Madras High Court
Rema Devi vs The Commissioner on 10 April, 2013
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.04.2013 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.22620 of 2012 Rema Devi .. Petitioner vs. 1. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003. 2. The Executive Engineer, Corporation of Chennai, Zone-9, Lake Area, Behind Valluvar Kottam, Nungambakkam, Chennai 600 034. 3. The Junior Engineer, Corporation of Chennai, Zone - 9, Ward-118, Parthasarathy Pettai, Muthiah Street, Poes Garden, Chennai 600 086. 4. Dr.Govindarajan Venkatesh Son of Shri. R.G.Rajan, rep. by his Power of Attorney Agent, Mr.V.Subramani, S/o.Shri. T.Vadivelu, No.2/5, Logaiah Street, Saligrammam, Chennai 600 083. 5. Ceebros Property Development Private Limited, rep. by its Managing Director, Shri Subba Reddy, having Office at 19/1, Third Cross Street, R.A.Puram, Chennai-600 028. .. Respondents Writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus directing the respondents 1, 2 & 3, forthwith, pass orders, forbearing respondents 4 and 5, their men, servants, agents or anybody acting under or in trust for them from in any manner, proceeding with further demolition or any other related activity in the premises at old No.87, New No.26, Poes Garden, Chennai - 600 086, until such time, as the petitioner is evicted therefrom by due process of law. For Petitioner : Mr.Ashok Menon For Respondents : Mr.A.Nagarajan, for R1 to R3 Mr.K.P.Ashok, for R4 O R D E R
This Writ Petition is filed for a direction to the respondents 1, 2 and 3, forthwith to pass orders, forbearing the respondents 4 and 5, their men, servants, agents or anybody acting under or in trust for them from in any manner, proceeding with further demolition or any other related activity in the premises at old No.87, New No.26, Poes Garden, Chennai - 600 086, until such time the petitioner is evicted therefrom by due process of law.
2. The case of the petitioner as put forth in the affidavit would run thus:
2.1. The petitioner is a tenant under the 4th respondent in respect of the ground floor of premises at Old No.87, New Door No.26, Poes Garden, Chennai-86. The 4th respondent also let out to the petitioner, a garage, a service room and a toilet outside the main building. The service room and the toilet are used by the petitioner in common with the occupants of the 1st floor. The tenancy is for residential purpose and is computed according to the English Calendar month. The petitioner is paying a monthly rent of Rs.17,500/- to the 4th respondent, excluding electricity charges.
2.2. The 4th respondent filed R.C.O.P.No.1149 of 2010 for fixation of fair rent in respect of the portion let out to the petitioner. After the trial, the fair rent was fixed at Rs.2,70,000/- per month by the learned Rent Controller, by an order dated 04.07.2012, against which, the petitioner preferred an Appeal in R.C.A.No.462 of 2012 before the learned VIII Judge, Court of Small Causes, Chennai. Thereafter, the petitioner filed another R.C.O.P. in R.C.O.P.No.1962 of 2011 on the ground that he needed the property for demolition and reconstruction and the same is pending on the filed of the learned XVI Judge, Court of Small Causes, Chennai.
2.3. On 16.07.2012, all of a sudden, some employees of the 5th respondent herein, came into the 1st floor portion, which is vacant and started banging the floor of that portion, which is on the top of the petitioner's occupation in the ground floor. Several workmen of the 5th respondent came into the premises and started sitting in the compound and shouted at the top of their voices, creating a great deal of nuisance. Immediately, the petitioner caused a complaint to be given to the Commissioner of Police, Chennai. The Commissioner of Police, endorsed the complaint to the Assistant Commissioner of Police, Teynampet. The latter called the petitioner to his Office and promised to take action. However, nothing was done in the matter and on 24.07.2012, some of the workmen of the 5th respondent, came very near to the petitioner's house with an intention of harassing her and her family. Immediately, the petitioner complained to the police on the very next day, viz., 25.07.2012, when they continued misbehaving.
