Madras High Court
M.K.Stalin vs The Secretary Of Municipal ... on 17 April, 2012
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.04.2012
CORAM
THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN
W.P.No.30123 of 2011 & M.P.Nos.1 of 2011 and
W.P.No.2497 of 2012 & M.P.No.3 of 2012
M.K.Stalin .. Petitioner in
both W.Ps.
Vs.
1. The Secretary of Municipal Administration and Water Supply Dept.
Fort St. George, Chennai 600 009.
2. The Commissioner
Corporation of Chennai
Rippon Buildings, Park Town Respondents in
Chennai 600 003. .. both W.Ps.
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Petition under Article 226 of the Constitution of India praying for
(a) writ of Certiorarified Mandamus calling for the records pertaining to the proceedings of the second respondent dated 15.12.2011 made in Ne.Ma.Voo.Department Na.Ka.No.LE-4/1883/2011 Subject No.34 which is the subject matter in the Additional Agenda for the ordinary meeting of the Chennai Corporation which is scheduled to be held on 21.12.2011 and quash the same by consequently forbearing the respondents from in any manner taking action to resume the office premises of the Legislative Assembly Member, Kolathur Constituency from the petitioner contrary to the allotment made by the Chennai Corporation in the Resolution No.189/2011 dated 29.6.2011; and
(b) writ of Certiorari calling for the records pertaining to the proceedings of the first respondent made in G.O.(D)No.440, Municipal Administration and Water Supply (MC-1) Department dated 08.11.2011, so as to quash the same.
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For Petitioner : Mr.N.Jothi, For Mr.R.Girirajan
For Respondents 1 & 2 : Mr.A.Navaneetha Krishnan
Advocate General
Assisted by Mr.S.Venkatesh
Govt. Pleader for R1
Mr.R.Arunmozhi
Standing Counsel for R2
For proposed party : Mr.V.Raghavachari
For Mr.P.Vasanth
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COMMON ORDER
The petitioner, who is a sitting member of the State Legislative Assembly, has come up with the above 2 writ petitions challenging (i) an Agenda placed before the Corporation Council and (ii) a Government Order, by which, the Government cancelled an earlier resolution of the Corporation Council granting allotment of a building to the petitioner for locating his office in his Constituency.
2. I have heard Mr.N.Jothi, learned counsel for the petitioner, Mr.A. Navaneetha Krishnan, learned Advocate General, assisted by Mr.S. Venkatesh, learned Government Pleader for the first respondent, Mr.R. Arunmozhi, learned Standing Counsel for the second respondent and Mr.V. Raghavachari, learned counsel appearing for a third party, who has come up with applications for impleading.
3. In the elections held in April 2011, the petitioner got elected from the Kolathur Assembly Constituency. The said Constituency falls within the limits of Chennai City Municipal Corporation. There are 16 Assembly Constituencies which fall within the limits of the Municipal Corporation of Chennai. It appears that for the elected representatives of 8 out of 16 Constituencies, office premises were constructed by the Public Works Department, so as to enable them to meet the electors of their Constituencies. In so far as the remaining 8 Constituencies are concerned, the Corporation Council passed a resolution bearing No.189/2011 on 29.6.2011 under Agenda item No.49. By the said resolution, a building at I Circular Road, Car Street, Bharath Scouts and Guides Junction, Corporation Building, Zone IV, was ordered to be allotted temporarily to the petitioner.
4. It appears that upon coming to know of the said resolution, the President of an Association by name Jawahar Nagar Development and Service Society - Civic Exnora, gave a representation, bringing to the notice of the respondents, an order passed by this Court in a writ petition, namely, W.P.No.19733 of 1999, at the instance of one Jawahar Nagar Education Society. On the basis of the said representation, the Commissioner of the Corporation conducted an inquiry and submitted a report on 22.7.2011, recommending the cancellation of allotment of the building in favour of the petitioner. Therefore, invoking Section 44(2)(a) & (b) of the Chennai City Municipal Corporation Act, 1919, the Government directed the Mayor, by a letter dated 08.8.2011, to place the issue before the Corporation Council and obtain its explanation within seven days as to why the resolution dated 29.6.2011 should not be cancelled, insofar as it related to the allotment in favour of the petitioner alone is concerned. Accordingly, the Mayor placed the matter again before the Corporation Council in its meeting held on 29.8.2011. This fact was also communicated by the Mayor to the Government by his letter dated 11.8.2011.
5. On 29.8.2011, the letter of the Government dated 08.8.2011 was placed before the Corporation Council under Agenda item No.44. By a simple majority, the Council reconfirmed its earlier decision dated 29.6.2011 and the Mayor communicated the same to the Government by a letter dated 30.8.2011. Thereafter, the Government passed G.O.(D)No.440, Municipal Corporation and Water Supply Department dated 08.11.2011, cancelling the earliest resolution of the Corporation dated 29.6.2011, in exercise of the powers conferred by Section 44(2) of the Chennai City Municipal Corporation Act, 1919.
6. In the meantime, elections to all local bodies, including Chennai City Municipal Corporation, were held in October 2011 and the winds of fortune changed its course and direction. Thereafter, the Commissioner of the Corporation placed an agenda under Agenda item No.34, for the consideration of the newly constituted Corporation Council, in its meeting scheduled to be held on 15.12.2011. The subject matter placed before the newly constituted Council was to direct the Zonal Officer VI of the Corporation to retrieve possession of the building allotted to the petitioner, in pursuance of the Government Order G.O. (D)No.440 dated 08.11.2011. Challenging the note of the Corporation Commissioner dated 15.12.2011, insofar as Agenda item No.34 is concerned, the petitioner has come up with W.P.No.30123 of 2011. Challenging the Government Order G.O.(D)No.440, Municipal Administration and Water Supply Department dated 08.11.2011, the petitioner has come up with the second writ petition.
7. The Society at whose instance the impugned action was triggered, namely, the Jawahar Nagar Development and Service Society, represented by its President, has come up with two applications, one in M.P.No.1 of 2012 in the first writ petition and another in M.P.No.3 of 2012 in the second writ petition, praying for impleading them as parties to both the writ petitions. Since the impleading petitions were also hotly contested, on the same grounds on which the writ petitions are to be decided, they were taken up along with the writ petitions.
8. Before proceeding to consider the grounds on which the petitioner assails the impugned action of the respondents, it is necessary to take note of a few facts. Hence the following prelude.
9. A reading of the letter of the Government dated 08.8.2011, which contains the earliest response of the Government to the allotment of the building in question to the petitioner (in pursuance of the resolution of the Corporation dated 29.6.2011) shows that the Government proceeded on the basis of certain observations made by the Corporation Commissioner in a report submitted to the Government on 22.7.2011. The observations of the Commissioner which are extracted in the letter of the Government dated 08.8.2011 read as follows:
The Perambur Cooperative Building Society purchased about 66 Acres of land in Peravallur Village and the lay out was approved in the year 1965 as per the Town Planning rules.
Open Reservation Land was handed over to the Corporation, including the space earmarked for School in the year 1974.
The land measuring 1 acre and 2 grounds and 1401 Sq.ft at No.1 First Circular Road, Jawahar Nagar, Chennai 82 has been handed over to the Corporation of Chennai by the society for construction of school and this land was treated as Corporation private land as per the records.
