R.S. Vaideeswaran & Ors. v. R.S. Vaideeswaran & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30 .04.2009CORAMTHE HONOURABLE MR. JUSTICE K. MOHAN RAMandTHE HONOURABLE MR. JUSTICE M. DURAISWAMYW.A.No.1227 0f 2006 &M.P.No.1 of 2006 andW.P.No.27005 of 2005 &WPMP No.29436 of 2005 Commissioner, Corporation of Chennai, Rippon Building, Chennai-600 003 .. Appellant in W.A. 1227/061.R.S.Vaideeswaran2.R.S.Muthukumaran .. Petitioners in W.P.No.27005/05 vs 1.R.S.Vaideeswaran2.R.S.Muthukumaran3.The state Rep. By the Secretary to Government to Government of Tamil Nadu, Ministry of Local and Municipal Administration, Fort st. George, Chennai – 9.4.The Zonal Officer, Zone VII Chennai Corporation Lake Area, Nungambakkam, Chennai – 34.5.The Executive Engineer, Zone VII Chennai Corporation Lake Area, Nungambakkam, Chennai-34.6.The Junior Engineer, Division No.102, Zone VII, Chennai Corporation, Rottler's Street, Choolai, Chennai 112.7.The District Revenue Officer Land & Estate Department, Chennai Corporation, Chennai. https://hcservices.ecourts.gov.in/hcservices/

The Asst. Revenue Officer, Zone VII Corporation of Chennai, Nungambakkam, Chennai – 34... Respondents in W.A. 1227/061.The state Rep. By the Secretary to Government to Government of Tamil Nadu, Ministry of Local and Municipal Administration, Fort st. George, Chennai – 9.2.The Commissioner, Corporation of Chennai, Rippon Building, Chennai-600 003.3.The Zonal Officer, Zone VII Chennai Corporation Lake Area, Nungambakkam, Chennai – 34.4.The Executive Engineer, Zone VII, Chennai Corporation, Lake Area, Nungambakkam, Chennai 5. The Junior Engineer, Division No.102, Zone VII, Chennai Corporation, Rottler's Street, Choolai, Chennai 112.6.The District Revenue Officer Land & Estate Department, Chennai Corporation, Chennai. 7. The Asst. Revenue Officer, Zone VII Corporation of Chennai, Nungambakkam, Chennai – 34. .. Respondents in W.P.No.27005/05Prayer in W.A. 1227/06: Writ Appeal filed under Clause 15 of LettersPatent against order made in WPMP NO.29436/2005 in W.P.No.27005/2005,dated 23.08.2005.Prayer in W.P.No.27005/05: Writ Petition filed under Article 226 ofthe Constitution of India, praying for a Writ of CertiorarifiedMandamus to call for the records of the second respondent in OrderNo.16, dated 25.07.2005 and to quash the same and consequently toforbear the respondents from interfering with petitioner's right tore-build shops at Nos.67 and 68 Kalathiappa Mudali Street, Choolai, Chennai – 600 112. and WPMP No.29436/05: filed under Article 226 of Constitution of India to pass an Interim Injunction restraining therespondents or their men, agents or servants or any one under themfrom fencing the land or putting up any superstructure of any kindover the lease hold land of the petitioners situate at No.67 and 68,Kalathiappa Mudali Street, Choolai, Chennai-600 112.

Heard both sides.

The learned counsel appearing for the appellant submittedthat the notice issued under section 258 of the Madras City MunicipalCorporation Act 1919, dated 25.07.2005 is just and proper. Thelearned counsel further submitted that the superstructure is morethan 120 years old. Therefore, there is no illegality or infirmityin the notice issued by the Corporation invoking section 258 of the Madras City Municipal Corporation Act, which is in the largerinterest of the public safety. The learned counsel further submittedthat the Commissioner only being subjectively satisfied about theruinous state of the superstructure and after coming to theconclusion that immediate action is necessary had issued the impugnedshow cause notice requiring the writ petitioner to comply with thedirections issued under section 258(1) of the Act and therefore, submitted that this court cannot interfere with the subjective https://hcservices.ecourts.gov.in/hcservices/ satisfaction arrived at by the Commissioner. He further submittedthat since immediate action was necessary, two days time was given tothe writ petitioner and the said time is sufficient. Learnedcounsel further submitted that while admittedly after issuance of theimpugned show cause notice the superstructure itself had beendemolished, the writ petition has become infructuous. The learnedcounsel also submitted that the order of injunction dated 23.8.2005became infructuous for the reason that the building was demolished on1.8.2005 itself. Further, the order of injunction was granted in aninfructuous petition.