2.4. On 25.07.2012, when the petitioner went to the Office of the Assistant Commissioner of Police, Teynampet, to lodge a complaint regarding the incidents that took place on 24.07.2012 and 25.07.2012, the Assistant Commissioner was not available, but some members of his staff seemed to be aware of the endorsement made by the Commissioner of Police, Chennai to the Assistant Commissioner, Teynampet, in his earlier complaint. On 25.07.2012, around 3.30 p.m., some of the workmen of the 5th respondent under the supervision of one Shri. Babu started banging and hammering the walls of the 1st floor, as a result of which, a piece of concrete fell on the floor of the petitioner's portion. While so, two of the petitioner's daughters and one grandson were present along with the maid servant and they were all fortunate that they were not hurt, on account of the concrete falling. The petitioner rang up the number '100' and the Police authorities also came to the premises. Thereafter, the petitioner lodged a complaint with the Assistant Commissioner of Police, Teynampet, on 25.07.2012 itself, setting out what had transpired and requested them to give protection from physical harm to her and her family members. In the complaint, the petitioner had clearly mentioned that the workmen of the 5th respondent were proceeding with the construction of open toilets, opposite to the petitioner's kitchen and engaged themselves in all sorts of activities to harass the petitioner and her family. The police authorities also issued the official receipt dated 26.07.2012 to the complaint given by the petitioner.
2.5. After the Assistant Commissioner of Police warned the 5th respondent's men, they stopped harassing the petitioner and her family for some time, though most of them remained in the premises. On 31.07.2012, the employees who had left the premises also returned and all the employees of the 5th respondent started banging on the floor of the 1st floor, trying to damage the entire 1st floor portion, which was done to harass the petitioner and her family, and to perhaps vacate the petitioner. The petitioner, immediately, sent telegrams to the Hon'ble Chief Minister of Tamil Nadu; Home Secretary, Government of Tamil Nadu; Commissioner of Police and the Assistant Commissioner of Police, Teynampet, setting out the facts in the matter. After receipt of the complaint, the Assistant Commissioner of Police, once again, came to the premises and told the workmen of the 5th respondent, who were then present that they were not to interfere with his peaceful possession and enjoyment of the property, until the petitioner was evicted therefrom by due process of law. The workmen, thereafter, assured that they would leave the premises and subsequently, there was no activity by the 5th respondent's workmen, though several of them continued to remain in the compound.
2.6. On 04.08.2012, around 2.00 p.m., all of a sudden, several employees of the 5th respondent came to the premises and started banging on the 1st floor portion. They hit the walls and also the flooring therein, in an attempt to seriously damage the property. Again, when the petitioner rang up the number '100', the police authorities came to the scene and summoned the petitioner to Teynampet Police Station with all necessary documents and court orders, which clearly indicated that the petitioner was a bonafide tenant in valid occupation of the ground floor portion, and that neither the 5th respondent nor anybody else had any right to disturb her peaceful possession, until she was evicted through due process of law. The police authorities examined the documents and told the petitioner to approach a competent court for appropriate relief, especially as the matter was civil in nature and the Civil nature was also seized of the same. The petitioner also gave a complaint on 04.08.2012 to the Junior Engineer, Ward No.118, Corporation of Chennai, about the activities of the workmen of the 5th respondent and the health hazard caused. The authorities of the Corporation of Chennai, inspected the premises on 07.08.2012 about 8.00 a.m., but no action was taken. The petitioner also wrote to the Divisional Officer, Fire and Rescue Services, Chennai, South Division, Ashok Nagar, Chennai-600 083 on 04.08.2012, bringing to his notice the fact that the workers of the 5th respondent had put up temporary sheds and were using firewood and that it was a potentially dangerous situation. On 07.08.2012, someone from that Office also inspected the premises, but no action was taken.
2.7. The petitioner made another complaint to the Commissioner of Police, Egmore on 06.08.2012, besides, which the petitioner also complained to the Hon'ble Chief Minister of Tamil Nadu on 07.08.2012. The petitioner also wrote to the 4th respondent by e-mail on 04.08.2012 and 06.08.2012 informing him of what had transpired, but there was no reply. On 06.08.2012, workmen of the 5th respondent also demolished a portion of the wall separating the portion occupied by the occupants of the first floor in the compound from the portion occupied by the petitioner.
2.8. The petitioner is a bonafide tenant in the premises and she cannot be thrown out by force by respondents 4 and 5 herein and they cannot proceed with any demolition of the superstructure in the premises in question, until she is evicted therefrom by due process of law. The petitioner wrote to the respondents 1, 2 and 3 on 08.08.2012, informing them of what had transpired and requested to pass orders, directing that the demolition be stopped immediately. Having no other alternative remedy, the petitioner has approached this Court with the above Writ Petition.
