Mr. John Aires Fernands,Aged 42 Years, Married, Indianational, Resident Of Houseno.e-236, Corte De Oiteiro,Behind Old Income Tax Office v. State Of Goa, Through Itschief Secretary, Having Office Atsecretariat, Alto Porvorim,Bardez-Goa.chief Secretary, Having Office Atsecretariat, Alto Porvorim,Bard

IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS.326 OF 2016 1MR. RAUL AIRES FERNANDES,Afed 83 years, married, IndianNational, Resident of HouseNo.E-236, Corte De Oiteiro,Behind Old Income Tax Office,Panaji-Goa.403001.Afed 83 years, married, IndianNational, Resident of HouseNo.E-236, Corte De Oiteiro,Behind Old Income Tax Office,Panaji-Goa.403001. 2MR. JOHN AIRES FERNANDS,Aged 42 years, married, IndiaNational, Resident of HouseNo.E-236, Corte De Oiteiro,Behind Old Income Tax Office,...Petitioners.Panaji-Goa.403001.Aged 42 years, married, IndiaNational, Resident of HouseNo.E-236, Corte De Oiteiro,Behind Old Income Tax Office,...Petitioners.Panaji-Goa.403001. Versus 1STATE OF GOA, through itsChief Secretary, having office atSecretariat, Alto Porvorim,Bardez-Goa.Chief Secretary, having office atSecretariat, Alto Porvorim,Bardez-Goa. 2THE CORPORATION OF THECITY OF PANAJI, thrugh itsCommissioner, having office atPanaji- Goa.CITY OF PANAJI, thrugh itsCommissioner, having office atPanaji- Goa.3NORTH GOA PLANNING ANDDEVELOPMENT AUTHORITY,Through its Member Secretary,having office at Mala link Road,Panaji-Goa.DEVELOPMENT AUTHORITY,Through its Member Secretary,having office at Mala link Road,Panaji-Goa. 4OFFICE OF THE CHIEF TOWNPLANNERANDMEMBERSECRETRARYOFCONSERVATION COMMITTEE,Through its Chief Town Planner& Member Secretary, havingoffice at Dempo Tower, Panaji-Goa.PLANNERANDMEMBERSECRETRARYOFCONSERVATION COMMITTEE,Through its Chief Town Planner& Member Secretary, havingoffice at Dempo Tower, Panaji-Goa. 5MR. BARNABE SAPECO, ofmajor age, Indian National,major age, Indian National, resident of House No.4/207(earlier E-230), Corte DeOiteiro, Opp. Tarkar HondaShowroom, Behind Old IncomeTax Office, Panaji-Goa.403001. 6MR. KETAK S. P. NACHINOLKARArchitect209, Govinda Building,M.G. Road,Panji, Goa 403 001.…..Respondents Shri Rohit Bras De Sa, Advocate for the petitioners. Shri S.D. Lotlikar, Advocate General with Shri P. Dangui,Additional Government Advocate for the respondent nos. 1,3and 4. Shri A. R. Kantak, Advocate for the respondent no.5. Coram:- F. M. REIS & NUTAN D. SARDESSAI, JJ. Reserved on: 20[th] September, 2016 Pronounced on: 27[th] October,2016. JUDGMENT: ( PER NUTAN D. SARDESSAI,J) Heard Shri Rohit Bras De Sa, learned Advocateappearing for the petitioners, Shri S.D. Lotlikar, learnedAdvocate General appearing for the respondent no.1, Shri P.Dangui, learned Additional Government Advocate appearing forthe respondent nos.2, 3 and 4 and Shri A. R. Kantak, learnedAdvocate appearing for the respondent no.5. 2. Rule. Heard forthwith with the consent of thelearned Counsel for the parties. Learned Counsel appearing forthe respondents waive service. 3.Shri Rohit Bras De Sa, learned Advocate for thepetitioners contended that the respondent no.6 was the memberof the Conservation Committee who had sat in decision asapparent from the minutes and without disclosing the fact thathe had drawn the plan on behalf of the respondent no.5. Thepermission thus granted had to be revoked as it was affected bybias on the part of the respondent no.6 and since the doctrine offairness was equally applicable in administrative action. He reliedin Mineral Development Ltd. V/s. State of Bihar andAnother and P.D. Dinakaran(1) v/s.Judges Inquiry Committee and others [(2011) 8 SCC 380] to buttress his case on the plea of bias. The respondent no.6had pecuniary interest in the matter having drawn the plan onbehalf of the respondent no.5 for a fee apart from taking part inthe site inspection and therefore by virtue of the Goa LandDevelopment and Building Construction Regulations, 2010 hewas disqualified in the proceedings. Therefore inviting attentionto the necessary Rules under the Building Regulations, it was hiscontention that it was not open to the respondents to canvas to buttress his case on the plea of bias. The respondent no.6had pecuniary interest in the matter having drawn the plan onbehalf of the respondent no.5 for a fee apart from taking part inthe site inspection and therefore by virtue of the Goa LandDevelopment and Building Construction Regulations, 2010 hewas disqualified in the proceedings. Therefore inviting attentionto the necessary Rules under the Building Regulations, it was hiscontention that it was not open to the respondents to canvas that the function of the Conservation Committee was purelyrecommendatory. In that context he further relied in GullapalliNageswara Rao and others v/s Andhra Pradesh State RoadTransport Corporation and another . 