High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26.10.2009 C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.Nos.18710, 18768 to 18782 and 18783 of 2009andM.P.No.1 of 2009 (17 MPs) and M.P.No.2 of 2009 (17 MPs.)K.B.Viswanathan... Petitioner in W.P.No.18710 of 2009J. Narendra Patel... Petitioner in W.P.No.18768 of 2009Dharamji Patel... Petitioner in W.P.No.18769 of 2009K.Prabhakaran... Petitioner in W.P.No.18770 of 2009Tmt.V.K.Kamala... Petitioner in W.P.No.18771 of 2009M.M.P.A. Rahamathulla... Petitioner in W.P.No.18772 of 2009Nathubai M.Patel... Petitioner in W.P.No.18773 of 2009G.Ayyanadan... Petitioner in W.P.No.18774 of 2009A.Kanagavel... Petitioner in W.P.No.18775 of 2009R.Janardhanam... Petitioner in W.P.No.18776 of 2009K.P.Ramesh Raj... Petitioner in W.P.No.18777 of 2009K.Vasantha Rajan... Petitioner in W.P.No.18778 of 2009V.G.Paul Rajan... Petitioner in W.P.No.18779 of 2009N.K.Sharshad... Petitioner in W.P.No.18780 of 2009B.Mohamed Koya... Petitioner in W.P.No.18781 of 2009N.Nethaji... Petitioner in W.P.No.18782 of 2009R.Gopalakrishnan... Petitioner in W.P.No.18783 of 2009-vs-1.The Commissioner & Estate Officer,Corporation of Chennai,Ripon Buildings, Chennai-600 003.2.The Principal Judge,City Civil Court, Chennai. .. Respondents in WP.18710 & 18768 to 18782/093.The Commissioner of Estate Officer,Corporation of Chennai,Land and Estate Department,Rippon Buildings, Chennai - 03.4.The Principal Sessions Judge,City Civil Court, Chennai,High Court Buildings, Chennai - 104...Respondents in WP.18783/09 https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.Nos.18710 and 18768 to 18782 of 2009 : Petitions filedunder Article 226 of the Constitution of India praying for theissuance of a writ of certiorari calling for the records of the firstrespondent in Proceedings L & E. D. C. No.LE4/4109/95, dated14.5.2009 and confirmed by the second respondent vide common order inC.M.A.No.37-50 & 61, 62/2009, dated 17.8.2009 and quash the same.PRAYER in W.P.No.18783 of 2009 : Petition filed under Article 226 ofthe Constitution of India praying for the issuance of a writ ofcertiorarified mandamus calling for the records of the secondrespondent in C.M.A.No.35 of 2009 and the 1st respondent in undatedletter No. L & E. D. C. No.LE4/4109/95 and quash the same and furtherdirecting the first respondent not to disturb the peaceful possessionand enjoyment of the petitioner herein without due process of law. For petitioner :: Mr.R.Muthukumarasamy, SC for Mr.A.Jenasenan in W.P.Nos.18710 18768 to 18782 of 2009 Mr.J.Karunanithi in W.P.No.18783 of 2009 For respondents :: Mr.P.Wilson, Addl.A.G. Asstd.by Mr.G.T.Subramanian for R1 O R D E RHeard Mr.R.Muthukumaraswamy, learned Senior Counsel leadingMr.A.Jenasenan, learned counsel appearing for the petitioner inW.P.Nos.18710 of 2009 and 18768 to 18782 of 2009; Mr.J.Karunanithi,learned counsel appearing for the petitioner in W.P.No.18783 of 2009and Mr.P.Wilson, learned Additional Advocate General leadingMr.G.T.Subramanian, learned counsel appearing for the firstrespondent – Commissioner, Corporation of Chennai in all thesepetitions.2. This batch of writ petitions arises out of a common orderpassed by the second respondent - Principal Judge, City Civil Court,Chennai, dated 17.8.2009 in various appeals filed by the petitioners.The petitioners are all carrying on business in timber and are havingtheir timber depot in Basin Bridge Road, Chennai-79 coming underDivision 51, Zone V, V.O.C.Nagar area. The petitioners were issuedwith the Notice of Eviction by the first respondent - Commissionerand Estate Officer, Corporation of Chennai, dated 14.5.2009 askingthem to be evicted from the premises occupied by them. 3. The names of the petitioners, with whom the premises weregiven, the names of the original lessees, the lease period and thesurvey numbers including the extent in square feet along with thedoor numbers are tabulated in paragraph 6 of the Appellate Court'sorder, viz., the second respondent's order. It is admitted by both https://hcservices.ecourts.gov.in/hcservices/ sides that the property belonged to the first respondent Corporationand the petitioners occupied the said premises not because of anydirect lease given to them by the Corporation, but by the earlierlessees, from whom they obtained the permission to carry on theirbusiness. But, however, it is the case of the petitioners that theyhave been assessed to tax and the Corporation is collecting thelicence fee from the petitioners only and, therefore, theiroccupation was not illegal. While so, the petitioners were issuedwith the Eviction Notice under Section 4(1) of the Public Premises(Eviction of Unauthorised Occupants) Act, 1971 (Act 40 of 1971) (forshort, 'Public Premises Act'). When the notice was given to thepetitioners, they had contended that they have been paying the leaseamount either in the name of the original lessees or in their ownnames. Even though there is no lease deed executed by theCorporation, the fact that they remitted the lease amount andaccepted by the Corporation, will show that there is an arrangementbetween them and the Corporation, and they are also enjoying variouspublic utilities, such as, telephone, electricity connection, waterand drainage facilities and they are also paying the consumptioncharges. They are doing lawful business in the said premises and forcarrying on the business, they have also obtained licence underSection 287 of the Chennai City Municipal Corporation Act, 1919 (forshort, 'CCMC Act'). 