Madras High Court
M.R.Badrinarayana vs The Commissioner on 4 July, 2012
Author: M.Venugopal
Bench: Elipe Dharma Rao, M.Venugopal
THE HIGH COURT OF JUDICATURE AT MADRAS Dated:4.07.2012 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.4403 of 2012 and M.P.Nos.1 and 2 of 2012 M.R.Badrinarayana ... Petitioner Vs. 1.The Commissioner, Corporation of Chennai, Rippon Buildings, Park Town, Chennai 600 003. 2.The Executive Engineer, Corporation of Chennai, Zone VIII, No.183, Periyar Salai Kilpauk, Chennai 600 010. 3.Mr.L.N.Ramaswamy ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for an issuance of a Writ of Mandamus directing the respondents to restore possession by removing the lock and seal of the flat bearing Door No.13-C, measuring an extent of 852 sq.ft. First Floor, Block No.13, New Door No.AH-15/105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai 600 040 to the Petitioner. For Petitioner : Mr.N.G.R.Prasad for M/c.Mcgan Law Firm For R1 : Mr.V.Bharadhidasan For R2 : Mr.S.Krishan For R3 : Mrs.A.L.Gandhimathi ORDER
M.VENUGOPAL,J.
The Petitioner has projected the present Writ of Mandamus seeking to issue a Writ of Mandamus directing the Respondents to restore possession of the flat bearing Door No.13-C, Block No.13, New Door No.AH-15/105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai 600 040.
2.According to the Petitioner, the 3rd Respondent is the owner of Flat No.13-C, First Floor, Block No.13, New Door No.AH-15/105, Shanti Colony, Anna Nagar, Chennai 40 as per the Sale Deed dated 09.03.2000 (registered as Document No.688 of 2000 on the file of SRO, Anna Nagar).
3.The Petitioner is a Tenant under the 3rd Respondent on an agreement dated 30.05.2003 to pay monthly rent of Rs.7,500/- in respect of the aforesaid flat, measuring an extent of 852 sq. ft., in the first floor.
4.The Petitioner, in his affidavit in the Writ Petition, has averred that in entire Block No.13, New Door No.AH-15/105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai 600 040, there are four flats/ apartments. Each individual flat approximately measuring 850 sq. ft. is owned by different persons and the 3rd Respondent is one among the four owners of the individual flats. By mutual understanding the open area situated around the flat was divided amongst the four flat owners into four separate parts and each part was allotted to one flat owner. Admittedly, all the apartment owners in the said premises had put up construction in the open area allotted to them. The other three flat owners had put up construction of ground and first floor.
5.The stand of the Petitioner is that at the time of entering into the lease agreement, the 3rd Respondent permitted the Petitioner to put up additional construction in exclusive open area demarcated to him for exclusive usage. The 3rd Respondent had also agreed to reimburse the cost of additional construction put up by the Petitioner and he has put up additional 60 square meters construction of ground and first floor, by spending approximately an amount of Rs.25 lakhs, during the year 2005. The additional construction was assessed by the 1st Respondent and the Petitioner is also paying the taxes for the additional construction. As on today, there are no arrears of taxes.
6.The Learned Counsel for the Petitioner urges before this Court that the 3rd Respondent had initiated eviction proceedings against the Petitioner in R.C.O.P.No.2643 of 2009 on the file of XVI Judge, Court of Small Causes, Chennai and also another application in R.C.O.P.No.1992 of 2010 on the file of XVI Judge, Court of Small Causes, Chennai.
7.The Learned Counsel for the Petitioner submits that there arose a difference of opinion between the Petitioner and the 3rd Respondent and as the 3rd Respondent was unable to evict the Petitioner from the premises by due process of law, the 3rd Respondent instigated the Respondents 1 and 2 to initiate demolition proceedings in respect of the additional construction made by the Petitioner and that the 2nd Respondent/ Executive Engineer, Corporation of Chennai, Zone VIII, Chennai had also issued demolition notices to the 3rd Respondent.
8.Yet another contention of the Learned Counsel for the Petitioner is that the Respondents 1 and 2 had not taken any steps to demolish the other constructions put up by the other s in the same Block No.13 and this kind of action taken by the Respondents 1 and 2 in collusion with the 3rd Respondent was only to evict the Petitioner illegally from his lawful possession of Flat No.13-C.
9.The Petitioner pleaded in the affidavit that all of a sudden on 20.02.2012, in his absence, the Respondents 1 and 2 had not only locked and sealed the unauthorised construction in Block No.13 put up in the open area, but also locked and sealed the entire Flat No.13-C in the first floor. If at all, any unauthorised construction was put up, the Respondents 1 and 2 had to take recourse known to law.
