Madras High Court
P.A.Mangalam vs The Chief Executive Officer on 9 November, 2012
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.11.2012 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.25819 of 2012 P.A.Mangalam .. Petitioner vs. 1. The Chief Executive Officer, Office of the St. Thomas Mount cum Pallavaram Cantonment Board, St. Thomas Mount, Chennai 600 016. 2. The Assistant Commissioner of Police, St. Thomas Mount Police Station, St. Thomas Mount. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to forbear the respondents, their men, agents, servants or subordinates or anybody else acting on their behalf from in any way demolishing the petitioner's existing building and committing any act of waste in No.9, G.S.T. Road, St. Thomas Mount, Chennai 16. For Petitioner : Ms.Selvi George For Respondents : Mr.S.Udayakumar, for R1 Central Govt. Standing Counsel Ms.V.M.Velumani, for R2 Special Govt. Pleader -- -- -- -- -- O R D E R
This Writ Petition is filed seeking to forbear the respondents, their men, agents, servants or subordinates or anybody else acting on their behalf from in any way demolishing the petitioner's existing building and committing any act of waste in No.9, G.S.T. Road, St. Thomas Mount, Chennai 16.
2. Facts leading to the filing of this writ petition are detailed hereunder:
2.1. The land in question was originally purchased by the petitioner and her husband in the names of the petitioner, her husband and his brother vide a registered Sale Deed dated 24.10.1973 from Mr.Jeevan Chand Sowcar, son of Mr.Sookulaji. Since the date of purchase, they have been in continuous possession and enjoyment of the property. The predecessor in title, in turn had purchased the property through a Court auction conducted on 08.08.1960 and when the sale came up for confirmation, the purchaser viz., Mr.Jeevanchand Sowcar had filed an objection dated 03.12.1960 for confirmation on the ground that the property did not belong to the Judgement Debtor and he is only a perpetual lessee and that he had no right to alienate the said land. The said application came up for hearing and after hearing all the parties, this Court passed orders vide order dated 29.08.1961 in Appl. No.869 of 1961 in C.S.No.111 of 1955. Subsequently, Act II of 1924 was passed and it was amended by Act XXIV of 1936. Therefore, the people who owned the land in the Cantonment area originally before the Act was passed were recognized as the owners, but they were treated as perpetual lessees on nominal rents. No doubt, all the property in the Cantonment area is vested with the Cantonment Board. Still, they cannot claim themselves to be absolute owners. The Act provides that the Board should pay compensation, if they want to acquire any land for their use. This Court, after extensive consideration of the word 'Owner' has held that the Judgment debtor is the owner for all the purposes though the land vests in the Cantonment Board being within the Cantonment area and in that context the objection raised by the vendor was rejected and the sale was confirmed in his favour. Only thereafter, the land was purchased by the petitioner and they are paying taxes levied by the authorities as on date.
2.2. This Court was pleased to uphold about the title of the property in favour of the petitioner's vendor, who have purchased the land and since then, the petitioner has been in occupation and soon after the purchase, the petitioner has put up a construction in the subject land for which a building plan was submitted to the competent authority and the plan was sanctioned by the 1st respondent vide CBR-No-3 of 28.06.1985. In this land, a 100% self-financing School is also functioning. The land is always used as partly commercial and in the premises apart from the school, shops were also constructed. After the death of the petitioner's husband in the year 1997, the properties were subjected to Partition and the matter came up to this court and the subject portion is allotted to her share and the petitioner and her daughters are now residing in the land and they also have few shops in the land.
2.3. During May 2011, the Metro Rail authorities acquired about 3,221 sq. ft of land and in order to facilitate their acquisition, they have demolished the front side compound wall and therefore, the petitioner was forced to use the front portion of the unused school building to be used for the purpose of shops, without hampering the smooth functioning of the School. Hence, in the light of the above mentioned facts, an application was submitted to the 1st respondent for approval of building plan vide her application dated 16.05.2011 for planning permission along with necessary documents and required fees was also paid.
