Madras High Court
K.Dasarathan vs Mr.Rajesh Lakhani on 9 December, 2011
Author: D.Hariparanthaman
Bench: Elipe Dharma Rao, D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09 / 12 / 2011 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN CONTEMPT PETITION NO.513 OF 2010 AND W.P.NO.21514 OF 2010 AND M.P.NO.1 OF 2010 CONT.P.NO.513 OF 2010 K.Dasarathan ... Petitioner Versus 1.Mr.Rajesh Lakhani, I.A.S. Commissioner Corporation of Chennai Rippon Buildings, Chennai. 2.Mr.Chandrasekar Inspector of Police V-1, Villivakkam Police Station, Chennai 600 049. 3.Mr.Kesavan 4.Mr.Vikram Kabur, I.A.S. The Member Secretary Chennai Metropolitan Development Authority Thalamuthu Natrajan Maligai, Irwin Gandhi Road, Egmore, Chennai 600 008. ... Respondents PRAYER: Petition filed under Section 11 of Contempt of Court Act to punish the respondents for having committed the Act of Contempt of Court for not obeying the order dated 10.09.2009 passed in W.P.No.16618 of 2009 by this Court. For Petitioner : Mr.C.Umashankar For Respondent-1 : Mr.T.Mathi For Respondent-2 : Ms.Malarvizhi Udayakumar Special Government Pleader For Respondent-3 : Mr.P.Rajamanickam For Respondent-4 : Mr.C.Kathiravan W.P.NO.21514 OF 2010 Kesavan ... Petitioner Versus 1.The Commissioner Corporation of Chennai Chennai 600 003. 2.K.Dasarathan (R2 impleaded as per order dated 18.10.2010 in M.P.No.2 / 2010 in W.P.No.21514 / 2010) ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records on the file of the respondent in proceedings no nil dated 08.09.2010 and quash the same as illegal, incompetent and without jurisdiction. For Petitioner : Mr.V.Raghavachari For Respondent-1 : Mr.T.Mathi For Respondent-2 : Mr.C.Umashankar COMMON ORDER
D.HARIPARANTHAMAN, J.
One Mr.K.Dasarathan filed the Contempt Petition in Cont.P.No.513 of 2010 seeking to punish the respondents namely (1) Commissioner, Corporation of Chennai, (2) Inspector of Police, V-1, Villivakkam Police Station, Chennai (3) Mr.Kesavan, Villivakkam, Chennai and (4) Member Secretary, Chennai Metropolitan Development Authority (CMDA) Chennai for having committed Contempt of Court, for not obeying the order dated 10.09.2009 passed by a Division Bench of this Court in W.P.No.16618 of 2009.
2.Mr.Kesavan, who was arrayed as third respondent in the aforesaid Contempt Petition filed the Writ Petition in W.P.No.21514 of 2010 seeking to quash the notice dated 08.09.2010 of the Commissioner, Corporation of Chennai. The Commissioner, Corporation of Chennai issued the said notice dated 08.09.2010 under Section 220 read with 222 of the Chennai City Municipal Corporation Act, 1919 (shortly "CCMC Act") directing the writ petitioner namely Kesavan to remove the encroachment put up at Sivan Koil North Mada Street, Villivakkam, Chennai.
3.The petitioner in Cont.P.No.513 of 2010 namely Mr.K.Dasarathan has been impleaded as second respondent in W.P.No.21514 of 2010.
4.The facts leading to the filing of these cases are as follows:
(a) The petitioner in Cont.P.No.513 of 2010 namely Mr.K.Dasarathan filed a writ petition in W.P.No.16618 of 2009 seeking direction to the respondents therein (who are all the respondents in the present contempt petition) to demolish/remove the illegal and unauthorized superstructure built by the third respondent, namely Mr.Kesavan, on the road margin, in the western corner of Sivan Koil North Mada Street, Villivakkam, Chennai.
(b) Mr.K.Dasarathan purchased the property at No.33-A, Sivan Koil North Mada Street, Villivakkam, Chennai 600 049 in the year 1990 and has been residing in the said address. According to him, Mr.Kesavan put up illegal and unauthorized construction under the guise of renovating Thandava Vinayagar Temple. Those constructions were put up adjacent to his house property. Hence, he objected new constructions, since it prevented access to his property and also affecting his other easementary rights.