10.Moreover, while locking and sealing the unauthorised construction, the Respondents 1 and 2 had also illegally locked and sealed the Flat No.13-C which is in the lawful occupation of the Petitioner and approved construction.
11.The Flat No.13-C was constructed by the Tamil Nadu Housing Board and construction of Block No.13 was approved by the 1st Respondent/Commissioner, Corporation of Chennai and only the constructed flat has been sold to the third parties. The 3rd Respondent had purchased the flat No.13-C in the first floor. A legal notice dated 20.02.2012 was issued by the Petitioner to the Respondents 1 and 2, by means of Telegram and also by Registered Post, calling upon them to restore the possession.
12.The substance of the contention of the Learned Counsel for the Petitioner is that the 3rd Respondent/Landlord could not achieve his objective legally to evict the Petitioner and therefore, he instigated the Respondents to evict him from Flat No.13-C by unlawful methods. In any event, the Respondents 1 and 2 had no right to lock and seal the Flat No.13-C on the first floor, which is admittedly in lawful possession of the Petitioner. Even the Petitioner could not occupy the Flat bearing Door No.13-C on the first floor, Block No.13, New Door No.AH-15/105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai 600 040 and to carry out his day to day business activities, the resultant loss could not be compensated in terms of monetary sums.
13.The 1st Respondent/Commissioner, Corporation of Chennai had averred, in his counter, that the Petitioner is in occupation of the first floor on the eastern side of the building and made construction in the open space area available on the eastern side of the existing building and also in the open space area on the southern side in the ground and first floor without obtaining any planning permission from the authorities. Therefore, the construction is totally unauthorised one. Therefore, a notice under Section 256 (1) and (2) of the Madras City Municipal Corporation Act (hereinafter called as 'Act') was issued on 23.03.2007 and was served on the 3rd Respondent/Landlord as well as the Petitioner. Since they had not complied with the terms of the notice, a further notice under Section 256(3) of the Act was issued on 07.06.2007 and the same was also served on the 3rd Respondent/ and the Petitioner/occupier. As per Ordinance No.1 of 2007, the Tamil Nadu Government gave temporary protection for the unauthorised buildings and therefore, no action was taken. After the interim order was vacated by the Hon'ble Supreme Court, further action on the unauthorised construction was taken, as per the provisions of the Tamil Nadu Town and Country Planning Act. Before that a notice was served as per Section 56 read with Section 85 of the Act and the same was served on the Petitioner as well as the 3rd Respondent/Landlord on 28.07.2011. Subsequently, a notice under Section 56(2) and 56(2A) of the Act was served on him on 29.11.2011. Finally, the premises was put on lock and seal on 20.02.2012.
14.It is contended on behalf of the 1st Respondent/ Commissioner, Corporation of Chennai that the Petitioner had put up the unauthorised construction in such a fashion that the original building could not be separated as he made additional construction continuous to the original building, by providing a common entrance. Also, Section 56(2A) of the Tamil Nadu Town and Country Planning Act enjoins the authorities to seal the premises to discontinue the use of such land or building. Therefore, the unauthorised construction is a continuous one to the existing building and there is no scope for removing the seal in respect of the original building.
15.Inasmuch as the Petitioner had not come forward to discontinue the unauthorised construction, the premises was locked and sealed by the authorities. The Petitioner is unnecessarily putting the blame on the 1st Respondent/Corporation, when there is a dispute between the Petitioner and the 3rd Respondent.
16.During the course of hearing of this matter, on 28.02.2012, since this Court could find that the construction put up by the Petitioner in open reserve space, against the provisions of Town and Country Planning Act and trying to throw blame not only on the 3rd Respondent/Landlord but also on the authorities, a direction was issued to the 1st Respondent to initiate suitable criminal proceedings against the Petitioner for lowering the dignity of their office in public, besides proceeding with the present impugned proceedings initiated against the Petitioner.
17.In obedience to the orders passed by this Court on 28.02.2012, the 1st Respondent/Corporation filed a complaint against the Writ Petitioner before the XIX Metropolitan Magistrate Court, Chennai under the Chennai City Municipal Corporation Act and the same was also taken on file on 12.03.2012.
