Sathrasala Sharath Babu v. Shanthilal Kothari2. Mr

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 7.12.2007CoramThe Hon'ble Mr. JUSTICE S.RAJESWARANW.P.No.7452 of 1998 and W.P.M.P. Nos.11362 to 11364 of 1998, 16311 & 16312 of 1999 and 21053 of 1999Sathrasala Sharath Babu..PetitionerVs.1. Shanthilal Kothari2. Mr.Justice S.Mohan3. M.Selvi4. S.J.Kalyani Mammidi5. R. Harikrisnan6. C.Venkatesan7. Mahavir Chand Jain8. The Commissioner, Corporation of Chennai, Rippon Buildings, Chennai-3.9. Executive Engineer, Corporation of Chennai, Rippon Buildings, Chennai-3.10.The Member Secretary, The Madras Metropolitan DevelopmentAuthority, Egmore, Chennai-8.11.The Chairman, Tamilnadu Electricity Board, Chennai-2.12.The Chairman and Managing Director, Madras Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chinthadripet, Chennai-2...Respondents https://hcservices.ecourts.gov.in/hcservices/ (Respondents 2 to 7 deleted as per the order of this Courtdt.22.6.1998 in W.M.P. No.12877/1998)Petition filed under Article 226 of the Constitution of Indiapraying to issue a writ of mandamus as stated therein.For Petitioner`..M/s.R.S.JeevarathinamFor Respondents..Mr.R.Thiagarajan Senior counsel for Mrs.Meera Gupta for R1 ****O R D E RThis writ petition seeking direction directing the respondents 8to 12 to demolish the illegal construction put at 140 GovindappaNaicken street, Chennai-79.2. The petition averments are as under:The grand father of the petitioner was the plaintiff in C.S. No.770of 1997 filed before this Court. After the death of the grandfather, the writ petitioner impleaded himself as plaintiff in thatsuit. The petitioner's grand father was the owner of the land andbuilding bearing D.No.140, Govindappa Naicken street, Chennai. Afterthe death of his wife, the petitioner's grand father remainedunmarried and he was left with no issues. He was living in the saidbuilding, the major portion of the same was used as a lodge. Thepetitioner's grand father had a trusted maid servant who served himall her lifetime and while the servant maid was alive, a girl by nameSelvi acquainted herself with the trusted servant maid. The saidSelvi was appointed by the petitioner's grand father to assist theservant maid. The said Selvi stepped in the shoes of the servantmaid after her death. It is stated that the said Selvi developedillegitimate intimacy with the first respondent herein, who was atenant in occupation of a portion of the ground floor. As the grandfather was 86 years old at that time, the said Selvi become in chargeof all the affairs of the grand father including handling chequebooks, collecting the rent, depositing the money into bank,withdrawing the money for expenses, using the bank locker etc. Thelodge was closed down as the said Selvi told the petitioner's grandfather that she was not able to manage the lodge as well as lookafter the grand father. After sometime, the grand father developedurinary infection and he was kept in the bed-room on the second floorand no modes of communication was available to him. The petitioner's https://hcservices.ecourts.gov.in/hcservices/ grand father wanted to endow the property after his lifetime bycreating a trust for charitable purpose. The said Selvi and thefirst respondent under the guise of taking steps for creation of suchtrust made the grand father to execute certain documents and alsomade him to sign documents in some blank papers.3. After the execution of the documents as stated above, thesaid Selvi started ill-treating and neglecting the grand father.Within three months the grand father was made to sign some papersunder the threat of being killed. Due to such torture and neglect,the grand father became extremely sick. One day the grand fathermanaged to use the telephone and communicate to the petitioner.Immediately, he rushed to the place and with the help of the policehe managed to rescue his grand father and give him medical treatment.After his condition improved, he was shifted to petitioner'sresidence. The grand father thereafter narrated the entire facts tothe petitioner relating to the torture and ill-treatment meted out tohim at the hands of Selvi and the first respondent and the documentsand other papers signed by him.4. On enquiries, it came to the light that on 22.1.1997, thesaid Selvi and the first respondent managed to get a lease deedexecuted by the petitioner's grand father by which the firstrespondent has been granted a 51 years lease of the property and alsothe right to demolish and reconstruct the entire building. Further,a trust deed dt.24.3.1997 was also created, wherein, the said Selviwas included as one of the trustees and she is the beneficiary of1/3rd income of the trust. So many other acts of frauds and theftwere alleged against the said Selvi and the first respondent herein.5. The first respondent on the basis of the created lease deeddemolished the major portion of the building and in suchcircumstances the petitioner's grand father filed C.S. No.770 of 1997for appropriate reliefs. This Court granted an interim injunctionrestraining the first respondent herein from demolishing thebuilding. But the first respondent went on to demolish the buildingand managed to put up unauthorised construction upto third floor.6. According to the writ petitioner, the construction of thefirst respondent was without proper authority for the lease deed is abogus one. Further, the Chennai Corporation and the C.M.D.A. hadgiven permission to build only two floors and the plan sanctioned wasonly for residential purpose. But the first respondent put upconstruction upto third floor and there are lot of deviations fromthe sanctioned plan. He also took steps to let it out for commercialpurpose. Hence the petitioner has filed