(c) Mr.K.Dasarathan filed a suit in O.S.No.4369 of 1998 before the XIII Assistant Judge, City Civil Court, Chennai praying for injunction against the new/unauthorized constructions. In the suit, while Mr.Kesavan was the first defendant, the Commissioner, Chennai Corporation and the Member Secretary, CMDA were the second and third defendants. Though all the defendants filed written statements, the suit was decreed exparte in favour of Mr.K.Dasarathan, on 26.02.2004.
(d) Mr.K.Dasarathan filed a petition in E.P.No.1092 of 2005 before the X Assistant Judge, City Civil Court, Chennai and the same was contested by Mr.Kesavan. The said petition was dismissed stating that it is non-executable and that there was no proper identification and description of the property.
(e) Mr.K.Dasarathan filed a Civil Revision Petition in C.R.P.No.1382 of 2009 before this Court against the order in E.P.No.1092 of 2005. This Court, on 12.06.2009 granted interim injunction in his favour in M.P.No.1 of 2009 in C.R.P.No.1382 of 2009.
(f) The grievance of Mr.K.Dasarathan is that even after the interim order referred to above, Mr.Kesavan proceeded with new construction on the pavement of the road and he deliberately blocked the road margin. The construction was put up under the guise of renovating the Thandava Vinayagar temple. Mr.K.Dasarathan alleged that Mr.Kesavan already constructed a Mandapam like structure and raising two big rooms.
(g) In these circumstances, he filed the writ petition in W.P.No.16618 of 2009 praying for a direction to demolish/remove the illegal and unauthorized superstructure built by Mr.Kesavan on the western corner of Sivan Koil North Mada Street, Villivakkam, Chennai.
(h) While admitting the writ petition in W.P.No.16618 of 2009, the First Bench of this Court, on 18.08.2009, granted interim injunction restraining Mr.Kesavan from in any manner carrying on the construction activity at the disputed site.
(i) The Executive Engineer, Zone IV, Chennai Corporation issued stop work notice dated 20.08.2009 to Mr.Kesavan directing him not to proceed with construction, as there was no approved plan.
(j) In the meantime, a Division Bench of this Court disposed the writ petition in W.P.No.16618 of 2009, on 10.09.2009, on merits, after hearing both sides and directed the Chennai Corporation to proceed further with the stop work notice, against the construction on the road margin.
(k) Since the Chennai Corporation did not proceed with the stop work notice against the construction put up by Mr.Kesavan on the road margin as per the order dated 10.09.2009 passed by this Court in W.P.No.16618 of 2009, Mr.K.Dasarathan filed the Contempt Petition in Cont.P.No.513 of 2010.
(l) Subsequently, the Executive Engineer, Zone IV, Chennai Corporation issued a demolition notice dated 22.09.2009 under Section 56 read with 85 of the Town and Country Planning Act, 1971, directing Mr.Kesavan to demolish the unauthorized construction.
(m) While so, Mr.Kesavan made an application dated 02.11.2009 to the Executive Engineer, Zone IV, Chennai Corporation seeking planning permission for renovation work, wherein he referred to the stop work notice dated 20.08.2009 and the demolition notice dated 22.09.2009. Mr.Kesavan also made an application dated 14.11.2009 to the CMDA seeking planning permission for construction of temple building at No.33, Pillaiyar Koil West Mada Street, Villivakkam, Chennai.
(n) The CMDA sent a letter dated 07.12.2009 to Mr.Kesavan directing him to remit the scrutiny fee of Rs.300/- for processing his application seeking planning permission. Accordingly, Mr.Kesavan remitted the scrutiny fee.
(o) The CMDA informed Mr.Kesavan vide their letter dated 27.01.2010 that his application for planning permission was forwarded to the Chennai Corporation for disposal, under the delegated powers, on merits of the case and as per the Development Regulation of CMDA. However, the Chennai Corporation refused to grant planning permission.
(p) The Chennai Corporation issued a notice dated 08.09.2010 under Section 220 of CCMC Act to Mr.Kesavan to remove the encroachment and unauthorized construction. Challenging the same, Mr.Kesavan filed the writ petition in W.P.No.21514 of 2010.
