N.K. Jinnah vs The Commissioner and others

S. Manikumar, J. - The petitioner, owner of the property in Old Door No. 7, New Door Nos. 9 and 10, Rockings Road (Junction Road), Cantonment Trichy, has submitted that originally, he had let out front portion of the building in Door No.10, Rocking Road, Cantonment, Trichy, to one Mr. Sankaran, on a lease agreement, to run a Hotel, in the name and style of M/s.A1 Restaurant, on a monthly rent of RS. 15,000/-. The said Sankaran has sub-let the premises to one Mr. V.P. Arumugaperumal. In 2006, M/s. Kalpana Hotel, who happened to be the adjacent owner of the petitioner''s building, filed W.P.No.4347 of 2006, reporting offending construction, put up by Sankaran, in the open space, on the western side of the petitioner''s building.

The petitioner has further contended that he has filed a suit in O.S. No. 354 of 2016, on the file of the learned District Munsif, Trichirappalli, against Mr.V.P.Arumugaperumal, for a permanent injunction restraining him, from making material alterations and committing act of waste, either by damaging the floor, walls, ceiling and making any kind of offending construction, in any manner whatsoever.

The petitioner has also filed RCOP No. 125 of 2015 against V.P. Arumugaperumal, on the file of the Principal District Munsif Court, Trichirappalli, under Section 10(2)(i), 10(2)(iii), 10(2)(v), 10(3)(a)(iii) and 10(3)(c) of Tamilnadu Buildings Lease and Rent Control Act 1960, for eviction. He has further added that V.P.Arumugaperumal has not obtained any prior approval or permission from the Commissioner, Trichirappalli City Corporation, Trichirappalli-1 and the Executive Engineer, O and M, TANGEDCO, TNEB, Trichy-20, respondents 1 and 2 herein.

The petitioner has further contended that Mr. V.P. Arumugaperumal has also demolished a major portion of the wall, in the ground floor. He is altering the main structure of the building including front elevation. He has converted the parking area and put up a superstructure, annexing the same to his restaurant. The petitioner has not approved or endorsed the offending construction made by the said V.P. Arumugaperumal. Lateron, he has obtained electricity service connection, behind the back of the writ petitioner, without his consent. He has not installed any fire fighting device, nor followed any safety rules. Explaining the above, the petitioner has sent a representation dated 22.03.2016 to respondents 1 to 3 requesting them, to take appropriate action against the offending construction. As no action was taken, the writ petitioner has filed the present writ petition, for issuance of a Writ of Mandamus, directing the respondents 1 to 3, to consider his representation, dated 22.03.2016, and to take appropriate action against the unlawful construction put up in his premises.

Added further, during the course of hearing, Mr. S. Vinod Sathya Lazar, learned counsel for the petitioner submitted that in the suit, O.S.No.354 of 2016 on the file of the District Munsif, Tiruchirappalli, an Advocate Commissioner has been appointed, and he has filed a report, indicating additions and alterations. Attention of this Court was also invited to proviso to rule 3(5) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, which states that no structural alteration shall be made in the building, unless the consent of the landlord is obtained therefor. He also invited the attention of this Court to Section 274 of the Coimbatore City Municipal Corporation Act, 1981 mutatis mutandis, applicable to Tiruchirappalli City Municipal Corporation Act, 1994, which states that the construction or re-construction of a building shall not be begun unless and until the Commissioner has granted permission for the execution of the work. Learned counsel also submitted that when unlawful construction put up in the petitioner''s premises was pointed out, in exercise of the power under Section 283 of the Coimbatore City Municipal Corporation Act, the 1st respondent/Commissioner, Tiruchirapalli City Corporation, Tiruchirapalli-1, ought to have taken appropriate action, which he has failed to do so and thus the petitioner is entitled to seek for a Mandamus, to consider the representation and to take action.

Heard the learned counsel for the petitioner and perused the materials available on record.

Material on record discloses that the petitioner has leased out a part of the front portion of the main building, of Hotel Ashok Bhavan bearing Door No.10, Rockings Road, Trichy, to one Mr.Sankaran on a monthly rent of RS. 15,000/-. According to the petitioner, Mr.Sankaran was running a Hotel in the name and style of M/s.A1 Restaurant. The rent for the premises was collected by the then Manager of the Hotel Ashok Bhavan, Mr.Muthuvappa, and without his knowledge, it has been sub-leased to Mr.V.P.Arumugaperumal.