2.4. The said application came to be returned by the 1st respondent with some queries vide their proceedings No.STM/Works/0802 dated June 2011 and certain clarifications were sought from the petitioner and the communication was addressed to her daughter, Mrs.N.A.Seethalakshmi, who had initially submitted the application. The clarification sought for by the 1st respondent has been complied with and with necessary enclosures, the plan was once again resubmitted by the petitioner for approval. This was once again returned by the 1st respondent and the petitioner was directed to submit some more documents to process her application vide No.STM/Works/1/0236 dated 10.02.2012 and to the same, the petitioner replied vide letter dated 22.02.2012 and thereafter, no further communication was made and the matter is still pending at this stage. The competent authority viz., the 1st respondent is yet to consider the petitioner's application for building plan approval.
2.5. While so, the petitioner has been orally informed that the 1st respondent had sought assistance from the 2nd respondent and they have decided to demolish the existing building on 21.09.2012 which is there right from 1978 and in any event, no orders were issued to the petitioner either accepting her building plan or rejecting the same. Without taking a final decision on her application, the 1st respondent has come to an adverse conclusion to demolish her building, which the petitioner came to know on 19.09.2012. She has not been given any fair opportunity for explaining her case and no orders were passed and communicated to her and the application is still pending.
2.6. The petitioner has stated that she has put up the building after getting proper building approval in the year 1985. The respondents are trying to take the law into their hands, which is arbitrary in nature. If the respondents are allowed to demolish the building situated in the subject premises, the petitioner will be put to irreparable loss and hardship. Having no other alternative except to approach this court, the petitioner has filed the present Writ Petition.
3. In the counter filed by the 1st respondent, it is stated as follows:
(i) The subject portion of the land was acquired by the Chennai Metro Rail Limited. The petitioner submitted an application to erect, re-erect and alter a building under Section 235 of the Cantonments Act, 2006 (Form A) on 28.12.2011 in respect of the property situated at No.9, GST Road, St.Thomas Mount, Chennai 600 016 and the purpose mentioned was shops for Ground Floor and Floor. By letter dated 10.02.2012, the 1st respondent herein returned the Building Plan application dated 28.12.2011 to re-submit along with a copy of the sanctioned Building Plan of the existing building where the modifications are proposed, Government sanctioned Building Plan of the existing building and documents showing land area. To the same, the petitioner sent a reply dated 22.02.2012 without properly complying with the required documents. Again, the 1st respondent sent a communication dated 30.04.2012 that the Building Plan was returned and requested to comply by bringing FSI within the permitted FSI of 0.50 and that the Building Plan can be considered for sanction, only after demolition of the existing building at the site and office records show that the subject land is State Government leased land and produce the lease document issued by the State Government. The petitioner has sent a reply dated 14.05.2012 without complying the queries raised in Letter dated 30.04.2012 stating that she undertakes to demolish the existing building. On 19.09.2012, after filing the above Writ Petition, the petitioner re-submitted the Building Plan, but without the required documents and the said re-submitted Building Application will be considered in accordance with law.
(ii) According to the 1st respondent, the reason for filing the present Writ Petition by the petitioner is only to safeguard the interest of the four shop owners. Without obtaining sanctioned Building Plan for re-erection or alteration, the petitioner has unilaterally re-modelled the building and let out the same to four different shop owners and they are doing business. When notice was sent to the shop owners for getting trade licence, the 1st respondent herein rejected the trade licence application under Section 277 of the Cantonments Act, 2006 (in short 'Act'). That change of purpose for the said premises from educational to commercial was not approved by the competent authority and hence, the 1st respondent cannot process the application for trade licence. By letter dated 05.03.2012, the 1st respondent has sent letter to the shop owners who are carrying on business and requested them to close their shops within 7 days failing which, suitable action will be taken to close the shops under appropriate provisions of the Cantonments Act, 2006. The shop owners/tenants of the petitioner has pressurized the petitioner and hence, without disclosing true facts and suppressing entire material facts before this Court, the petitioner has filed the present Writ Petition, as if the 1st respondent is taking necessary steps to demolish the building, which is not at all countenanced in law. Since the shops were constructed without obtaining sanctioned Building Plan and also without furnishing necessary approval from the competent authority for conversion of the usage from Educational to Commercial purpose, the 1st respondent has rejected the trade licence.