18.The 3rd Respondent/Landlord, in his counter, had averred that he is the absolute owner of the residential flat bearing Door No.13-C First Floor, Block No.13, New Door No.AH-15/105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai 600 040, measuring an extent of 852 sq. ft. together with undivided share of land out of the total extent of the land situated in and around Block No.13. He purchased the same as per the Sale Deed dated 09.03.2000 bearing Document No.688 of 2000, registered on the file of Sub-Registrar of Anna Nagar. Later, he executed a Power of Attorney to and in favour of his father N.Lakshminarayanan for dealing with all the acts pertaining to the aforesaid property. As Power of Attorney Agent, his father entered into an Lease Agreement with the Petitioner on 30.05.2003 for the purpose of letting out the premises on monthly rent for a period of 11 months beginning from 30.05.2003. Originally, the monthly rent was fixed at Rs.7,500/- per month, payable on 5th day of every succeeding month etc.
19.The Learned Counsel for the 3rd Respondent/Landlord specifically submits that the 3rd Respondent had not, at any point of time, permitted the Petitioner to put up additional construction or any structural changes or modifications in the demised premises as well as in the vacant space surrounding the demised premises. Furthermore, for the additional construction, every allottee should get the necessary planning permission from the local bodies. Moreover, the flat in question was sold by the Tamil Nadu Housing Board and that a flat owner ought not to make any structural or additional changes or any other additional construction in the vacant land in and around the block, without prior permission and No Objection Certificate from the Housing Board as well as from the other allottees of the same block. As such, the 3rd Respondent had not permitted the Petitioner to put up any additional constructions till date.
20.It comes to light that the 3rd Respondent had filed R.C.O.P.No.2643 of 2009 [on the ground of requirement of premises for carrying on his own business] for evicting the Petitioner before the Small Causes Court, Chennai and ultimately, the said petition was allowed exparte on 01.06.2010. Finally, an order of eviction was passed on 01.07.2010 by granting two months time for eviction. The Petitioner filed a petition to set aside the exparte order and the same is pending. The 3rd Respondent in the meanwhile filed another R.C.O.P.No.1992 of 2010 on the file of Small Causes Court, Chennai praying for eviction on the ground of wilful default in payment of monthly rents by the Petitioner for the period from 23.12.2009 to 31.10.2010 and the same is also pending.
21.When the unauthorised construction put up by the Petitioner had come to the knowledge of the 1st Respondent/Corporation, a demolition notice on 23.03.2007 and 07.06.2007 was issued to the Petitioner and also to the 3rd Respondent, calling upon them to demolish the illegal construction. The said notice was not served on the 3rd Respondent, but it was received by the Petitioner. Only on 25.10.2008 a notice by the Corporation of Chennai was received by the 3rd Respondent and immediately he informed and requested the Petitioner to demolish the unauthorised and illegal construction put up by the Petitioner. But the Petitioner had not responded to his request. On 31.12.2011, a notice was received by the 3rd Respondent from the Corporation of Chennai and he also issued a reply on 06.01.2012 stating that the unauthorised construction in the premises was not raised by him and he never gave any permission to the Petitioner to construct the same. Further, he had stated that with regard to the illegal construction, he was not in a position to get any stay order or injunction from any of the Courts and since the Petitioner is currently in occupation of the premises, he was unable to demolish the unauthorised construction.
22.It is the case of the 3rd Respondent that the 1st Respondent/ Corporation had locked and sealed the unauthorised construction on 20.02.2012 and the Petitioner filed the present Writ Petition seeking to remove the lock and seal of the original leased out portion of 852 sq.ft., that he had not instigated the Respondents 1 and 2, at any point of time, and he was forced to pay the tax even for the unauthorised construction only from this year since it was demanded by the Revenue Department of the 1st Respondent/ Corporation of Chennai. In fact, the Tax Assessment was made only in respect of the existing construction constructed by the Tamil Nadu Housing Board and the said tax was paid by the 3rd Respondent as a owner of the flat, since the Petitioner had failed to pay the taxes as agreed to in the previous lease agreement.
23.In the Additional Affidavit filed by the Writ Petitioner, it is mentioned that in regard to the unauthorised construction, he has not sought any relief and further, the 3rd Respondent/Landlord misled him to bear the cost of additional construction. Also, it is stated that apart from the flat area, even at the time of entering into the lease agreement, there was a construction of 200 sq. ft. wherein the 3rd Respondent/Landlord induced the Petitioner to bear the cost of additional construction saying that he obtained permission from the Tamil Nadu Housing Board like that of the other three additional constructions put up by the other three owners and believing the words of 3rd Respondent, he acted upon. As a matter of fact, the Tax Assessment of the said additional building is in the name of 3rd Respondent/Landlord and not in the name of the Writ Petitioner. Even the notice for demolishing the unauthorised construction was issued by the Corporation of Chennai only in the name of the 3rd Respondent/ Landlord. The Corporation Tax Assessment in regard to the additional construction is in the name of the 3rd Respondent. The additional building, being an unauthorised one, came to the knowledge of the Writ Petitioner at a later point of time.