4.Shri Rohit Bras De Sa, learned Advocate appearingfor the petitioners also assailed the decision on the premise thatthere were apparent illegalities in the plan and submitted thatthere was no similarity in the plan drawn by the respondent no.6as the Architect of the respondent no.5 and the Survey plan. Healso adverted to Form- B and submitted that the area of theSurvey holding Chalta No.178 and 179 of P.T. Sheet No.45 wasadmeasuring only 80 sq.mtrs. unlike the approved plan showingthe total area of 95.53 sq.mtrs. The Building Regulations wereapplicable to the conservation area and in that context heinvited attention to the Regulation 3.2C1. It was also hiscontention that the existing F.A.R. was 194. The BuildingRegulations in respect of repairs provided the modalities ofapplying for the same and the respondent no.5 had to apply forthe repairs. He had cast a second floor slab as apparent fromthe photographs. He referred to the relevant provisions of theTown and Country Planning Act,1974 apart from the BuildingRegulation Act and submitted that the action of the respondents was open to judicial review. He finally closed his argumentsrelying in Salahudeen Babu v/s. P.T. Prabhakar and others[AIR 2005 Mad 243], Mahendra Baburao Mahadik andothers v/s. Subhash Krishna Kanitkar and others [(2005)4 SCC 99] and Corporation of Calcutta v/s. MulchandAgarwala 5.Shri S.D. Lotlikar, learned Advocate Generalappearing for the respondent no.1 submitted at the outset thatthe aspect of bias was not all attracted inasmuch as thepresence of the respondent no.6 did not vitiate the proceedingswhich was headed by the then Chief Minister. He too advertedto the Building Regulations and submitted that the presence ofthe respondent no.6 on the Conservation Committee was notfatal and adverted to the relevant Rules to contend that therewas no construction done by the respondent no.5 and what wasdone was repairs within the existing plinth. 6.Shri A.R. Kantak, learned Advocate appearing forthe respondent no.5 submitted at the outset that the surveyplan was provisional and had not been finalised and on his partreferred to the relevant Building Regulations in the matter ofaddition or alteration and repairs. The respondent no.5 had applied for additions and alterations retaining the existing wallsand no new construction was undertaken by him. He advertedto the Inspection Report drawn by the Court Commissioner andinvited attention to the Agenda of the Conservation Committeeto show that no allegation of bias could be made against therespondent no.6. He also referred to the Minutes which showedthe presence of several members including the then ChiefMinister and contended that it was preposterous that therespondent no.6 could influence the members in taking thedecision in favour of the respondent no.5. There was no basis inthe allegation of bias and the petition as such was liable fordismissal. applied for additions and alterations retaining the existing wallsand no new construction was undertaken by him. He advertedto the Inspection Report drawn by the Court Commissioner andinvited attention to the Agenda of the Conservation Committeeto show that no allegation of bias could be made against therespondent no.6. He also referred to the Minutes which showedthe presence of several members including the then ChiefMinister and contended that it was preposterous that therespondent no.6 could influence the members in taking thedecision in favour of the respondent no.5. There was no basis inthe allegation of bias and the petition as such was liable fordismissal. 7.Shri Dangui, learned Additional GovernmentAdvocate appearing for the respondent nos.2, 3 and 4 submittedthat the North Goa Planning and Development Authority hadreferred to the application of the respondent no.5 which was foraddition and alteration to the Conservation Committee.Although he conceded that there was a discrepancy in the areaof the suit structure nonetheless referring to the very sameBuilding Regulation he submitted that the respondent no.5 wasentitled to the maximum height of 7.5 mtrs in terms of theRegulations. 8.Shri Rohit Bras De Sa, learned Advocate appearingfor the petitioner in reply reiterated that the plea of biassquarely applied to the case and finally invited attention to theRegulation 6-B and pressed for a relief in his favour. 9.In Mineral Development Limited (supra), theHon'ble Apex Court was seized with the petition under Article 32of the Constitution of India at the instance of the petitionersagainst the respondent no.1 and another for the writ of certiorarito quash the order of the Government of Bihar, cancelling thepetitioner's license and for the issue of a writ of mandamusdirecting them to forbear from giving effect to the order ofcancellation. While dealing with the petition, the Hon'ble ApexCourt considered the decision in Gullapalli Nageswara Rao(supra), where it was observed that "The principles governing the "doctrine of bias" vis-a-visjudicial tribunals are well-settled and they are: (i) no manshall be a judge in his own cause; (ii) justice should notonly be done but manifestly and undoubtedly seem to bedone. The two maxims yield the result that if a member of ajudicial body is "subject to a bias (whether financial orother) in favour of, or against, any party to a dispute, or isin such a position that a bias must be assumed to exist, he