Madras High Court
K. Balasubramanian vs The Commissioner on 20 November, 2009
Author: Prabha Sridevan
Bench: Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:20-11-2009
CORAM
THE HON'BLE MRS.PRABHA SRIDEVAN
AND
THE HON'BLE MR.JUSTICE M. SATYANARAYANAN
W.A.Nos.1584, 1585, 1586, 1587, 1588, 1589, 1590, 1591, 1592, 1593, 1594, 1595, 1596, 1597, 1598, 1599, 1600, 1601, 1602, 1603, 1604, 1605, 1606, 1607, 1608, 1609, 1610, 1611, 1612, 1613, 1614 and 1615 of 2009
and M.P.Nos.1 of 2009 (32 in nos.) and 2 of 2009 (25 in nos.)
W.A.No.1584 of 2009
K. Balasubramanian .... Appellant
vs
1. The Commissioner,
Corporation of Chennai
Rippon Building
Park Town, Chennai-600 003
2. The Victoria Public Hall Trust
rep by its Chairman
No.1133, Poonamallee High Road
Chennai-600 003 .... Respondents
Writ Appeals are filed against the order of the learned Single Judge of this Court dated 4.11.2003 in W.P.Nos.16270 to 16285, 16293 to 16301 and 16303 to 16309 and 16363 to 16376 of 2009
For appellants : Mr.R. Krishnamurthy, SC
for Mr.Mohana Murali
For respondents : Mr.P.S. Raman, SC
assisted by Mr.G.T. Subramanian
COMMON JUDGMENT
(Judgment of the Court was delivered by PRABHA SRIDEVAN,J.,) The appellants were carrying on their business in Small Shops inside the Victoria Public Hall Compound (VP Hall in short) and they were claiming to pay licence fees to the VP Hall Trust Board. A Notice was issued by the 1st respondent/Corporation directing the occupants/licensees to vacate their respective premises within seven days and hand over vacant possession to the Corporation.
2. An order was passed on 8.8.2009 by the Zonal Officer, Zone-III, Corporation of Chennai referring the earlier notices issued under Sections 279 and 287 of the Chennai City Municipal Corporation Act, 1919 stating therein that since the petitioners have failed to comply with the show cause notice served on 1.8.2009 issued in order to improve the public health conditions of their trade as they were doing activities contrary to the conditions of licence and also continuously running their trade violating the rules, thereby endangering the custom of their trade, the licences to run their shops within the VP Hall were revoked.
3. Against Notice dated 5.8.2009, W.P.Nos.16270 to 16285, 16293 to 16301 and 16303 to 16309 of 2009 and against the order dated 8.8.2009 W.P.Nos.16363 to 16376 of 2009 are filed. The learned Single Judge by order dated 4.11.2009 dismissed writ petitions filed against the notice 5.8.2009(W.P.Nos.16270 to 16285, 16293 to 16301 and 16303 to 16309 of 2009) and allowed the writ petitions filed against the order dated 8.8.2009 (W.P.Nos.16363 to 16376 of 2009). We are concerned only with the dismissal of the writ petitions filed by the appellants herein.
4. The brief history of the case is that in a public meeting of the inhabitants of Madras, on invitation of the Sheriff of Madras, on 17.3.1882, it was resolved to erect a Town Hall to be vested in the Trustees for the use and benefit of the public. Subsequently, the Corporation allotted an area in the People's Park abutting the Ponnamallee Road to an extent of 57 grounds with 99 years of lease and it was renewable at the end of each term of 99 years for a like period. Subsequently, the Town Hall was constructed in the said site, which was named as Victoria Public Hall and it was decided to let the property for promotion of welfare and recreation of the inhabitants as the trustees may decide and dispose of the rents.