5.A Division Bench of this Court, on 16.04.2010, in Cont.P.No.513 of 2010, directed Mr.K.Dasarathan to serve notice on the counsel for the respondents therein returnable in a week.
6.Mr.Kesavan filed a counter affidavit dated 07.07.2010 in Cont.P.No.513 of 2010 stating that his application for planning permission was pending with Chennai Corporation and thus, he did not violate any order of this Court.
7.The CMDA filed a counter affidavit dated 19.07.2010 in Cont.P.No.513 of 2010 stating that this Court issued direction to Chennai Corporation only to proceed further with the stop work notice. It is also stated that in view of the contempt petition filed by Mr.K.Dasarathan, the disputed site was inspected by CMDA Enforcement Officials on 13.07.2010 and it was ascertained that the ground floor was constructed on the platform of the Sivan Koil West Mada Street and there was no construction work in progress at the time of inspection. Further it is stated that the CMDA delegated its power to Local Bodies including Chennai Corporation to take enforcement action against all types of unauthorized/deviated constructions under the Town and Country Planning Act, 1971. It is stated that CMDA forwarded the application for planning permission to Chennai Corporation vide their proceedings dated 27.01.2010 with a direction to dispose the same under the delegated powers on merits of the case and as per the Development Regulation of CMDA.
8.In these circumstances, a Division Bench of this Court on 26.07.2010 directed the Commissioner, Chennai Corporation to personally inspect the temple in question and file a report as to whether it is a traffic hindrance or whether new construction is put up or renovation is going on and what happened to the application filed by the third respondent seeking permission to carry out the renovation work. A direction was given to file a report before 02.08.2010.
9.Accordingly, the Assistant Commissioner, Corporation of Chennai filed a report dated 02.08.2010 stating that he inspected the site on 23.07.2010 and found that no additional works were carried out after the interim order passed by this Court and the temple is also in no way hindrance to the pedestrians as well as the vehicular traffic.
10.The said report dated 02.08.2010 was considered and rejected by the Division Bench of this Court. Further, the Division Bench directed the Commissioner, Chennai Corporation himself to inspect the place in question where two constructions have been made and to submit a detailed report as to whether those constructions are causing hindrance to the free flow of traffic and whether any of the constructions is on the road or road margin belonging to Chennai Corporation. Accordingly, the Commissioner, Chennai Corporation filed a report dated 12.08.2010 stating that the construction is on the road for which notice was already issued under the relevant provisions of the Town and Country Planning Act.
11.The Commissioner, Chennai Corporation filed a counter affidavit dated 21.09.2010 in Cont.P.No.513 of 2010 stating that the application of Mr.Kesavan for grant of planning permission was rejected. It is also stated that a notice dated 08.09.2010 under Section 220 of CCMC Act was issued to Mr.Kesavan to remove the encroachment. It is stated that the Chennai Corporation sought the assistance of Police by sending a letter to the Assistant Commissioner of Police, Anna Nagar, Chennai requesting to provide police protection at the time of removal of encroachment that was to take place on 16.09.2010. However, the Police stated that they were unable to provide protection citing Vijayagar Chathurti procession that was to take place on 19.09.2010 and they would provide protection thereafter.
12.When the Chennai Corporation issued notice to Mr.Kesavan to remove the encroachment, in order to comply with the order of this Court dated 10.09.2009 passed in W.P.No.16618 of 2009, Mr.Kesavan filed the writ petition in W.P.No.21514 of 2010 seeking to quash the notice dated 08.09.2010 of the Chennai Corporation and obtained interim order on 17.09.2010. The interim order was granted initially for a period of two weeks and subsequently, the same was extended. Due to the interim order, the Chennai Corporation was not able to proceed further.
13.Mr.K.Dasarathan filed a counter affidavit dated 09.11.2010 in W.P.No.21514 of 2010 setting out the aforesaid facts and also alleged that Mr.Kesavan has deliberately suppressed the contempt proceedings in Cont.P.No.513 of 2010 and the aforesaid series of orders passed by this Court in the contempt proceedings.
