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Judgment
M. Duraiswamy, J.—The above Writ Appeal is directed against the order of Mr. Justice K. Raviraja Pandian dated 23.08.2005 made in
WPMP No. 29436 of 2005 W.P. No. 27005 of 2005.
2.The petitioners in the writ petition filed writ petition for issuance of a certiorarified mandamus to call for the records of the second respondent in
Order No. 16 dated 25.07.2005 and to quash the same and consequently forbear the respondent from interfering with the petitioner''s right to
build shops at Nos. 67 and 68 Kalathiappa Mudali Street, Choolai, Chennai - 600 112.
The second respondent in the writ petition is the appellant herein. The petitioners in the writ petition are respondents 1 and 2. Respondents 1, 3
to 7 in the writ petitions are respondents 3 to 8 herein.
When the matter is taken up for hearing, by consent of both the learned Counsel, the writ petition is taken up for hearing along with writ appeal.
The case of the petitioners in the writ petition is that they are lessees of the land situated at D.Nos.67 and 68 Kalathiappa Mudali Street,
Choolai, Chennai - 600 112 under the Corporation of Chennai on an annual rent of Rs. 9,400/-. According to the petitioners, the superstructure in
the said land belonged to one Sabapthy Chettiar. In respect of this property, the vacant land was leased to Sabapathy Chettiar by the Municipal
Commissioner, Madras on 17.10.1881 under a lease deed registered as Document No. 2165 of 1881. The period of lease of the land was for 50
years which expired on 11.09.1931. However, even after that date, the tenency continued and the such continues and subsists even now. As per
the terms and conditions of the lease, Sabapathy Chettiar was permitted to put up a Baazar consisting of 21 shops in the vacant land. Later from
the said Sabapathy Chettiar, T. Rathnevelu Chetty grand-father of the petitioners, purchased the building along with the lease-hold rights in the year
1919. Consequently, he became the lessee under the Corporation by virtue of the said purchase from Sabapathy Chettiar. Subsequently, after
Rethnevel Chetty''s life time, the father of the petitioners, R.Sivagnanam became the lessee. By virtue of the Will dated 26.9.1936, in favour of the
petitioners in the writ petition, they are entitled to the superstructure in D.Nos.67 and 68 Kalathiappa Mudali Street, Choolai, Chennai - 600 112
together with lease-hold rights of the vacant land. That, all on a sudden the second respondent had issued a notice dated 25.07.2005 u/s 258 of
the Madras City Municipal Corporation Act 1919, which was served on 30.07.2005. On receipt of the said notice, the petitioners issued
telegrams to all the respondents besides to other higher authorities on 31.07.2005. In spite of their protest, the second respondent went ahead with
its plan to demolish the superstructure. The second respondent demolished the superstructure on 1.8.2005 without giving an opportunity to the
petitioners to file any appeal against the order dated 25.7.2005 u/s 366 of the Madras City Municipal Corporation Act. Hence, the petitioners filed
the writ petition.
Along with the writ petition, they have also filed an application in WPMP No. 29436 of 2005 for interim injunction, restraining the respondents,
from fencing the land or putting up any superstructure of any kind over the lease-hold land of the petitioners situate at Nos. 67 and 68 Kalathiappa
Mudali Street, Choolai, Chennai - 600 112 (comprised in Re-survey No. 1039) measuring an extent of 1 Ground and 1326 sq.ft., till the disposal
of the writ petition. 7. The learned single Judge, after hearing both sides,granted interim injunction on 23.8.2005. 8. Aggrieved over the order of
the learned single Judge, the second respondent has preferred the above writ appeal.
Heard both sides.