The learned counsel for the respondents 1 and 2 (thepetitioners in the writ petition) submitted that the notice dated25.7.2005 under section 258 of the Madras City Municipal CorporationAct was served on 30.7.2005 at 8.00 a.m. and that thepetitioners sent telegrams to all the respondents and also to higherauthorities on 30th and 31st July 2005. In spite of the protest, thesuperstructure was demolished on 1.8.2005. According to the learnedcounsel for the respondents, granting two days time, to take actionas per the notice dated 25.7.2005 is not sufficient and reasonablewhen section 366 provides for an appeal against orders passed undersection 258. According to the learned counsel for the respondentsu/s 367 of the Act, the period of limitation for filing an appeal is30 days. He also submitted that they have filed a civil suit beforethis court for the following relief: "a) to return back all the valuable buildingmaterials, viz., Burmah teak-wood materials, ironguirders as listed in the Schedule-B of this plaint etc.,to the plaintiffs as taken away by the defendantillegally on 1.8.2005 ;b) to direct the defendant to pay Rs.10,50,000/- forthe value of the building materials, iron guirders, etc.,of the plaintiffs as taken away by the defendantillegally on 1.8.2005; andc) to pay the cost of this suit. "

We have considered the rival submissions made on eitherside. The notice dated 25.7.2005 which was served on petitioners on30.7.2005 reads as follows: "CORPORATION OF MADRASWorks DepartmentNo.16Madras:25.7.2005NOTICEUnder Section 258 of the Madras City MunicipalAct IV of 1919ToM.R.Ry.Thiru Vaideeswaran & MuthukumarNO.67-68, Kalathiappa Mudali Street https://hcservices.ecourts.gov.in/hcservices/ The owner or occupier of premises NO.67-68Kalathiappa Mudali Street Division 102. Whereas your aforesaid building is deemed by the Commissioner to be in a ruinous state or dangerous topassers by or to the occupiers of neighbouring structures. You are hereby required within 2 days of service of thisnotice to fence off, take down secure or repair suchbuilding so as to prevent any danger therefrom. In default, you will be liable on conviction to a finenot exceeding Rs.500 and the Commission may under Section380 and 381 of the act, cause the necessary works to be doneand recover the expenses thereof from you. "

In the notice dated 25.7.2005, the second respondent gaveonly two days time to take action on the impugned notice. Section258 of the Madras City Municipal Corporation Act of 1919 reads asfollows: "258 Precautions in case of dangerous structures –(1) If any (structure be deemed by the Commissioner to bein a ruinous state or dangerous to passers by or to theoccupiers of neighbouring structures, the Commissionermay, by notice, require the owner or occupier to fenceoff, take down, secure or repair such (structure) so asto prevent any danger therefrom. (2) If immediate action is necessary, the Commissioner may himself before giving such notice orbefore the period of notice expires fence off, take down, secure or repair such (structure) or fence off a part ofany street or take such temporary measures as he thinksfit to prevent danger and the cost of doing so shall berecoverable from the owner or occupier in the mannerprovided in section 387.(3) If in the Commissioner's opinion, the said(structure) is immediately dangerous to the inmatethereof,t he Commissioner shall order the immediateevacuation thereof and any person disobeying may beremoved by any police officer.

At this juncture, it is pertinent to note that thepetitioners have not suppressed any fact in their affidavit filed insupport of the writ petition. They have narrated the entirehappenings from 25.7.2005 to 1.8.2005. The appellants herein were ofthe impression that the petitioners in the writ petition had filedinjunction application in WPMP No.29436/05 in W.P. No.27005/05praying for an injunction not to demolish the superstructure. But, actually, it is not so. The petitioner had filed injunctionapplication to pass an order of injunction restraining therespondents, from putting up any superstructure of any kind over thelease-hold land. In fact, the petitioners have clearly stated intheir affidavit that the superstructure was demolished in 1.8.2005.Hence, there is no suppression of facts by the writ petitioner aswrongly contended by the appellant's counsel.

In the judgment reported in 2007(1) CTC 844 (Siemens Ltd. v.State of Maharashtra and others), the Apex Court held as follows: "13. A bare perusal of the order impugned before the https://hcservices.ecourts.gov.in/hcservices/ High Court as also the statements made before us in thecounter affidavit filed by the respondents, we aresatisfied that the statutory authority has already appliedits mind and has formed an opinion as regards the liabilityor otherwise of the appellant. If in passing the orderthe respondent has already determined the liability of theappellant and the only question which remains for itsconsideration is quantification thereof, the same does notremain in the realm of a show cause notice. The writpetition, in our opinion, was maintainable. "

In the judgment reported in 2000(4) CTC 351 (S.KumarasamyGounder and three others v. Government Tamil Nadu represented by itsSecretary to Government, Municipal+ Administration and Water SupplyDepartment, Chennai – 9), it is held as follows : "11. The manner in which the third respondent had chosento plead the case of the fifth respondent leaves much to besaid about the real motives. There is no denial of theallegation that in spite of earlier directions by this Courtto dispose of the representation of the ayacutdars withinthe time frame the same was not complied with, necessitatingthe petitioners to file a Contempt Application. There isno denial of the fact that the petitioners were served witha notice of the enquiry only at about 5.00 P.M. on13.02.2000 regarding the enquiry to be conducted only on23.2.2000 at about 3.00 p.m. The allegation that thepetitioners were not allowed to make his representationproperly has also not been specifically denied.