14.We have heard the submissions made on either side.
15.Thandava Vinayagar Temple has been in existence for a very long time. The said temple has been in existence even before Dasarathan purchased the property at No.33-A, Sivan Koil North Mada Street, Villivakkam, Chennai during 1990. At that time, Villivakkam was a village and by now, the same is forming part of Chennai Corporation due to vast development. The temple itself is adjacent to the road and Mr.K.Dasarathan had no objection towards the existing temple. On the other hand, Mr.Dasarathan objected new constructions being put up during 1998 under the guise of renovation of temple, since it prevented access to his house and also affected his easementary rights. When he was not able to persuade Mr.Kesavan not to proceed with the new constructions, he approached the City Civil Court, Chennai by filing the suit in O.S.No.4369 of 1998 and prayed for the following reliefs:
"(i) A permanent injunction restraining the defendants, their men, agents, executors and administrators from putting up any temporary or permanent superstructure in front of the plaintiff's property adjacent to adjoining to suit property at the Sivan Koil West Mada Street, or to use the same for whatsoever purpose including that of using it as a temple by installing any diety, or incidental there to;
(ii) A Mandatory injunction directing the defendants herein to demolish the unauthorised construction put up at the western side street margin, (Eastern side of West Mada Street) adjacent to and adjoining to the plaintiff's suit property at the West Mada Street.
(iii) Costs of the proceedings."
The suit was decreed on 26.02.2004 by the XIII Assistant Judge, City Civil Court, Chennai in favour of Mr.K.Dasarathan. The judgment and decree passed in O.S.No.4369 of 1998 attained finality as no appeal was filed against the same. He filed a petition in E.P.No.1092 of 2005 in O.S.No.4369 of 1998. However, the said petition was dismissed stating that it is non-executable. Hence, he filed a revision petition in C.R.P.No.1382 of 2009. This Court, on 12.06.2009 granted interim injunction in M.P.No.1 of 2009 in C.R.P.No.1382 of 2009. Mr.K.Dasarathan communicated the interim order obtained in C.R.P.No.1382 of 2009 to Mr.Kesavan through telegram on 06.08.2009. In reply, Mr.Kesavan sent a legal notice dated 08.08.2009 to Mr.K.Dasarathan wherein it is admitted that adjacent to the temple and to its left hand side, Vahana Mandapam has been built up in the year 1998 and the Mandapam is yet to be plastered, the delay attributable to the pendency of the suit. The relevant passage from the legal notice dated 08.08.2009 is extracted hereunder:
"........... My client strongly denies that he never committed violation of High Court Orders. He further states that illegal, unauthorized construction did not put up by him in the averred notice premises. My client states that he did not receive any court orders till date asking him to stop any construction. In Sivan Koil West Mada Street, Pillaiyar Koil was constructed by the villagers about 100 years back. The said Koil being renovated for the purpose of kumbabhishekam this year. Adjacent to this Koil and to its left hand side, Vahana Mandapam built up in the year 1998. The said Mandapam is not plastered due to your false suit........."
16.Thus, Mr.Kesavan admitted that Vahana Mandapam was built up in the year 1998 and it was yet to be plastered in 2009 and the construction was thus not fully completed. Even after the suit in O.S.No.4369 of 1998 was decreed granting permanent injunction against Mr.Kesavan restraining him from putting up any temporary or permanent superstructure in front of and adjacent to Mr.K.Dasarathan's house property, an injunction order was obtained from this Court on 12.06.2009 in M.P.No.1 of 2009 in C.R.P.No.1382 of 2009 and Mr.Kesavan started further construction apart from the said Vahana Mandapam.
17.It is relevant to mention that the City Civil Court granted mandatory injunction in O.S.No.4369 of 1998 on 26.02.2004 directing the Chennai Corporation and the CMDA to demolish the unauthorized construction put up at the road margin adjacent to Mr.K.Dasarathan's house. The demolition is, therefore, with respect to the Mandapam, that was built up during 1998 as admitted by Mr.Kesavan in the legal notice dated 08.08.2009. As Mr.Kesavan proceeded further with construction, by putting up two rooms, Mr.K.Dasarathan filed the writ petition in W.P.No.16618 of 2009 before this Court seeking direction to demolish the illegal and unauthorized superstructure put up on the road margin of Sivan Koil North Mada Street, Villivakkam, Chennai.