The learned Counsel appearing for the appellant submitted that the notice issued u/s 258 of the Madras City Municipal Corporation Act 1919,
dated 25.07.2005 is just and proper. The learned Counsel further submitted that the superstructure is more than 120 years old. Therefore, there is
no illegality or infirmity in the notice issued by the Corporation invoking Section 258 of the Madras City Municipal Corporation Act, which is in the
larger interest of the public safety. The learned Counsel further submitted that the Commissioner only being subjectively satisfied about the ruinous
state of the superstructure and after coming to the conclusion that immediate action is necessary had issued the impugned show cause notice
requiring the writ petitioner to comply with the directions issued u/s 258(1) of the Act and therefore, submitted that this Court cannot interfere with
the subjective satisfaction arrived at by the Commissioner. He further submitted that since immediate action was necessary, two days time was
given to the writ petitioner and the said time is sufficient. Learned Counsel further submitted that while admittedly after issuance of the impugned
show cause notice the superstructure itself had been demolished, the writ petition has become infructuous. The learned Counsel also submitted that
the order of injunction dated 23.8.2005 became infructuous for the reason that the building was demolished on 1.8.2005 itself. Further, the order
of injunction was granted in an infructuous petition.
The learned Counsel for the respondents 1 and 2 (the petitioners in the writ petition) submitted that the notice dated 25.7.2005 u/s 258 of the
Madras City Municipal Corporation Act was served on 30.7.2005 at 8.00 a.m. and that the petitioners sent telegrams to all the respondents and
also to higher authorities on 30th and 31st July 2005. In spite of the protest, the superstructure was demolished on 1.8.2005. According to the
learned Counsel for the respondents, granting two days time, to take action as per the notice dated 25.7.2005 is not sufficient and reasonable
when Section 366 provides for an appeal against orders passed u/s 258. According to the learned Counsel for the respondents u/s 367 of the Act,
the period of limitation for filing an appeal is 30 days. He also submitted that they have filed a civil suit before this Court for the following relief:
a) to return back all the valuable building materials, viz., Burmah teak-wood materials, iron guirders as listed in the Schedule-B of this plaint etc., to
the plaintiffs as taken away by the defendant illegally on 1.8.2005 ;
b) to direct the defendant to pay Rs. 10,50,000/- for the value of the building materials, iron guirders, etc., of the plaintiffs as taken away by the
defendant illegally on 1.8.2005; and c) to pay the cost of this suit.
We have considered the rival submissions made on either side. The notice dated 25.7.2005 which was served on petitioners on 30.7.2005
reads as follows:
CORPORATION OF MADRAS
Works Department No. 16 Madras: 25.7.2005
NOTICE
Under Section 258 of the Madras City Municipal
Act IV of 1919
To
M.R. Ry.Thiru Vaideeswaran
& Muthukumar
No. 67-68, Kalathiappa Mudali Street
The owner or occupier of premises No. 67-68 Kalathiappa Mudali Street Division 102.
Whereas your aforesaid building is deemed by the Commissioner to be in a ruinous state or dangerous to passers by or to the occupiers of
neighbouring structures. You are hereby required within 2 days of service of this notice to fence off, take down secure or repair such building so as
to prevent any danger therefrom.
In default, you will be liable on conviction to a fine not exceeding Rs. 500 and the Commission may u/s 380 and 381 of the act, cause the
necessary works to be done and recover the expenses thereof from you.