(iii) The Cantonments Act, 2006 (41/2006), Section 234 contemplates sanction for building plan; Section 244 contemplates restrictions of use of building without written permission of the Board to change or convert one kind of tenement into another kind; Section 246 contemplates obtaining Completion Certificate and till obtaining the said Certificate, building shall not be occupied for habitation since such Certificate is issued; Section 247 contemplates illegal erection and re-erection without having a valid notice as required by Sections 235 and 236. Section 248 contemplates power to demolish the building and Section 249 contemplates power to seal unauthorised construction. In view of the aforesaid provisions of the Act, the respondent reserves their right to initiate appropriate proceedings after following the procedure. In view of the interim order granted by this Court in the above Writ Petition, the respondent is unable to proceed further.
(iv) According to the respondent, the petitioner is not entitled to any equitable relief before this Court, since the petitioner has deliberately suppressed material facts. Therefore, the Writ petition filed by the petitioner is liable to be dismissed.
4. The petitioner has filed a rejoinder, wherein, she has stated as follows :
4.1. During May 2011, the Government Authorities demolished the front side and compound wall and a part of the commercial buildings in the subject property for the sake of Chennai Metro Rail. Also, the compound wall situated on the western side of the petitioner's land had been demolished. Within a few days, a new compound wall has been constructed in the same place and no action was taken by the Cantonment Board so far. By a letter dated 07.06.2011 from the CEO, St. Thomas Mount cum Pallavaram, i.e. the 1st respondent herein to the petitioner's daughter Mrs.N.A. Seethalakshmi, it was informed that the Building Plan which had already been submitted by the petitioner herein vide Letter dated 07.06.2011 from the 1st respondent to Mrs.N.A.Seethalakshmi. The building is not a new construction and it is an existing construction and the building is assessed for commercial shops and the petitioner has filed proof of taxation.
4.2. As regards the communication dated 30.04.2012, wherein the 1st respondent has raised the issue of FSI, the petitioner would submit that they have purchased the land in the year 1973 and since then, they have been in occupation and soon after the purchase, they have put up construction in the land, for which a building plan was submitted to the competent authority and the plan was sanctioned by the 1st respondent vide CBR-No.3, dated 28.06.1985. Therefore, the Cantonment Board is estopped from saying that the petitioner is an unauthorised construction. Hence, the petitioner has not submitted fresh building plans.
5. Learned counsel for the petitioner would strenuously contend that the action of the respondents is arbitrary in nature and in violation of the provisions of law, as they have not followed any procedure contemplated under the law. It is her submission that a part of the land was acquired for Chennai Metro Rail Project and in order to facilitate their acquisition, they have demolished the front portion of the Compound Wall and therefore the petitioner is forced to use the front portion of the unused School Building for the purpose of Shops, for which they submitted an application to the 1st respondent for approval of the Building Plan. Pending consideration of the same, the 1st respondent attempted to demolish the existing structure and therefore, without following the due process, the respondents cannot be allowed to proceed further.
6. Per contra, Mr.S.Udhaya Kumar, learned Central Government Standing Counsel appearing for the 1st respondent would submit that no person shall, without the written permission of the Board use or permit any part of a building not originally erected or authorised to be used for human habitation, change or allow the change of the use of any land or building, convert or allow the conversion of one kind of tenement into another kind and any person who contravenes the provisions shall be liable for conviction. He would further submit that the petitioner's application was returned for compliance and she sent a reply on 14.05.2012 without complying the queries raised and simply stated that she undertakes to demolish the existing building. He pointed out that on 19.09.2012, after filing the Writ Petition, the petitioner re-submitted the Building Plan, but without required documents.
7. The question to be examined is as to whether the petitioner has made out a case to forbear the respondents from in any way demolishing her existing building and committing an act of waste in her property.