18.While admitting the writ petition in W.P.No.16618 of 2009 on 18.08.2009, the First Bench of this Court granted interim order in M.P.Nos.1 and 2 of 2009 in W.P.No.16618 of 2009 restraining Mr.Kesavan from in any manner carrying on the construction activity at the disputed site. Subsequently, the Chennai Corporation issued a stop work notice dated 20.08.2009 under Sections 56, 57 read with 85 of the Tamil Nadu Town and Country Planning Act to Mr.Kesavan on the ground that there was no approved plan. After hearing both sides, a Division Bench of this Court, on 10.09.2009 disposed the said writ petition with the following directions "5.Mr.Rajamanickam, the learned counsel for the third respondent, would submit that though there is no permission for construction of the temple, the temple is in existence for more than 50 years and there was no whisper of opposition by the petitioner and the petitioner has approached this Court only to vindicate his personal grievance. Hence, we are inclined to consider the case on merits, as the construction is without proper permission and that too, on the road margin. The photographs produced before this Court show that the temple is situated on the road margin and that too, on the corner of the road and the construction is certainly a hindrance to the visibility and movements of vehicles and for that matter, even for the pedestrians. In the event the construction is unauthorized, it has to be demolished by the Corporation as per the provisions of the Madras City Municipal Corporation Act. In fact, the learned counsel appearing for the Corporation has submitted that having noticed that the temple has been constructed without a proper permission from the Corporation, a stop work notice dated 20.8.2009 has been issued.
6.That being the position, we dispose of this writ petition with a direction to the Corporation of Chennai to proceed further with the stop work notice against the construction on the road margin. Of course, it is always open to the third respondent to approach the Corporation with sufficient explanation and oppose the stop work notice. In any case, the first respondent / Commissioner, Corporation of Chennai, shall consider the action to be taken against unauthorised construction, after considering the objections if any and to proceed further. As we have noticed that the petitioner has obtained an interim injunction in the civil revision petition and the Corporation has also issued a stop work notice, till such time final orders are passed, the third respondent shall not proceed with further construction.............."
19.From the reading of the aforesaid judgment of this Court, it is seen that the learned counsel who appeared for Mr.Kesavan admitted that the new construction was made without any planning permission. In those circumstances, this Court issued directions to Chennai Corporation to proceed further with stop work notice dated 20.08.2009. Thereafter, the Chennai Corporation issued the demolition notice dated 22.09.2009 under Section 56 read with 85 of the Town and Country Planning Act directing Mr.Kesavan to demolish the unauthorized construction newly put up by him on the ground that the same was made without any planning permission.
20.To get over the same, Mr.Kesavan applied to CMDA for planning permission and the CMDA forwarded the same to the Chennai Corporation vide their letter dated 27.01.2010 directing the Corporation to dispose of the application of planning permission on merits under the delegated powers. Since the Chennai Corporation failed to take further action as directed by this Court in the order dated 10.09.2009 passed in W.P.No.16618 of 2009, Mr.K.Dasarathan filed the contempt petition in Cont.P.No.513 of 2010.
21.Mr.Kesavan filed a counter affidavit dated 02.07.2010 in Cont.P.No.513 of 2010 stating that he applied for planning permission and the same is pending with the Chennai Corporation as per the letter dated 27.01.2010 of the CMDA. He further stated that he has not violated any orders of this Court. He further stated that he would proceed with the renovation work only after obtaining planning permission from the authorities concerned.
22.The CMDA filed a counter affidavit dated 19.07.2010 in Cont.P.No.513 of 2010. It is stated in para 2 of the counter affidavit that this Court issued directions in W.P.No.16618 of 2009 to Chennai Corporation only and no direction was issued to them. Further, in para 3 of the counter affidavit, the CMDA has stated as follows:
"3......... It was ascertained that Temple (Ground Floor) has been constructed on the platform of the Sivan Koil, West Mada Street. Further there is no construction work in progress at the time of inspection. The road space including the platform are vested with Local Bodies......"