Mr. V.P. Arumugaperumal has filed a suit in O.S. No. 657 of 2006, for a permanent injunction, restraining the writ petitioner, from interfering with his peaceful possession and enjoyment of the suit schedule property, except under due process of law. In the plaint, V.P.Arumugaperumal has contended that he had put up the alleged offending construction, in the adjoining open space with the permission of the writ petitioner. V.P.Arumugaperumal has also filed a petition under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in RCOP.No.92 of 2006, seeking permission to deposit the rent @ RS. 10,000/- per month from February 2006, into the Court.

The writ petitioner has filed RCOP No. 125 of 2015 against V.P. Arumugaperumal, on the file of the on the file of the Principal District Munsif Court, Trichirappalli, under Section 10(2)(i), 10(2)(iii), 10(2)(v), 10(3)(a)(iii) and 10(3)(c) of Tamilnadu Buildings (Lease and Rent Control) Act, 1960, seeking for an order of eviction against V.P.Arumugaperumal, from the premises at Door No.7, New Door Nos.9 and 10 Rockings Road, Trichy. In RCOP.No.125 of 2015, the writ petitioner has stated that V.P. Arumugaperumal has filed O.S.No.657 of 2006, seeking for a permanent injunction, restraining the petitioner from interfering with his peaceful possession and enjoyment of the suit property, except under due process of law.

At paragraph 9 of the plaint in RCOP No.125 of 2015, the writ petitioner has stated that the learned District Munsif, had granted a decree, for permanent injunction, against the writ petitioner, restraining him, from interfering with the possession and enjoyment of V.P.Arumugaperumal, except through due process of law. The writ petitioner has also stated that the learned District Munsif has observed that V.P.Arumugaperumal is occupying the premises only as a tenant.

In RCOP No. 125 of 2015, the writ petitioner has also stated that V.P. Arumugaperumal has filed RCOP No. 92 of 2006, seeking permission of the Rent Controller, to deposit a sum of RS. 10,000/- as monthly rent, into the court and that the same was pending, when the writ petitioner instituted RCOP.No.125 of 2015, on the file of the learned Principal District Munsif, Trichirappalli. The writ petitioner has also stated that V.P.Arumugaperumal has not been remitting the rent, regularly even after filing of RCOP.No.92 of 2006. In RCOP.No.125 of 2015, the writ petitioner has also stated that the additional constructions put up by V.P.Arumugaperumal were not approved by the competent authority, nor he had given consent for the said constructions.

When the matter stood thus, the writ petitioner has filed O.S. No. 354 of 2016, on the file of the District Munsif, Tiruchirappalli, for a permanent injunction restraining Mr.V.P. Arumugaperumal/defendant therein, from making material alterations and committing act of waste, either by damaging the floor, walls, ceiling and making any kind of offending construction, in any manner whatsoever. At paragraph 12 of the plaint averments, the writ petitioner has contended that the defendant therein, V.P. Arumugaperumal has boldly admitted in O.S.No.657 of 2006 that he had made additional constructions, without the sanction of the competent authorities.

Thus, from the above, it could be deduced that the writ petitioner has filed RCOP No. 125 of 2015, on the file of the learned Principal District Munsif, Trichirappalli, for an order of eviction of the respondent/tenant from the premises. He has categorically admitted that in O.S.No.657 of 2006, on the file of the learned II Additional District Munsif, Trichy, a decree has been granted in favour of V.P.Arumugaperumal. He has also admitted that in the said suit, the plaintiff/V.P.Arumugaperumal had stated that all the offending constructions in the adjoining open space were made with the permission of the writ petitioner. Subsequently, suit in O.S.No.354 of 2016, has been filed by the writ petitioner, for the relief, as stated supra.

Mr. S. Vinod Sathya Lazar, learned counsel for the writ petitioner has submitted that in O.S. No. 354 of 2016 on the file of the District Munsif, Tiruchirappalli, an Advocate Commissioner has been appointed and that he has also filed his report, noting down the additions and alterations made to the building. The judgment and decree made in O.S.No.657 of 2006 filed by V.P.Arumugaperumal has not been enclosed in the typed set of papers, filed along with the present writ petition.