The Jawahar Nagar Education Society filed a Writ Petition in W.P.No.19733 of 1999 to hand over the above said land to the society for construction of School building claiming that the Chennai Corporation had not taken any steps to construct school building.
In the said Writ Petition, the Hon'ble High Court of Madras in its order Dated 31.01.2001 directed the Corporation of Chennai to initiate action for construction of building for Scouts and Guides apart from construction 5+5 Class Rooms.
In the year 2004, the Corporation of Chennai constructed the School Building in the said land, with 5 Class Rooms and a separate building was constructed for the use of Scouts and Guides.
Estimates were prepared for Rs.16,56,266/- for the construction of Scouts and Guides building.
The Ward Committee-4 has resolved to construct the Scouts and Guides building at a cost of Rs.17,90,000/- vide its Resolution No.18/2000.
The Council has also accorded sanction for the above estimates vide Resolution No.514/2001, Dated 01.12.2001.
Subsequently tenders were called for and approved in the T&F Committee Resolution No.74/2003, Dated 18.02.2003 and work order was also placed on Thiru.A.Peter Prasad vide No.B4/ 241/2000 dated 03.06.2003.
The Scouts and Guides building was taken over charge by the Deputy Commissioner(S) and Headmaster, Corporation Higher Secondary School on 26.08.2004.
Since there are more than two schools in the adjacent area, it was decided not to run another school because of want of strength of students and hence it was decided to allot two rooms to Self Help Groups and remaining 3 rooms were kept vacant.
Now, the Scouts and Guides were shifted to these three vacant rooms and the separate building constructed for the Scouts and Guides is now allotted to the Kolathur constituency M.L.A., for the temporary use as M.L.A's office as per Council Resolution No.189/2011 Dated 29.06.2011.
Unaware of the orders passed by the High Court of Madras directing the Corporation to use this land for construction of School and Building for Scouts and Guides, the Corporation Council passed the above said resolution.
The Jawahar Nagar Development and Service Society-Civic Exnora made a representation Dated 05.07.2011, citing the orders of the High Court of Madras in W.P.No.19733/1999, Dated 31.01.2001, has questioned the allotment of the building specifically constructed for school to the Kolathur Constituency M.L.A. Office. Then, the matter was enquired thoroughly and the above mentioned facts were ascertained.
10. All subsequent communications and orders of the respondents revolve only around the above observations. The above observations which contain the reasons for the cancellation of allotment of the building in question to the petitioner, can be summed up as follows:
(i) that this Court had already passed an order dated 31.01.2001 in a writ petition, namely, W.P.No.19733 of 1999, directing the Corporation to initiate action for the construction of a building for Scouts and Guides, apart from the construction of five class rooms each in the ground floor and the first floor for establishing a school;
(ii) that in pursuance of the said order, estimates were prepared, tenders were called and work orders were issued and a school building with five class rooms and a separate building for Scouts and Guides were constructed;
(iii) that however it was decided not to run a school, on account of the lack of sufficient strength of students and the existence of two schools in the adjoining areas;
(iv) that instead, it was decided to allot two rooms to Self Help Groups and to keep three rooms vacant; and
(v) that subsequently, Scouts and Guides were shifted to three vacant rooms and the building constructed for the benefit of Scouts was allotted to the petitioner, without being aware of the orders passed by this Court in the writ petition.
11. Thus, it is clear that the present action of the respondents, is projected as an offshoot of the order passed by this Court in W.P.No.19733 of 1999 dated 31.01.2001. The said writ petition was filed by a Society by name Jawahar Nagar Education Society bearing registration No.179/87. The prayer made by them in the said writ petition was for setting aside an order dated 07.01.1997, by which, the request of the said Society for the release of the land in favour of the Society was rejected. A perusal of the affidavit filed by the President of the aforesaid Society in support of his writ petition, W.P. No.19733 of 1999, would show that the petitioner in that writ petition (namely the Society) wanted the land of an extent of one acre, two grounds and 1401 sq.ft. to be released to the Society on adoption basis, for the purpose of establishing a School, for the benefit of the residents of the locality. The Society did not ask for a direction to the Corporation to establish and run a School. On the contrary, they wanted the property to be divested from the Corporation and allotted to them for the purpose of establishing a school.
12. However, the Corporation filed an affidavit in the said writ petition, W.P.No.19733 of 1999, informing this Court that the Corporation is taking all steps to construct the School building. The relevant portion of the affidavit of the Corporation Commissioner was extracted and the writ petition was disposed of by this court by an order dated 31.01.2001. Paragraphs 4 and 5 of the order dated 31.01.2001 in W.P.No.19733 of 1999 need to be extracted, as the fate of the case depends solely upon the same. Hence, they are extracted as follows:
"4. It is admitted case that the land to an extent of 1 acre, 4 grounds, 1401 sq.ft. was in fact handed over to the 2nd respondent on 9.6.74 for construction of school building by the petitioner as per the direction of the Director of Town and Country Planning while the layout was approved by him as early as in the year 1965. In fact in paragraph 5 of the affidavit filed in support of the writ petition, the petitioner has stated that the land was actually treated by the Corporation of Chennai (Land and Estate Department) as the Corporation private land. Once this land was handed over to the Corporation of Chennai the said property vests with the Corporation and therefore there is no right conferred on the petitioner to seek the land to hand over back to the society. So long as the land in question to sought to be utilized by the Corporation Authorities for the purpose of putting up construction of building for the school for which purpose the land has been earmarked the petitioner cannot have any grievance and cannot seek back the land from the Corporation and the prayer is the writ petition sought to be granted. In this connection, an affidavit has been filed by the Commissioner, Corporation of Chennai wherein it has been stated in paragraph 7 & 8 follows:
"I further submit that the Somia Raja Middle School has been upgraded as High School. Hence, the Corporation has decided to put up additional construction of 5+5 classrooms for the said school. Due to the obstruction by the Member of the Legislative Assembly, Purasawalkam and the Councillor, Division 50, the contract already awarded vide Resolution No.1427/97 dated 23.4.97 has been cancelled. The High School situated at Somia Raja Street does not have any adequate accommodation. The people residing at Jawahar Nagar, Periyar Nagar and Kumaran Nagar are the beneficiaries of the proposed additional construction of school building. Further there was 2 play grounds near the place. Accordingly, the Asst. Educational Officer sent a new proposal for the Scouts and Guides apart from the construction of class rooms. I submit that the Corporation of Madras is taking all steps afresh to construct the school building as mentioned above.
5. In view of the categorical statement of the 2nd respondent in the affidavit that the Asst. Educational Officer has sent a proposal for constructing building for the Scouts and Guides apart from construction of class rooms and in view of the statement of the Commissioner that the Corporation is taking all steps afresh to construct the school building as mentioned in paragraph 7, I do not find any justification for the petitioner to seek back the land from the Corporation. However, during the course of arguments, the learned counsel for the petitioner expressed his apprehension that even though the land was taken possession by the Corporation as early as on 9.6.74, so far the school building has not been put up and therefore, the 2nd respondent may further delay the putting up of construction in the land. The said apprehension is well founded. Therefore, and in view of the specific statement of the Corporation, the Corporation is directed to initiate action on the proposal of the Asst. Educational Officer for construction of the required building for Scouts and Guides apart from construction of 5+5 class rooms for the upgraded Somia Raja Street High School and finalise the same as expeditiously as possible. With the above observation, this writ petition is dismissed. No costs. Consequently, W.M.P.No.28962 of 1999 is also dismissed."