4. Under Section 287 of the CCMC Act, the first respondentCommissioner is the Licensing Authority and in terms of section 287(5)(b)(i), before granting licence, the suitability of the place inrespect of which the licence applied for will have to be gone into bythe Licensing Authority and having granted the licence, they cannotbe evicted. When they have failed in their attempt in not convincingthe first respondent-Commissioner, who is the Licensing Authority,they moved the second respondent – Appellate Authority, by filingappeals, under Section 9 of the Public Premises Act. 5. The Appellate Authority, viz., the second respondent, afternumbering their appeals and after hearing both sides, passed theimpugned order. The second respondent has held that the petitionersare not direct lessees and under Section 75 of the CCMC Act, theCommissioner of Chennai Corporation has no power to grant any leasein their favour. In case any sanction is to be made for executingsuch lease, it has to be done by the Commissioner only with thesanction of the Standing Committee of the Municipal Corporationeither for grant or extension of lease and, therefore, in the matterof grant of lease or licence, there cannot be any presumption and inthe present case in terms of Section 75, they have no lease in theirfavour. Once the petitioners are not lessees, then any amount paid bythem is not a lease rent, but it can only be a payment other thanrent. https://hcservices.ecourts.gov.in/hcservices/

6. The second respondent - Appellate Authority also found thatin the absence of lease, the provisions of the Public Premises Actwill come into operation and the petitioners are under theunauthorised occupation in terms of Section 2(g) of the PublicPremises Act. Therefore, once they are termed as ''unauthorisedoccupants", the recourse to the provisions of the Public Premises Actis valid and since the order has been passed only after affordingsufficient opportunity to the petitioners, the order passed by theCommissioner-cum-Estate Officer of the Corporation is not liable tobe interfered with. It is this order of the Appellate Authority,which is under challenge in these writ petitions.7. Pending admission of these writ petitions, this Court by aninterim order, dated 11.9.2009, granted interim stay after orderingnotice to the respondents. On notice from this Court, the respondentshave filed their counter in all these writ petitions dated23.10.2009.8. Apart from the application of the Act, in the counteraffidavit, it was stated that the entire area abutting the BasinBridge Main Road is a Corporation land comprised in various SurveyNumbers and it is required for a public welfare scheme, viz., forconstruction of a Fly Over in Mint Junction at Basin Bridge Road andOld Jail Road, which is a long time request of the residents of NorthChennai. This alone will ease the traffic in that area and,therefore, the land under occupation of the petitioners is basicallyrequired for the construction of the Fly Over. It is also stated thatthe petitioners were given notice as early as on 24.9.2001 anddirected them to pay the arrears of land rent payable by them. Butat that time there was no proposal for construction of the bridge inthe said area. Only in the year 2008, due to increase in trafficvehicle movement and in the interest of larger public, the proposalof bridge is felt very essential and required for the free movementof traffic in the North Chennai area. It is also stated that whateveramount collected from the petitioners was not any rent, but only adamage fee for use and occupation, the petitioners being occupiers ofthe Corporation land in question.9. Mr.P.Wilson, learned Additional Advocate General appearingfor the first respondent Corporation has produced the proceedings ofthe Commissioner issued pursuant to the Resolution No.312/2006 inSubject No.56, dated 31.8.2006, and has stated that till such time,the lands were re-possessed by taking lawful steps, the damage feefor use and occupation of the land can be collected and theCommissioner was authorised about the same.10. Mr.R.Muthukumarasamy, learned Senior Counsel appearing forthe petitioners, in assailing the impugned order, contended that thepossession of the petitioners' land cannot be said to be https://hcservices.ecourts.gov.in/hcservices/ unauthorised, the petitioners having been granted licence underSection 287 of the CCMC Act and the Commissioner having gone into thequestion of suitability of the land under Section 287 (5), and,therefore, there was no necessity to evict them from the premises. Hehas also submitted that the resort to the Public Premises Act can bemade only in terms of Section 2(g) of the Public Premises Act. Thesaid provision, which defines ''unauthorised occupation'' reads asfollows:-''unauthorised occupation", in relation to any publicpremises, means the occupation by any person of the publicpremises without authority for such occupation, andincludes the continuance in occupation by any person ofthe public premises after the authority (whether by way ofgrant or any other mode of transfer) under which he wasallowed to occupy the premises, has expired or has beendetermined for any reason whatsoever".11. Therefore, inasmuch as the first respondent is collectingthe amount from the petitioners, and they are also enjoying thepossession of the premises with all other facilities, the resort tothe provisions of the Act cannot be permitted. Without prejudice