Madras High Court
Indian National Trust For Art And ... vs Chennai Metropolitan Development ... on 17 November, 2003
Equivalent citations: 2003(4)CTC513
Author: K. Raviraja Pandian
Bench: K. Raviraja Pandian
ORDER B. Subhashan Reddy, C.J.
1. This writ petition has been filed as a pro bono publico seeking restraint against the 3rd respondent from exercising her rights over the property, in which the Madras Club is situated. Planning to build a new structure on the said property, by demolishing the old structure, the 3rd respondent has applied to both the first and second respondents for the grant of necessary permissions. The first respondent is the Chennai Metropolitan Development Authority vested with the power of granting planning permission, while the second respondent is the Municipal Corporation of Chennai vested with the power of sanctioning permissions for both demolition of existing structures and also construction of new structures in its place.
2. The plea of the writ petitioner is that the building with its appertaining land, whole of which ad measure 20 acres, is a heritage building, and it has been identified as such by the Heritage Advisory Committee, which was formed to advice CMDA i.e., the 1st respondent, and being heritage building, it cannot either be permitted to be demolished or to make new construction thereon.
3. Respondents 1 to 3 had filed separate counters stating that there is no law to declare the above property as a heritage property, and to restrain the 3rd respondent from either demolishing the same or putting up new structures in its place. It is the specific stand of the 1st respondent that though the government has appointed a Committee in G.O.Ms.No. 179 H & UD dated 25.5.1998 to look after the matter relating to enactment of the Heritage Act, no such Act has been enacted, and that Rule 22 of the Development Control Rules is the only law governing the subject.
4. The 2nd respondent - Municipal Corporation has also taken a similar stand, and submitted particulars of the application made by the 3rd respondent seeking permission for demolition of the structures, and the grant of the same by it, owing to the dilapidated condition of the building. The application by 3rd respondent was filed on 13.4.1998 and the permission by the 2nd respondent was granted on 30.4.1998. It is also the stand of the 2nd respondent that in the tentative list of heritage buildings, the above building do not find place, and that there is no approved list of heritage buildings notified by the Government till this date. Even though proceedings were issued to conduct a meeting for the enactment of heritage legislation for Tamil Nadu, no such legislation has been enacted, and the draft rules, which were proposed, have never been translated into statutory one. It is emphatically stated by the 2nd respondent that the above building is not a heritage building, that there is no declaration or classification as such, either passed by the Government or enacted by the legislature, declaring the above building as heritage building, and that the above building has got no historical significance. Further the above building is in a dilapidated condition endangering the life of the general public, and for public safety and in the interest of public the building has got to be demolished, as such permission was accorded long back on 30.4.1998, whereas the writ petitioner's application objecting demolition was filed only on 18.7.2002.
5. Similar is the stand of the 3rd respondent, who is the owner of the property. She stated in her counter that the building is not a heritage building, that there is no law prohibiting her either from demolishing the same or from constructing new structures in its place, and that the old structure was in a dilapidated condition, and necessarily to be demolished, for which permission was sought for, by agreeing to give 10% Open Space Reservation Area to CMDA, as per the planning permission of the 1st respondent-CMDA, and the structure, which is existing in the 10% area to be offered to CMDA, has to be demolished, and vacant land alone has to be given to CMDA towards Open Space Reservation Area. It is stated by the 3rd respondent that as per the demand raised by the 1st respondent, she had remitted a total amount of Rs. 43,73,000 to the 1st respondent towards development charges, regularization charges and security deposit, Rs. 9,70,000 to the Chennai Metropolitan Water Supply and Sewerage Board towards infrastructural development charges, Rs. 2,65,505 to the 2nd respondent towards demolition charges, and the 2nd respondent had also started demolition from 19th of July, 2002, but further demolition was stayed pursuant to the interim order passed by this Court on 31.07.2002. It is pleaded by the 3rd respondent that the Club cannot be termed as heritage building, and merely because the building is old and dilapidated, it will not be qualified as heritage building, and in any event, there is no statute or any other law preventing her from exercising her rights in the way she deems fit and proper. However, the 3rd respondent in paragraph-8 of her counter submitted that a portion of the building, which contains the wide balustraded verandah and the original reading room, is not going to be demolished and the same is proposed to be renovated and then preserved, while other structures have got to be demolished and after demolition 10% Open Space Reservation Area has to be handed over to the 1st respondent.
6. Mr. Sriram Panchu, learned Senior Counsel appeared for the petitioner. Mr. V.Perumal, learned counsel appeared for the 1st respondent, Mrs. P.Bagyalakshmi, learned counsel appeared for the 2nd respondent, and Mr.A.L.Somayaji, learned Senior Counsel appeared for the 3rd respondent.
7. Mr. Sriram Panchu, learned Senior Counsel for the petitioner has reiterated the stand of the petitioner that the old Madras Club being a heritage structure, the 3rd respondent cannot be permitted to demolish the same, while the stand taken by the learned counsel appearing for the respondents is that there is no law enacted by the State Legislature empowering the government or any authority to declare any property as heritage property, that merely because there is an attempt to legislate, as suggested by a Committee or Authority, that itself cannot partake the character of law, and that as there is no law restricting the right of the 3rd respondent to deal with her property, as she deems fit and proper, the relief claimed by the petitioner cannot be acceded to,
8. In the light of the arguments placed on either side, the constitutional provision that assumes significance is Article 300-A, which reads "no person shall be deprived of his property save by authority of law". This was hitherto a fundamental right under Article 31, and was bodily lifted and inserted as a constitutional, guarantee under Article 300-A by Constitution (44th Amendment) Act, 1978, which came into force from 20th June, 1979. The attempt of the petitioner is to use the medium of this Court to direct the statutory authorities i.e., respondents 1 and 2 to do something, which has got no sanction of law. The plea to restrict the 3rd respondent from exercising her rights over her property is a deprivation of her rights over the property and falls within the ambit of Article 300-A of the Indian Constitution, and that is what the respondents 1 and 2 are crying hoarse, since there is no enactment by which the above property of the 3rd respondent can be declared as heritage property, they cannot prevent the 3rd respondent from either demolishing the existing old structures or making new constructions in their places. This stand of the respondents 1 and 2 are quite reasonable, and in fact perfectly in consonance with Article 300-A of the Indian Constitution.
9. In State of Madhya Pradesh and Anr. v. Thakur Bharat Singh, AIR 1967 SC 1170, a Constitution Bench of the Supreme Court has held that a person's right cannot be infringed unless there is an Act of Legislature and even the power under Article 162 cannot be invoked.
10. In Bishamber Dayal Chandra Mohan etc., v. State of U.P. and Ors. etc., , the Supreme Court held that the State Government cannot while taking recourse to the executive power of the State under Article 162 of the Constitution of India, deprive a person of his property, that such power can be exercised only by authority of law and not by mere executive fiat or order, and that Article 162 is always subject to Article 300-A.
11. To the same effect is the proposition laid down by the Supreme Court in Jilubhai Nanbhai Khachar etc., v. State of Gujarat and Anr., .
12. In view of the above law laid down by the Supreme Court of India, the stand of the respondents 1 to 3 are well reasoned, and consequently, the relief sought for by the petitioner cannot be granted. The writ petition is dismissed accordingly. It is needless to mention that the interim orders passed during the pendency of the writ petition stand vacated. No costs. Consequently, connected W.P.M.P. is also dismissed.