24.Continuing further, in the Additional Affidavit, the Petitioner had also averred that the 1st Respondent/Corporation of Chennai sealed only one unauthorised construction in Door No.13-C and left out the other three and that the Corporation sealed the flat sold by the Tamil Nadu Housing Board. Out of the four flats, only one was sealed, which was in occupation of the Petitioner.
25.It is not in dispute that the residential flat bearing No.13-C and Door No.AH-15/105 MIG Flat in Shanti Colony, 4th Avenue, Anna Nagar, Chennai-40 measuring an extent of 852 sq. ft. was allotted originally to K.E.Lokasarangam by the Tamil Nadu Housing Board and executed an absolute Sale Deed dated 14.11.1991 [registered as Document No.5699/1991 in the S.R.O. Anna Nagar]. Subsequently, the said K.E.Lokasarangam had sold the said residential flat measuring an extent of 852 sq. ft. together with = undivided share of land out of the total extent of 852 sq. ft. comprised in T.S.No.199 part of Maduvakkarai Village to L.N.Ramaswamy (3rd Respondent/Landlord).
26.The Power of Attorney Agent of 3rd Respondent/Landlord, one N.Lakshminarayanan, had entered into a rental agreement at Chennai on 30.05.2003 with the Writ Petitioner on a monthly rent of Rs.7,500/- and the period of lease was for 11 months commencing from 30.05.2003. Also, the rent agreement refers to the payment of sum of Rs.90,000/- by way of deposit through Cheque No:360478 dated 30.05.2003 for Rs.88,884/- and Cheque No.360476 dated 18.05.2003 for Rs.1,116/- drawn on ICICI Bank, Anna Nagar etc.
27.It comes to light that the Chief Engineer of the Tamil Nadu Housing Board, Madras 600 035 had addressed a communication in Letter No.IP1/04280/83 dated 04.01.1993 to the Vice Chairman, Madras Metropolitan Development Authority, Egmore wherein it was, inter alia, informed that '.... Hitherto, the Board is not against additional construction in and around the blocks. Now, also it is felt that additional developments can be permitted subject to adhering to certain norms.' Further, it was also clarified that 'NOC, given for a specific development, cannot be reckoned as a permanent one for all subsequent developments. NOC from TNHB and NOC from other flat owners should be insisted for each additional development wherever sale deeds are not issued. Similarly NOC from other flat owners should be insisted for every additional construction even if sale deeds are issued.' Besides this, in case of 4 in 1 apartments, a guideline was issued inter alia that '... The vacant space has been individually marked for each apartment. For Ground floor allottees, space in the front and rear of the block has been earmarked and the open space in the sides has been earmarked for first floor apartment. So, the ground floor allttees can be permitted additional construction in the front and rear open space upto the existing ground floor level only.' Apart from the above, 'the first floor allottees can be permitted additional construction on the side at the first floor level only. In that case, pillars raised from ground level should not obstruct the window in the ground floor. If both ground floor and first floor allottees jointly apply for additional construction in front, rear and side open spaces, each allottee can be permitted for the respective floor only.'
28.Added further, the guideline was issued that 'in case of blocks with more than 4 apartments, the vacant space around blocks is shown as undivided property. Hence, the vacant space cannot be marked individually. In such cases NOC from other flat owners is a must and planning parameters of group housing can alone be applied.'
29.Admittedly, the 3rd Respondent/Landlord and the Petitioner were issued with the notices by the 2nd Respondent/Executive Engineer, Corporation of Chennai, Zone VIII, Chennai, in regard to the unauthorised construction at AH-105 Shanti Colony in Division 100, Zone-VIII. The said lock and sealing and demolition notice was issued as per Section 56 read with Section 85 of the Town and Country Planning Act, 1971. It was also mentioned that the lock, seal and demolition notice was served to the 3rd Respondent/Landlord on 28.07.2011.
30.In regard to the provisions of Town and Country Planning Act, 1971, a demolition notice under Section 56 read with Section 85 was served to the 3rd Respondent/Landlord on 30.10.2008 and further notice as per Section 56(2) sub clause (iii) of Town and Country Planning Act, 1971 was served on the Petitioner/Tenant.
31.The Writ Petitioner furnished his reply dated 05.01.2012 addressed to the 2nd Respondent, among other things, mentioning that the construction was put up by him and the R.C.O.P.No.2406 is still pending on the file of XVI Court of Small Causes, Chennai.