8. A perusal of the pleadings would show that the petitioner claims that the subject land was originally purchased by herself and her husband in the names of the petitioner, her husband and his brother vide a registered Sale Deed dated 24.10.1973 from Mr.Jeevan Chand Sowcar, son of Mr.Sookulaji and since the date of purchase, they have been in continuous possession and enjoyment of the property. The predecessor in title, in turn had purchased the property through a Court auction conducted on 08.08.1960 and when the sale came up for confirmation, the purchaser viz., Mr.Jeevanchand Sowcar had filed an objection dated 03.12.1960 for confirmation on the ground that the property did not belong to the Judgement Debtor and he is only a perpetual lessee and that he had no right to alienate the said land. When the said application came up for hearing, this Court passed an order on 29.08.1961 in Appl. No.869 of 1961 in C.S.No.111 of 1955. Subsequently, Act II of 1924 was passed and it was amended by Act XXIV of 1936. Therefore, the people who owned the land in the Cantonment area originally before the Act was passed were recognized as the owners, but they were treated as perpetual lessees on nominal rents. This Court, after extensive consideration of the word 'Owner' has held that the Judgment debtor is the owner for all the purposes though the land vests in the Cantonment Board being within the Cantonment area and in that context the objection raised by the vendor was rejected and the sale was confirmed in his favour. Only thereafter, the land was purchased by the petitioner and they are paying taxes levied by the authorities as on date.
9. It is further seen that soon after the purchase, the petitioner put up a construction in the subject land for which a building plan was submitted to the competent authority and the plan was sanctioned by the 1st respondent vide CBR-No-3 of 28.06.1985. In the subject land, a 100% self-financing School is also functioning and the land is always used as partly commercial and in the premises apart from the school, shops were also constructed. After the death of the petitioner's husband in the year 1997, the properties were subjected to Partition and the subject portion is allotted to the petitioner's share and she and her daughters are now residing in the land and they also have few shops in the land.
10. While so, during May 2011, the Metro Rail authorities acquired an extent of 3,221 sq. ft of land and in order to facilitate their acquisition, they demolished the front side compound wall and therefore, the petitioner was forced to use the front portion of the unused school building to be used for the purpose of shops, without hampering the smooth functioning of the School. In that regard, the petitioner submitted an application to the 1st respondent for approval of building plan vide her application dated 16.05.2011 for planning permission along with necessary documents and required fees was also paid. The said application was returned by the 1st respondent with some queries vide their proceedings No.STM/Works/0802 dated June 2011 and certain clarifications were sought from the petitioner and the same was complied with necessary enclosures and the plan was once again resubmitted by the petitioner for approval, which was once again returned by the 1st respondent and the petitioner was directed to submit some more documents to process her application vide No.STM/Works/1/0236 dated 10.02.2012 and to the same, the petitioner replied vide letter dated 22.02.2012 and thereafter, no further communication was made. While that being the position, having come to know that the 1st respondent has come to an adverse conclusion to demolish her building, the petitioner has moved this court with the above Writ Petition.
11. Controverting the above claim, the 1st respondent would submit that the subject portion of the land was acquired by the Chennai Metro Rail Limited. Therefore, the petitioner submitted an application to erect, re-erect and alter a building under Section 235 of the Act, (Form A) on 28.12.2011 in respect of the property situated at No.9, GST Road, St.Thomas Mount, Chennai 600 016 and the purpose mentioned was shops for Ground Floor and First Floor. By a letter dated 10.02.2012, the 1st respondent herein returned the Building Plan application dated 28.12.2011 to re-submit along with a copy of the sanctioned Building Plan of the existing building where the modifications are proposed, Government sanctioned Building Plan of the existing building and documents showing land area. To the same, the petitioner sent a reply dated 22.02.2012 without properly complying with the required documents. Again, the 1st respondent sent a communication dated 30.04.2012 that the Building Plan was returned and requested to comply by bringing FSI within the permitted FSI of 0.50 and that the Building Plan can be considered for sanction, only after demolition of the existing building at the site and office records show that the subject land is State Government leased land and produce the lease document issued by the State Government. The petitioner has sent a reply dated 14.05.2012 without complying the queries raised in Letter dated 30.04.2012 stating that she undertakes to demolish the existing building. On 19.09.2012, after filing the above Writ Petition, the petitioner re-submitted the Building Plan, but without the required documents.