3. The 1st respondent has filed counter affidavit stating that the complaint was received by the Corporation of Chennai from the petitioner on 07.08.2012 and thereupon, the said premises was inspected and the 5th respondent instructed to stop the painting work that was being carried out in the said premises. Accordingly, the 5th respondent stopped the painting work on the wall and it was noticed during the inspection that no other work was carried out on the walls of the first floor in the said premises. As stated above, only painting work was being done and the 5th respondent has stopped on the instruction of the officials of the Corporation. No construction of toilet opposite to the petitioner's kitchen was noticed at the time of inspection.
3a. According to the 1st respondent, no action was taken on the complaint of the petitioner. As regards the averment in paragraph 8, he would submit that the demolition plan was sanctioned by the Corporation of Chennai on 15.02.2012 vide DA/WDC/09/00677/2011 and action was taken on the complaint of the petitioner against the 5th respondent. He would further submit that demolition was sanctioned by the Corporation in accordance with the provisions of the Act and Rules and that the Corporation had acted in accordance with Section 246(A) of the Coimbatore City Municipal Corporation Act (in short 'CCMC Act') while sanctioning the application for demolition of the premises.
4. In the counter affidavit filed by the 4th respondent, it is stated as follows:
4.1. The writ petition is neither maintainable in law nor on facts. The petitioner is a mere tenant and is not entitled to seek direction from this Court against the landlord, when already the 4th respondent has taken all lawful steps to evict her by resorting to due process of law. The issues raised in the Writ Petition are totally civil in nature on account of landlord and tenant relationship between the 4th respondent and the petitioner. The only question of fact as to whether or not any work of demolition was undertaken or done in the premises, can be proved only by evidence before the Civil Court. The fact remains that the 4th respondent has never demolished or banged or damaged any portion of the building at any time.
4.2. As the building in question became old and is in a dilapidated condition, and dangerous for human inhabitation, the 4th respondent decided to demolish and reconstruct the same. At the same time, for the purpose of carrying out such works as required under law, the petitioner approached the Corporation of Chennai seeking permission for demolition of the old building. The Corporation of Chennai, as contemplated under Section 246(A) of CCMC Act, issued demolition permission, subject to certain conditions vide proceedings dated 15.02.2012.
4.3. The 4th respondent, long ago filed an eviction petition in R.C.O.P.No.1962 of 2011 against the petitioner herein, seeking eviction on the ground of demolition and reconstruction and for different use of the premises by the petitioner other than the purpose for which it was let out. In the said R.C.O.P.No.1962/2011, the petitioner filed a counter and already, trial has commenced and P.W.1 has been examined. He also filed a petition for fixation of fair rent in R.C.O.P.No.1149 of 2010 on 12.07.2010 and the learned XV Judge, Court of Small Causes, Chennai, fixed the fair rent at the rate of Rs.2,70,000/- per month for the said tenancy premises let out to the petitioner herein, by an order dated 04.07.2012, payable from the date of filing the petition i.e. from 12.07.2010. Therefore, the 4th respondent already issued a notice dated 06.07.2012 to the petitioner calling upon her to pay the arrears of difference in fair rent. The petitioner received the said notice, but did not comply with the same.
4.4. The petitioner is due and liable to pay the fair rent arrears amounting to a sum of Rs.69,77,417/-, being the arrears of fair rent from 12.07.2010 till October 2012, (i.e. for 27 months and 19 days) at the differential rate between the fair rent of Rs.2,70,000/- fixed by the court and the contractual rate of rent at Rs.17,500/- per month (i.e. Rs.2,70,000 minus Rs.17,500/- = Rs.2,52,500/- p.m. for 27 months and 19 days).
4.5. In fact, the petitioner herein has herself stated in the counter statement filed by her in the said R.C.O.P.No.1149 of 2010, that the building is more than 50 years old and the same is in a dilapidated condition. Neither the 4th respondent nor anyone has ever demolished or damaged any part of the building at any time. On the other hand, due to the dilapidated condition, the roof plasterings of the first floor have fallen down in several places and hanging in several other places. The first floor had fallen vacant long ago, as it was uninhabitable and beyond repair and therefore, the 4th respondent had been keeping it locked for the purpose of demolition and reconstruction.