13. In the background of the above facts, Mr.N.Jothi, learned counsel appearing for the petitioner assailed the impugned order of the Government and the impugned Agenda placed before the Corporation Council, on the following grounds:
(a) that in the light of two resolutions passed by the Corporation Council, one on 29.6.2011 and another on 29.8.2011, allotting the building to the petitioner and in the light of the petitioner having already been put in possession on 16.7.2011, the impugned order of the Government passed at the instance of a third party, without any opportunity to the petitioner, is violative of the principles of natural justice;
(b) that when all the other elected members, whose Constituencies fall within the City Corporation limits, have been allotted buildings for locating their offices in their respective Constituencies, the denial of the same benefit to the petitioner is discriminatory;
(c) that when even an encroacher cannot be thrown out without following due process of law, the direction contained in the impugned order to the Zonal Officer to recover possession, without an opportunity to the petitioner is unfair and arbitrary;
(d) that the invocation of Sections 24 and 44(1) & (2) of the Madras City Municipal Corporation Act is improper;
(e) that the attempt of the respondents to take cover under the order passed by this Court in W.P.No.19733 of 1999 is mala fide, since the building was used for various other purposes, such as locating the office to Self Help Group, storing freebies intended for supply to the local population, etc. and was never put to use as a school for the past ten years, after the judgment of this Court; and
(f) that the petitioner in W.P.No.19733 of 1999 was different from the Society which made a representation to the Government on 05.7.2011 and also the Society which has now come up with the impleading petitions and hence, the action initiated at their behest was mala fide.
14. In response to the above contentions, Mr.A.Navaneetha Krishnan, learned Advocate General contended -
(a) that the petitioner has no enforceable right, since no allotment order was ever issued to him;
(b) that the earliest resolution of the Corporation Council dated 29.6.2011 never came into effect, in view of Section 24 of the Act;
(c) that since there was no order of allotment, there was no necessity to give an opportunity of hearing to the petitioner;
(d) that the first writ petition has become infructuous, inasmuch as the Agenda under challenge was already passed by way of a resolution by the Council; and
(e) that in any case the first resolution of the Council stood cancelled validly by an order passed under section 44 (2).
15. Before taking up the contentions of the learned counsel for the petitioner, I think I should first consider the objections raised by the learned Advocate General, since his objections go to the root of the matter and if any one of them deserves acceptance, then the writ petitions are liable to be thrown out, even without a consideration of the contentions of the petitioner. Therefore, let me take up the objections of the learned Advocate General first, for consideration.
16. The first and second objection of the learned Advocate General is that the petitioner has no enforceable right, as the resolutions of the Corporation Council dated 29.6.2011 and 29.8.2011 never fructified into an order of allotment. Therefore, according to the learned Advocate General, the occupation of the building by the petitioner was unlawful and his possession is that of a rank trespasser and hence, there is no question of any opportunity of hearing to the petitioner.
17. But the above contentions tend to overlook a few important aspects and also tend to over simplify the whole issue. A look at the resolution of the Corporation Council dated 29.6.2011, shows that the following facts were placed before the Council :
(a) that in 8 out of 16 assembly constituencies coming within the limits of Chennai City Municipal Corporation, buildings were constructed by the Public Works Department for housing the offices of the respective elected representatives and these offices are functioning at present;
(b) that those 8 constituencies and the addresses at which the offices so allotted are functioning, are Constituency No. Name of the constituency Address of the office allotted to the MLA 11 Dr.Radhakrishnan Nagar Erattaikuzhi Street, Zone 1 12 Perambur Melpatti Ponnappan Street, Zone 3 18 Harbour North Fort Side Road, Zone 2 21 Anna Nagar A Block, III Street, Near Goods Carrier Depot of Chennai Corporation, Zone 5 19 Chepauk-Triplicane Dr.Besant Road, Zone 6 20 Thousand Lights Lake Area, IV Cross Street, Zone 7 23 Saidapet West Jones Road, Near Chennai Corporation School Zone 9 24 Thiagaraya Nagar North Usman Road, Near Thiagarayanagar Bus Stand, Zone 8
(c) that since there is no office building for the elected member of the Egmore assembly constituency, the office building originally allotted at Kannappar Thidal in Zone 3 for Poonganagar assembly constituency was to be reallotted to Egmore constituency, as Poonganagar constituency has been deleted under delimitation;
(d) that for the Mylapore assembly constituency, a building was under construction by the Public Works Department in Kamarajar Salai, Division 149, Zone 10 and hence, till the construction was over, the building intended for the use of the member of the 142nd ward could be allowed to be used temporarily;
(e) that under the above circumstances, the elected representatives of five out of the remaining six assembly constituencies had made requests over phone and through letters to allot places, chosen by them;
(f) that as per their request, it was decided to allot places for the elected representatives of the remaining constituencies as per details furnished below :
Constituency No. Name of the constituency Address of the place allotted 13 Kolathur I Circular Road, Car Street, Corporation Building at the junction of Scouts and Guides Training Centre, Zone 4 15 Thiru Vi.Ka.Nagar Bharathi Salai, Perambur, Chennai Corporation Area Office-7, Zone 3 (building) 17 Royapuram Robinson Play Ground, Cemetery Road, Zone 2 (land) 22 Virugambakkam Kamarajar Salai, Near Divisional Office-65, Zone 5 (land)
(g) that the MLA of Velachery constituency had chosen a land belonging to the Public Works Department, which is located near a lake situate in Velachery By-Pass Road and hence, a no objection certificate had to be given to him;
(h) that Villivakkam MLA had requested time for choosing a place and hence his case could be taken up in the next meeting of the Council after a place was chosen by him;
(i) that therefore, the approval of the Council was sought through the Standing Committee (Taxation and Finance) for allowing the places indicated above to be used temporarily as office buildings of the MLAs and for allotting those places to the above persons, after following the Rules.
18. There is no dispute that the Council took note of the above facts. There is also no dispute that a resolution was passed by circulation, by the Standing Committee (T & F) on 28.6.2011, before the approval of the Corporation Council was sought in its meeting held on 29.6.2011. It is also an admitted fact that by a majority, the Corporation Council resolved to grant approval, not only in respect of the building in question, but also in respect of the buildings intended for others.
19. But it is also equally true that no formal order of allotment was issued by the Commissioner of the Corporation to the petitioner in pursuance of the resolution passed on 29.6.2011 as above. Therefore, the fundamental question to be decided is as to whether the non issue of a formal order of allotment would make the occupation of the petitioner illegal. In order to find an answer to this question, we must necessarily take a look at some of the provisions of the Act.
20. Under Section 9(1) of the Madras City Municipal Corporation Act, 1919, the executive power for the purpose of carrying out the provisions of the Act is vested in the Commissioner, subject however to the sanction of the Council or the Standing Committee. The Commissioner of the Corporation is also vested under Section 11, with extraordinary powers, in cases of emergency, to direct the execution of any work or the doing of any act.
21. The Municipal Government of the City is vested in the Corporation Council, by virtue of Section 23(1). But the Council is not entitled to exercise the functions expressly assigned to (i) a Standing Committee or (ii) the Commissioner. Therefore, the Corporation Council is entitled under Section 23(3), to pass such resolutions as it thinks fit, but without prejudice to the limitations imposed under Sub-Section (1).
