V.Loganathan Proprietor, Hotel Mithra TNSCB Complex Thirumangalam Anna Nagar (West) Chennai-600 040 v. The Tamilnadu Slum Clearance Board rep. by its Chairman Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.01.2008CORAM:THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.1316 of 20041. The Tamilnadu Slum Clearance Board rep. by its Chairman Chennai.2. The Secretary Tamilnadu Slum Clearance Board Chennai. Appellants(Respondents)v.1. V.Loganathan Proprietor, Hotel Mithra TNSCB Complex Thirumangalam Anna Nagar (West) Chennai-600 040.2. M/s.J.S.P.Automotive rep. by its Proprietrix Mrs.P.Jhansi (Dealers for Honda Motor Cycles, Scooters India (P) Limited) No.Y-219, II Avenue, Anna Nagar Chennai-600 040. Respondents(Petitioners)(2nd respondent impleaded vide order ofCourt dated 5.8.2004 made inW.A.M.P.No.5264 of 2004). PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent againstthe order of the learned single Judge of this Court dated 1.3.2004 madein W.P.No.22989 of 2003. https://hcservices.ecourts.gov.in/hcservices/ WP No.22989/2003: Petition presented to this Court to issue a writ ofCertiorarified Mandamus calling for the records of the first respondentherein in his tender notification bearingNo.Cho.Ma.Tho.E/1567/Tender/2003 published in Dhina Thanthi dated27.07.2003, quash the same and direct the respondents herein toforthwith deliver possession of an extent of 5899 sq.ft. basementNorthern side J.J.Complex Thirumangalam suit property with all themoveables, furniture and fixtures as it stood on the date of eviction ofthe petitioner from the said premises.For appellants:Mr.Y.Bhuvanesh KumarFor 1st respondent :Mr.M.SundarFor 2nd respondent :Mr.V.Radhakrishnanfor Mr.G.Anand KumarJUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.)The correctness of the order of the learned single Judge dated1.3.2004 made in W.P.No.22989 of 2003 is canvassed in this appeal by theTamil Nadu Slum Clearance Board, the appellants herein.2. The Tamil Nadu Slum Clearance Board is the owner of thebasement, north wing of the Thirumangalam Commercial Complex, measuring5,890 sq.ft. On 01.10.1993, the said complex was allotted to oneTmt.Selvamani on a monthly rent of Rs.35,340/- and she was running ahotel in that premises. Subsequently, by proceedings dated 07.06.1995,the appellant cancelled the allotment, as the said allottee Selvamanihad defaulted in making the payment of rent. On 07.10.1996, the saidTmt.Selvamani and the first respondent Loganathan gave a jointrepresentation to the appellant that they were the partners running thehotel business in the allotted complex; the allotment made in favour ofTmt.Selvamani in respect of the said portion may be transferred toMr.Loganathan, the first respondent herein. The appellants, byproceedings dated 18.11.1996, reallotted the premise in the name of thefirst respondent V.Loganathan on an enhanced rent of Rs.40,461/- permonth with a further condition that the respondent should pay twomonths' advance and Rs.1,000/- towards electricity deposit, totalling toa sum of Rs.5,29,333/- within seven days. 3. Subsequently, on 06.05.1997, the Board issued an order ofregularisation in favour of the first respondent Thiru Loganathan with a https://hcservices.ecourts.gov.in/hcservices/ condition that from 01.08.1997, there would be an increase of rent atthe rate of 10% every year. The first respondent also committed defaultin paying the rent and hence, the appellant served a notice in Form A on05.08.1997 and Form-B notice was served on 03.12.1997. A final noticewas also sent to the first respondent directing him to pay the arrearsof rent within 15 days, on 09.01.1998. Ultimately, the appellant Board,on 16.07.1998, cancelled the allotment and directed the first respondentto give vacant possession. On 18.11.1998, the first respondent filed asuit in O.S.No.8133 of 1999 in the City Civil Court, Chennai, againstthe demand made against him for arrears of rent. In addition to that,he also filed a writ petition in W.P.No.20267 of 1998, challenging thedemand notice dated 08.11.1998. In the writ petition, this Courtoriginally granted stay till 05.01.1999 by its order dated 20.11.1998 inW.M.P.No.30700 of 1998 and ultimately, the stay granted by this Courtwas vacated on 12.03.2003. The writ petition also is admittedly statedto be dismissed. On 12.07.2003, the first respondent Loganathan wasevicted. Subsequently, on 27.07.2003, the appellant Board issued anotification calling for sealed tenders for offering the commercialcomplex for rent. The first respondent herein filed a writ petition inW.P.No.22989 of 2003 to quash the tender notice. This Court, by way ofan interim order dated 18.08.2003 in W.P.M.P.Nos.28420 and 29421 of2003, injuncted the appellant from proceeding further, on condition ofthe first respondent depositing a sum of Rs.16.00 lakhs towards arrearsof rent in two equal monthly instalments. The Court directed that thefirst instalment of Rs.8.00 lakhs should be paid on or before01.10.2003; on such deposit the appellants should deliver possession ofthe portion to the first respondent; the second instalment should bepaid paid on or before 01.11.2003. The first respondent was furtherdirected to pay the rent payable by him as per the agreement, on orbefore 5th of every succeeding month; with a default clause to theeffect that if any one of the conditions was breached by the firstrespondent, the interim injunction would be automatically vacated. Thesaid order was not complied with by the respondent. However, the writpetition was disposed of finally by directing the respondent to pay thearrears in instalment and reducing the percentage of yearly increase inrent to 5% from 10%. 