4.6. Since the plasterings have fallen down in several places and to avoid further damage to others including the petitioner herein, the 4th respondent had done patch works and removed broken debris and that they never demolished or damaged the building; on the other hand, they had taken all efforts to prevent further damage and dilapidation. In fact, to create false evidence for the fair rent case, the petitioner had herself made alterations and additions without the knowledge and consent of the 4th respondent and she put up a temporary brick (unplastered) partition between the portico and the open area in the front, which fact was pointed out by the 4th respondent in the fair rent proceedings itself and the petitioner herself gave evidence as R.W.1, wherein, she admitted certain facts regarding the usage of the portico. It is the said brick wall in front, which she herself installed, had been partly removed by the petitioner herself, for creating false evidence for the said fair rent case.
4.7. Neither the 4th respondent's people nor the 5th respondent's people banged or hammered or shouted or damaged or demolished or created any nuisance of any kind or misbehaved or harassed anyone, either on 16.07.2012 or on 24.07.2012 or on 25.07.2012 or on 31.07.2012 or on 04.08.2012 or on 06.08.2012 or on any other day or at any other time. The alleged complaints are all false and contain concocted and false allegations, made long after the said eviction petition had been filed by the 4th respondent. It is only as an after thought the petitioner has vexatiously created false allegations and the so called "complaints" made to the police and other authorities are only with an ulterior motive to create false defence for the said eviction petition, wherein trial has already commenced.
4.8. The 4th respondent will not dispossess the petitioner without resorting to due process of law from the said tenancy premises and further undertakes that they will not demolish the premises under the occupation of the petitioner till the petitioner is duly evicted by due process of law, except for the nature of work intended for interior repairs and to safeguard and clean the building and outside areas. When the first floor is under the occupation of the 4th respondent, for which the petitioner is entitled to question, more so, the petitioner is not entitled to seek injunction against the 4th respondent for entering into the other portion of the building, which is under his lawful possession as owner of the property. The 4th respondent shall take utmost care in carrying out repairs and he has no intention to demolish the building under the occupation of the petitioner without resorting to due process of law. The petitioner is not entitled to question the 4th respondent's legal right to deal, demolish and develop the building through third parties, as the 4th respondent is the lawful owner of the property and the petitioner is only a tenant. Hence, she is not entitled to any injunction as prayed for and that the maintenance works in the building have been entrusted to a building contractor. The 5th respondent has nothing to do with the property and he is totally an unnecessary party. The 4th respondent has not violated any of the terms and conditions laid down for sanction of the said plan.
In view of the above, the 4th respondent prays for dismissal of the writ petition.
5. The 5th respondent has filed counter affidavit stating that the statements, claims and allegations made in paragraph Nos.4, 5, 6, 7 and 8 of the affidavit filed by the petitioner are absolutely false. According to the 5th respondent, they never demolished or damaged or broke any part of the premises at any time and never sent any person to do any kind of work or activity of any kind in the said premises at any time.
5a. It is further submitted by the 5th respondent that the petitioner herein is an absolute stranger to him and that the petitioner never contacted him for reason, whatsoever, in respect of the subject matter of the Writ Petition. He would contend that the petitioner unwarrantedly impleaded him as a respondent in the Writ Petition without any rhyme or reason and that the Writ Petition suffers from severe legal infirmity due to misjoinder of the party and on that score alone, the Writ Petition is liable to be dismissed in limini. Further, the 5th respondent would submit that he has nothing to do with the premises or the ownership and he has been deliberately and vexatiously made as party unnecessarily.
6. Mr.Ashok Menon, learned counsel for the petitioner would contend that respondents 1, 2 and 3 overlooked the provisions under Section 246-A of the CCMC Act, which makes clear that the 1st respondent could grant permission for demolition of a building either in whole or in part only subject to such conditions, as he deemed necessary for ensuring the health or safety of the people living near the building. He would further contend that respondents 4 and 5 overlooked that no demolition could be commenced without complying with the conditions that the 1st respondent would deem necessary. In support of his case, learned counsel has relied on a decision reported in 1997 (2) MLJ 422 (P.Sundararama Reddy vs. Corporation of Madras and another), wherein, this Court has held as follows:
"11. Section 246-A of the Madras City Municipal Corporation Act does not require or contemplate a 'no objection certificate' being produced by the landlord before the Corporation authorities before granting permission to demolish the building. Therefore, in our opinion, the order of the learned single Judge is not sustainable in law and against the scope and ambit of the provisions under Section 246-A of the Madras City Municipal Corporation Act. Therefore, the order impugned in this writ appeal is liable to be set aside. In view of the order now passed, the Corporation Authorities are directed to consider the matter afresh on the basis of the application already filed by the appellant and dispose of the same within two months from the date of receipt of the order copy without insisting upon the production of a 'no objection letter' from the tenant. We also make it clear that any certificate that may be issued by the Corporation would be put into operation only subject to the outcome of the Rent Control Proceedings now pending on the file of the Rent Controller in R.C.O.P.No.739 of 1994."