ought not take part in the decision or sit on the tribunal";and that, any direct pecuniary interest, however small, inthe subject-matter of inquiry will disqualify a judge, and anyinterest, though not pecuniary, will have the same effect, ifit is sufficiently substantial to create a reasonable suspicionof bias". The said principles are equally applicable toauthorities, though they are not courts of justice or judicialtribunals, who have to act judicially in deciding the rights ofothers, i.e., authorities who are empowered to dischargequasi judicial functions." In the facts of that case, Their Lordships found that theallegations of personal bias of the Revenue Minister against theproprietor was not denied and that the proceedings against thepetitioner was started during the tenure of the Revenue Ministerand that the actual order of cancellation was made by him. Inthose circumstances, it was held that the Revenue Minister hadpersonal bias within the meaning of the decisions and he shouldnot have taken part in either initiating the enquiry or incancelling the license. 10.In P. D. Dinakaran(1) (supra), the petitionerJudge had raised the objection to the participation of therespondent no.3 in the inquiry against him on the premise that In the facts of that case, Their Lordships found that theallegations of personal bias of the Revenue Minister against theproprietor was not denied and that the proceedings against thepetitioner was started during the tenure of the Revenue Ministerand that the actual order of cancellation was made by him. Inthose circumstances, it was held that the Revenue Minister hadpersonal bias within the meaning of the decisions and he shouldnot have taken part in either initiating the enquiry or incancelling the license. 10.In P. D. Dinakaran(1) (supra), the petitionerJudge had raised the objection to the participation of therespondent no.3 in the inquiry against him on the premise that he had participated in a seminar organised by the BarAssociation of India where he made a speech opposing hiselevation and also drafted a resolution to that effect which couldlead to an inference that he was biased against the petitionerand he ought not to have been appointed as a member of theCommittee in terms of Section 3(2)(c) of the Judges InquiryAct,1968. While considering that aspect, Their Lordshipsreferred to the nature and scope of the rule against bias andhow the same has been applied by the Courts of common-lawjurisdiction in India for invalidating judicial and administrativeactions/orders and observed that “Natural justice is a branch of public law. It is a formidableweapon which can be wielded to secure justice to citizens.Rules of natural justice are “basic values” which a man hascherished throughout the ages. Principles of natural justicecontrol all actions of public authorities by applying rulesrelating to reasonableness, good faith and justice, equityand good conscience. Natural justice is a part of law whichrelates to administration of justice. Rules of natural justiceare indeed great assurances of justice and fairness. Theunderlying object of rules of natural justice is to ensurefundamental liberties and rights of subjects. They thusserve public interest. The golden rule which stands firmly established is that the doctrine of natural justice is not onlyto secure justice but to prevent miscarriage of justice.” 11.In P. D. Dinakaran(1) (supra), a reference was also made to the observations in Union of India v/s. P. K. Roy where the Apex Court had observed thus : "The extent and application of the doctrine of natural justicecannot be imprisoned within the strait-jacket of a rigidformula. The application of the doctrine depends upon thenature of the jurisdiction conferred on the administrativeauthority, upon the character of the rights of the personsaffected, the scheme and policy of the statute and otherrelevant circumstances disclosed in the particular case." Reference was also made to the judgment in “A.K. Kraipak V/s. Union of India”[(2003) 7 SCC 418] where the Apex Court had observed thus : Court had observed thus : “an important milestone in the field of administrative law.The question which came up for consideration by theConstitution Bench was whether Naqishbund who was acandidate seeking selection for appointment to the All IndiaForest Service was disqualified from being a member of theselection board. One of the issues considered by the Courtwas whether the rules of natural justice were applicable topurely administrative action. After noticing some precedentson the subject, the Court held: Reference was also made to the judgment in “A.K. Kraipak V/s. Union of India”[(2003) 7 SCC 418] where the Apex Court had observed thus : Court had observed thus : “an important milestone in the field of administrative law.The question which came up for consideration by theConstitution Bench was whether Naqishbund who was acandidate seeking selection for appointment to the All IndiaForest Service was disqualified from being a member of theselection board. One of the issues considered by the