4. In the meantime, pursuant to the notification issued by theappellant Board, the second respondent applied for allotment of thepremises on payment of higher rent at the rate of Rs.6 per sq.ft withfor annual increase at 10%. The appellant passed an allotment order on11.02.2004 and the premises was handed over to the second respondent on16.02.2004. In those circumstances, the present appeal has been filed.During the pendency of the writ appeal filed by the appellant,originally, this Court, by order dated 05.04.2004, granted interim stayof the order of the learned single Judge with a rider that till furtherorders are passed, the property should not be handed over to any thirdparty, i.e., the second respondent. Finally, on 01.12.2004, theDivision Bench of this Court made the interim stay absolute; and allowed https://hcservices.ecourts.gov.in/hcservices/ the appellants to proceed further as per the proceedings dated11.02.2004, allotting the premises in favour of the second respondent.Pursuant to the same, the second respondent has taken possession and sheis in possession and enjoyment of the property. 5. Learned counsel appearing for the appellant contended that thefirst respondent has no right whatsoever to challenge the notificationcalling for tender for leasing out the premises, as the firstrespondent has already been evicted for the default committed by him inpayment of rent. Even assuming for a moment that he has locus tomaintain the writ petition, the order dated 01.12.2004 made by theDivision Bench has virtually disposed of the writ appeal, in the sense,the order dated 01.12.2004 has narrated the entire events that tookplace during the interregnum period. It also narrated as regards thesuit filed by the first respondent herein before the City Civil Court;ultimately, by pointing out that the concessional order granted infavour of the first respondent by the learned single Judge having notbeen complied with, the first respondent was not entitled to anyindulgence from this Court and thus, while making the interim stayabsolute, the Division Bench granted liberty to the appellants toproceed further with the renting out of the premises to the secondrespondent. 6. However, learned counsel appearing for the first respondent hassubmitted that while dispossessing the first respondent, the appellantshave taken away the articles such as chair, table and other utensilsused for the hotel business run by the first respondent, for which hehas also filed a suit for damages, which is pending before this Court.7. We heard the learned counsel on either side and perused thematerials on record.8. As rightly contended by the learned counsel appearing for theappellants, the interim order dated 01.12.2004 passed in this appealmaking absolute the interim stay of further proceedings of the order ofthe learned single Judge and vacating the condition that the appellantshall not hand over possession to any third party, virtually resolvedthe writ appeal itself. Pursuant thereto, the second respondent, whohas become successful bidder, pursuant to the notification issued forthe purpose of renting out the premises, has been put in possession andhe is in possession and enjoyment of the same by paying rent. Thecancellation of the allotment order in respect of the premises in favourof the first respondent has not been challenged. Thus, even at the timeof filing the writ petition and passing of the order of the learnedsingle Judge, there was no relationship of lessor or lessee or licensorand licensee between the parties. Hence, we are of the considered viewthat the first respondent has no locus standi to challenge thenotification offering the subject premises for rent by the appellantBoard. The renting out of the premises owned by the appellant is in the https://hcservices.ecourts.gov.in/hcservices/ realm of contract. Fixing of the rent for the premises owned by theappellant and yearly enhancement of certain percentage is purely out ofdiscretion of the appellant Board. That cannot be questioned by thetenant in a writ petition under Article 226 of the Constitution ofIndia. 9. When that being the position, the learned single Judge is notcorrect in varying the terms. Even the varied terms, which is ratherconcessional in favour of the first respondent has not been compliedwith. Of-course, having regard to the totality of the circumstances ofthe case, the Court, while exercising its extraordinary jurisdictionunder the Constitution can mould the prayer in order to render justicebased on equity. But, in our humble opinion, even such an order shouldbe within the framework of law as it is well settled that equity followslaw only. Hence, we are of the considered opinion that the orderimpugned in the writ appeal has to be set aside and the same is setaside by allowing this appeal. No costs.10. Learned counsel for the respondent submitted that whilepassing the order of termination of the allotment of the subjectpremises, the appellant has kept the articles/goods available in thepremises under their custody and those articles/goods may be directed tobe handed over to the first respondent.11. In the impugned order in paragraph 7 reference has been madeto the earlier order dated 18.02.2004 wherein the first respondent waspermitted to inventorise the list of articles belonging to him and keptby the appellant in a godown in the presence of the officials of theappellant-Board. It is not made known to this Court whether such anexercise has been done by the first respondent. The learned counsel forthe respondent is also not in a position to explain before this Courtwhether such an inventory has been taken. In order to minimise thelitigation, if such an inventory has been taken by the first respondent,pursuant to the order dated 18.02.2004 and the articles/goods stillremain with the appellant, it is open to the first respondent toapproach the appellant on prior intimation and on the first respondentapproaching with the inventory copy, the appellant is directed tohandover the articles/goods to the respondent with due acknowledgment.In case such inventory has not been taken, it is still open to therespondent to get back the article alleged to have been kept underpossession of the appellant as per the procedure known to law.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ksv/mfTo1. The Chairman Tamilnadu Slum Clearance Board Chennai.2. The Secretary Tamilnadu Slum Clearance Board Chennai.+1cc to Mr.G.Anandakumar, Advocate SR 2886+1cc to Mr.M.Sundar, Advocate Sr 2971+1cc to Mr.Y.Bhuvanesh Kumar, Advocate Sr 2835BV (CO)km/5.2.W.A.No.1316 of 2004