5. In 1921, the Advocate General of Madras had filed a scheme suit before this Court in its original side being C.S.No.263 of 1921 and scheme decree was passed on 27.9.1921. When attempts were made to hand over the VP Hall to the Corporation of Chennai, that was also challenged before this Court. A compromise decree was arrived at between the trustees in C.S.No.98 of 1957, by an order dated 15.9.1961. In the compromise decree apart from reconstituting the Board of Trustees, a clause provided the trustees to sublet, mortgage build upon, pull down, rebuild and alter buildings upon or otherwise deal with the said piece or parcel of land forming the said site of the Town Hall. Therefore, according to the appellants, it is by virtue of that clause, they were entitled to enter into the licence or lease agreements with the VP Hall Trust Board.
6. According to the appellants, since the trustees were entitled to hold the land on a lease for 99 years, which was renewable, their continuance in the premises with the permission of the trust was also valid. According to them, the rents were received by the 2nd respondent upto 31.3.2009 and after that it was not received by them. On 11.3.2009 VP Trust Board passed a resolution to hand over to the Corporation its movable and immovable properties and a decision was also taken to restore the building as heritable building since it was almost 120 years old. But the appellant's contention is that their presence on the eastern side of the premises will not in any way hinder the renovation of the main hall. According to them, the notice dated 5.8.2009 was issued without jurisdiction and the Trust had granted them lease/licence and therefore, the Corporation is bound by the decision of the Trust Board. Unless an application is filed under Sec.92 of Civil Procedure Code, the possession cannot be taken. They also contended that the decision of the Trust Board granting seven days time to vacate the premises was illegal. This was the basis on which they have filed writ petitions.
7. In their counter, the 1st respondent has stated that the original lease has expired in 1985 and it has neither been extended nor renewed to the VP Hall Trust. The Trust in a Meeting dated 11.3.2009 passed a resolution for not pressing for extension of the lease of existing land and building. The land and buildings were handed over to the Corporation of Chennai on 1.4.2009. The main object of the trust was to restore and preserve the hall as an heritage building. It was contended that the building has to be used for public and private meetings, exhibitions, lectures, concerts, dinners, theoretical and musical performance etc., without reference to the caste, creed or nationality and it must be restored to its original glory. The VP Hall is more than 100 years old and it is the first Town Hall of the City of Chennai and it is an heritage and a monument. In order to preserve such buildings by the Corporation, the guidelines issued by the Archaeological Survey of India was being followed. As per those guidelines, there should not be any construction within 100 meters from the preserved monument. Therefore, the presence of the shops inside the premises would be contrary to the guidelines.
8. It was also contended by the Corporation that even the original lease agreement dated 18.2.1888 clearly showed that the lessee would not erect upon the said land or not to build except in specific manner and part thereof any dwelling house or building other than the VP Hall. Even if licenses were granted during the original period of lease by the 2nd respondent/Trust, after its expiry in the year 1985, the other sublease would also come to an end. It was further stated that the renovation of VP Hall was estimated at a cost of Rs.10 crores and the funds had also been sanctioned.
9. It was also stated that the shops are situated on the eastern side of the VP Hall which is required for free entry to the VP Hall for the construction and for the front elevation with necessary landscaping. The amounts sent by the appellants were not accepted by the Corporation as there was no legal nexus between the appellants and the Corporation.
10. Before the learned Single Judge, the appellants showed that they were paying rents by producing the receipts. The appellants have stated that the superstructures were put up by them and they were also paying tax to the Corporation. The Minutes of the Meeting, dated 11.3.2009 of the VP Hall Trust Board was also produced and in that, the trustees had mentioned about the suit filed by them in O.S.No.1349 of 1985 on the file of City Civil Court, Madras for specific performance of the contract by the Corporation to renew the lease for another 99 years. During 1993, the suit was decreed in favour of the VP Trust. The 1st respondent preferred an appeal before the learned VI Additional Judge, City Civil Court in A.S.No.334 of 1993. The appeal was dismissed. Against which the 1st respondent/Corporation preferred a second appeal. During the pendency of the second appeal, a compromise memo was signed and filed before this Court and it was accepted by this Court. The 2nd respondent/VP Trust had agreed not to press for the extension of lease and wanted the property to be handed over to the 1st respondent/Corporation. Pursuant to the compromise memo, resolutions were passed stating that the land belonging to the 1st respondent/Corporation was handed over to it for future maintenance and to restore the VP Hall to its original glory and to serve its purpose as a Town Hall. With this object, the following resolutions were passed at the Trust Board meeting held on 11.3.2009:
Resolution No.4: It is resolved that the Trust will hand over the possession of the building to the Chennai Corporation from 1st April 2009. It is also resolved that the assets, investments, deposits, savings and amount in the current account of the VP Hall Trust Board may be handed over to the Chennai Corporation.