When the Advocate Commissioner has filed his report in O.S. No. 354 of 2016 on the file of the District Munsif, Tiruchirappalli, certainly Mr.V.P.Arumugaperumal, the defendant therein, would be given an opportunity to file his objection, on the said report and that the Civil Court has to arrive at a decision in O.S.No.354/16 filed by the writ petitioner/plaintiff. When the matter stood thus, the petitioner is stated to have sent a representation, dated 22.03.2016, to respondents 1 to 3, contending inter alia that Mr.V.P.Arumugaperumal is putting up illegal constructions, altering the main structure and the elevation of the building, especially, in the ground floor and also putting up additional construction, reducing the side setback area. He has also alleged that heat emanating from the proposed construction of Kitchen on the rear side, would cause nuisance to the inmates of the Lodge, adjacent to the building owned by the writ petitioner. The writ petitioner, being the owner of the building at Old Door No.7, New Door Nos.9 and 10, Rockings Road (Junction Road), Cantonment Trichy, should be having a proper planning permit, for the rented premises. The Advocate Commissioner''s report is already on record, before the Civil Court and that the issue as to whether there is any additional construction, has to be gone into by the Civil Court. According to the writ petitioner, he had not given any consent for any structural alteration and whereas in O.S.No.657 of 2006, Mr.V.P.Arumugaperumal has contended that the additions or alterations were made with the permission of the writ petitioner.

The question to be addressed in the present writ petition is, when the writ petitioner has filed O.S.No.354 of 2016 on the file of the District Munsif, Tiruchirappalli, for a permanent injunction restraining V.P.Arumugaperumal defendant therein, from making material alterations and committing act of waste, either by damaging the floor, walls, ceiling and making any kind of offending construction, in any manner whatsoever, whether it would be appropriate to direct the Commissioner of Corporation, Trichy, respondent No.1 in this writ petition, to take action on the representation, dated 22.03.2016, against the alleged unauthorised construction put up by Mr.V.P.Arumugaperumal. At this juncture, it is to be noted that the latter has already obtained a decree against the writ petitioner in O.S.No.657 of 2006.

Though the learned counsel for the petitioner submitted that the remedy sought for in this writ petition, is independent of the relief sought for in the suit, and still, a direction could be issued in the nature of a Writ of Mandamus, to consider the representation of the petitioner, dated 22.03.2016, and to take action as per the provisions of the Coimbatore City Municipal Corporation Act, 1981 mutatis mutandis, applicable to Tiruchirappalli City Municipal Corporation Act, 1994, this Court is not inclined to do so, for the reason that in the suit, there is already a report of the Advocate Commissioner. That apart, it is the version of the writ petitioner that in O.S.No.657 of 2006, V.P. Arumugaperumal has averred that the additions/alterations were made with the permission of the writ petitioner and that a decree has also been passed in favour of V.P. Arumugaperumal.

When the averments both in RCOP No. 125 of 2015, on the file of the learned Principal District Munsif Court, Trichirappalli, and O.S.No.354 of 2016 on the file of the learned District Munsif, Trichirappalli, respectively, relate to the unauthorised construction, without the petitioner''s permission or approval, from the competent authorities, in our considered view, it is always open to the writ petitioner, to implead the Commissioner, Trichirappalli City Corporation, Trichirappalli-1, 1st respondent herein, in the suit, and seek for appropriate orders.

Though the petitioner has filed a copy of the plaint in O.S. No.354 of 2016, on the file of the learned District Munsif, Trichirappalli, he has not filed any copies of interlocutory application filed against Mr.V.P.Arumugaperumal and the orders, if any, passed thereon. In the present writ petition, though he has made averments, to the effect that Mr.V.P.Arumugaperumal has put up additional construction, without the prior permission of the competent authorities, he has not chosen to implead Mr.V.P.Arumugaperumal, as party respondent. When averments are made alleging construction by Mr.V.P.Arumugaperumal, contrary to the rules, the writ petitioner ought to have impleaded him, as one of the party respondents, in this writ petition, but he has sought for a direction in the nature of a Mandamus, to consider his representation dated 22.03.2016, and act on the same.

As observed earlier, when the Civil Court is seized of the matter, with the specific averments, alleging unauthorised construction, without prior approval of the competent authorities, it cannot be said that the petitioner has no other alternative remedy, for obtaining necessary orders from the civil court, on the said aspect and thus constrained to approach this Court under Article 226 of the Constitution of India. There is also non joinder of Mr. V.P. Arumugaperumal, when averments are made against him in the present writ petition.

In the light of the above discussion, this Court is not inclined to grant the relief sought for. Hence, the writ petition is dismissed. No costs.