22. In the background of the above statutory provisions that demarcate the functions of (i) the Commissioner; (ii) the Standing Committee; and (iii) the Council, let us now take a look at Section 24, which reads as follows :
"Obligations laid on remaining municipal authorities to carry out resolutions or order of council :- The standing committee and the commissioner shall be bound to give effect to every resolution or order of the council unless such resolution or order is cancelled in whole or in part by the State Government :
Provided that, if, in the opinion of the commissioner any resolution or order of the council or a committee constituted under this Act contravenes any provision of this or any other Act or of any rule, notification, regulation or by-law made or issued under this or any other Act or of any order passed by the State Government or if there would be any miscarriage of justice in the implementation of such resolution or order, he shall within a period of thirty days from the date of passing of the resolution or order or such further period not exceeding fifteen days, as the State Government may, by general or special order, specify from time to time, refer the matter to the State Government for orders, and inform the council or the committee, as the case may be, of the action taken by him at its next meeting and until the orders of the State Government on such reference are received, the commissioner shall not be bound to give effect to the resolution or order."
23. A reading of the main part of Section 24 shows that both the Standing Committee and the Commissioner are duty bound to give effect to every resolution or order of the Council, unless such resolution is cancelled in whole or in part by the State Government. The proviso to Section 24 enables the Commissioner to refer the matter to the State Government for orders, if he is of the opinion that the resolution of the Council cannot be implemented. The proviso also enables the Commissioner not to give effect to the resolution, till the orders of the State Government are received on the reference made by him.
24. But to invoke the proviso to Section 24, the following conditions are to be satisfied :
(i) the Commissioner should form an opinion
(ii) the opinion of the Commissioner should be that the resolution contravenes any provision of the 1919 Act or any other Act or any Rule, Notification, Regulation or By-law or
(iii) alternatively the opinion of the Commissioner should be that there would be any miscarriage of justice, in the implementation of the resolution;
(iv) after forming such an opinion, the Commissioner should also inform the Council, at its next meeting, of the action taken by him.
25. If only the above conditions are satisfied, it would be open to the Commissioner to withhold the implementation of the resolution of the Corporation Council, until the orders of the State Government, on the reference made by him, are received. Therefore, it is necessary to see if the above conditions are fulfilled, for the Commissioner to fall back upon the proviso to Section 24.
26. The Commissioner of the Corporation has filed a counter affidavit. As per his counter affidavit, a representation dated 27.6.2011 was received on 28.6.2011 (as seen from the date stamp affixed on the letter) from the Organising Secretary of the Bharath Scouts and Guides informing him that pressure was being exerted through Zonal Office IV to convert the place allotted to Scouts and Guides, as the office of the petitioner. While this representation is prior in point of time, to the resolution of the Council passed on 29.6.2011, another representation was received from the Jawahar Nagar Development and Service Society (Regn.No.319/2002) on 5.7.2011 (which is later in point of time to the resolution of the Council) requesting him not to permit the location of the office of the petitioner in the building in question.
27. Thus, the Commissioner, according to his counter, had one representation received before the Council passed a resolution and another representation received after the Council passed a resolution. Though the letter of the Organising Secretary of Bharath Scouts and Guides was not even placed in the meeting of the Corporation Council held on 29.6.2011, perhaps for want of time, one would have expected the Commissioner at least to set due process of law in motion, on the basis of the representation of Bharath Scouts and Guides. But it was not done. On the other hand, the Commissioner conducted an inquiry only on the representation given by the Jawahar Nagar Society and not on the representation of Scouts and Guides.
28. In the letter dated 22.7.2011 addressed to the Secretary to Government, the Commissioner made a reference only to the resolution of the Council dated 29.6.2011 and the representation of the society dated 5.7.2011, but not to the representation of Bharath Scouts and Guides dated 27.6.2011. Therefore, it is clear that the process was set in motion only on the representation of the Society.
29. Apart from the above, the contents of the letter dated 22.7.2011 of the Commissioner, addressed to the Secretary to Government, provide some useful clue. Since the Commissioner has recorded in said letter, the findings arrived at by him after enquiry, I am extracting the letter dated 22.7.2011 as follows :
"As per the Council Resolution in the reference 1st cited, a separate building constructed for Scouts and Guides in Zone-4, Dn-50, at No.1, First Circular Road, Jawahar Nagar, Chennai-600082 has been allotted to Kolathur constituency M.L.A. for his office.
But the Jawahar Nagar Development and Service Society objected, not to allot the above building for the use of MLA office which is contrary to the Court Judgment in W.P.No. 19733/99, dt.31.01.2001 in the reference 2nd cited.
During the enquiry, it is revealed that the Perambur Cooperative Building Society purchased about 66 acres of land in Peravallur Village and the lay out was approved in the year 1965 as per the Town Planning Rules. Open reservation land was handed over to Corporation including the space earmarked for school in the year 1974. The land measuring 1 acre and 2 grounds and 1401 sq.ft at No.1, First Circular Road, Jawahar Nagar, Chennai-82 has been handed over to Corporation of Chennai by the society for construction of school and this land was treated as Corporation private land as per the records. Since no steps were taken by Corporation to construct a school, the Jawahar Nagar Education Society filed a writ petition in W.P. No.19733 of 1999, to hand over the above said land to the society for construction of school building and the Hon'ble High Court has passed an order dated 31.01.2001 directing the Corporation of Chennai to initiate action for construction of building for Scouts and Guides apart from construction of 5+5 class rooms. In the year 2004, the Corporation of Chennai constructed the school building with 5 class rooms and a separate building was constructed for the use of Scouts and Guides.
Estimates have been prepared for Rs.16,56,266/- for the construction of Scouts and Guides building. The Ward Committee-4 has resolved to construct the Scouts and Guides building at the cost of Rs.17,90,000/- vide its resolution No.18/ 2000. The Council has also accorded sanction for the above estimates vide resolution No.514/2001, dated 1.12.2001. Subsequently tenders have been called for and approved in the T&F Committee resolution No.74/2003 dt.18.2.2003 and work order have also been placed on Thiru A.Peter Prasad vide No. B4/241/2000 dated 3.6.2003. The Scouts and Guides building was taken over charge by the Deputy Commissioner(s) & Headmaster, Corporation Higher Secondary School on 26.8.2004 (copies enclosed).
Since there are more than two schools in the adjacent area it was decided not to run another school because of want of strength of students and hence it was decided to allot two rooms to Self Help Groups and remaining 3 rooms were kept vacant. Now, the Scouts and Guides were shifted to these three vacant rooms and the separate building constructed for the Scouts and Guides is now allotted to the Kolathur Constituency MLA for the temporary use as MLA's office as per the Council Resolution No.189/2011, dt.29.6.2011.
When this resolution was passed the Corporation was not aware of the orders passed by the High Court directing the Corporation to use this land for construction of school and building for Scouts and Guides. After the Jawahar Nagar Development and Service Society made a representation, the matter was enquired thoroughly and the above mentioned facts were ascertained.
In view of the objections received from the public and considering Court Judgment, we may cancel the allotment made to the Kolathur constituency MLA office passed in the resolution number 189/2011 dated 29.6.2011 by the Council of Corporation of Chennai. With regard to the cancellation of resolution, it is to be stated that as per Section 44(2) of CCMC Act, 1919, the Government is having powers to suspend or cancel in whole or in part of any resolution passed by the Council.