That is, the CMDA stated that on inspection, it was found that some unauthorized construction was made on the ground floor of the disputed site. The ground floor construction was not really temple and there is no quarrel over Thandava Vinayagar Temple that has been in existence for a very long time. The new construction referred to by the CMDA is the one, for which, Mr.Kesavan has sought for planning permission. Further, in para 4 of the counter affidavit filed by the CMDA in Cont.P.No.513 of 2010, it is stated that the planning permission application of Mr.Kesavan is now under consideration by the Chennai Corporation. In this regard, the relevant passage from para 4 of the counter affidavit is extracted hereunder:
"4..... the 3rd respondent has applied to the Corporation of Chennai for the planning permission which was forwarded to Chennai Metropolitan Development Authority. This Planning Permission application forwarded by the Corporation of Chennai was returned in file No.C4/18129/2009 dated 27.1.2010 to Corporation of Chennai with a request to dispose of the Planning Permission Application under the delegated powers on merits of the case and as per the Development Regulation of CMDA."
23.In these circumstances, the Division Bench, which heard the contempt petition in Cont.P.No.513 of 2010, passed the following order on 26.07.2010:
"This contempt petition has been filed on the ground that the Order of this Court dated 10.9.2009 has been violated. By that Order, this Court observed that since stop work notice has been issued to the third respondent from proceeding with the construction of the temple on the road margin had directed the corporation to take appropriate action. This Court also observed that the third respondent by name Kesavan is also entitled to explain to the stop work notice in the meantime. On the ground that in spite of the direction to the third respondent to stop the construction work since the construction work is continued, this Contempt Petition has been filed.
2.Counter affidavits have been filed by the third respondent and fourth respondent / Member Secretary, CMDA. The first respondent has not filed counter. It is disputed by the third respondent that the temple is a private property and it is in existence for more than 100 years and it is not in any way hindrance to the public.
3.We are informed that a suit has been laid as to the nature of the property and a Decree has been obtained that the property does not belong to the third respondent. That apart, the construction is even now continued. Further, pursuant to the stop work notice, as to what action the Corporation has taken is not made clear for want of any counter affidavit.
4.In view of the above, the first respondent, Commissioner, Corporation of Chennai is directed to personally inspect the temple in question and file a report as to whether it is a traffic hindrance or whether new construction is put up or renovation is going on and what happened to the application filed by the third respondent seeking permission to carry out the renovation work. Such report shall be filed on the next adjournment date. Post on 02.8.2010."
24.Though a direction was issued to the Commissioner, Chennai Corporation to personally inspect the temple in question and give a report, the Assistant Commissioner, Chennai Corporation inspected the site and gave a report dated 02.08.2010. In the said report, The Assistant Commissioner stated that there was no hindrance to the pedestrians as well as to the vehicular traffic due to the new construction. The said report dated 02.08.2010 of the Assistant Commissioner, Chennai Corporation was considered and rejected by the Division Bench of this Court on 02.08.2010 and the Division Bench passed the following order:
"By our order dated 26.07.2010, we directed the Commissioner, Corporation of Chennai, to personally inspect the temple in question and file a Report. However, Mr.T.Mathi, has submitted that instead of the Commissioner, the Assistant Commissioner, Corporation of Chennai, having jurisdiction over the area, could be directed to inspect and file Report, and such permission was granted.
2.Pursuant to the above order, a Report, dated 02.08.2010, is filed before this Court by one Thiru.C. Boominathan, Assistant Commissioner, Zone Office IV, Corporation of Chennai. The said Report proceeds on the basis that the temple in question is not in any way a traffic hindrance or an impediment to the pedestrians and that no construction activity is going on.
3.We have perused the said Report. It is brought to our notice that two constructions are at progress in the very same place. The offending construction appears to have been put up on the road margin as could be seen from Document No.1 (Photograph) and, in that event, certainly, it would be a traffic hindrance. Therefore, the Report, suggesting that there is no traffic hindrance, cannot be accepted. We are not inclined to accept the said Report and consequently, we direct the Commissioner (Corporation of Chennai, Rippon Buildings, Chennai) himself to inspect the place in question where two constructions have been made and submit a detailed report as to whether those constructions are hindrance to the free flow of traffic and whether any of the construction is on the road or road-margin belonging to the Corporation of Chennai. Such Report should be filed on or before 9th August 2010.