Resolution No.5: There are sub-lessees around the VP Hall building like Picnic Hotel, Chennapuri Andhra Maha Sabha, SIAA, occupying the portion of the Ground floor and shops on the Road side leading to the sub-urban Railway Station. Appropriate action has to be taken to evict them. Hence it is resolved that the Commissioner, Corporation of Chennai is authorised to take necessary appropriate action against the sub-lessees of the VP Hall Trust.
11. One of the resolutions was that appropriate petition would be filed before this Court under Section 92 of Civil Procedure Code. After consideration of the relevant provisions of the Chennai City Municipality Corporation (CCMC) Act in particular, 279 and 379A of CCMC Act the learned Single Judge of the opinion that the appellants had no lease or sub lease either from the Corporation or from the 2nd respondent Trust Board and if they had been in possession in a certain character, it came to end in 1985 and therefore, it is open to them to contend that they are still under permissive occupation of place at the instance of the 2nd respondent Trust. Therefore, the writ petitions were dismissed. The learned Single Judge, while dismissing the writ petitions, observed that if the appellants are interested in accepting the offer of alternative accommodation, they can make applications to the Commissioner of Corporation, Chennai for allotment of the places on the terms and conditions as per law. As against this order the present writ appeals have been filed.
12. An order was passed on 4.11.2009 and they got the order copy on 6.11.2009 and they moved the writ appeals on the same day i.e., 6.11.2009 and prayed for lunch motion and it was granted. But, by the time, the Corporation had partially demolished the property. Therefore, as regards some of the shop owners the matter had become fait accompli. Therefore, on 6.11.2009, which was Friday, when the matter came up, we adjourned the matter to 9.11.2009 and we appointed an Advocate Commissioner to take note of the status of the properties as on that date so that the status-quo to be maintained.
13. On 9.11.2009, when the matter came up, the learned Advocate General, who was present in Court agreed that if the Court could suggest steps to mitigate the sufferings the same will be accepted. The learned Advocate General also submitted that shop owners could be re-located in the Lilly Pond Complex, where some of the appellants are vendors of food items basically, whose clientele depends on the travelling crowd, which spills over from the railway station. They contended that their shops may not be located on the first or second floor of the Lilly Pond Complex, because their business will suffer. Therefore, we have asked the officials to go and inspect the Lilly Pond Complex and identify the space around the complex, which can be given to these persons who have now been displaced by the action of the respondents. Since all the 32 shop owners are not food vendors, we have enumerated those shops and the owners, who sell food items as below and we had originally the Tasmac shops and also the pan shops.
Shop No.1 - a tea stall and bakery shop run by K.Balasubramaniam;
Shop No.3 - a stall run by N.Velu Shop No.4 - a fast food restaurant run by R.Palaniammal Shop No.7 - a sweet stall run by Simon Shop No.11 - a tea and snacks stall run by Sandhiyagu Shop No.13 - a restaurant run by Omprakash Shop No.14 - a restaurant run by S.Velu Shop No.16 - a fast food restaurant run by C.S.Jayaraman. Licencee is one Purushothaman Shop Nos.21 and 22 - fast food restaurants run by V.Padma Shop No.23 - a bakery shop run by K.Arokiadoss Shop No.29 - a tea stall by V.T.Sridharan Shop No.30 - a soft cooldrinks shop run by K.Vanaja Kumari Shop No.31 - a fast food restaurant run by Balaraman Shop No.32 - a tea stall and cool drinks shop run by Vijayan.