tothe above submissions, he has submitted that since the petitionershave been carrying on business in the said area, they may be given analternative accommodation and until such time, they should not beevicted from the said premises.12. Per contra, Mr.P.Wilson, learned Additional Advocate Generalleading the learned counsel for the respondent Mr.G.T.Subramanian,submitted that since the second respondent - Appellate Authority hasdealt with the submission regarding the unauthorised occupation, thisissue is answered against the petitioners and there is no ground madeout warranting interference with the said finding given by theAppellate Authority. He has also referred to the proceedings issuedby the Commissioner, in terms of Section 4(1) of the Public PremisesAct, wherein the purpose for eviction has been clearly set out and inthe operative portion of the said proceedings, it was stated that thepremises is urgently required for the larger interest of generalpublic for the proposed construction of Fly Over at Mint Junctioncomprising of Basin Bridge Road and Old Jail Road and the proposedoverbridge will be utilised by the general public. Therefore, thepetitioners were directed to vacate the said public land and handover the vacant land to the first respondent. The said order came tobe passed after notice to the petitioners and also after perusing thedocuments produced in their favour.13. With reference to the documents produced by the petitioners,the Estate Officer has stated that the documents produced by them arein no way connected with the Chennai Corporation and it is notbinding on the Corporation and the business indulged by the https://hcservices.ecourts.gov.in/hcservices/ petitioners was not sanctioned by the Corporation. It was stated thatthe original lessees were different persons and the lease was notfurther extended and the petitioners were not permitted to continuein possession. The petitioners, without any lease or licence grantedby the Corporation, have unauthorisedly made various documents,transactions and are occupying and enjoying the Corporation publicland. Thereafter, the learned Additional Advocate General alsoreferred to the provisions of Section 75 of the CCMC Act, wherein theCommissioner cannot dispose of any Corporation property, the value ofwhich exceeds Rs.5000/- and that too it can be done only for a periodof 12 months by way of sale or exchange. In all other respects, thematter will have to be reported to the Standing Committee and eitherthe Standing Committee or the Council, alone can transact suchproperty depending on the conditions proposed in Sections 75(2) and75(3) of the CCMC Act. Therefore, the petitioners cannot set up anydocument contrary to the provisions of the Act and there cannot be anestoppel against the statute. 14. The learned Additional Advocate General also submitted thatan identical case came up for consideration in respect of theCorporation itself before a Division Bench of this Court presidedover by A.P.Shah, C.J. (as he then was) in W.A.No.1369 of 2005 andother cases, dated 31.3.2006. Reliance was placed to the contentionsraised and recorded by the Division Bench in paragraph 37 of theorder, wherein similar contentions were raised. In answer to thecontentions raised, in paragraph 13, the Division Bench has held asfollows:-''13. ... Therefore, assuming without granting that thepetitioner derived any right under the aforesaid documents,it shall not continue anymore since it is clear that theland is required for a public purpose, viz., widening ofthe road. That apart, the documents themselves restrict theright given to the lessees thereunder to one year only andthat time has expired long ago. Therefore, the petitionercan claim no right under these documents. The fact that theproperty taxes have been received from the petitioner andamounts received towards illegal use and damages will not,by themselves, confer any right on the petitioner tocontinue in the premises".15. Therefore, he contends that the petitioners, having losttheir appeal before the Commissioner-cum-Estate Officer and alsobefore the Appellate Authority, cannot have a further round oflitigation and the public interest will suffer if the stay order isfurther continued.16. In the light of the legal provisions and the bindingprecedents shown, this Court is not inclined to entertain the writ https://hcservices.ecourts.gov.in/hcservices/ petitions and accordingly all the writ petitions will standdismissed. The interim order will stand vacated. Whether thepetitioners are entitled to have any alternative accommodation ornot, is a matter which the Corporation alone can decide and it isneedless to state that if any such representation is received, it isopen to the respondent Corporation to consider the same and passappropriate orders in accordance with law. Consequently, theconnected miscellaneous petitions are also dismissed. However, therewill be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjsTo 1.The Commissioner & Estate Officer,Corporation of Chennai,Ripon Buildings, Chennai-600 003.2.The Registrar,City Civil Court, Chennai.3.The Commissioner of Estate Officer,Corporation of Chennai,Land and Estate Department, Rippon Buildings, Chennai - 03.15 cc To Mr.A.Jenasenan, Advocate, SR.56671.1 cc To Mr.J.Karunanithi, Advocate, SR.56791.1 cc To Mr.G.T.Subramanian, Advocate, SR.56638.W.P.Nos.18710, 18768 to 18782 and 18783 of 2009andM.P.No.1 of 2009 (17 MPs)M.P.No.2 of 2009 (17 MPs)MRD(CO)RVL 29.10.2009