12. In the counter, the 1st respondent has specifically averred that without obtaining sanctioned Building Plan for re-erection or alteration, the petitioner has unilaterally re-modelled the building and let out the same to four different shop owners and they are doing business. When notice was sent to the shop owners for getting trade licence, the 1st respondent herein rejected the trade licence application under Section 277 of the Act. That change of purpose for the said premises from educational to commercial was not approved by the competent authority and hence, the 1st respondent cannot process the application for trade licence. By a letter dated 05.03.2012, the 1st respondent has sent letter to the shop owners who are carrying on business and requested them to close their shops within 7 days failing which, suitable action will be taken to close the shops under appropriate provisions of the Cantonments Act, 2006. The shop owners/tenants of the petitioner has pressurized the petitioner and hence, without disclosing true facts and suppressing entire material facts before this Court, the petitioner has filed the present Writ Petition, as if the 1st respondent is taking necessary steps to demolish the building, which is not at all countenanced in law. Since the shops were constructed without obtaining sanctioned Building Plan and also without furnishing necessary approval from the competent authority for conversion of the usage from Educational to Commercial purpose, the 1st respondent has rejected the trade licence.
13. At this juncture, a reading of the relevant provisions of the Cantonments Act, 2006, is necessary, as reiterated hereunder:
234. Sanction for Building - No person shall erect or re-erect a building on any land in a cantonment -
(a) in an area, other than the civil area, except with the previous sanction of the Board;
(b) in a civil area, except with the previous sanction of the Chief Executive Officer;
nor otherwise than in accordance with the provisions of this Chapter and of the rules and bye-laws made under this Act relating to the erection and re-erection of buildings.
Provided that if an erected or re-erected building is meant for public purposes, then it shall be made accessible to and barrier free for the persons with disabilities.
235. Notice of new buildings:
(1) Whoever intends to erect or re-erect any building in a cantonment shall apply for sanction by giving notice in writing of his intention -
(a) where such erection or re-erection is in an area, other than the civil area, to the Board;
(b) where such erection or re-erection is in a civil area, to the Chief Executive Officer (2) For the purposes of this Act, a person shall be deemed to erect or re-erect a building who -
(a) makes any material alteration or enlargement of any building; or
(b) converts into a place for human habitation any building not originally constructed for human habitation; or
(c) converts into more than one place for human habitation a building originally constructed as one such place; or
(d) converts two or more places of human habitation into a greater number of such places; or
(e) converts into a stable, cattle-shed or cow-house any building originally constructed for human habitation; or
(f) converts into a dispensary, stall, shops, warehouse, godown, factory or garage any building originally constructed for human habitation; or
(g) makes any alteration which there is reason to believe is likely to affect prejudicially the stability or safety of any building or the condition of any building in respect of drainage, sanitation or hygiene; or
(h) makes any alteration to any building which increases or diminishes the height of, or area covered by, or the cubic capacity of, the building, or which reduces the cubic capacity of any room in the building below the minimum prescribed by any bye-law made under this Act.
244. Restrictions on use of buildings :
(1) No person shall, without the written permission of the Board or otherwise than in conformity with the conditions, if any, of such permission,
(a) use or permit to be used for human habitation any part of a building not originally erected or authorised to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and the bye-laws made thereunder;
(b) change or allow the change of the use of any land or building;
(c) convert or allow the conversion of one kind of tenement into another kind.
(2) Any person who contravenes the provisions of sub-section (1) shall on conviction be punishable with a fine which may extend to one lakh rupees and in the case of continuing contravention with an additional fine of rupees ten thousand for every day during which the contravention continues after the date it comes to the notice.
