IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 12.08.2010 Coram The Honourable Mr.Justice P.JYOTHIMANI WRIT PETITION No. 21914 of 2003 V.DEENADAYALAN [ PETITIONER ] Vs 1 THE COMMISSIONER CORPN.OF CHENNAI RIPON BLDGS. CHENNAI-3. 2 THE MEMBER SECY. C.M.D.A. GANDHI IRWIN ROAD EGMORE CH-8. 2 SMART HOMES REP.BY G.KARUNANIDHI 148/3,CHOOLAIMEDU HIGH ROAD CHOOLAIMEDU P.O. CHENNAI-94. [ RESPONDENTS ] Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the 1st and 2nd respondents herein to remove the unauthorised construction put up by the 3rd respondent at the property bearing Old No.12, Krishnapuram Street, Choolaimedu, Chennai 94. For Petitioner : Mr.Sivagnana Sambandan For Respondents : Mr.V.Bharathidasan (R1) Mr.P.Ravindran (R2) ORDER The writ petition is for a direction against the 1st and 2nd respondents to remove unauthorised construction stated to have been put up by the 3rd respondent, who is the owner of the neighbouring land at No.12, Krishnapuram Street, Choolaimedu, Chennai 94. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the petitioner is that he is the owner of the land and building situated at Plot No.7, measuring about 1 ground and 80 Sq.ft. situated atNo.109, Puliyur village, Kodambakkam, Chennai in Old Paimesh No.227, Block No.21, New T.S.No.59, Narayanapuram, having purchased in the year 1973 in the name of his wife. It is stated that the adjoining backyard of the petitioner's house was a vacant site belonging to one Neelakanta Rao and his elder brother Nagaraja Rao. It is the case of the petitioner that the said adjacent owners having decided to put up a structure through Contractors 'Smart Homes' has requested the petitioner to render all help and assistance and the petitioner infact helped the neighbour to put up the construction. However, the petitioner came to know later on that the neighbour has put up construction with deviations from the approved plan by which the window of the adjacent owner has been put up vertically in line with the compound wall of the petitioner with the result, the right of free air and light which has been enjoyed by the petitioner hitherto has been obstructed. It is also stated that in the adjacent house when the 3rd respondent has put up construction, the sewerage pipes and sewerage chambers were put up by knocking down the compound wall belonging to the petitioner, about which the petitioner has made a complaint to the Corporation. Therefore, the case of the petitioner is that the 3rd respondent has put up the unauthorised construction against the approved plan, which has obstructed the right of the petitioner in having free air and light. 3. It is stated by the petitioner that on a complaint to the 2nd respondent Corporation, the 2nd respondent has informed that notice has been issued to the 3rd respondent under the provisions of the Municipal Corporation Act and infact, the Corporation has informed the petitioner that after the notice was issued under Section 236 of the Corporation Act, the construction work has been stopped by the 3rd respondent. It is the complaint of the petitioner that in the meantime, the 3rd respondent has put up construction and the construction has been completed and while putting up construction, the 3rd respondent has failed to leave set back area and also during construction the 3rd respondent has filled up debris by encroaching upon the petitioner's land and therefore, the present writ petition has been filed for a direction to remove the unauthorised construction. 4. Admittedly, as on today, the construction stated to have been put up by the 3rd respondent has been completed. A reading of the affidavit shows that the claim made by the petitioner in this writ petition is based on a right of easement, since it is his case that by the conduct of the 3rd respondent in putting up construction, his free air and light has been obstructed. Inasmuch as it is not in dispute that as on date, the construction has been completed, the relief sought for in this writ petition cannot be granted. If https://hcservices.ecourts.gov.in/hcservices/ really the petitioner is affected by the construction put up by the adjacent owner, resulting in the obstruction of his right of free air and light, it is for him to approach the competent authorities in the manner known to law, since such right and enjoyment of the same for a long required period is a matter to be ascertained on production of evidence. Therefore, it is for the petitioner to file appropriate Civil suit to claim his right. In addition to that, since it is stated that the Corporation has given notice to the 3rd respondent under Section 236 of the Corporation Act, it is always open to the petitioner to pursue the said efforts taken by him through the Corporation. However, it is relevant to point out that in the letter of the Corporation dated 31.10.2002 addressed to the petitioner, the Corporation has taken note of the complaint given by the petitioner that the adjacent owner Karunanidhi has attempted to put up some sewerage pipe affecting the right of the petitioner and as directed by the Corporation, the said Karunanidhi has removed the Sewerage line which has already been laid without affecting the right of the petitioner. Inspite of the said reply by the Corporation, if the petitioner is still affected, it is for him to approach the competent authorities complaining about the unauthorised construction put up by the 3rd respondent. 5. In such view of the matter, the relief sought for in this writ petition cannot be granted to the petitioner. The writ petition fails and the same is dismissed, however, with liberty to the petitioner to work out his remedy in the manner known to law either by approaching the Civil Court or by preferring a complaint to the Corporation, in which event, it is for the authorities to take appropriate action in the manner known to law. No costs. rg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1 THE COMMISSIONER CORPN.OF CHENNAI RIPON BLDGS. CHENNAI-3. https://hcservices.ecourts.gov.in/hcservices/ 2 THE MEMBER SECRETARY, C.M.D.A. GANDHI IRWIN ROAD, EGMORE CH-8. + 1 cc to Mr. V. Bharathidasan, Advocate SR No.59719 + 1 cc to Mr. T. Sivagnana Sambandan, Advocate SR No.59630 RSI(CO) SR/23.8.2010 WRIT PETITION No. 21914 of 2003 https://hcservices.ecourts.gov.in/hcservices/