In view of the above, the Government may pass orders under Section 44(2) of CCMC Act, 1919 cancelling the allotment made to the Kolathur constituency MLA office only passed in resolution No.189/2011, dt. 29.6.2011 by the Council of Corporation of Chennai."
30. From the first and last two paragraphs of the above letter of the Commissioner, it is clear that the Commissioner himself was under the impression that the building in question had been allotted to the petitioner. What was actually sought by the Commissioner, from the Government, was really a cancellation of the allotment and not merely cancellation of the resolution of the Council. A careful reading of the proviso to Section 24 would show that the Commissioner can refer the resolution of the Council to the Government and also put on hold the implementation of the resolution in the meantime, if the conditions stipulated therein are satisfied. But the Commissioner himself understood the sequence of events as having resulted in an allotment to the petitioner and this is why he sought a cancellation of allotment. He did not in fact pass any order putting the resolution or the allotment, on hold till the Government passed orders on his letter of reference.
31. I do not for a moment suggest that the absence of an actual order of allotment would pale into insignificance, merely on account of a wrong understanding on the part of the Commissioner. All that I take note of, is the fact that the Commissioner himself has understood the situation as one arising out of an order of allotment. Therefore, the petitioner cannot be found fault with, for similar understanding that there was a proper allotment.
32. One must take note of the sequence of events, as admitted by all the parties. The resolution of the Standing Committee (T&F) is dated 29.6.2011. The representation of the Jawahar Nagar Society is dated 5.7.2011. The letter of the Commissioner addressed to the Government, after conducting an inquiry, is dated 22.7.2011. The petitioner occupied the premises on 16.7.2011 to the knowledge of the respondents. The letter of the Commissioner dated 22.7.2011 requested the Government only to cancel the allotment in favour of the petitioner.
33. Therefore, even if the petitioner had occupied the premises, in pursuance of a mere resolution of the Council dated 29.6.2011, without waiting for the Commissioner (i) to issue a formal order of allotment; and (ii) to issue a certificate handing over possession, the same cannot be termed as totally unlawful. To term such an occupation as amounting to trespass, especially in the circumstances of the case, is uncharitable.
34. Moreover, the letter of the Commissioner dated 22.7.2011 cites two reasons, namely (i) the objections received from the public; and (ii) the order of this Court in the earlier writ petition. Both these reasons do not satisfy the requirements of the proviso to Section 24. For seeking cancellation of the resolution duly passed by the Council, the Commissioner should satisfy either (i) that it contravenes any provisions of this Act or any other Act, Rule or Notification or Regulation or (ii) that there would be a miscarriage of justice if the resolution is implemented. The Commissioner has not specified in his letter dated 22.7.2011 as to whether the case on hand falls under any of the above two categories.
35. Certainly, the resolution cannot be said to be contravening any provision of this Act or any other Act or Rule or Notification or Regulation. At the most, the respondents can term the resolution of the Council dated 29.6.2011 as one that would lead to miscarriage of justice in view of the judgment of this Court in the first writ petition. But a careful scrutiny of the judgment of this Court in that writ petition (dated 31.1.2001) shows (i) that the statement given by the Corporation before this Court in the earlier writ petition was only to construct a school building and a building for scouts and guides; and (ii) that the direction issued by the Court was also only to initiate action on the proposal of the Assistant Educational Officer for the construction of the required building for scouts and guides apart from the construction of ten class rooms for the upgraded Somia Raja High School.
36. But the letter of the Commissioner dated 22.7.2011 makes it clear in the same breathe that the Corporation has decided not to run another school, in view of the existence of more than two schools in the area. The letter also shows that the Corporation decided to allot two rooms to self help groups. Therefore, it is clear that the order of this Court dated 31.1.2001, was never implemented in letter and spirit for nearly 10 years, even before the Council passed the resolution dated 29.6.2011. If the allotment of a few rooms for self help groups and the decision of the Corporation not to establish a school in the place, does not amount to "miscarriage of justice" within the meaning of the proviso to Section 24, I do not know how the allotment of a building used by Bharat Scouts, to the petitioner to locate his office alone could be termed as amounting to "miscarriage of justice". Therefore, it is clear that the conditions for invoking the proviso to Section 24 were not satisfied in the case on hand.
37. Consequently, the first two objections of the learned Advocate General are bound to be rejected, first on account of the fact that the petitioner cannot be termed as a trespasser and next on account of the fact that the conditions prescribed in the proviso to Section 24 are not fulfilled. Just as the Commissioner had gained an impression that there was an allotment, the petitioner had also gained an impression and occupied the building in full public glare and not in a discreet manner. Such occupation was supported by two resolutions of the Corporation Council, one prior in point of time and another latter in point of time to such occupation. Therefore, the petitioner had gained an enforceable right and the same could not have been defeated without due process of law.
38. The third objection of the learned Advocate General is that since there was no order of allotment, there was no question of any opportunity being granted before its cancellation. But this objection will fall to the ground in view of my findings on the first 2 objections.
39. The fourth objection of the learned Advocate General that the first writ petition became infructuous in view of the subsequent resolution of the Corporation Council, cannot hold water. The foundation for the latest resolution of the Council is the Government Order G.O.(D).No.440 dated 8.11.2011. That order has been challenged in the second writ petition. Therefore, the second writ petition can stand independently of the prayer made in the first writ petition and hence, there is no point in dismissing one writ petition as infructuous, when the petitioner can sustain his grievance in entirety in the next writ petition.
40. The last objection of the learned Advocate General is based on section 44 of the Act. I shall take it up for consideration, along with one of the contentions raised by the petitioner, as they overlap.
41. Now let me take up for consideration, the contentions of the petitioner one after another.
42. The first three contentions of the learned counsel for the petitioner could be considered together conveniently. The first contention is that the petitioner was put in possession of the building in pursuance of a resolution validly passed by the Corporation Council on 29.6.2011 and confirmed by a second resolution dated 29.8.2011 and that therefore, before cancelling the allotment, especially at the instance of a third party, the respondents ought to have complied with the principles of natural justice. The second contention is that when the elected representatives of all the other Constituencies lying within the Corporation limits of Chennai have been allotted places, the cancellation of the allotment in favour of the petitioner would amount to hostile discrimination. The third contention is that the attempt to evict the petitioner without due process of law, when the occupation of the petitioner is in pursuance of a valid resolution passed by the Corporation Council, is arbitrary and unfair.
43. As pointed out by me earlier, the resolution of the Council dated 29.6.2011 shows that the Corporation Council took note of the existence of 16 Constituencies within the Corporation limits. The Council also took note of the allotment of places and the construction of buildings by the Public Works Department for 8 out of 16 representatives. The respondents do not deny the fact that the elected representatives of all the other Constituencies within the limits of the Corporation of Chennai were allotted places and that the Public Works Department also constructed buildings for locating their offices.
44. Therefore, this is not a case where the Corporation Council favoured the petitioner with something that other persons equally placed like him did not get. This is why the respondents have not come up with a stand that the petitioner is not entitled to the allotment of a building to locate his office. The only stand taken by the respondents is that the building in question ought not to have been allotted to the petitioner. In other words, the entitlement of the petitioner to the allotment of some building for locating his office is not and cannot be disputed when all others have been alloted places.