Courtwas whether the rules of natural justice were applicable topurely administrative action. After noticing some precedentson the subject, the Court held: "The dividing line between an administrative power and aquasi-judicial power is quite thin and is being graduallyobliterated. For determining whether a power is anadministrative power or a quasi-judicial power one has tolook to the nature of the power conferred, the person orpersons on whom it is conferred, the framework of the lawconferring that power, the consequences ensuing from theexercise of that power and the manner in which that poweris expected to be exercised. Under our Constitution the ruleof law pervades over the entire field of administration.Every organ of the State under our Constitution is regulatedand controlled by the rule of law. In a welfare State likeours it is inevitable that the jurisdiction of theadministrative bodies is increasing at a rapid rate. Theconcept of rule of law would lose its vitality if theinstrumentalities of the State are not charged with the dutyof discharging their functions in a fair and just manner. Therequirement of acting judicially in essence is nothing but arequirement to act justly and fairly and not arbitrarily orcapriciously. The procedures which are considered inherentin the exercise of a judicial power are merely those whichfacilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has beenundergoing a radical change. What was considered as anadministrative power some years back is now beingconsidered as a quasi- judicial power." 12.In P.D. Dinakaran(1) (supra), Their Lordshipsobserved that a pecuniary (bias) interest, however small it maybe, disqualifies a person from acting as a Judge. Other types ofbias, however, do not stand on the same footing and the Courtshave, from time to time, evolved different rules for decidingwhether personal or official bias or bias as to the subject matteror judicial obstinacy would vitiate the ultimate action/ order/decision. Their Lordships culled out the principle which emergesfrom various Judgments that no man could be a judge in his owncause and justice should not only be done, but manifestly andundoubtedly be seen to be done. Scales should not only be heldeven but they must not be seen to be inclined. A person havinginterest in the subject matter of cause is precluded from actingas a Judge. To disqualify a person from adjudicating on theground of interest in the subject matter of lis, the test of reallikelihood of the bias is to be applied. In other words, one has toenquire as to whether there is real danger of bias on the part ofthe person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case,the Court has to consider whether a fair minded and informedperson, having considered all the facts would reasonablyapprehend that the Judge would not act impartially. To put itdifferently, the test would be whether a reasonably intelligentman fully apprised of all the facts would have a seriousapprehension of bias. In cases of non-pecuniary bias, the “reallikelihood” test has been preferred over the “reasonablesuspicion” test and the Courts have consistently held that indeciding the question of bias one has to take into considerationhuman probabilities and ordinary course of human conduct. Wemay add that real likelihood of bias should appear not only fromthe materials ascertained by the complaining party, but alsofrom such other facts which it could have readily ascertained andeasily verified by making reasonable inquiries. In the factstherefore it was found from a consideration of all the materialthat the petitioners apprehension of likelihood of bias against therespondent no.3 was reasonable and not fanciful, though, infact, he may not be biased. 13.The petitioner had carved a case that the permissiongranted by the N.G.P.D.A. was vitiated and illegal as therespondent no.6 whose services were engaged by the respondent no.5 and who was the author of the plan hadparticipated in the decision making process of the ConservationCommittee held on 26/08/2013 and the plans were prepared byhim and approved also by him sitting as a ConservationCommittee member of the Town and Country PlanningDepartment. It was also the petitioner's case that therespondent no.6 had direct interest and was aware that thepermission for approval was for his client i.e. the respondentno.5 and therefore he ought not to have participated in themeeting and abstained from the meeting during the discussionand the plan approved by him. A cursory perusal of theMinutes of the Conservation Committee Meeting reveals that itwas chaired by the then Chief Minister with the other membersand including the respondent no.6 as one of the members. Nodoubt the proposed addition/alteration to the existing structurein the property bearing Chalta no.178 and 179 of P.T. Sheetno.45 belonging to the respondent no.5 was approved but bythe Committee comprising of 10 members including therespondent no.6. There is no escape from the fact that therespondent no.6 was a party to the proceedings which approvedthe plan of the respondent