14. We also heard the appellants on merits. In addition to Resolutions Nos.4 and 5 dated 11.3.2009, which we have extracted earlier, the trust had also resolved that Mr.P.S. Raman, who was then Additional Advocate General-I of Government of Tamil Nadu would be engaged to file an appropriate petition before this Court in accordance with Sec.92 of Civil Procedure Code. This is one of the main grounds of attack so far as the the appellants are concerned and that is no application under Sec.92 has been filed. This scope of Sec.92 of Civil Procedure Code is not different and nothing connected with question such as the continuance of these appellants. Such an application would incorporate the subject matter of the resolution. In any event, even if licenses were granted by the 2nd respondent/Trust, after their lease came to an end in the year 1985, the sublease would also come to an end.
15. As regard the power of the 1st respondent to take such action, as the learned Single Judge had observed that the Chennai Corporation has the power to require a person to restore any property to the original state within a time frame and the Commissioner has also power to enter such property to take all steps that are necessary to achieve the purpose. The learned Single Judge also referred to the decision of the Division Bench of this Court presided over by A.P. Shah, C.J., (as he then was) which reads as follows:
"13. .....Therefore, assuming without granting that the petitioner derived any right under the aforesaid documents, it shall not continue anymore since it is clear that the land is required for a public purpose viz., widening of the road. That apart, the documents themselves restrict the right given to the lessees thereunder to one year only and that time has expired long ago. Therefore, the petitioner can claim no right under these documents. The fact that the property taxes have been received from the petitioner and amounts received towards illegal use and damages will not, by themselves, confer any right on the petitioner to continue in the premises"
16. The learned single Judge has also observed that the appellants did not possess any lease or sublease either from the Corporation or from the 2nd respondent Trust Board. Even if they were permitted to be in possession by the Trust Board, the original lease having expired in 1985 and there being no further continuance of lease, they were not entitled to contend that they were still under permissive occupation of place at the instance of the 2nd respondent Trust and the Trust had agreed that appropriate action should be taken to evict the appellants who called themselves as sub-lessees of the Trust.
17. We do not think there was any error in the order passed by the learned Single Judge. However, the appellants had been earning their livelihood, catering to the needs of ordinary persons, like commuters who take the suburban trains and purchase something urgently on their way home. It is therefore that we requested the learned Advocate General to see that they are accommodated in a place, which is not too far from the present place so that they will not lose their clients.
18.. In AIR 2004 SC 416 (Maharashtra Ekta Kawkers Union vs Municipal Corporation, Greater Mumbai), the Hon'ble Supreme Court observed as follows:
"Street vending as a profession has been in existence in India since time immemorial. However, their number has increased manifold in the recent years.
.........
If property regulated according to the exigency of the circumstances, the small traders on the side walks can considerably add to the comfort and convenience of the general public"
The appellants may not be street vendors but these observations apply to them equally.
19. Further while making the above observation the Supreme Court took note of the fact that these vendors offered valuable service to the ordinary persons by making available ordinary articles of everyday use for a comparatively lesser price. An ordinary person, not very affluent, while hurrying towards his home after a day's work can pick up these articles without going out of his way to find a regular market. The right to carry on trade or business mentioned in Article 19(1)9 of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and no other use.
20. In the National Policy for street vendors, the State has taken note of its Constitutional obligations. Articles 39(a)and (b) of the Constitution clearly mention that the State shall in particular direct its policy so that
(a) the citizens, men and women equally, have the right to an adequate means of livelihood.
(b) the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.
21. The National Policy also took note of the relocation and rehabilitation and states that street vendors are most vulnerable to forced eviction and denial of basic right to livelihood. It causes long-term hardship, impoverishment and other damage including loss of dignity. Therefore, no street vendor should be forcefully evicted and they would be re-located with adequate rehabilitation only where the land is needed for a public purpose of urgent need. The National Policy also laid down overarching objectives to provide and promote a supportive environment for earning livelihoods to the street vendors as well as ensure absence of congestion and maintenance of hygene in public spaces and streets.
22. Constitution Court of South Africa while dealing with mass eviction observed as follows:
Port Elizabeth Municipality vs Various Occupiers (CCT 53/03) (2004) ZACC 7;2005(1)SA 217 (CC);2004(12)BCLR 1268 (CC)(1 October 2004).
Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat. As the United Nations Housing Rights Programme report points out:
"To live in a place, and to have established one's own personal habit with peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune of those who can afford a decent home. Rather, the requisite imperative of housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the international community to recognize adequate housing as a basis and fundamental human right".
It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence. Hence the need for special judicial control of a process that is both socially stressful and potentially conflictual.
In seeking to resolve the above contradictions, the procedural and substantive aspects of justice and equity cannot always be separated. The managerial role of the courts may need to find expression in innovative ways. Thus one potentially dignified and effective mode of achieving sustainable reconciliation of the different interests involved is to encourage and require the parties to engage with each other in a pro-active and honest endeavour to find mutually acceptable solutions. Wherever possible, respectful face-to-face engagement or mediation through a third party should replace arms-length combat by intransigent opponents".
Thus, those seeking eviction should be encouraged not to rely on concepts of faceless and anonymous squatters automatically to be expelled as obnoxious social nuisances. Such a sterotypical approach has to place in the society envisaged by the Constitution; justice and equity require that everyone is to be treated as an individual bearer of rights entitled to respect for his or her dignity. At the same time those who find themselves compelled by poverty and landlessness to live in shacks on the land of others, should be discouraged from regarding themselves as helpless victims, lacking the possibilities of person moral agency. The tenacity and ingenuity they show in making homes out of discarded material, in finding work and sending their children to school, are a tribute to their capacity for survival and adaptation. Justice and enquiry oblige them to rely on this same resourcefulness in seeking a solution to their plight and to explore all reasonable possibilities of securing suitable alternative accommodation or land.
23. In Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg vs City of Johannesburg and Others (24/07) (2008) ZACC 1; 2008(3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008), it is observe as follows:
"Engagement is a two-way process in which the City and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives. There is no closed list of the objectives of engagement. Some of the objectives of engagement in the context of a city wishing to evict people who might be rendered homeless consequent upon the eviction would be determined.
24. The above judgments deal with eviction from homes, though the present case does not deal with eviction from homes but eviction from shops, but the observations are appropriate. We have also facilitated the process of engagement between the appellants and the authority. We are happy to note that the learned Advocate General, on behalf of the respondents fairly accepted the process and came forward with very proactive attitude to see that those who had suffered were re-located appropriately. The appellants also, on their part, did not make unreasonable demands. At the same time, we must record our disapproval of the hasty demolition of the shops. As the South African Judgment observes, State action cannot intensify the marginalisation of the poor instead of mitigating it. Perhaps it is because the authorities were conscious of their lapse that they willingly participated in the re-location.
25. After discussing the matter with Mr.Justice A. Ramamurthy, the Chairman of the Implementation Committee, the learned Advocate General proposed that the evicted eatable vendors would get an area of 10 feet x 8 feet that is the depth of the shop to be put up and for the two pan vendors would be given stalls 5 feet x 5 feet. So even the pan stalls would be accommodated in the place marked red in the sketch (marked Ex.C.1). The sketch plan will form part of the records.
26. As regards the other appellants, the Corporation has agreed to locate them inside the Lily Pond Complex. We are informed that at present Lily Pond Complex is not suitable for occupation and some nocturnal undesirable activities are going on. The learned Advocate General has informed us that a decision has been taken to have a 24 hours security and has assured us that the place will be made fit for occupation at the earliest.
27. It is needless to say that monthly charges payable by the appellants would be at the rates fixed by the Corporation. Allottees shall also comply with all conditions imposed by the Corporation in this regard and also comply with the Rules and Regulations.
28. All the writ appeals are disposed of with the above direction. No costs. Consequently, connected MPs are closed.
(P.S.D.J.,) (M.S.N.J.)
20-11-2009
sr
Index:yes
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To
The Commissioner,
Corporation of Chennai
Rippon Building
Park Town, Chennai-600 003
PRABHA SRIDEVAN,J.,
AND
M. SATYANARAYANAN,J.,
sr
W.A.Nos.1584 to 1615 of 2009
20-11-2009