In the notice dated 25.7.2005, the second respondent gave only two days time to take action on the impugned notice. Section 258 of the
Madras City Municipal Corporation Act of 1919 reads as follows: ""258 Precautions in case of dangerous structures - (1) If any (structure be
deemed by the Commissioner to be in a ruinous state or dangerous to passers by or to the occupiers of neighbouring structures, the Commissioner
may, by notice, require the owner or occupier to fence off, take down, secure or repair such (structure) so as to prevent any danger therefrom. (2)
If immediate action is necessary, the Commissioner may himself before giving such notice or before the period of notice expires fence off, take
down, secure or repair such (structure) or fence off a part of any street or take such temporary measures as he thinks fit to prevent danger and the
cost of doing so shall be recoverable from the owner or occupier in the manner provided in Section 387. (3) If in the Commissioner''s opinion, the
said (structure) is immediately dangerous to the inmate thereof,t he Commissioner shall order the immediate evacuation thereof and any person
disobeying may be removed by any police officer."" From the reading of the notice dated 25.7.2005, it could be seen that the notice has been
issued u/s 258(1) of the Madras City Municipal Corporation Act of 1919. It is pertinent to point out that in the show cause notice, the
Commissioner has not specifically stated as to whether the building is in a ruinous state or dangerous to passersby or to the occupiers of neibouring
structures. Similarly, by the show cause notice, the Commissioner has not required the writ petitioner either to fence off, take down, secure or
repair such building so as to prevent any danger therefrom. The section deal with three different situations. That is, if the building is in a ruinous
state or it is dangerous to passersby or to the occupiers of neighbouring structures. The show cause notice should specifically indicate the actual
condition of the building and thereafter the occupier of the building should be specifically required either to fence off, take down, secure or repair
such building so as to prevent any danger therefrom. This failure on the part of the Commissioner to specifically indicate the exact condition of the
building and the exact action i.e. expected from the writ petitioner shows that there was no proper application of mind by the Commissioner before
issuing the show cause notice. The contention of the learned Counsel for the appellant is that since the Commissioner deemed it necessary that
immediate action was necessary, the show cause notice was issued is concerned, it has to be pointed out that a reading of the show cause notice
does not indicate that power u/s 258 was exercised. Similarly, the impugned show cause notice is also cannot be construed u/s 258(3) also in the
absence of mentioning of the specific words namely, the structure is imminently dangerous to the inmate thereof and it was felt necessary to
immediately evacuate the occupiers. So, the aforesaid show cause notice issued u/s 258(1) of the Act. Section 366 of the Madras City Municipal
Corporation Act of 1919 provides for an appeal. Section 367 of the Act prescribes that limitation for filing appeal is 30 days from the date of
receipt of the order. Therefore, the petitioners could have filed an appeal against the impugned notice 25.7.2005 u/s 366 of the Madras City
Municipal Corporation Act of 1919 within 30 days. But, in the case on hand, the second respondent had issued notice granting only two days time
to fence off, take down, secure or repair the building, which in our opinion, is insufficient. The impugned notice dated 25.7.2005 was received by
the petitioners on 30.7.2005 and the superstructure was demolished on 1.8.2005 without giving an opportunity or time to the petitioners to file an
appeal against the impugned notice. Though the building is an old building, that does not mean that only two days time should be given to the
petitioners to rectify the defects or act on the notice. Atleast the second respondent could have waited till the expiry of the limitation period for
filing an appeal. Here, in this case, it was not done so. The petitioners were put to very great loss and hardship by the sudden demolition of the
superstructure by the second respondent.
At this juncture, it is pertinent to note that the petitioners have not suppressed any fact in their affidavit filed in support of the writ petition. They
have narrated the entire happenings from 25.7.2005 to 1.8.2005. The appellants herein were of the impression that the petitioners in the writ
petition had filed injunction application in WPMP No. 29436/05 in W.P. No. 27005/05 praying for an injunction not to demolish the
superstructure. But, actually, it is not so. The petitioner had filed injunction application to pass an order of injunction restraining the respondents,
from putting up any superstructure of any kind over the lease-hold land. In fact, the petitioners have clearly stated in their affidavit that the
superstructure was demolished in 1.8.2005. Hence, there is no suppression of facts by the writ petitioner as wrongly contended by the appellant''s
counsel.
In the judgment reported in 2007(1) CTC 844 (Siemens Ltd. v. State of Maharashtra and Ors.), the Apex Court held as follows:
A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the
respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise
of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for
its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was
maintainable.
In the judgment reported in S. Kumarasamy Gounder and 3 Others Vs. The Government of Tamil Nadu and 4 Others, , it is held as follows :
11.The manner in which the third respondent had chosen to plead the case of the fifth respondent leaves much to be said about the real motives.