Post the matter for hearing on 09.08.2010."
Thus, the Division Bench of this Court came to a prima facie conclusion that the offending construction appears to have been put up on the road margin as could be seen from the photographs. Chennai Corporation produced three photographs and those photographs are available on file. The Division Bench directed the Commissioner of Chennai Corporation himself to inspect the disputed site and submit a report as to whether those constructions are hindrance to the free flow of traffic and whether any of the construction is on the road or road margin belonging to the Chennai Corporation.
25.In these circumstances, the Commissioner, Chennai Corporation inspected the disputed site and filed a report dated 12.08.2010. In the said report, it is stated that the temple (new construction) is on the land which was used as a road. That is, the new construction is on the road as per the report of the Commissioner, Corporation of Chennai. It is further stated in the said report that the Tahsildar, Perambur Purasawalkam Taluk was instructed to verify the land register and give a report and as per the report of the Tahsildar, the temple is situated on the land, which was used as a road. It is also stated that notices were issued under the relevant provisions of the Town and Country Planning Act and further action would be taken as per the directions of this Court.
26.Further, the Commissioner, Chennai Corporation filed a counter affidavit dated 21.09.2010 in Cont.P.No.513 of 2010 stating that the Corporation rejected the application of Mr.Kesavan seeking planning permission. It is also stated that a notice dated 08.09.2010 under Section 220 of CCMC Act was issued to Mr.Kesavan to remove the encroachment and unauthorized construction. Further it is stated that in view of the interim order passed by this Court on 17.09.2010 in W.P.No.21514 of 2010, they were not able to proceed further. In this regard, the relevant passage from para 3 of the counter affidavit is extracted hereunder:
"3.......... In the meanwhile, we were given to understand that on 17.09.2010, the 3rd respondent has approached this Hon'ble Court and obtained an order of interim stay for two weeks and we received the instructions on 18.09.2010 and hence are unable to proceed any further."
That is, while the Chennai Corporation was taking action pursuant to the order dated 10.09.2009 of this Court passed in W.P.No.16618 of 2009, as stated above, and also pursuant to the orders passed by this Court in Cont.P.No.513 of 2010, Mr.Kesavan filed the writ petition in W.P.No.21514 of 2010 seeking to quash the notice dated 08.09.2010 issued to him by the Chennai Corporation to remove the encroachment and unauthorized construction.
27.The notice dated 08.09.2010 issued under Section 220 read with 222 of CCMC Act to Mr.Kesavan, by the Chennai Corporation, is extracted hereunder:
"NOTICE Sub: Notice Under Section 220 Read with 222 of CCMC Act IV of 1919 You have encroached by constructing a temple a ratham car shed measuring an extent of 35m2 on the road / road side land at Sivan Koil North Mada Street, Villivakkam, Chennai 600 049, in Dn.63 which is vested with the Corporation of Chennai. The above encroachment is affecting the free flow of pedestrian traffic Vehicular Traffic also causing inconvenience to the public and consequently you are lawfully bound to remove the encroachment under your occupation.
Your occupation by encroachment at the above said road is belonging to Corporation of Chennai it is illegal and it is entitled to be removed under Section 220 R/W of CCMC Act 1919. Consequently the notice issued under the said section requesting you to remove the above said encroachment. In the event of failure to comply with this notice, we have no option but to take appropriate action for the removal of encroachment in terms of the provisions namely section 220 R/W 222 of CCMC Act 1919.
I therefore call upon you to remove the above said encroachment put up at Sivan Koil North Mada Street, Villivakkam, Chennai600 049 within 7 days from the receipt of this notice, failing which action will be taken for removing the encroachment with due process of law without further notice to you and you are liable for all the cost and consequences arising thereof."
From the reading of the above said notice, it is seen that the new construction put up during 2009 is a temple car shed on the road / road side at Sivan Koil North Mada Street, Villivakkam, Chennai.