7. On the other hand, Mr.A.Nagarajan, learned counsel appearing for respondents 1 to 3 would submit that the Corporation of Chennai received a complaint from the petitioner on 07.08.2012 and the premises in question was inspected and the 5th respondent was instructed to stop the painting work that was being carried out in the said premises and accordingly, the 5th respondent stopped the painting work on the wall and that no construction of Toilet opposite to the petitioner's kitchen was noticed at the time of inspection. He would further submit that the demolition plan was sanctioned by the Corporation of Chennai on 15.02.2012 and action was taken on the complaint of the petitioner against the 5th respondent.
8. Mr.K.P.Ashok, learned counsel appearing for the 4th respondent would submit that the 4th respondent never demolished or damaged any part of the building at any time and that the first floor had fallen vacant long ago as it was uninhabitable and beyond repair and therefore, it had been kept locked for the purpose of demolition and reconstruction. It is his further submission that the 4th respondent will not dispossess the petitioner without resorting to due process of law from the said tenancy premises.
9. I have heard the submissions made by the learned counsel on either side and perused the materials available on record.
10. From a perusal of the pleadings, it is seen that the petitioner is a tenant under the 4th respondent in respect of the ground floor of premises at Old No.87, New Door No.26, Poes Garden, Chennai-86 and the 4th respondent has also let out to the petitioner, a garage, a service room and a toilet outside the main building. The tenancy is for residential purpose and the petitioner is paying a monthly rent of Rs.17,500/- to the 4th respondent, excluding electricity charges. Rent Control proceedings has been initiated by the 4th respondent in R.C.O.P.No.1149 of 2010 for fixation of fair rent in respect of the portion let out to the petitioner and after the trial, the fair rent was fixed at Rs.2,70,000/- per month by the learned Rent Controller, by an order dated 04.07.2012, against which, the petitioner preferred an Appeal in R.C.A.No.462 of 2012 before the learned VIII Judge, Court of Small Causes, Chennai and the same is pending. The 4th respondent also filed another R.C.O.P. in R.C.O.P.No.1962 of 2011 praying for an order of eviction against the petitioner and it is also pending.
10a. While so, it is the case of the petitioner that on 16.07.2012, some employees of the 5th respondent herein, came into the 1st floor portion, which is vacant and started banging the floor of that portion, which is on the top of the petitioner's occupation in the ground floor. Immediately, the petitioner gave a complaint to the Commissioner of Police, Chennai and later on, the Assistant Commissioner of Police, Teynampet summoned the petitioner to his Office and promised to take action. However, nothing was done in the matter and on 24.07.2012, some of the workmen of the 5th respondent, came very close to the petitioner's house with an intention to harass her and her family. Again, the petitioner lodged a complaint with the Police over phone on 25.07.2012. The steps taken by the petitioner did not result in any action and the 5th respondent started banging and hammering the walls of the 1st floor, as a result of which, a piece of concrete fell on the floor of the petitioner's portion. Yet again, on 25.07.2012 itself, the petitioner lodged a complaint with the Assistant Commissioner of Police, Teynampet, that the workmen of the 5th respondent were proceeding with the construction of open toilets, opposite to the petitioner's kitchen and engaged themselves in all sorts of activities to harass the petitioner and her family.
10b. It is the further case of the petitioner that on 31.07.2012, the employees who had left the premises also returned and all the employees of the 5th respondent started banging on the 1st floor. Again on 04.08.2012, several employees of the 5th respondent came to the premises and started banging on the 1st floor portion. They hit the walls and also the flooring therein, in an attempt to seriously damage the property. Ultimately, the petitioner rang up the police and they examined the documents and told the petitioner to approach a competent court for appropriate relief. Having no other alternative, the petitioner is before this Court for the above said relief.