no.5. To what extent he hadexercised his power to approve the plan as a member of theConservation Committee and the role played by him in that 14.The Goa Regulation of Land Development andBuilding Construction Act, 2008 and the Regulations of 2010framed thereunder provides for special zones in terms ofSection 6B while conservation is contained in 6B.1. Itcontemplates in terms of Section 6B.1.1 that all cases dealingwith any development/redevelopment/repairs/demolition fallingwithin Conservation Zone, designated as such, in any plan inforce, shall be referred to the Conservation Committee by theconcerned Planning and Development Authorities/Town andCountry Planning Department and the decision of theConservation Committee shall be binding on the Planning andDevelopment Authorities/Town and Country PlanningDepartment.A reference was made to the letter of the Townand Country Planning Department addressed to several personsincluding the respondent no.6 requiring the necessity to placethe report of the site inspection before the ConservationCommittee. A reference to this letter was basically to canvas asubmission that it was not open to the respondents to allegethat the function of the Conservation Committee was merelyrecommendatory. 15.The Building Regulations in terms of the conduct ofthe Conservation Committee visualizes the disqualification of themembers in terms of clause N and sub-clause (v) takes withinits sweep any member who is directly or indirectly concerned orinterested in proposal before the Committee, or is professionallyinterested on behalf of a principal or other person in any mannerconcerning the Committee, or is engaged at the time in anyproceedings against the Committee, shall at the earliest possibleopportunity, disclose the nature of his interest to the Committeeand which is required to be recorded in the minutes of theCommittee. Clause 5 of the conduct of the ConservationCommittee also provides for the composition of the Committeeand therefore there appears force in the contention of Shri DeSa, learned Counsel for the petitioner that the powers of theConservation Committee are not purely recommendatory andsince there is an inbuilt mechanism to disqualify a member whohas any interest direct or indirect in any proposal before theCommittee. 16.The respondent no.6 had no doubt drawn the plan of the proposed repairs on behalf of the respondent no.5 but it isnowhere shown either from the Minutes of the ConservationCommittee or otherwise that he was in particular biased in the conduct of the proceedings in favour of the respondent no.5 oragainst the interest of the petitioner. Therefore although therecan be no dispute with the law laid down in the matter of bias asspelt out in Mineral Development and P.D. Dinakaran (1)(supra), it is not borne out from the material at large that thepresence of the respondent no.6 on the Conservation Committeewas riddled with prejudice or bias and/or that the presence ofthe respondent no.6 on the Conservation Committee wassufficiently substantial to create a reasonable suspicion of bias.In any event, the proceedings of the Committee shall not beinvalid by reason of any defect in the constitution of theCommittee in terms of sub clauses (p) of Clause (5) of theRegulation for Conservation contained in Annexure IX. 17. Shri Rohit Bras De Sa, learned Advocate referred to the Building Regulation at 3.2D necessitating the applicantcarrying out the intended development to produce thedocuments in original while seeking the approval. It isapparent that the respondent no.5 had only submitted a copyand not furnished the original documents at the time ofproposing his application for addition / alteration which aredefined under Section 2(12) and 2(13) of the BuildingRegulation Act, 2008. Form B shows the area of the property of the respondent no.5 as 80 sq.mts. in respect of the ChaltaNo. 178 and 179 of P.T. Sheet 45 unlike the plan drawn by therespondent no.6 showing the total area of the plot as 95.53sq.mts. However there is due explanation for this discrepancyof the area inasmuch as even the Commissioner appointed bythe Court on inspection had certified the area as approximately92 sq.mts. The other contention of Shri Rohit Bras De Sa,learned Advocate that what was permissible in the conservationarea was only ground plus one structure unlike the ground plustwo storeys constructed by the respondent no.5 again does notstand the test of scrutiny. 18.A cursory perusal of the table relating to theRegulations applicable to the conservation area shows that inrespect of plots below 300 sq.mts., the maximum permissiblecoverage is 70%, the maximum permissible F.A.R. is 200% andthe maximum height is 12 mtrs. (ground plus 3) with anapproval for an additional floor in special cases in steppedformulation not exceeding the total height of 15 mts. There isa foot note to this table inasmuch as in the cases of existing100% coverage, it provides for an additional F.A.R. totalling tomaximum 200 mts. which could be considered and granted bythe Conservation Committee on a case to case basis in Commercial Conservation Zone in Panaji. 