247. Illegal erection and re-erection Whoever begins, continues or completes the erection or re-erection of a building -
(a) without having given a valid notice as required by Sections 235 and 236, or before the building has been sanctioned or is deemed to have been sanctioned; or
(b) without complying with any direction made under sub-section (1) of Section 238; or
(c) when sanction has been refused, or has ceased to be available or has been suspended by the General Officer Commanding-in-Chief, the Command, under clause (b) of sub-section (1) of Section 58, shall be punishable with fine which may extend to fifty thousand rupees and the cost of sealing the illegal construction and its demolition.
248. Power to stop erection or re-erection or to demolish :
(1) The Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re-erection is an offence under Section 247 and may, in any such case or in any other case in which the Board considers that the erection or re-erection of a building is an offence under Section 247, within twelve months of the completion of such erection or re-erection in like manner, direct the alteration or demolition, as it thinks necessary, of the building, or any part thereof, so erected or re-erected:
Provided that the Board may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable:
Provided further that the Board shall not, without the previous concurrence of the General Officer Commanding-in-Chief, the Command, accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.
(2) A Board shall by notice in writing direct the owner, lessee or occupier, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the order under Section 238 sanctioning the erection or re-erection has been suspended by the General Officer Commanding-in-Chief, the Command, under clause (b) of sub-section (1) of Section 58, and shall in any such case in like manner direct the demolition or alteration, as the case may be, of the building or any part thereof so erected or re-erected where the General Officer Commanding-in-Chief, the Command, thereafter directs that the order of the Board sanctioning the erection or re-erection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him:
Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or re-erected prior to the date on which the order of the General Officer Commanding-in-Chief, the Command has been communicated to him.
249. Power to seal unauthorised constructions :
(1) It shall be lawful for the Chief Executive Officer, at any time, before or after making an order of demolition under Section 248 or of the stoppage of erection of any building, or execution of any work, to make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried on or has been completed at the cost of the offender in such manner as may be prescribed by rules for the purpose of carrying out the provisions of this Act or for preventing any dispute as to the nature and extent of such erection or work.
(2) Where any erection or work or any premises in which any erection or work is being carried on, has or has been sealed, the Chief Executive Officer may, for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to be removed.
(3) No person shall remove such seal except -
(a) under an order made by the Chief Executive Officer under sub-section (2); or
(b) under an order of an appellate authority in an appeal made under this Act.
(4) Any person who contravenes the provisions contained in sub-section (3) shall be punishable with imprisonment which may extend to six months or with fine which may extend to twenty thousand rupees, or with both.
14. The Constitution of India under Article 226, confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by part III or for any other purpose. Existence of a right which is the foundation of the exercise of the jurisdiction of the Court shall be the right of the petitioner himself, who complaints of infraction of such right and approaches the Court for relief.
15. Mandamus would issue to command a statutory authority to perform its duty to exercise its discretion according to law, but not to exercise its discretion in a particular manner unless that is expressly required by the law. Relief by way of mandamus which is discretionary may be refused, when there is no legal or constitutional obligation which is capable of being enforced by mandamus. Where an administrative authority has the duty to exercise a discretion or power, but has failed to exercise it, the court cannot, by issuing a mandamus, either direct the authority to make an order in exercise of the discretion in any particular direction nor can the court make the administrative order itself. The proper direction should be that the authority shall make a proper order after exercising his discretion according to the circumstances of the case.
16. In the light of the above principles, it could be seen that where the authorities are under the obligation of their duties and they have not acted in accordance with law, then it is for the court to exercise its jurisdiction and the discretionary power to issue direction in the manner as it is available to the court in the circumstance.