45. It is true that the allotment of a building for an elected representative to locate his office within the Constituency is not one of the perquisites or privileges conferred upon an elected representative. But, it may certainly be a benefit conferred upon the electors of the Constituency, provided the elected representative attends such office on a regular basis and meets the electors for the ventilation of their grievances. More over, when the resolution dated 29.6.2011 shows that a majority of the elected representatives of the 16 Constituencies coming within the Corporation limits have been allotted places and their buildings also constructed by the Public Works Department, the respondents cannot single out the petitioner for a different treatment.
46. As a matter of fact, two things are bound to be taken note of in this case. First is that it is not the case of the respondents that no building can ever be allotted to the petitioner for locating his office. Second is that in the course of arguments, Mr.N.Jothi, learned counsel for the petitioner submitted that his client is not very particular about any building and that he is prepared to accept any other building within the Constituency, subject to the condition that it is accessible to the electors of his Constituency and it is also convenient for the petitioner. Viewed from such an angle, it is clear that the attempt of the respondents to recover possession of the building from the petitioner without due process of law, especially when all the other representatives have been allotted places, is arbitrary and unfair.
47. I have already noted, while dealing with the contentions of the learned Advocate General that the possession of the petitioner cannot be equated to that of a trespasser. The reasons are three fold.
(i) In the correspondence between the Commissioner and the Government, the Commissioner himself had understood it to be a case of allotment, though there was no formal order of allotment;
(ii) In any case, the Commissioner was bound, in terms of the main part of Section 24, to give effect to the resolution of the Council, except in cases covered by the proviso to Section 24. I have indicated earlier that the conditions for the invocation of the proviso to Section 24 are not fulfilled. The case does not fall under the category of allotment in violation of the Act, Rules or notification. If it is sought to brought under the category of miscarriage of justice, by a circuitous logic, even then, there was an allotment to Self Help Groups and there was a decision not to run a School in the premises;
(iii) Neither in the letter of the Commissioner dated 22.7.2011, addressed to the Government, nor in the Government letter dated 08.8.2011, the respondents raised an issue about the occupation of the building by the petitioner from 16.7.2011. The occupation of the building by the petitioner appears to have taken place in full public glare. Therefore, the petitioner deserved at least a show cause notice before the building was sought to be recovered from him. Hence, the first three contentions of the petitioner are liable to be upheld.
48. The fourth contention of the petitioner revolves around Sections 24 and 44 of the Act. I have already dealt with the import of Section 24 in extensor. Coming to Section 44, it reads as follows:
"Power to suspend or cancel resolution etc., under this Act ---
(1) The Mayor shall submit to the State Government copies of all important resolutions of the council and of the standing committees, wards committee or other committees and all by-laws of the council.
(2) The State Government may at any time by order in writing ---
(i) suspend or cancel in whole or in part any resolution passed ;
(ii) suspend or cancel any order issued or licence or permission granted; or
(iii) prohibit the doing of any act which is about to be done or is being done, in pursuance of or under colour of this Act, if, in their opinion ---
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorized.
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by, or in contravention of, this or any other Act, or of any rule, notification, regulation or by-law made or issued under this or any other Act, or is an abuse of such powers or adversely affects the financial stability or credit of the corporation or the efficiency of municipal administration as a whole.
(c) such resolution, order, licence, permission or act is in contravention of any direction issued by the State Government, or
(d) the execution of such resolution or order, the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray :
Provided that the State Government shall before taking action under this section on any of the grounds referred to in clauses (a), (b) and (c), give the authority or person concerned an opportunity for explanation :
Providing further that nothing in this sub-section shall enable the State Government to set aside any election which has been held.
(3) If, in the opinion of the commissioner, immediate action is necessary on any of the grounds referred to in clause (d) of sub-section (2), he may suspend the resolution, order, licence or permission or prohibit the doing of the act, as the case may be, and report to the State Government who may thereupon either rescind the commissioners order or after giving the authority or person concerned a reasonable opportunity of explanation, direct that the commissioners order shall continue in force with or without modification permanently or for such period as they think fit."
49. A reading of Section 44(2) shows that it is well within the power of the State Government to suspend or cancel any resolution of the Corporation Council, in whole or in part. But, to do so, the following conditions are to be satisfied.
(i)The Government should form an opinion;
(ii) As per that opinion, the resolution of the Council was not legally passed;
(iii) Alternatively, the resolution, in the opinion of the Government, was in excess of the powers conferred by or in contravention of the provisions of the Act, Rule, notification or Regulations;
(iv) Alternatively, the resolution, in the opinion of the Government, adversely affects the financial stability or credit of the Corporation or the efficiency of the administration as a whole;
(v) Or such resolution is in contravention of any direction issued by the State Government;
(vi) Or the execution of such resolution is likely to cause danger to human life, health, safety or is likely to lead to a riot or an affray.
50. The notice dated 08.8.2011 issued by the Government and the order dated 08.11.2011 passed by the Government in G.O.(D)No.440, shows that the resolution of the Corporation Council dated 29.6.2011 is sought to be brought within the purview of clauses (a) and (b) of Sub-section (2) of Section 44. While clause (a) deals with resolutions not legally passed, clause (b) deals with resolutions passed in excess of the powers conferred by the Act or which amount to abuse of the powers conferred by the Act or which adversely affect the financial stability or credit of the Corporation or which affect the efficiency of the municipal administration as a whole. In other words, the impugned Government Order is not very specific, but seeks to take cover under clauses (a) and (b) together, both of which contain several ingredients. If the only substantial reason contained in the impugned order is compared with the ingredients of clauses (a) and (b) of Section 44(2), it would become clear that there is no match between the two. The resolution of the Council cannot be stated to have been not legally passed, merely because the order of the High Court in W.P.No.19733 of 1999 was not taken note of. As a matter of fact, the Commissioner of the Corporation has stated in his letter dated 22.7.2011 addressed to the Government that the Corporation was not aware of the order of the High Court. Therefore, the resolution passed on 29.6.2011 cannot be said to have been not passed legally. In any case, even as on date, the allotment of a few rooms to Self Help Groups is not revoked and the decision not to establish a school in the building also continues. Therefore, the case on hand will not come within clause (a).
51. The resolution cannot also be said to have been passed in excess of the powers conferred by the Act or in contravention of any provision of the Act or by abusing any such powers. There is no allegation that the resolution adversely affects the financial stability or credit of the Corporation or the efficiency of the Municipal Administration as a whole. Hence, none of the ingredients of clause (b) is also attracted.