18.A cursory perusal of the table relating to theRegulations applicable to the conservation area shows that inrespect of plots below 300 sq.mts., the maximum permissiblecoverage is 70%, the maximum permissible F.A.R. is 200% andthe maximum height is 12 mtrs. (ground plus 3) with anapproval for an additional floor in special cases in steppedformulation not exceeding the total height of 15 mts. There isa foot note to this table inasmuch as in the cases of existing100% coverage, it provides for an additional F.A.R. totalling tomaximum 200 mts. which could be considered and granted bythe Conservation Committee on a case to case basis in Commercial Conservation Zone in Panaji. 19.Section 2 (5) of the Goa, Daman and Diu Town andCountry Planning Act, 1974 and the Rules,1976 framedthereunder defines “building operations” which includes (a)erection or re-erection of a building or any part of it; (b) roofingor re-roofing of a building or any part of a building or an openspace; (c) any material alteration or enlargement of a building;(d) any such alteration of a building as is likely to affect analteration of its drainage or sanitary arrangements or materiallyaffecting its security; and (e) the construction of a dooropening on any street or land not belonging to the owner of abuilding. Section 5(20) of The City of Panaji Corporation Act,2002 defines the expression “erect or re-erect any building” withits grammatical variations and cognate expressions to include:(a) any material alteration or enlargement of any building; (b)the conversion by structural alteration into a place for humanhabitation of any building not originally constructed for humanhabitation; (c) the conversion by structural alteration of one ormore places of human habitation into a greater number of suchplaces; (d) the conversion by structural alteration of two ormore places of human habitation into a lesser number of suchplaces;(e) such alteration of the internal arrangement of a building as effects a change in its drainage or sanitaryarrangements or affects its stability; (f) the addition of anyrooms, buildings, out-houses or other structure to a building;(g) the reconstruction of the whole or any part of the externalwalls of a building or the renewal of the posts of woodenbuildings; and (h) any change over ground or in land. 20.Section 22.3. of the Building Construction Act, 2008provides for the relaxation in case of existing Coverage 60% andabove. A proper reading and construction of these provisionswould show that the respondent no.5 was entitled to carry outthe repairs / alterations within the existing area in terms of theBuilding Regulations and that it was well within the power of theConservation Committee to grant additional FAR totalling amaximum of 200 sq.ft. in commercial conservation zone inPanaji. 21.In Salahudeen Babu (supra), the High Court ofMadras lamented on the Building Rules and Regulations beingflouted by the persons on account of their high post andpossession of money. Time had come that a clear messagemust be given that the building rules did not exist merely onpaper but would be strictly enforced to forthwith demolish any 21.In Salahudeen Babu (supra), the High Court ofMadras lamented on the Building Rules and Regulations beingflouted by the persons on account of their high post andpossession of money. Time had come that a clear messagemust be given that the building rules did not exist merely onpaper but would be strictly enforced to forthwith demolish any construction made in violation of the rules. The respondentshad filed a Writ Petition for a mandamus directing the MemberSecretary, CMDA, Chennai and the Commissioner, Corporation ofChennai to proceed against the appellant and take immediateaction by way of demolition of the construction pursuant to thenotice dated 04.11.2004 issued by the Member Secretary,CMDA, Chennai under Sections 56 and 57 of the Tamil NaduTown and Country Planning Act, 1971 and also pursuant to thenotice issued by the Commissioner, Corporation of Chennaiunder Section 256 of the Chennai City Municipal CorporationAct. The respondents as the owners of the premises bearing olddoor No.14 had purchased the land under a Sale Deed and afterpurchase had constructed a bungalow on the land after gettingpermission from the Corporation of Chennai as per the buildingpermission and planning permission and constructed the groundfloor and first floor as per the sanctioned plan and usedpersonally by them. 22.In Salahudeen Babu (supra), the appellant as theowner of the plot of land on the north of their premises closedall sides with tin sheets giving a small opening for carryingconstruction materials. The respondent found out that thecolumns and pillars erected by the third respondent were very close to the their premises, made enquiries and found that theCommissioner, Corporation of Chennai had granted permissionto the appellant for the construction of the ground floor andfirst floor only wherein he was required to provide on front andrear a setback of 3 mts. He had shown the necessary