17. In the instant case, it is an admitted fact that the land in question was for the purpose of construction of an educational institution and an application was made for sanction of approval for a Building Plan and the same was approved both for the land and the building. While so, acquisition proceedings were initiated for CMRL project. The authorities have acquired an extent of 3,221 sq. ft. of the subject land and the petitioner has agreed for that and thereafter, the compound wall was demolished. With regard to using the front portion of the unused School building, the petitioner made an application to the competent authority on 16.05.2011 and thereafter, the said application was returned for compliance and again, there was a reply by the petitioner. After filing the Writ Petition, the petitioner re-submitted the Building Plan, but without required documents. Even before that, the petitioner has proceeded to remodel the building and let out four different shops to the tenants. The 1st respondent after noticing all the circumstances, immediately proceeded in accordance with law by issuing a notice under Section 277 of the Act and called for explanation from the shop owners.
18. It is claimed that when the notice was sent to the shop owners for getting the trade licence, the 1st respondent rejected the application for trade licence under Section 277 of the Act and the shop owners are running the shops without trade licence. In this regard, the shop owners/tenants of the petitioner pressurized the petitioner to get the trade licence. As regards the petitioner's Building Plan approval, the application is pending consideration before the 1st respondent for sanction of the Building Plan under Section 234. If the building is not as per the norms and if it is erected without written permission from the Board, then the respondents have power to restrain the use of the building. Section 247 contemplates illegal erection and re-erection without having a valid notice as required under Sections 235 and 236 of the Act.
19. In the given circumstances, though the petitioner merely apprehends that there was an attempt for demolition, it could be seen from the entire perusal of the material documents that the respondents have proceeded in accordance with law. When that be so, it is not for this Court to restrain them from demolition. As the respondents have effected such a course of following the due process, no manner of right is available to the petitioner to come before this Court to restrain the respondents, instead of agitating the matter before the authorities in accordance with law to get a proper sanction and approval by satisfying the requirements as per law. It is true that the shop owners have been issued with a notice to close the shops, since the construction is not approved and that they have not obtained trade licence. Therefore, it is for the tenants to take a recourse in accordance with law, if they have any valid legal right.
20. In the case on hand, two aspects need to be looked into. Firstly, the land owner, i.e. the petitioner, after the demolition of the compound wall on acquisition, applied for Planning Permit for re-modelling the front portion and such an application was returned and re-submitted and the same is pending consideration before the 1st respondent. Therefore, in the absence of any cause of action, the petitioner has prematurely approached this Court for restraining the respondents. Secondly, the tenants, who are traders are continuing trade activities without obtaining trade licence. Thereagain, the respondents are bound to follow certain procedures and they have issued notice to them.
21. Naturally, a person, who is a trader, has to carry on trade activities only with a trade licence. In this case, it is the tenants of the petitioner, who are traders and not the petitioner herself. Therefore, the tenants are bound to obtain trade licence for continuing their business. In the above stated position, when the petitioner has not made out any case to this Court, as there is an attempt for demolition of the buildings, the petitioner misconstrued the entire situation and has come before this Court to forbear the respondents from demolishing it. It is placed on record that the authorities have proceeded against the shop owners and have directed them to close the shops till they obtain the trade licence and that the shops in question are constructed without the approved plan. If that is so, it is for them to agitate their legal right in the manner as provided and it is not for the petitioner to come before this Court and seek justice in the form of restrainment when the respondents have followed the proper course. In the given circumstances, in the absence of any cause of action, the apprehension of the petitioner is premature and there cannot be any direction forbearing the respondents from proceeding further.
22. For the foregoing reasons and discussions, as the petitioner has not made out a case for issuing a direction forbearing the respondents from proceeding with the demolition, this Writ Petition deserves no merit consideration and is liable to be dismissed. However, this order shall not preclude the petitioner from claiming Planning Permit by satisfying the requirements of the authorities concerned and it is for the respondents to consider the same in accordance with law. Equally, if there is any action against the tenants/shop owners, it is for them to move the appropriate forum for redressal of their grievance, in the manner known to law.
With the above observation, the Writ Petition is dismissed. No costs. Consequently, connected M.P.No.1 of 2012 is closed.
abe To:
1. The Chief Executive Officer, Office of the St. Thomas Mount cum Pallavaram Cantonment Board, St. Thomas Mount, Chennai 600 016.
2. The Assistant Commissioner of Police, St. Thomas Mount Police Station, St. Thomas Mount