Madras High Court
Manimegalai vs The Commissioner on 6 December, 2018
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, P.D.Audikesavalu
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
and
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W.A.[MD]No.1631 of 2018
and
C.M.P.[MD]No.11916 of 2018
Manimegalai : Appellant
Vs.
1.The Commissioner,
Pudukkottai Municipality,
Pudukkottai.
2.The Inspector of Police,
Pudukkottai Town Police Station,
Pudukkottai.
3.Dr.Saleem : Respondents
PRAYER: Writ Appeal is filed under Clause 15 of Letters Patent
against the order of Writ Court dated 16.11.2018, made in W.P.
(MD)No.22894 of 2018.
http://www.judis.nic.in
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For Appellant : Mr.S.Meenkashi Sundaram,
Senior Counsel,
For Mr.D.Rameshkumar
For Respondent No.1 : Mr.P.Mahendran
For Respondent No.2 : Mr.A.K.Baskarapandian,
Special Government Pleader
For Respondent No.3 : Mr.Niranjan S.Kumar
*********
JUDGMENT
*********** [Judgment of the Court was delivered by K.K.SASIDHARAN, J.] The Commissioner, Pudukkottai Municipality, in total violation of the procedure contemplated under Section 218(1) of the Tamil Nadu District Municipalities Act, 1920 [hereinafter referred to as 'the Act'], sealed the premises in the possession of the appellant on the ground that the superstructure was unsafe and dangerous in nature. While passing such a drastic order, the Commissioner neither got the buildings inspected by the Municipal Engineer nor issued notice to the appellant, despite the fact that she is in occupation of the building. The order passed by the Commissioner was upheld by the Writ Court. Feeling aggrieved, the appellant has come up with this intra-Court appeal. http://www.judis.nic.in 3
2. The learned Senior Counsel for the appellant contended that the third respondent filed R.C.O.P.No.2 of 2011 to evict the original lessee and the appellant on the ground of sub-lease and additional accommodation, which was partly allowed by the Trial Court. However, no plea was taken in the Original Petition for eviction on the ground of demolition and reconstruction. The appellant filed a petition for depositing the rent, which was dismissed by the Trial Court. Both the appeals are now pending before the first appellate Court.
3. According to the learned Senior Counsel, the building is structurally sound and as such, there was no cause of action for the Commissioner to take action under Section 218(1) of the Act. The learned Senior Counsel alleged mala fides against the first respondent, as according to him, the Commissioner, in collusion with the third respondent, acted as a Rent Controller and evicted the appellant summarily. It was further contended that there was no inspection by the Municipal Engineer before passing orders under Section 218(1) of the Act and as such, the order passed by the Commissioner is unsustainable in law.
http://www.judis.nic.in 4
4. The learned Standing Counsel for the Pudukkottai Municipality justified the action taken by the Local Body. According to the learned Standing Counsel, notice was issued to the third respondent even in the year 2017 under Section 218(1) of the Act. Since action was not taken by the third respondent to discontinue the occupation, the Local Body was constrained to pass the order, which was impugned before the learned Single Judge.
5. The learned counsel for the third respondent contended that the Corporation initiated proceedings under Section 218(1) of the Act initially in the year 2017. According to the learned counsel, the third respondent informed the local body that it would not be possible to adhere to the notice, in view of the pending litigation before the Rent Controller. The learned counsel submitted that the third respondent has not played any part in the matter and as such, the contra allegations are incorrect.
6. The core question that arises for consideration is as to whether while passing orders under Section 218(1) of the Tamil Nadu District Municipalities Act, 1920, the Commissioner has violated the procedure prescribed by the Statute. http://www.judis.nic.in 5
7. There is a similar provision in the Chennai City Municipal Corporation Act, 1919. Section 258 of the Chennai City Municipal Corporation Act, 1919, requires the Commissioner to come to a definite conclusion that the particular structure is in a ruinous state or its condition is dangerous to passers-by or to the occupiers of neighbouring structures for taking action. The statutory provision would indicate that the Commissioner is empowered to require, by a notice, the owner or occupier to fence off, take down, secure or repair such structure, so as to prevent any kind of danger to the public.
8. Section 218(1) of the Tamil Nadu District Municipalities Act, 1920, is pari materia to Section 258 of the Chennai City Municipal Corporation Act, 1919. The scope of the said provision is considered by a Division Bench of this Court in P.Zainuddin, Rep. by his Power of Attorney Holder, P.Nazeer vs. Sathish Kumar and others [Judgment dated 12 July, 2018, in W.A.No.1507 of 2016]. The Division Bench made it clear that while issuing a notice under Section 258, the authority must prescribe as to what action should be taken by the owner in order to prevent danger. It is open to the statutory authority to call upon the owner to fence off or to http://www.judis.nic.in 6 take down or to secure or to repair such structure. However, all the four measures cannot be directed to be taken simultaneously.
9. The learned Standing Counsel for the Pudukkottai Municipality fairly submitted that there was no inspection conducted by the Municipal Engineer before issuing the order impugned in the Writ Petition.
10. The Commissioner ought to have conducted an inspection by deputing the Municipal Engineer, Similarly, the Commissioner was expected to issue notice to the appellant, being the occupier, besides the third respondent in his capacity as the owner of the building. The Commissioner, without regard to the statutory provisions, exercised the power arbitrarily and the same resulted in filing the Writ Petition and the appeal by the appellant. Since it is the admitted position that there was no inspection of the superstructure before passing the order to discontinue the occupation, we are of the view that the impugned order is liable to be quashed.
11. The learned counsel for the third respondent submitted that in case there is an incident involving the building, action should be taken only against the appellant. http://www.judis.nic.in 7
12. The learned counsel for the appellant submitted that the appellant would file an affidavit of undertaking agreeing to take the responsibility, in case of any untoward incident. Accordingly, the affidavit was filed during the course of hearing. The affidavit is taken on record.
13. The impugned order dated 16 November, 2018, is set aside. The Writ Petition is allowed. The first respondent is directed to de-seal the premises and put the appellant in possession forthwith. It is open to the first respondent to issue notice to the appellant in her capacity as occupier and the third respondent, being its owner and conduct an inspection by deputing the Municipal Engineer. The copy of the inspection report should be given to the appellant and the third respondent to submit their response. Thereafter, it is open to the Commissioner to pass appropriate orders on merits and in accordance with law.
14. The Writ Appeal is allowed as indicated above. No costs. Consequently, the connected miscellaneous petition is closed.
[K.K.SASIDHARAN, J.] & [P.D.AUDIKESAVALU, J.] 06.12.2018 Index : Yes/No Internet : Yes/No http://www.judis.nic.in 8 K.K.SASIDHARAN, J.
and P.D.AUDIKESAVALU, J.
SML To The Inspector of Police, Pudukkottai Town Police Station, Pudukkottai.
Judgment made in W.A.[MD]No.1631 of 2018 Dated: 06.12.2018 http://www.judis.nic.in