setbackas per the rules and regulations in the plan but during theprocess of actual construction, it was found that he had violatedthe sanctioned plan and had not provided a setback not only onthe rear and front side but also on all the four sides as per theplanning permission and left only about 3'6" instead of 3 mts assetback. It was alleged that the entire construction of thebuilding was in contravention of the planning permission grantedby the Commissioner and by reason of this illegal construction,the respondents were put to great hardship. The construction ofthe building of the third respondent came very close to thepetitioners' building leaving only 3'6" instead of 3 metres assetback which was about 11 feet. As soon as the writ petitionerscame to know about this illegal construction by the thirdrespondent they contacted the third respondent and the builderpointing out that necessary setback had not been given, whichwas mandatory and requested them to remove the unauthorisedconstruction. However, this had not been done. 23.In Salahudeen Babu (supra), it was further allegedthat not only ground floor and first floor had been built but alsothe basement and second floor had been erected by the thirdrespondent. The Commissioner informed the petitioners that theCorporation of Chennai had issued a stop work notice to thethird respondent twice, but inspite of this he had beencontinuing the construction vigorously. The Writ Petitioners metthe Commissioner, Corporation of Chennai Mr. M. P. Vijayakumar,I.A.S. on 9.9.2004 and handed over a representation pointingout the unauthorised construction being made by the thirdrespondent in contravention of the planning permission by notleaving three metres setback on the front and rear side. TheCommissioner said that he would instruct his subordinates totake necessary action in this connection. As the third respondentwas proceeding with the construction, the petitioners filed a suitin O. S. No.4636 of 2004 in the City Civil Court, Chennai seekingpermanent injunction. 24.In Salahudeen Babu (supra), the learned Judgeordered status quo during the pendency of the injunctionapplication and the third respondent stopped the construction byreason of that order. The Commissioner filed counter affidavit tothe injunction application in the suit stating that the third respondent while putting up the construction had deviated fromthe sanctioned plan specified in the plan and a notice undersection 236 of the City Municipal Corporation Act was served onthe third respondent on 12.7.2004 directing him to stop theillegal construction, but he did not comply with the notice andflouted the same. As no action was taken, the petitioners madea representation to the Member Secretary, CMDA requesting himto take further action. Pursuant to that stop work notice dated12.07.2004 was issued by the Corporation of Chennai. Thepetitioners received a communication from the MemberSecretary, CMDA that notice under Sections 56 and 57 of theTamil Nadu Town and Country Planning Act, 1971 had alreadybeen sent to the 3rd respondent on 04.11.2004. Even after thesaid notice no action was taken. Hence, the petitionersapproached this Court for a direction to demolish the offendingconstruction pursuant to the notice dated 04.11.2004. 25.In Salahudeen Babu (supra), pending the WritPetition, the petitioners also prayed for an interim injunctionrestraining the 3rd respondent from proceeding with the illegalconstruction in the premises in question. By an order dated03.12.2004 the learned Single Judge had granted an injunction.Challenging the said order of injunction the 3rd respondent had preferred the above appeal. It was further alleged by thepetitioners that there was nothing to show in the sanctionedplan for construction of the basement floor or the second floor,but the third respondent had made construction of thebasement and second floor apart from not leaving the necessarysetback precipitating a request to appellant to remove theunauthorized construction. The respondents being aggrieved bythe action of the appellant had filed a suit before the City CivilCourt, Chennai seeking permanent injunction who orderedstatus quo and the construction was stopped. The appellanthowever did not comply with the notice and flouted the sameleading to a representation to the Member Secretary, CMDArequesting him to take further action and ultimately therespondent approached the High Court for a direction todemolish the offending construction and prayed for an interiminjunction to restrain the appellant from carrying on with theillegal construction. The learned Single Judge granted aninjunction giving rise to the appeal at the instance of theappellant when the above observations were made. TheDivision Bench of the Madras High Court thus upheld theinterim order of the learned Single Judge and further directedthe appellant to forthwith remove any construction made inviolation or deviation of the planning permission and directing the Corporation of Chennai to forthwith demolish theconstruction with the aid of police in case he failed to