28.While seeking to quash the aforesaid notice dated 08.09.2010 of the Chennai Corporation, Mr.Kesavan did not mention in the affidavit filed in support of the writ petition in W.P.No.21514 of 2010 anything about the contempt proceedings in Cont.P.No.513 of 2010 and the various orders passed therein that resulted in passing of the notice dated 08.09.2010 by the Chennai Corporation. In fact, though there is a reference about the writ petition in W.P.No.16618 of 2009, it is not stated that this Court passed an order on 10.09.2009 in W.P.No.16618 of 2009 directing the Chennai Corporation to proceed further with the stop work notice. Furthermore, as rightly pointed out in the counter affidavit filed by Mr.K.Dasarathan in W.P.No.21514 of 2010, Mr.Kesavan deliberately suppressed the contempt proceedings in Cont.P.No.513 of 2010 and the orders passed therein on 26.07.2010 and 02.08.2010.
29.From the above narration of facts, it is clear that Mr.Kesavan put up a Vahana Mandapam in 1998 without any planning permission and in spite of the mandatory injunction granted by the XIII Assistant Judge, City Civil Court, Chennai in O.S.No.4369 of 1998 for demolition of the superstructure built up, the same was not complied with by Chennai Corporation, though it was a party to the said suit and the mandatory injunction was operating against them also. Thereafter, Mr.Kesavan proceeded with further construction for the purpose of construction of Ratham car shed on the road, for which, stop work, demolition and removal of encroachment notices were issued by the Chennai Corporation. This Court, by the order dated 10.09.2009, passed in W.P.No.16618 of 2009, directed the Chennai Corporation to proceed further with the stop work notice dated 20.08.2009. But Mr.Kesavan sought to prevent the same by applying planning permission belatedly, which was ultimately rejected. In the meantime, Mr.K.Dasarathan also came to this Court complaining that the order dated 10.09.2009 passed in W.P.No.16618 of 2009 was not complied with, by filing contempt petition in Cont.P.No.513 of 2010. Various orders were passed and the Chennai Corporation issued notice dated 08.09.2010 pursuant to the orders of this Court. Suppressing the pendency of the contempt petition, Mr.Kesavan filed the writ petition in W.P.No.21514 of 2010 and sought to quash the notice dated 08.09.2010. In the contempt proceedings, Mr.Kesavan took a plea that his planning permission application is pending with Chennai Corporation. However, it is stated by the Commissioner, Chennai Corporation that after rejecting the application for planning permission of Mr.Kesavan, they issued the notice dated 08.09.2010 and the same was put to challenge in W.P.No.21514 of 2010.
30.In the said circumstances, we are of the view that the writ petition in W.P.No.21514 of 2010 deserves to be dismissed, particularly for suppressing, deliberately, the aforesaid facts and more particularly, the contempt petition in Cont.P.No.513 of 2010 and, it is accordingly dismissed. Further, Mr.Kesavan could not be permitted to put up construction under the guise of renovation of temple, on the road side margin, causing hindrance to the public as well as to Mr.K.Dasarathan for access to his house property.
31.As far as the contempt petition in Cont.P.No.513 of 2010 is concerned, we accept the unconditional apology tendered by the Commissioner, Chennai Corporation, particularly taking note of the fact that this Court granted interim order on 17.09.2010 in W.P.No.21514 of 2010 against them. Since the writ petition in W.P.No.21514 of 2010 is dismissed, there is no impediment for the Chennai Corporation to proceed further with the order dated 10.09.2009 passed by this Court in W.P.No.16618 of 2009.
32.The contempt petition is closed with the aforesaid observation, while the writ petition in W.P.No.21514 of 2010 is dismissed, with cost of Rs.25,000/- (Rupees Twenty Five Thousand Only) payable by the petitioner therein (Mr.Kesavan) to the petitioner in Cont.P.No.513 of 2010 (Mr.K.Dasarathan) within four weeks from today. Consequently, connected miscellaneous petition is closed.
TK To
1.The Commissioner Corporation of Chennai Rippon Buildings, Chennai.
2.The Inspector of Police V-1, Villivakkam Police Station, Chennai 600 049.
3.The Member Secretary Chennai Metropolitan Development Authority Thalamuthu Natrajan Maligai, Irwin Gandhi Road, Egmore, Chennai 600 008