There is no denial of the allegation that in spite of earlier directions by this Court to dispose of the representation of the ayacutdars within the time
frame the same was not complied with, necessitating the petitioners to file a Contempt Application. There is no denial of the fact that the petitioners
were served with a notice of the enquiry only at about 5.00 P.M. on 13.02.2000 regarding the enquiry to be conducted only on 23.2.2000 at
about 3.00 p.m. The allegation that the petitioners were not allowed to make his representation properly has also not been specifically denied. In
fact during this hearing a statement was made on behalf of the third respondent to the effect that the petitioners were the bidders at the auction of
the fishery rights. This Court specifically adjourned the matter to enable the counsel for the petitioners to clarify the issue. But on the next hearing, it
was admitted by the third respondent''s counsel that the said statement was not correct. The conduct of the third respondent in having attempted to
mislead the Court by giving wrong instructions to the counsel is highly improper. These facts would in a way substantiate the extraneous interest
which the third respondent appears to be exhibiting in favour of the fifth respondent who had not even chose to file a counter denying the
obstruction alleged to have been caused by him. But the respondent have successfully dragged on till the end of the period of lease in favour of the
fifth respondent which appears to COME to an end by 30.6.2000, in spite of, the fact that this Court (K. Govindarajan, J.) had ordered as early
as 15.11.1999 to consider the representation of the petitioners within one month. The enquiry mow conducted by the third respondent is an eye-
wash. Having regard to the nature of the allegations, there should have been a spot inspection to find out whether the fifth respondent had put up
any construction or not. But the formality of an enquiry appears to have been carried out in the office room of the third respondent.
Therefore, applying the principles laid down in the above referred judgments of the Apex Court and this Court, there can be no doubt on the
proposition that a reasonable opportunity of being heard has not been given to the respondents 1 and 2 before a decision is taken for demolition of
the superstructure. The Rule of audi altrem partem was not followed in the case on hand.
The respondents 1 and 2 should have been given sufficient time to defend their case. Granting two days time will only show that the
appellant/second respondent had acted with a pre-determined mind to demolish the superstructure. The issuance of a show cause notice is not an
empty formality but it has got a purpose to serve. The act of the appellant/second respondent is against the principles of natural justice.
As discussed above, the impugned notice No. 16 dated 25.7.2005 issued by the second respondent is liable to be quashed. Further, in view
of the impugned notice dated 25.7.2005, the petitioners were greatly prejudiced and put to hardship. If the appellant had given sufficient time in the
impugned notice to the respondents 1 and 2, the respondents 1 and 2 would have filed an appeal against the said notice u/s 366 of the Madras
City Municipal Corporation Act. But, by granting two days time, the petitioners were prevented from filing any appeal as against the impugned
notice, which resulted in the demolition of the superstructure. A mere pendency of the civil suit filed by the writ petitioner will not stand in the way
of this Court granting appropriate relief. The relief sought for in the suit is totally different and the civil court will independently consider the
contention of the parties which may be raised before it and while deciding the issues that arise for consideration in the civil court, the Civil court
may also take into consideration the observations made in this order. Since after the issuance of show cause notice the building itself has been
demolished, the writ petition has become infructuous is concerned, we are unable to accept the said contention. The facts narrated above makes it
abundantly clear that the Commissioner had acted in a high handed manner and had totally violated the provisions contained in Section 258(1) as
well as 366 and 367 of the City Municipal Corporation Act and thereby had deprived the writ petitioner of his valuable property. In such
circumstances, the writ petitioner cannot be deprived of appropriate remedy. It is settled law that this Court while exercising power under Article
226 can mould relief taking into consideration the facts and circumstances of the case and the respondents in the writ petition are restrained from in
any manner disturbing or interfering with the writ petitioner''s possession of the building. Therefore, the impugned notice dated 25.7.2005 is
quashed. Taking into consideration, 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 writ petition (appellant in the writ appeal) is hereby directed to pay a sum of
Rs. 10,000/- towards costs to the petitioners (respondents 1 and 2 in the writ appeal).
Since we have allowed the writ petition, we find, no reason to interfere with the order of the learned single judge in the W.P.M.P. No.
29436/05 in W.P. No. 27005/05 dated 23.8.2005 and hence, the Writ Appeal is liable to be dismissed and accordingly, Writ Appeal is
dismissed.
For the aforesaid reasons, writ Appeal is dismissed and the writ petition is allowed as indicated above with cost of Rs. 10,000/- to be paid by
the Commissioner/Corporation of Madras to the respondents 1 and 2 (petitioners in the writ petition), within a period of four weeks from the date
of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed.