Madras High Court
Shaikh Mohammed Bakurudeen vs The Commissioner on 1 February, 2019
Bench: M.Sathyanarayanan, P.Rajamanickam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 01.02.2019
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE P.RAJAMANICKAM
W.A. No. 448 of 2019
Shaikh Mohammed Bakurudeen ... Appellant
Vs
The Commissioner
Coonoor Municipality
Coonoor. ... Respondent
Writ Appeal filed under clause 15 of the Letter Patents to set aside the
order dated 27.07.2018 in W.P. No. 18095 of 2018.
For Appellant : M/s.AL.Ganthimathi
For Respondents : Mr.P.Srinivas
Standing Counsel (Municipality)
JUDGMENT
[Order of the Court was made by M.SATHYANARAYANAN, J.] By consent, the writ appeal is taken up for final disposal and it is disposed of by this judgment.
2. The appellant is the Writ Petitioner.
3. The appellant / Writ Petitioner filed W.P. No. 18095 of 2018 praying for issuance of writ of certiorarified mandamus calling for the records relating to the impugned notice, dated 10.07.2018 issued by the respondent and quash the same as illegal and unreasonable with a consequential direction, directing http://www.judis.nic.in 2 the respondent to allow him to carry on business and pass such further orders.
4. The appellant /writ petitioner in the affidavit filed in support of the writ petition would aver among other things that there is a commercial complex located in Coonoor bus-stand and it belongs to Coonoor Municipality, The Nilgiris district and according to him, in the year 1965 the said Municipality leased out a portion in the ground floor, wherein he is carrying on the hotel business in the name and style of “Asian Hotel” and rest of the portions were leased out to various persons to run a petty shop, milk bar, saloon and the Tamil Nadu Transport Corporation booking office. It is also the claim of the writ petitioner that the entire first floor is leased out to the appellant /writ petitioner, wherein he is also running a boarding and lodging house. The appellant /writ petitioner to his shock and surprise, was issued with an impugned notice dated 10.07.2018 stating among other things that he is an encroacher, and the premises became old and in dilapidated condition and it requires immediate demolition. The writ petitioner made a challenge to the said impugned notice by filing a writ petition stating among other things that the building is at present aged about 65 years and it is not in a weak or dilapidated condition and that apart, the premises in occupation of the appellant /writ petitioner has been selectively targeted in order to evict him and therefore, prays for quashment of the same. The writ petition was entertained and notice was ordered. After taking note of the materials placed and also the submissions made by the learned Standing Counsel for the http://www.judis.nic.in 3 respondent-Municipality that the technical committee caused an inspection of the said building and gave its opinion that it became dilapidated, the learned Judge has also taken note of the fact that challenging the earlier eviction notice, the petitioner has availed the Common Law remedy, the second appeal in S.A. No. 80 of 2005, which also came to be dismissed and further found that in the event of monsoon rain, there is likelihood of further damage to the building and the building may collapse at any time and the respondent- Municipality would be held responsible and citing the said reason had dismissed the writ petition and granted time to the appellant / writ petitioner till 27.08.2018 to vacate the premises and deliver the vacant peaceful possession of the premises, subject to the executing an affidavit of undertaking to the respondent to that effect.
5.M/s.AL.Ganthimathi, learned counsel for the appellant would forcibly contend that if re-inspection is caused in respect of the premises in question it would be definitely found out that it is not old or in dilapidated condition and only with a view to evict the appellant /writ petitioner the impugned notice has been given and also brought to the knowledge of this Court, the civil litigation pertaining to the earlier eviction notice also ended against him in the form of dismissal of S.A. No. 80 of 2005 by this Court and hence, prays for interference.
6. Per contra, Mr.P.Srinivas, learned Standing Counsel appearing for the respondent -Municipality would submit that the technical committee has http://www.judis.nic.in 4 thoroughly gone into the soundness of the structure and opined that it requires immediate demolition and if any untoward incident happens it is likely to result in loss of life and in that event, the respondent -Municipality will be mulcted with costs and consequences and would further add that the petitioner is running a hotel and his brother is running a lodge and almost all the premises in the bus-stand have been evicted and however, the demolition could not be carried out on account of the pendency of the present litigation. Almost all of them were evicted on 03.09.2018 and on account of the pendency of the present litigation, the demolition of the said premises could not be carried out.
7.This Court has carefully considered the rival submissions and also perused the materials placed before it.
8.It is relevant to extract Section 218 of the Tamil Nadu District Municipalities Act, 1920, “218. Precautions in case of dangerous structures:
1. If any structure appears to the [Executive authority] to be in a ruinous state and dangerous to the passers-by or to the occupiers of neighbouring structures, the [executive authority] may, by notice, require the owner or occupier to fence off, take down, secure or repair such structure so as to prevent any danger therefrom.
2. If immediate action is necessary, the [executive authority] shall himself, before giving such notice or before the period of such notice expires, fence off, take down, http://www.judis.nic.in 5 secure or repair such structure or fence off a part of any street, or take such temporary measures as he thinks fit to prevent danger and the cost of doing so shall be recoverable from the owner or occupier in the manner provided in section 344.
3. If in the [opinion of the executive authority], the said structure is immediate dangerous to the inmates thereof, the [executive authority] shall order the immediate evacuation thereof and any person disobeying may be removed by any police officer.” A technical committee was constituted by the respondent-Municipality and they caused inspection of the entire premises and reached a conclusion that the superstructure of the building became dilapidated and in weak condition and it requires immediate demolition. The above cited provision also enables the Executive Authority, to order demolition, if immediate action is necessary and admittedly, the impugned notice dated 10.07.2018 has been issued to the writ petitioner so as to enable him to vacate and deliver the vacant possession of the premises. It is also to be pointed out at this juncture that an expert body namely, Technical Committee had caused inspection and gave opinion that the entire premises housing builgings in occupation of the petitioner became dilapidated and it requires immediately demolition. Though, it is vehemently contended by the learned counsel for the writ petitioner that the petitioner has been selectively targetted, in the considered opinion of this Court, it is not so. Even for the sake of argument the superstructure is not in http://www.judis.nic.in 6 M.SATHYANARAYANAN, J., AND P.RAJAMANICKAM, J., maya/abr dilapidated condition and therefore, it will not require any immediate demolition, still for economic betterment, it is always open to the municipality to go for demolition of the superstructure. The learned Judge has correctly appreciated the factual aspects and rightly reached the conclusion to dismiss the writ petition.
9.This Court, on an independent application of mind to the entire materials, is of the considered view that there is no error apparent on the face of the record or infirmity in the reasons assigned by the learned Judge in issuing a positive direction and that there is no merit in the writ appeal.
10.In the result, this writ appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
[M.S.N.,J] [P.R.M.,J]
01.02.2019
maya/abr [2/2]
Internet: Yes/No
Index:Yes/No
Speaking / Non Speaking order
To
1. The Commissioner
Coonoor Municipality
Coonoor. W.A. No. 448 of 2019
http://www.judis.nic.in