Therefore, applying the principles laid down in the abovereferred judgments of the Apex Court and this court, there can be nodoubt on the proposition that a reasonable opportunity of being heardhas not been given to the respondents 1 and 2 before a decision istaken for demolition of the superstructure. The Rule of audi altrempartem was not followed in the case on hand.

The respondents 1 and 2 should have been given sufficienttime to defend their case. Granting two days time will only showthat the appellant/second respondent had acted with a pre-determinedmind to demolish the superstructure. The issuance of a show causenotice is not an empty formality but it has got a purpose toserve. The act of the appellant/second respondent is against theprinciples of natural justice.

As discussed above, the impugned notice No.16 dated 25.7.2005issued by the second respondent is liable to be quashed. Further, inview of the impugned notice dated 25.7.2005, the petitioners weregreatly prejudiced and put to hardship. If the appellant had givensufficient time in the impugned notice to the respondents 1 and 2,the respondents 1 and 2 would have filed an appeal against the saidnotice u/s 366 of the Madras City Municipal Corporation Act. But, bygranting two days time, the petitioners were prevented from filingany appeal as against the impugned notice, which resulted in thedemolition of the superstructure. A mere pendency of the civil suitfiled by the writ petitioner will not stand in the way of this courtgranting appropriate relief. The relief sought for in the suit istotally different and the civil court will independently consider thecontention of the parties which may be raised before it and whiledeciding the issues that arise for consideration in the civil court, the Civil court may also take into consideration the observationsmade in this order. Since after the issuance of show cause noticethe building itself has been demolished, the writ petition has becomeinfructuous is concerned, we are unable to accept the saidcontention. The facts narrated above makes it abundantly clear thatthe Commissioner had acted in a high handed manner and had totallyviolated the provisions contained in section 258(1) as well as 366and 367 of the City Municipal Corporation Act and thereby haddeprived the writ petitioner of his valuable property. In suchcircumstances, the writ petitioner cannot be deprived of appropriateremedy. It is settled law that this court while exercising powerunder article 226 can mould relief taking into consideration thefacts and circumstances of the case and the respondents in the writpetition are restrained from in any manner disturbing or interferingwith the writ petitioner's possession of the building. Therefore, the impugned notice dated 25.7.2005 is quashed. Taking intoconsideration, the hardship and prejudice caused to the petitioners(respondents 1 and 2 in the writ appeal) by the second respondent(appellant in the writ appeal), the second respondent in the writpetition (appellant in the writ appeal) is hereby directed to pay asum of Rs.10,000/- towards costs to the petitioners (respondents 1and 2 in the writ appeal).

Since we have allowed the writ petition, we find, no reasonto interfere with the order of the learned single judge in theW.P.M.P. No.29436/05 in W.P.No.27005/05 dated 23.8.2005 and hence, https://hcservices.ecourts.gov.in/hcservices/ the Writ Appeal is liable to be dismissed and accordingly, WritAppeal is dismissed.

For the aforesaid reasons, writ Appeal is dismissed andthe writ petition is allowed as indicated above with cost ofRs.10,000/- to be paid by the Commissioner/Corporation of Madras tothe respondents 1 and 2 (petitioners in the writ petition), within aperiod of four weeks from the date of receipt of a copy of thisorder. Consequently, connected miscellaneous petitions are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rj To1.The Secretary to Government Ministry of Local and Municipal Administration, Fort St. George, Chennai – 9.2.The Zonal Officer, Zone VII Chennai, Corporation Lake Area, Nungambakkam, Chennai – 34.3.The Executive Engineer, Zone VII, Chennai Corporation, Lake Area, Nungambakkam, Chennai 4. The Junior Engineer, Division No.102, Zone VII, Chennai Corporation, Rottler's Street, Choolai, Chennai 112.5.The District Revenue Officer Land & Estate Department, Chennai Corporation, Chennai. 6. The Asst. Revenue Officer, Zone VII Corporation of Chennai, Nungambakkam, Chennai – 34. 7. The Commissioner, Corporation of Chennai, Rippon Building, Chennai-600 003.+ 2 CC To Mr.R.Ramakrishnan, Advocate SR NO.19796+ 1 CC To Mr.V.Bharathidasan, Advocate SR NO.19647 W.A.No.1227 0f 2006 & W.P.No.27005 of 2005KJI {CO}TP/30.4.2009.