Madras High Court
K.Sarojini … vs The Commissioner on 9 January, 2024
Author: P.D. Audikesavalu
Bench: P.D. Audikesavalu
W.P. No. 19960 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2024
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 19960 of 2023
and
W.M.P. No. 19310 of 2023
K.Sarojini … Petitioner
-vs-
1. The Commissioner,
Coimbatore Corporation,
Coimbatore.
2. The Assistant Commissioner,
Central Zone,
Coimbatore Corporation,
Coimbatore. ... Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Declaration, declaring the action of
Respondents in demolishing/removing the Petitioner's “Aavin Parlour” located
at the Respondent's Commercial Complex, opposite to the Thandu Mariamman
Temple, Coimbatore on 22.06.2023 as absolutely illegal and opposed to law
and consequently to direct the Respondents to restore the said shop area to the
Petitioner and to direct the Respondents to pay a compensation of
Rs. 5,00,000/- (Rupees Five Lakh only) for the illegal action of the
Respondents.
https://www.mhc.tn.gov.in/judis
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W.P. No. 19960 of 2023
For Petitioner : Mr. T.Saikrishnan
For Respondents : Mr. N.Velmurugan,
Standing Counsel
ORDER
Heard Mr. T.Saikrishnan, Learned Counsel for the Petitioner and Mr. N.Velmurugan, Learned Standing Counsel appearing for the Respondents and perused the materials placed on record, apart from the pleadings of the parties.
2. It is borne out from the materials placed on record that on the representation dated 18.12.2018 made by one K.Krishnaswamy, the Second Respondent by Proceedings in No. Na.Ka. 6382/2018/A4 (Central) dated 24.07.2019 had granted lease to him for running Aavin Milk Parlour in the site of an extent of 8x8 = 64 sq.ft. at the commercial complex of Coimbatore City Municipal Corporation situated at Avinasi Road, Opposite to Thandu Mariyamman Temple, Ward No. 72, Central Zone, Coimbatore on monthly rent of Rs. 4,480/- with immediate remittance of security deposit of Rs. 50,000/- and advanced rent of one year of Rs. 53,760/-. However, it appears that the said K.Krishnaswamy had died on 06.03.2019 even before the said allotment was made in his favour, but suppressing that crucial fact, his wife, viz., K.Sarojini, https://www.mhc.tn.gov.in/judis 2/6 W.P. No. 19960 of 2023 made the payments in his name and had sub-let the milk parlour to third parties without the consent of the Respondents. Later, when the Police Department informed the Respondents that illegal activities were taking place at the milk parlour apart from causing traffic congestion on the busy road, the temporary structure of the milk parlour was removed in terms of Section 128(1)(a) of the Tamil Nadu Urban Local Bodies Act, 1998, which reads as follows:-
128. Power to remove encroachment from public place.- (1) The Commissioner may,--
(a) remove without any notice any movable temporary structure, enclosure, stall, booth, any article whatsoever hawked, exposed or displayed for sale or any other thing whatsoever by way of encroaching street or public place or the land belonging to or vested with the municipality within the municipal limit;
In that backdrop, the said K.Sarojini, has filed this Writ Petition for declaring that the action of the Respondents in demolishing/removing the 'Aavin Parlour' located at the Respondent's Commercial Complex, opposite to the Thandu Mariamman Temple, Coimbatore on 22.06.2023 was absolutely illegal and opposed to law and for consequential direction to restore the shop area to the Petitioner and pay compensation of Rs. 5,00,000/- (Rupees Five Lakh only) for their illegal action.
https://www.mhc.tn.gov.in/judis 3/6 W.P. No. 19960 of 2023
3. Before proceeding further, it must be straightaway pointed out that when the Petitioner has not revealed to the Respondents about the death of her husband, K.Krishnaswamy, on 06.03.2019 even before the allotment of the space for locating the milk parlour through lease on 24.07.2019, she cannot take advantage of her own wrong doing and the legal maxim nullus commodum capere potest de injuria sua propria squarely applies to the fact situation of this case. That apart, it is evident that the nature of reliefs claimed by the Petitioner fall within the realm of disputed questions of fact, which cannot be effectively determined by this Court in proceedings under Article 226 of the Constitution following summary procedure. It must be recapitulated here that the Hon'ble Supreme Court of India in the decision in Roshina T. -vs- Abdul Azeez K.T. [(2019) 2 SCC 329] has cautioned that such claims relating to property rights would have to be answered one way or the other only in a properly framed suit impleading necessary parties before the civil court. In such circumstances, the Petitioner has not been impeded from canvassing what is sought to be agitated in this Writ Petition in the aforesaid remedy and there is no acceptable explanation from the Petitioner for not having availed it.
4. In that view of the matter, this Court is not inclined to delve into the merits of the controversy involved by entertaining this Writ Petition. https://www.mhc.tn.gov.in/judis 4/6 W.P. No. 19960 of 2023 In the result, the Writ Petition is disposed with the aforesaid observations. Consequently, the connected Miscellaneous Petition is closed. No costs.
09.01.2024 Index: Yes/No NCC: Yes/No Note: Issue order copy by 05.06.2024 vjt To
1. The Commissioner, Coimbatore Corporation, Coimbatore.
2. The Assistant Commissioner, Central Zone, Coimbatore Corporation, Coimbatore.
https://www.mhc.tn.gov.in/judis 5/6 W.P. No. 19960 of 2023 P.D. AUDIKESAVALU, J.
vjt W.P. No. 19960 of 2023 09.01.2024 https://www.mhc.tn.gov.in/judis 6/6