52. As pointed out earlier, the only substantial reason stated in the impugned order is that the order of this Court had been violated by the allotment. But, the said ground does not appeal to me for more than one reason. They are as follows:
(i) The writ petition W.P.No.19733 of 1999 was filed by a Society by name Jawahar Nagar Education Society bearing registration No.179/87, praying for divesting the land originally earmarked for the purposes of locating a School from the Corporation and for handing over possession of the same to that Society to enable them to run a school. The said prayer was not granted by this Court. On the contrary, the Commissioner took a stand in that writ petition that the Assistant Educational Officer sent a new proposal for construction of class rooms and for allotment of some space for Scouts and Guides. The order of this Court recording the said statement and directing the Corporation to act on the proposal of the Assistant Educational Officer, was lying in cold storage for more than ten years till the impugned resolution dated 29.6.2011 was passed. A building with five class rooms in the ground floor and five class rooms in the first floor appears to have been constructed. But, later, contrary to the directions issued by the Court in the said writ petition, it was decided not to start a School, but to allot a space even for Self Help Groups. Therefore, the respondents cannot contend that the allotment was totally contrary to the order of the High Court;
(ii) the impugned order G.O.(D)No.440 dated 08.11.2011 does not state that the allotment of space for Self Help Groups is in accordance with the directions issued by this Court. The impugned order does not also state that the decision of the Corporation not to run a school in the premises is in accordance with the decision of this Court in the aforesaid writ petition. But, the impugned order proceeds on the basis as though the allotment of the building in question to the petitioner alone is a violation of the order of this Court. Hence, the substantial reason on which the respondents have passed the impugned orders are wholly unacceptable.
53. As seen from the facts narrated in the letter of the Commissioner dated 22.7.2011, the total extent of land comprised in the lay out was about 66 acres. The extent of land handed over to the Corporation for the purpose of construction of the School is about 1 acre, 2 grounds and 1401 sq.ft. The building allotted to the petitioner is actually of a very small extent, namely, less than about 1,000 sq.feet. Even now, the respondents have not shown whether there is any move to establish a school. In such circumstances, the attempt of the respondents to take cover under the order of this Court, is nothing but a lame excuse for throwing the petitioner out of the building.
54. In so far as the impleading petition filed by Jawahar Nagar Development and Service Society is concerned, I have serious doubts whether they are genuinely fighting for a public cause or whether they are engaging in proxy war. The reasons for my doubt are:-
i) More than the respondents, the impleading petitioner has gone hammer and tongs against the writ petitioner and called the writ petitioner by names. The impleading petitioner has not just stopped with espousing the cause of the members of the Society for the establishment of a school in the building in question. A reading of the affidavit in support of the impleading petitions in both the writ petitions would create an impression that the impleading petitioner wishes more to settle scores with the writ petitioner than to sustain the action of the respondents. Many of the paragraphs of the affidavit in support of the impleading petitions, are filled with extracts from various judgments of this Court and the Supreme Court. The affidavits in support of the impleading petitions, appear more like affidavits on legal principles than like affidavits of factual details.
ii) In any case, the affidavits in support of the impleading petitions contain not only contradictory statements, but also false statements, as I shall demonstrate in the following paragraph.
55. In the affidavit in support of M.P.No.1 of 2012, seeking to implead themselves as parties to W.P.No.30123 of 2011, the impleading petitioner has stated the following:-
i) In the fourth sentence of para-1, it is claimed by the deponent to the affidavit as follows:-
"The petitioner-society is a registered society having registration No.179/87."
ii) In the same paragraph 1, it is further claimed by the deponent of the affidavit (K.Daivasikamani, President of the society) as follows:-
"The society purchased 66 acres of land in Peravallur Village to fulfill the obligations of the society. Out of the entire area, on 9.6.1974, the society has been handed over the land measuring 1 acre 2 grounds and 1401 sq. ft., at 1, Circular Road, Jawahar Nagar, Chennai-82 to the Chennai Corporation for the purpose of construction of Higher Secondary School."
iii) In paragraph 2 of the affidavit, the deponent has stated as follows:-
"Therefore, we approached this Hon'ble Court in W.P.No.19733 of 1999 to re-convey the land to the society to enable us to construct the school."
56. But the above statements made on oath are false or atleast incorrect to the knowledge of the impleading petitioner. This can be seen from the following admitted facts:-
i) It is admitted by the impleading petitioner that they sent an objection letter dated 5.7.2011. The copy of the objection letter shows that the name of the impleading petitioner is Jawahar Nagar Development and Service Society and that it was registered with registration No.319/2002. The name of the society which filed W.P.No.19733 of 1999 was Jawahar Nagar Education Society, with registration No.179/87. Therefore, the claim made in para-1 of the affidavit in support of M.P.No.1 of 2012 in W.P.No.30123 of 2011 as though the registration number of the impleading petitioner is 179/87 is obviously false. Similarly, the claim made in para-2 of the affidavit as though the impleading petitioner filed the earlier writ petition is also false.
ii) The Corporation Commissioner has clearly pointed out that the land of the extent of 66 acres, with which the layout was formed 4 decades ago, belonged to the Perambur Cooperative Building Society Ltd. This statement is corroborated by the affidavit of Jawahar Nagar Education Society filed in support of the earliest writ petition W.P.No.19733 of 1999. Therefore, it is clear that the land out of which the layout was formed in 1964, belonged to Perambur Cooperative Building Society Limited and the statement of the impleading petitioner in para-1 of the affidavit as though they purchased 66 acres of land and handed over a portion to the Corporation for the construction of a school, is a patent lie.
iii) Interestingly, the affidavit in support of the impleading petitions in both the writ petitions, are sworn to by one Mr.K.Daivasikamani. While in the impleading petition in the first writ petition, he has claimed in para-1 that the said society bears registration No.179/87, he has admitted in para-1 of the impleading petition in the second writ petition that the 1987 society and the impleading petitioner (2002 society) are two different societies. He has claimed in para-1 of the affidavit in M.P.No.3 of 2012 in W.P.No.2497 of 2012 that he is also a member of the 1987 society. Therefore, it is clear that the impleading petitioner is not the same as the petitioner in W.P.No.19733 of 1999. Yet a false statement is made in para-1 of the affidavit in support of the impleading petition in the first writ petition.
iv) In paras 1 and 2 of the affidavit in support of the impleading petition in the second writ petition, the deponent has admitted that the Perambur Cooperative Building Society Ltd., was the owner of the land and that the members of the impleading petitioner-society were only allottees of the plots by the cooperative society. Therefore, the averment in the affidavit in support of the impleading petition in the first writ petition as though the impleading petitioner owned 66 acres and gifted the land for a school, is a blatant lie. What is more offending is the fact that the impleading petitioner has claimed in the first writ petition as though they handed over the open space to the Corporation on 9.6.1974. As a matter of fact, both the societies were not in existence in 1974. While one was registered in 1987, the other was registered only in 2002.
v) The admission made by the impleading petitioner in the second impleading petition to the effect that there are two societies, has not come on account of any remorse on the part of the impleading petitioner. As seen from para 16 of the affidavit in support of M.P.No.3 of 2012 in W.P.No.2497 of 2012, the impleading petitioner was compelled to come out with the truth in the second impleading petition, after the writ petitioner raised an objection to the impleading petition in the first writ petition. Otherwise, I wonder whether the impleading petitioner would have ever spoken the truth.
57. Under normal circumstances, the impleading petition deserves to be allowed, in view of the simple fact that the impugned orders were passed at the instance of the impleading petitioner and hence, the impleading petitioner would be considered to be a necessary and proper party. But allowing the impleading petition on that score, would put a premium on the conduct of the impleading petitioner, who has come up with false statements on oath. Therefore, despite the fact that the impugned orders were passed at the instance of the impleading petitioner, I am inclined to reject the impleading petitions.