11. Respondents 1 to 3 have taken a stand in their counter that demolition plan was obtained for the ground and first floor at premises bearing No.26/87 of Poes Garden, Chennai vide DA/WDC/09/00677/2011, dated 15.02.2012 and thereafter, a complaint was received by the Corporation of Chennai from the petitioner on 07.08.2012 and thereupon, the said premises was inspected and the 5th respondent was instructed to stop the painting work that was being carried out in the said premises. Accordingly, the 5th respondent stopped the painting work on the wall and no construction of toilet opposite to the petitioner's kitchen was noticed at the time of inspection. The demolition plan was sanctioned by the Corporation of Chennai on 15.02.2012 and action was initiated on the complaint of the petitioner in accordance with the provisions under Section 246(A) of the Act.
12. The stand taken by the 4th respondent in the counter is that as the building in question has become old and is in a dilapidated condition, and being dangerous for human inhabitation, he has decided to demolish and reconstruct the said building. At the same time, for the purpose of carrying out such works as required under law, the 4th respondent approached the Corporation of Chennai seeking permission for demolition of the old building. As contemplated under Section 246(A) of the CCMC Act, the Corporation of Chennai issued demolition permission subject to certain conditions vide proceedings dated 15.02.2012. Further, the 4th respondent filed an eviction petition in R.C.O.P.No.1962 of 2011 against the petitioner seeking eviction on the ground of demolition and reconstruction and for different use of the premises by the petitioner other than the purpose for which it was let out and the matter is pending adjudication.
12a. Prior to the eviction petition, the 4th respondent initiated proceedings in R.C.O.P.No.1149 of 2010 for fixation of fair rent and the said R.C.O.P. was decided and fair rent was fixed at Rs.2,70,000/- per month for the said tenancy premises let out to the petitioner, by an order dated 04.07.2012, payable from the date of filing the petition, i.e. from 12.07.2010 and further action in this regard has been initiated. The petitioner is due and liable to pay the fair rent arrears amounting to a sum of Rs.69,77,417/-, being the arrears of fair rent from 12.07.2010 till October 2012, (i.e. for 27 months and 19 days) at the differential rate between the fair rent of Rs.2,70,000/- fixed by the court and the contractual rate of rent at Rs.17,500/- per month (i.e. Rs.2,70,000 minus Rs.17,500/- = Rs.2,52,500/- p.m.).
12b. It is the case of the 4th respondent that in fact, the petitioner herein had been promising to vacate, but in order to evade, subsequently started to demand huge amounts for several lakhs of rupees and compensation for vacating the premises. The first floor had fallen vacant long ago as it was uninhabitable and beyond repair and therefore, the 4th respondent had been keeping it locked for the purpose of demolition and reconstruction. According to the 4th respondent, they never demolished or damaged the building, but, on the other hand, they have taken all efforts to prevent further damage and dilapidation. It is the further case of the 4th respondent that to create false evidence for the fair rent case, the petitioner had herself made alterations and additions without their knowledge and consent and she had put up a temporary brick (unplastered) partition between the portico and the open area in the front.
13. It is the stand of the 5th respondent in the counter affidavit that they never demolished or damaged or broked any part of the premises at any time and they never sent any person to do any kind of work or activity in the said premises at any time. It is their contention that the petitioner has unwarrantedly impleaded them as a party respondent.
14. In the background circumstances, what is required to be examined is whether respondents 4 and 5 are to be restrained from their actions in the light of the above stated position.
15. It is not in dispute that the petitioner is a tenant under the 4th respondent and that the 4th respondent initiated proceedings in R.C.O.P.No.1149 of 2010 for fixation of fair rent before the learned XV Judge, Court of Small Causes, Chennai, wherein, fair rent was decided and the petitioner was due and liable to pay the fair rent arrears amounting to a sum of Rs.82,39,917/- being the arrears of fair rent from 12.07.2010 till March 2013. It appears that the petitioner has not cleared her arrears as on date and the eviction petition filed by the 4th respondent/landlord in R.C.O.P.No.1962 of 2011 is under trial. While so, the petitioner, who is a tenant, having failed to pay the arrears of rent, has rushed to this Court, before conclusion of the trial, as if there is a damage to her portion of the property in question, which is in breach of conditions imposed by the respondent Corporation for demolition of the building.