the above writ petition forthe aforesaid relief.7. Originally, 12 respondents were arrayed in the writ petition https://hcservices.ecourts.gov.in/hcservices/ and as per the order dt.22.6.1998, the respondent 2 to 7 were deletedby the petitioner.8. The first respondent entered appearance and filed threeseparate counter affidavits.9. In the counter affidavit dt.6.7.1998, it is stated by himthat the lease deed dt.22.1.1997 for a period of 51 years wasregistered as Doc. No.80/1997 and only on the basis of the lease deedhe was put in possession of the property and the entire demolitionwork was completed in September 1997 itself. He submitted necessaryapplications and obtained planning permission from ChennaiCorporation in PPA No.928/1997 and building permit No.BA: 1483/1997.This construction was thus after obtaining necessary permission. On24.12.1997, in C.S. No.770/1997, this Court granted an interiminjunction restraining him from demolishing the building in the suitproperty. But the counsel for the plaintiff sent a telegram askinghim not to proceed with the construction knowing fully well that suchan injunction was not granted by this Court. However, in dueobedience of injunction order, the construction which had come uptothe third floor in the back portion was stopped by him. Theplaintiff in the suit died on 21.1.1998 without any issues.10. According to the first respondent, the petitioner isclaiming himself to be the legattee of the Will said to have beenexecuted by the late Venkatram and sought impleadment in the suit.On the legal advice given to him, the first respondent re-started theconstruction work on 30.4.1997 and completed it on 25.6.1998.11. The first respondent refers to O.S No.3080 of 1998 filed bythe petitioner's father Suganakar in the City Civil Court, Chennaiarraying the Corporation of Chennai and C.M.D.A. as parties with aprayer for mandatory injunction to demolish the second and thirdfloor and also for a permanent injunction restraining the firstrespondent from putting up any construction. Having failed to getany interim order in the above suit, the writ petitioner filed thepresent writ petition and obtained interim reliefs and thereforeaccording to the first respondent the writ petition is not at allmaintainable.12. All the factual allegations were denied as false by thefirst respondent and it was contended by the first respondent thatsuch disputed question of fact could be decided only in the trial ofthe suit and not in the writ petition.13. In the second counter affidavit dt.10.6.1999, the firstrespondent reiterated his contention that all the disputed questionof fact including the validity of the lease deed could not be goneinto in this writ petition. When the writ petitioner allegesforgery, fraud, cheating and breach of trust, it cannot be gone into https://hcservices.ecourts.gov.in/hcservices/ in a writ petition especially when an elaborate suit is pending onthe original side of this Court. He further stated that though theplan of the second and third floor of the building was not yetapproved by the C.M.D.A., the same could be regularised under theguidelines of the Government of Tamilnadu.14. In third counter affidavit dt.22.9.1999, the firstrespondent questions the right of the writ petitioner with regard tothe property in question as the alleged Will has not yet beenprobated.15. The Commissioner of Chennai Corporation has filed a counteraffidavit dt.22.7.1998, wherein he referred to the pending Civil SuitNo.770 of 1997 and submitted that the writ petition is notmaintainable. He further stated that on 20.3.1997 the firstrespondent obtained sanction plan for demolition and reconstructionof a new building. It was submitted by him that the first respondentdeviated from the sanctioned plan by covering open space on the rearside second floor and first floor. On 13.10.1997 a notice underSection 379A of the Chennai City Municipal Corporation Act was issuedto the first respondent for the aforesaid deviations. On 14.11.1997notices under Section 256(1) & 256(2) was also issued to the firstrespondent. On 18.12.1997 notice under Section 256(A) was alsoissued and the building materials were seized from the site for theunauthorised construction. Again on 27.12.1997 notice under section256(3) was issued and the first respondent was prosecuted before theMetropolitan Magistrate Court and on 10.6.1998, the first respondentwas fined to pay a sum of Rs.1600/-. Further, notice under section244(A) has been recommended for levying penalty for the unauthorisedconstruction.16. In so far as the construction of second and third floor bythe first respondent is concerned, the Commissioner stated that anotice was given to the first respondent on 7.5.1998 to stop thework. When the first respondent failed to stop the work, on15.5.1998 notice under section 256(1) & (2) of the Act was issued todemolish the second and third floor. Thus, according to theCommissioner, Corporation of Chennai has initiated proceedings underthe Act for the demolition of illegal structures put up by the firstrespondent.17. The Senior Planner of C.M.D.A. has filed a counter affidavitdt.12.10.1998, wherein he has stated that their officials inspectedthe site on 3.6.1998 and noticed that the construction of the groundplus three floors building was structurally completed. As noapproved plan was produced to the officials, a statutory stop worknotice dt.3.6.1998 was served at the site itself. The firstrespondent did not comply with the notice resulting in C.M.D.A.issuing a statutory demolition notice, treating the entireconstruction as unauthorised. It is further stated that C.M.D.A. has https://hcservices.ecourts.gov.in/hcservices/ not issued any planning permission and if the planning permission