ANS Hameed vs Commissioner of Police and Others

Y. Venkatachalam, J.—Invoking Article 226 of the Constitution of India, the petitioner herein has filed the present writ petition, seeking for

a writ of mandamus directing the first respondent to grant lodging licence u/s 35 of Madras City Police Act 1988 on the basis of the requisite

documents and the City Civil Court''s judgment and decree in O.S. No. 5285 of 1988 submitted along with the application dated 20-1-1984 to

the first respondent.

In support of the writ petition, the petitioner herein has filed an affidavit wherein he has narrated all the facts and circumstances that forced him

to file the present writ petition and requested this Court to allow the writ petition as prayed for. Per contra, though no counter affidavit has been

filed by the respondents, the learned Govt., Advocate appearing for the respondents argued the matter and submitted that the writ petition may be

dismissed, for want of merits.

Heard the arguments advanced by the learned counsel appearing for the parties. I have perused the contents of the affidavit and the counter

affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into

consideration the various points raised by the learned counsel appearing for the respective parties, during the course of their arguments.

In the above facts and circumstances of the case, the only point that arises for consideration is, to whether there are any valid grounds to allow

this writ petition or not.

The brief fact of the case of the petitioner as seen from his affidavit are, as follows; Deensha Lodge, Deensha Shopping Complex is owned by

family members consisting of father, mother sons and daughters. One ANF. Deensha is the head of the family and is managing joint owner of the

property. He applied for lodging licence in the year 1984 in due compliance with instructions of the Commissioner of Police Madras. The first letter

sent was dated 20-1 -1984 to which the Commissioner informed on 17-4-1984 that NOC for running lodge would be granted only after the

petitioners herein obtain planning permission for the building and alongwith the letter he has returned all the papers including the application for

NOC. The said ANF. Deensha put up a construction at 51, Thacker''s Street, and completed the same in the early eighties. The Corporation of

Madras sanctioned the plans for the First and Second floors and a part of the Third Floor. He applied for planning permission to put up the 4th

floor. As the same was not granted within the statutory period of 30 days, he went ahead with the construction and completed without plan a part

of the third and fourth floors. The Corporation of Madras and the MMDA issued notice to him for demolition of the portion of the building put up

without a sanctioned plan. He filed a suit in O.S. No. 5285 of 1984 before the City Civil Court at Madras and obtained an injunction against the

Commissioner of Corporation of Madras. The matter was finally disposed of on 24th March, 1986 and the suit was decreed in favour of the said

ANF Deensha, on 23-7-1986 a copy of the judgment in favour of ANF. Deensha against the Corporation of Madras was sent to the

Commissioner of Police, Madras. On 19-8-86, the Deputy Commissioner of Police Traffic, Madras-7, directed him to send 4 sets of approved

plans. On 25th May, 1986 a letter was sent to the Deputy Commissioner of Police informing him that the plan had been declared as sanctioned by

the City Civil Court and hence the plan sent already was deemed to be sanctioned. Several reminders were made to the Commissioner of Police

for taking action on the application for NOC. There was no reply. The application for NOC is pending before the Commissioner of Police since

1984, inspite of the fact that all requirements for NOC having been complied with. The business of lodging is being carried on effectively since

1986 and innumerable inspection have been made by the second respondent. He had also obtained temporary permission for running a lodge from

the Corporation of Madras. The Corporation of Madras also issued a receipt and other documents on payment of licence fee of Rs. 200/- etc. It

is their case that heavy investment has been made over a period of five years for developing the lodging business. Their grievance is if the second

respondent restrains them from continuing the business of lodging, it will cause irreparable loss and injury to them. It is also contended by them that

the lodging provides employment for twenty five persons and that they are from very poor families. According to them the second respondent is

having full knowledge of the business of lodging being carried on by them ever since 1986 and he has also been making periodical visits for

inspection of the lodge since 1986. It is their case that the lodging is being managed in the most healthy and appropriate manner in compliance with

statutory principles. Hence this writ.

In this writ petition, it is contended by the petitioner that the first respondent has not considered the application for lodging licence which was

submitted in the year 1984 even after a lapse of six years, that the second respondent has no jurisdiction when the matter is pending consideration

before the first respondent and that hence action of the second respondent is unjustified on facts and law and illegal. It is also the case of the

petitioners that the second respondent had made innumerable inspections on the lodge and was keeping quiet as the matter is pending before the

first respondent and hence having knowledge of their running the lodging since 1986, the second respondent is not justified in charging them for not

possessing a licence.

Having seen the entire material available on record and from the claims and counter claims made by the parties, the only grievance of the

petitioner herein is the non-sanctioning of the NOC applied for by them and the first respondent herein has not considered their application for

lodging licence which was submitted in the year 1984 even after a lapse of six years. It is also the case of the petitioner herein that though the NOC

applied for by them has not been sanctioned, the business of lodging is being carried on effectively since 1986. It is also admitted by them that

innumerable inspection have been made by the second respondent and there have also been charges for not possessing a licence. It is an admitted

fact so far the NOC applied for by them has not been sanctioned by the first respondent. However, it is claimed by the petitioners that they have

obtained only a temporary permission for running a lodge from the Corporation of Madras. But it is not known for what period such permission

has been issued by the Corporation of Madras. They have not produced the same before this Court for perusal. That being so it is an admitted

case wherein the petitioners are running the lodging business effectively from the 1986 without having obtained the prescribed NOC from the first

respondent. That being so, they cannot have any grievance over the action of the 2nd respondent in charging them for not obtaining the licence. It is

no doubt true that there is a delay in considering the NOC applied for by the petitioners. But that aspect would not give any right for the petitioners

to run the business in lodging without obtaining the prescribed NOC from the competent authority. That apart, during the course of the arguments,

it was brought to the notice of this Court that the request of the applicant in this writ petition was considered on merits and the same has been

rejected on traffic point of view and also a copy of the said proceedings was produced before this Court. In the said proceedings, the first

respondent has clearly mentioned that the width of Thacker''s Street, is 15 feet and of Ponnappan Street, the other end of the building is only 12

feet and both the streets are very narrow. It is specifically mentioned by the first respondent therein that if the petitioners are allowed to run a

lodging house, the vehicles will be necessarily to be parked in the narrow street in view of the paucity of the space causing obstruction to the free

flow of traffic and inconvenience will be caused to the pedestrians, that the interest of the public is of paramount importance than the interest of the

individual and that the reforce in the circumstances stated above, the petitioners'' request for NOC to run a lodging in the property in question was

rejected in the interest of public. That being so, the petitioners herein are not entitled to any relief in this writ petition.

Therefore, for all the aforesaid reasons and in the facts and circumstances of this, case and also in the light of my above discussions with regard

to the various aspects of this case, I am of the clear view that the petitioners herein have failed to make out any case in their favour and that

therefore there is no need for granting any relief asked for by them in this writ petition and thus the writ petition fails and the same is liable to be

dismissed for want of merits.

In the result, the writ petition is dismissed. No costs. Consequently WMP Nos. 15339 and 15340 of 1991 are also dismissed.