58. I have one more reason namely that the impleading petitioner did not have any locus standi to oppose the present allotment. At the outset, the members of the Society (impleading petitioner) are not persons whose lands were acquired for the purpose of promoting a lay out. The lay out was promoted by a Co-operative Society by name Perambur Co-operative Building Society, as seen from the letter of the Commissioner. While Perambur Co-operative Building Society, which, according to the Corporation Commissioner, owned and promoted the lay out, is a Co-operative Society registered under the Tamil Nadu Co-operative Societies Act, 1983, the impleading petitioner is a mere Society or voluntary association of persons registered under another Act, namely, Tamil Nadu Societies Registration Act.
59. In any case, the petitioner in W.P.No.19733 of 1999 who can be said to have acquired some rights pursuant to the order passed by this Court in the previous writ petition, did not object to the allotment in favour of the writ petitioner. They also have no explanation as to why the said Society kept quite for more than 11 years from 31.01.2001, without insisting on the Corporation establishing a School. They even kept quite when a few rooms were allotted to Self Help groups. They kept quite when the building was used as a storage space. Even now that 1987 Society has not come up before court. But, the impleading petitioner (2002 registered society) which is different from the other society (1987 society) has suddenly swung into action after the resolution of the Corporation Council in favour of the petitioner and that too by posing themselves as that 1987 registered society. Therefore, they neither have the locus standi, nor any bona fide justification to oppose the allotment. Hence both the impleading petitions are liable to be dismissed.
60. Mr.V.Raghavachari, learned counsel appearing for the impleading petitioner relied upon several decisions, in support of his contention that the space earmarked for a public purpose in a locality, cannot be converted for any other purpose. Though I have found the impleading petitions liable for rejection, I would nevertheless consider those decisions.
61. In Villupuram Municipality vs. M.Subramanian {2002 (5) CTC 729}, this Court held that conditions for sanction of layout would run along with the land and that any violation of such conditions would entail cancellation of sanction. This decision followed several decisions of the Supreme Court including the one in Pt. Chetram Vahit vs. Municipal Corporation of Delhi {1995 (1) SCC 47}, where it was held that the reservation of any place for any public purpose is an obligation in the nature of trust.
62. In K.Santhil Kumar vs. State of Tamil Nadu {AIR 2006 Mad. 71}, a Division Bench of this Court held that a Stadium built for a specific purpose, cannot be used for hosting other events.
63. In Sri Devi Nagar Residences Welfare Association vs. Subbathal {2007 (3) LW 259}, a Division Bench of this Court held that an area reserved for public purpose in an approved layout, should be maintained as such. In that case, the Division Bench issued certain directions to the promoters to develop the area into a park and keep it as such.
64. In K.Bose vs. The District Collector, Madurai {2010 (4) CTC 77}, a Division Bench of this Court held that the use of a school playground as a pathway by the Municipality, was harmful to the interest of children.
65. In K.Rajamani vs. Alamunagar Residents' Welfare Association {2011 (1) CTC 257}, a Division Bench of this Court held that once a land is reserved for public purpose, it cannot be released and that once permission is accorded treating the specific area as one for public purpose, even the Town Planning Authority or the State Government cannot have any jurisdiction to alter the conditions. But in the said case, the Government ordered the change of user of the land and permitted housing sites to be developed in the area earmarked for public purposes.
66. In Krishan Lal Gera vs. State of Haryana {AIR 2011 SC 2970}, the Supreme Court held that a sports Stadium belonging to the Government with special infrastructure created for sports, athletes and sports persons, cannot be converted into a Recreational Club. It was also held that a sports Stadium cannot be used for holding marriages or other functions.
67. A careful reading of all the above decisions would show that those cases can be grouped under 2 categories. They are, (i) cases where open space reserved in a lay out for public purposes was sought to be converted and buildings put up thereon, either for a public purpose or for private purposes and (ii) cases where buildings specially designed and constructed for specific public purposes were sought to be used for other public purposes, in such a manner as to endanger the infrastructure and equipment provided thereon.
68. Therefore, those decisions cannot be applied to the case on hand for the following reasons:-
(i) The Corporation Council has not converted any building specially designed for a particular purpose, to be put to use for a different purpose, thereby spoiling the infrastructure available therein. The council merely alloted to the petitioner, an existing building already used by Bharat Scouts and Guides. The allotment to the petitioner was also not for a private purpose.
(ii) The Council has not permitted the construction of any building in the open space reserved for a public purpose.
(iii) As stated earlier, the open land earmarked in the layout for locating a school is of the extent of 1 acre 2 grounds and 1,401 sq. ft. In the said land, the Corporation has admittedly constructed a building comprising of 5 rooms. One separate building was constructed for Bharath Scouts and Guides at a cost of Rs.17,90,000/-. They took over possession on 26.8.2004, as seen from the notice of the Government dated 8.8.2011. Even according to the respondents, it was decided not to open a school as there are already two schools in the area and hence it was decided to allot 2 rooms to self help groups. Subsequently, the building used by Bharat Scouts was alloted to the petitioner, without any new construction being made in the open space reserved for establishing a school.
Therefore, I do not know how the ratio laid down in the above decisions would apply only as against the allotment to the petitioner but not against the allotment to self help groups.
69. In Pt. Chetram Vahit vs. Municipal Corporation of Delhi {1995 (1) SCC 47}, relied upon by the learned Advocate General, the question that arose for consideration was whether the Municipal Corporation was entitled, in the absence of any provision in the Statute, to impose a condition while sanctioning a plan for building activities, that the open space for parks and schools should be transferred to the Corporation free of cost. While answering the question in the negative, the Supreme Court held that the Corporation would have the right to manage the land earmarked for public purposes such as school, park etc. But as I have pointed out earlier, the case on hand stands on a different footing. The petitioner was not allotted any open space earmarked for a school. On the contrary, the respondents have never taken any steps to establish a school in the space earmarked in the layout. But in a portion of the said land, they have constructed two buildings and allotted one such building to Scouts and Guides. It is that building which stands allotted to the petitioner. None of the decisions relied upon by the learned counsel for the impleading petitioner nor the decision relied upon by the learned Advocate General would support the contention that a building used for locating Bharath Scouts and Guides, cannot be allotted to the local MLA for running his office in the Constituency for the benefit of the electorate of the Constituency.
70. Therefore, in view of the above, I am of the considered opinion that the impugned Government order G.O.(D)No.440, Municipal Administration and Water Supply (MC-1) Department dated 08.11.2011 canceling the resolution of the Corporation Council dated 29-6-2011 is arbitrary and it does not satisfy the requirements of section 44 of the Chennai City Municipal Corporation Act,1919. Hence it is liable to be set aside. As a consequence, the agenda impugned in the first writ petition and the resolution passed on the same by the newly constituted Council on 21-12-2011 cannot stand, as they were based only on the Government order impugned in the second writ petition. Therefore, the writ petitions are allowed. However, since the learned counsel for the petitioner has gone on record stating that the petitioner is not very particular about the building in question so long as he is allotted a suitable and convenient place within the Constituency, it will be open to the respondents, if they actually decide to establish a school in the land in question, to allot any other alternative building after getting the consent of the petitioner and after assessing the convenience and suitability of the place for the purpose it is intended to serve. The impleading petitions in both writ petitions are dismissed. The other miscellaneous petitions are closed. There shall be no order as to costs.
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1. The Secretary Municipal Administration & Water Supply Department Fort St. George, Chennai 600 009.
2. The Commissioner Corporation of Chennai Rippon Buildings, Park Town Chennai 600 003