isissued by the Corporation of Chennai under the delegated powers, thedetails of such planning permission have to be explained by theCorporation of Chennai.18. Heard the learned counsel for the writ petitioner and thelearned Senior counsel for the first respondent, learned counsel forCorporation of Chennai and the learned counsel for C.M.D.A.19. The learned counsel for the petitioner submitted that it isa clear case of fraud on the part of the first respondent and in thelight of the counter affidavits filed on behalf of the Corporation ofChennai and C.M.D.A., the entire illegal construction is to bedemolished. He further submitted that the first respondent allowedthe suit in C.S. No.770 of 1997 to become final and the suit wasalready decreed as prayed for. 20. Per contra, the learned Senior counsel for the firstrespondent contended that the writ petition itself is notmaintainable as the same was filed after the writ petitioner failedto get an order to demolish the construction in the suit. He furtherreferred to O.S. No.3080 of 1998 filed by the father of thepetitioner for the very same relief as prayed in this writ petition.No interim order was granted by the City Civil Court, Chennai in thatsuit and suppressing the material fact in the affidavit, the writpetitioner managed to get interim orders from the Court. The learnedSenior counsel urged that the conduct of the writ petitioner inchasing more than one legal forum for the same relief by suppressionof facts should be held against him and the writ petition is to bedismissed. The learned Senior counsel wound up his arguments bysubmitting that the writ petition is full of disputed facts and thesame cannot be gone into in a petition filed under Article 226 of theConstitution of India.21. I have considered the rival submissions carefully.22. The admitted fact is that a comprehensive suit was filed bythe grand father of the writ petitioner on the original side of thiscourt in C.S. No.770 of 1997. The suit itself was based on fraud,forgery, cheating and breach of trust alleged against the firstrespondent and one Selvi, who was the servant maid of the writpetitioner's grand father. In such circumstances, the question withregard to the ownership and title of the property, the validity ofthe documents said to have been executed by the grand father, thealleged acts of fraud and breach of trust and the locus standi of thewrit petitioner to continue the suit on the basis of the Will asclaimed by him are all to be decided in the suit, i.e., C.S. No.770of 1997. These disputed facts cannot be gone into by this Court inthis writ petition. https://hcservices.ecourts.gov.in/hcservices/

23. But the learned counsel for the petitioner submitted thatthe suit was already decreed as prayed for on 6.7.2006 and the caseof the petitioner was proved. The learned Senior counsel submittedthat it was an ex-parte decree and as against that ex-parte decreedt.6.7.2006, appeals have been filed in O.S.A. No.236, 237 & 238 of2006 and the same are pending with an order of status quo. A copy ofthe status quo order dt.7.8.2006 made in these O.S.As. was also madeavailable by the first respondent in the typed set of papers filed byhim. That being so, all these questions of disputed facts are to bedecided in the appeals as the appeal is only an off-shoot of thesuit.24. The remedy under Article 226 of the Constitution of India isan extraordinary one and when that Article is invoked by a litigant,a duty is undoubtedly cast upon him to show all the material factsand suppression of the material facts itself is sufficient to dismissa writ petition. It is not in dispute that before filing the presentwrit petition, a suit was laid by the father of the writ petitioneron the file of the City Civil Court, Chennai, in O.S. No.3080 of 1998for the same relief. But there was not even a whisper of the same inthe affidavit filed in support of the writ petition. When this waspointed out by this Court, the learned counsel for the writpetitioner submitted that the suit was withdrawn later. Withdrawalof the suit later on will not absolve the writ petitioner from theact of suppressing the vital fact at the time of filing the writpetition. If this fact of filing a civil suit for the same reliefwas disclosed in the affidavit, this court would not have certainlyentertained this writ petition itself, leave alone granting interimorders. Hence, I am inclined to dismiss the writ petition as thewrit petitioner is guilty of suppressio veri.25. Before parting with the case, the counter affidavit filed bythe Corporation and the C.M.D.A. reveal that the construction of thefirst respondent was with deviations and some of the floors put up byhim are unauthorised. Hence, it is open to the local authorities toproceed against the offending construction of the first respondent inthe manner known to law and in accordance with the provisions ofrelevant statutes.In the result, the writ petition is dismissed. No costs.Consequently, W.M.P. Nos.11362 to 11364 of 1998, are dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ aan To 1. The Commissioner, Corporation of Chennai, Rippon Buildings,Chennai-3.2. Executive Engineer, Corporation of Chennai, Rippon Buildings, Chennai-3.3. The Member Secretary, The Madras Metropolitan DevelopmentAuthority, Egmore, Chennai-8.4. The Chairman, Tamilnadu Electricity Board, Chennai-2.5. The Chairman and Managing Director, Madras Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chinthadripet, Chennai-2.+1cc to Mr.R.S.Jeevarathanam,Advocate Sr 72338+2ccs to M/s.Surana & Surana, Advocate Sr 72421+1cc to Mr.B.Mani, Advocate Sr 72417NRK(CO)km/12.12.W.P.No.7452 of 1998 and W.P.M.P. Nos.11362 to 11364 of 1998, 16311 & 16312 of 1999 and 21053 of 1999