32.On 20.02.2012, the Petitioner through a Law Firm issued legal notice to the 2nd Respondent and the 1st Respondent, mentioning inter alia that 'as per the understanding entered into between the Flat Owners Association of the said flats, all the owners have erected construction in and around the flats in ground floor and has also put up construction in the ground floor spending not less than Rs.25 lakhs, which was agreed to be reimbursed by the landlord at the time of vacating the premises along with the security deposit of a sum of Rs.1,50,000/-.'
33.The 3rd Respondent/Landlord had come out with a categorical stand that the Petitioner had put up the additional construction, annexing the existing flat, illegally without proper permission from the 1st Respondent/Corporation of Chennai and also not obtained NOC from him, co-allottees and the Tamil Nadu Housing Board.
34.The 1st Respondent/Corporation also preferred a complaint, based on the directions issued by this Court on 28.02.2012 in the Writ Petition, against the Writ Petitioner before the XIX Metropolitan Magistrate as per the Chennai City Municipal Corporation Act and the same was taken on file and the same is pending on the file of XIX Metropolitan Magistrate Court, Chennai.
35.This Court, on 26.04.2012, pending disposal of the Writ Petition, directed the 1st Respondent/Commissioner, Corporation of Chennai to open the lock and seal of the Door No.13-C, measuring an extent of 852 sq. ft., First Floor, Block No.13, New Door No.AH-15/ 105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai on 30.04.2012 at 10.00 a.m. and to permit the Petitioner to take away his computers and other relevant records in the presence of a responsible officer. Further, it was ordered, after removing the movable by the Petitioner, the 1st Respondent was to lock and seal the premises in question.
36.When the Petitioner had put up the unauthorised construction in such a way that the original building could not be separated and since he put up the additional construction continuous to the original building and by providing one common entrance, the 2nd Respondent/ Executive Engineer issued a notice under Section 56 read with 85 of the Act which was served on the Petitioner as well as the 3rd Respondent and thereafter, a notice under Section 56(2) and Section 56(2A) of the Tamil Nadu Town and Country Planning Act was served on him on 29.11.2011. Lastly, the premises was put on lock and seal on 20.02.2012. Certainly, no mala fides could be attributed to the Respondents 1 and 2 in taking legal steps to remove the unauthorised construction from the year 2007, in the considered opinion of this Court.
37.At this stage, it is pointed out by this Court that we have not expressed any opinion on the merits of the pending different eviction RCOP proceedings between the 3rd Respondent and the Petitioner.
38.In the present case on hand, no document, to show that the 3rd Respondent/Landlord had permitted the Petitioner/Tenant to put up additional construction, was produced before this Court. Even otherwise, being Open Reserve Space, the 3rd Respondent/Landlord himself, in law, had no right or authority to make use of such land for any other purposes. The resultant, logical conclusion is that the additional construction put up by the Writ Petitioner, in the flat bearing Door No.13-C, Block No.13, New Door No.AH-15/105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai 600 040, is an unauthorised one.
39.The reliance placed on the communication dated 04.01.1983 by the Tamil Nadu Housing Board to the CMDA, by the Petitioner also does not support his cause of erecting an illegal and unauthorised construction, since even in this communication, 'adherence to norms' has been prescribed. Having not adhered to any of the building norms and having constructed on illegal construction without any written and acceptable permission from the Landlord, the Petitioner cannot be permitted to raise hue and cry as if the present action initiated by the authorities is illegal.
40.Therefore, on the above factual scenario, when the Petitioner had put up the unauthorised construction in the flat in issue, the 1st Respondent/Corporation of Chennai had rightly taken the action of locking and sealing the premises in accordance with law. Inasmuch as the original building could not be separated because of the fact that the additional construction put up by the Petitioner, being an unauthorised construction and is a continuous one, the relief sought for by the Petitioner for issuance of direction by this Court in directing the Respondents to restore possession by removing the lock and seal of the flat bearing Door No.13-C, Block No.13, New Door No.AH-15/105, Shanti Colony, 4th Avenue, Anna Nagar, Chennai 600 040, made on 20.02.2012, could not be acceded to in the eye of law. Consequently, the Writ Petition fails.
In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected Miscellaneous Petitions are closed.
(E.D.R.J.) (M.V.J.) 4.07.2012 Index :Yes Internet :Yes Sgl To
1.The Commissioner, Corporation of Chennai, Rippon Buildings, Park Town, Chennai 600 003.
2.The Executive Engineer, Corporation of Chennai, Zone VIII, No.183, Periyar Salai Kilpauk, Chennai 600 010.
ELIPE DHARMA RAO,J.
AND M.VENUGOPAL,J.
Sgl ORDER IN W.P.No.4403 of 2012 4.07.2012