do so. the Corporation of Chennai to forthwith demolish theconstruction with the aid of police in case he failed to do so. 26.InMahendra Mahadik(supra), the FirstRespondent, an advocate, associated with various socialactivities had filed a writ petition in the nature of a PublicInterest Litigation inter alia for issuance of an appropriatedirection upon the Bhiwandi Nizampura Municipal Council todemolish a building consisting of ground and six upper floorsconstructed by the Appellants. A further prayer was made thatthe Municipal Council be directed to furnish certified copies ofthe extracts of the assessment Register/Book and permissiondated 5th May, 1995 granted to the Appellants in relation to theaforementioned property. The complaint of illegal constructionswas made in the town of Bhiwandi on private as well asGovernment lands but despite the same neither any action wastaken thereupon nor any certified copy supplied to him. It wasurged by him that there was collusion between the officials ofthe Municipal Council with the appellants and such constructionhad come up solely owing to the negligence and default on theirpart and such construction being unauthorized was liable to bedemolished. The High Court of Bombay held in the impugnedjudgment that the first respondent was entitled to the inspection of documents as also the grant of the certified copies onpayment of requisite charges, that the recovery of taxes inrespect of the unauthorized construction did not amount toregularisation, the Resolution dated 12th October, 1998 passedby the Municipal Council was wholly unsustainable in law, thatthe offences relating to the unauthorized or illegal constructionscannot be compounded and, thus, structures had to bedemolished, for the regularization of such unauthorizedstructures would defeat the very purpose of introducing therules of planned development of the city and directing therespondent nos.1 and 2 to issue certified copies of thedocuments and directed the Civil Judge (J.D.) Bhiwandi todecide the application for interim relief by the respondent nos. 4to 6 in suit within the defined period. 27.In Mahendra Mahadik (supra), the Hon'ble ApexCourt observed that the jurisdiction of a local authority wasconfined only to deal with the application for grant of permissionfor construction as contained in Section 44 of the MRTP Actwhether at the initial stage or when a notice is served underSub-section (2) of Section 53 of the MRTP Act. The power togrant such permission could be exercised only within thepurview of the Building Bye-laws. Therefore, being beyond the scope of Section 44 of the MRTP Act, the Municipal Council didnot have any jurisdiction to direct regularization of suchunauthorized constructions by reason of the said resolution orotherwise. The power of the Municipal Council, it is trite, beingconfined to the provisions of the said Acts, no action could betaken by them contrary thereto or inconsistent therewith. TheirLordships considered the judgment in Friends ColonyDevelopment Committee Vs. State of Orissa and Others[(2004)8 SCC 733], amongst others and in the ultimate, heldthat the appeals being devoid of any merit, were dismissed andthe Municipal Council directed to carry out the order of the HighCourt, as expeditiously as possible and not later than fourweeks. 28.It is apparent from the records that there areseveral factual aspects which need to be looked into and cannotbe considered while dealing with the petition in the nature filedby the petitioner. Moreover the easementary rights, if any, ofthe petitioners which are purportedly affected on account of therepair works carried out by the respondent no.5 can in anyevent not be considered in this petition and which would have tobe pursued by the petitioner before the appropriate Authority.There are several disputed questions of fact which cannot be 28.It is apparent from the records that there areseveral factual aspects which need to be looked into and cannotbe considered while dealing with the petition in the nature filedby the petitioner. Moreover the easementary rights, if any, ofthe petitioners which are purportedly affected on account of therepair works carried out by the respondent no.5 can in anyevent not be considered in this petition and which would have tobe pursued by the petitioner before the appropriate Authority.There are several disputed questions of fact which cannot be considered in a petition of this nature. The submissions onbehalf of the petitioners refer to issues which requiredetermination on a factual basis which this Court will not lookinto while exercising its extraordinary jurisdiction in terms ofArticle 226 of the Constitution of India. The Petitioner hastherefore failed to make out a case to invoke the jurisdiction ofthis Court for an appropriate writ or directions to therespondents no.2 to 4 to cancel the permission, approvals andlicenses granted in favour of the respondent no.5. We,therefore, do not find any merit in this petition which is herebydismissed. 29. Rule stands discharged. NUTAN D. SARDESSAI, J. F. M. REIS, J. mv