16. Section 246(A) of the Chennai City Municipal Corporation Act, 1919 pertaining to demolition of building, reads as follows:
(1) If any person intends to demolish a building either in whole or in part, he shall send an application to the Commissioner in writing for permission to execute the work.
(2) The Commissioner shall grant permission to execute the work subject to such conditions as he may deem necessary for ensuring the health or safety of the people living within or near the building.
(3) The demolition of a building shall not be begun unless and until the Commissioner has granted permission for the execution of the work, and the work shall not be executed without complying with the conditions, if any, subject to which the permission has been granted.
17. It is also pertinent to take note of the conditions stipulated by the respondent Corporation while granting permission for demolition of the building, as enumerated below.
"1. Necessary arrangements should be made to reduce the dust nuisance.
2. Necessary barricating arrangements with suitable materials should be provided.
3. All precautionery measures should be taken to prevent danger and damages to the neighbour building and passers by.
4. If the houses is occupied by tenant(y), demolition of the house should be taken only after evicting the tenant(s) from the house through due process of law.
5. This permission is only for demolition of the existing building and not for regularisation of unauthorised sub division."
18. From a reading of the above provisions, it is made clear that the Commissioner shall grant permission to execute the work subject to the above conditions, as he may deem necessary for ensuring the health and safety of the people, living within or near the building. Clause 4 of the Conditions provides that if the house is occupied by a tenant, demolition of the house should be taken only after evicting the tenant from the house through due process of law. In the instant case, it is an admitted position that the petitioner is the respondent in the Rent Control Proceedings, both for fixation of rent in R.C.O.P.No.1149 of 2010 and for eviction in R.C.O.P.No.1962 of 2011. Though fixation of fair rent was decided in the Rent Control Proceedings, there is a huge arrears of rent payable by the petitioner, but, it is claimed by the 4th respondent/landlord that no amount has been paid so far. Moreover, the demolition is now sought to be executed only after evicting the tenants who are within the building. As of now, the eviction process is not concluded, but it appears that the trial has commenced. At this stage, the petitioner, without contesting the matter, has rushed to this Court praying for restrainment of respondents 4 and 5 from proceeding with the demolition of the building.
19. The legal position as enunciated under Section 246(A) of the Act as well as Clause 4 of the Conditions for Demolition of the existing Buildings, would make it clear that the Commissioner shall grant permission to execute the work subject to the health and safety of the people living within the building and if tenants are living in the building, unless they are evicted, it is not permissible to execute a work, except by due process of law. Therefore, the prayer sought for by the petitioner has to be considered in the light of the above stated position. Only on eviction being ordered by the Rent Controller, the 4th respondent/landlord may proceed with the demolition of the building. Till such time, it is not permissible under law to execute the work. Though the 4th respondent has taken a stand that they are doing only painting work in the building and he undertakes not to demolish it, from the happenings narrated above and from the number of complaints given by the petitioner, it is clinchingly evident that some activities are carried on by respondents 4 and 5. Therefore, the action initiated by respondents 4 and 5 cannot be allowed at this stage, unless the petitioner is evicted by due process of law.
20. For the foregoing reasons and discussions and taking into account the legal position as contemplated under the provisions of the Act and also the conditions stipulated for demolition of the existing building, the petitioner is entitled to be protected till her eviction under due process of law. Therefore, respondents 4 and 5 are restrained from proceeding further with the demolition of the building, till eviction is ordered and only thereafter, respondents 4 and 5 shall proceed with the demolition work as per the demolition order dated 15.02.2012, granted by the respondent Corporation. However, this order shall not stand in the way of the recovery of the amount due to be paid by the petitioner to the 4th respondent.
The Writ Petition is ordered accordingly. No costs. Consequently, connected M.P.Nos.1 and 2 of 2012 are closed.
abe To:
1. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003.
2. The Executive Engineer, Corporation of Chennai, Zone-9, Lake Area, Behind Valluvar Kottam, Nungambakkam, Chennai 600 034.
3. The Junior Engineer, Corporation of Chennai, Zone - 9, Ward-118, Parthasarathy Pettai, Muthiah Street, Poes Garden, Chennai 600 086