/F/vz;/230- 02 vd;W vd;dplg;gl ;L jpl;l mDkjp tH';fg ;gLfpwJ/
cj;njr cgnahfk; : gog;gfk; bghGJ nghf;F miw epge;jid :
1/ jpl;l mDkjp tH';fg ;gl ;l ehspypUe;J K:d ;W tUl';fs ; tiu eilKiwapy; ,Uf;Fk ; mDkjp fhyk; 22/05/2005 tiu/
2/ kDjhuh; efuhl;rpapy; fl;ol mDkjp bgw;Wf ;bfhs;sntz;Lk;/ 3/ kiH e P iu epyk; cwp";rj ;jf ;f tifapy; tHptif bra;ag ;gl ntz;Lk ;/
The Condition No.2 is a mandatory for the implementation of the site plan approval. Hence the entire evidence of DW1 has supported the case of the plaintiff. DW1 is acting as power agent of the defendants who is not an ordinary man but an engineer and is doing construction business. Such kind of person cannot say that the building plan approval is treated as 'deemed approval'. The defendants' counsel has not only vehemently argued but also attacked the Municipality who is the plaintiff herein without any basis. According to DW1 himself no building plan was resubmitted along with the subdivision documents. Without re-submission of plan there will be no question of 'deemed approval' arise. 'Deemed approval' will arise only when the required plan and documents submitted by the defendants for approval and the Municipality failed to consider the same.
But in this case there is no such possibilities or probabilities to invoke section 202 (2) i.e., deemed approval. Hence the argument of the learned counsel for the defendants has no merit and liable to be rejected.
9. The Plaintiff Municipality has correctly stated that if such a kind of unauthorised construction in the main area is allowed to be constructed, certainly it will induce other people also to make unauthorised construction. If the Municipality as per the arguments of the defendants' side the Municipality ought to have been taken penal action against the unauthorised construction through criminal courts reconstructed and the owners of the buildings which have been constructed unauthorisedly have to be sentenced for payment of fine and then the owner of the building applied for the revised plan and then it has to approved. If such a kind https://hcservices.ecourts.gov.in/hcservices/ of unauthorised construction is encouraged by the
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Municipality there is no need or necessity for the building plan approval and Local Town planning Authority and Local planning Authority and any body can construct as per their own plan without getting any plan approval. Such a kind of arguments will defeat the very root of the planning system. In the case the defendants have done their construction work fully knowing that they are constructing unauthorisedly and even during the pendency of the suit they have constructed. It seems that they have no regards to the law of Municipality. Hence under the circumstances there is no hesitation to this court to grant the relief of permanent injunction and the mandatory injunction. The issues are answered in favour of the plaintiff."
(i) The second appeal is dismissed. No costs.
(ii) The Decree and Judgment dated 01.04.2005 passed in A.S.No.94 of 2004 by the learned Subordinate Judge, Thoothukudi and the Decree and Judgment, dated 10.11.2003 passed in O.S.No.218 of 2002 by the learned Principal District Munsif, Thoothukudi are upheld.
Assistant Registrar(CS-III)
// True Copy //
/06/2022 Sub Assistant Registrar(CS)
vji
To
Tuticorin Municipal Council, Tuticorin.
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S.A.(MD)No.409 of 2005
Copy to The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai(2 copies).
+1 CC to M/s.S.KARDARKARAI, Advocate ( SR-24965[F] dated 10/06/2022 )
S.A.(MD)No.409 of 2005 09.06.2022
srk(CO) TR(27.06.2022) 8P 7C
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3 issues framed by the court
Whether courts below were right in decreeing the suit when section 111 of the Town and Country Planning Act states planning permission non-obtention does not make development unlawful?
Whether the suit is maintainable in light of the deeming provisions under section 202(2) of the Municipalities Act?
Whether unauthorized construction without planning permission justifies a permanent and mandatory injunction?
4 provisions across 3 enactments
M.L.Syed Ahamed Salih
The Tuticorin Municipal Council
R. Hemalatha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
