Madras High Court
The Commissioner vs The Secretary Of Government on 26 August, 2021
W.A. No.2358 of 2019
IN THE HIGH COURT OF JUDICIATURE AT MADRAS
DATED : 26.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
W.A.No.2358 of 2019 and C.M.P. No.15592 of 2019
1.The Commissioner,
Corporation of Chennai,
Ripon Buildings,
Chennai – 600 003.
2.The Assistant Commissioner,
Corporation of Chennai,
Zone-VI, Ayanavaram,
Chennai – 600 023. ... Appellants
versus
1.The Secretary of Government,
Municipal Administration and
Water Supply Department,
Fort St. George,
Chennai – 600 009.
2.B.Ramesh Bhagwandass ... Respondents
Prayer: Appeal filed under Clause 15 of the Letters Patent against the order
made in W.P. No.14192 of 2015 passed by the learned Judge, His Lordship
Justice N.Kirubakaran dated 09.10.2015.
1/10
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W.A. No.2358 of 2019
For Appellants : Mrs.Karthikaa Ashok
For Respondents : Mr.T.Arunkumar,
Government Advocate for R1
Mr.M.Muthappan for R2
JUDGMENT
(Judgment of this Court was delivered by T.RAJA,J.)
The Commissioner and the Assistant Commissioner, Corporation of
Chennai have brought this appeal challenging the impugned order dated
09.10.2015 passed in W.P. No.14192 of 2015 by the learned Single Judge.
2.Mrs.Karthikaa Ashok, learned counsel for the appellants
vehemently argued before us that the second respondent/writ petitioner was
only an encroacher and there was no acceptable document to show that his
father was a Refugee of West Pakistan and his claim before the learned
Single Judge that he was allotted a vacant place at Door No.244 (Old
No.180), Paper Mills Road, Perambur, Chennai – 600 011 during the year
1948-49 by the State Government to establish some shops for his livelihood
and that the Government has fixed a nominal rent for the said land and that
his father has also paid the said rent to the Government, are factually
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W.A. No.2358 of 2019
incorrect. Though the second respondent, at no point of time, been allotted
with the disputed land and had not produced any document showing the
allotment of land and that the property taxes paid for the utilities, do not
confer any right on the land, the learned Single Judge has held that the writ
petitioner's father was a displaced refugee from West Pakistan and his
family has been paying ground rent right from the date of allotment as well
as property tax regularly. Without considering the non-availability of the
allotment order, based on the property tax receipts furnished for few years,
the learned Single Judge has directed the appellants Corporation to allot the
alternative site to the writ petitioner which is located behind the disputed
shop of the writ petitioner.
3.Learned counsel appearing for the appellants further submitted that
it is highly difficult to implement the said direction given by the learned
Single Judge, since G.O. Ms. No.730 Rural Development and Local
Administration Department dated 14.04.1976 says that the Government
have decided to impose total ban not to execute any sale, exchange, gift or
mortgage deed and not to sanction of lease, exceeding 9 years in respect of
Government Department and Corporate Bodies, constituted by the Central
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W.A. No.2358 of 2019
and the State Government by a special status or registered under the
Company Law. In the light of the order passed by this Court, coupled with
the G.O. Ms. No.730 dated 14.04.1976, the writ petitioner was issued with
Proceedings dated 29.06.2017 by the Zonal Officer, Zone-VI, Greater
Chennai Corporation, Chennai-23 to furnish his willingness within 15 days
to take up any one of the shops, namely, Shop Nos.1, 2 and 3 in 1 st Floor of
the Corporation Shopping Complex, situated in Demelous Road in D.77,
which is nearby Purasawakkam, Periamet and Elephant Gate Bridge.
Therefore, the request of the writ petitioner for allotment of shop has been
considered by providing above suitable shops to make use of the shops to
eke out his livelihood.
4.Opposing the above prayer, learned counsel for the second
respondent/writ petitioner submitted that the arguments advanced by the
learned counsel for the appellants is far from acceptance for the reasons that
when the writ petitioner was not an encroacher of the land; that his father
was a Refugee of West Pakistan; that the Government has allotted a small
portion of area to put up small shops for the livelihood in the year 1948-49;
that the writ petitioner has been paying the rent to the Government and has
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W.A. No.2358 of 2019
been paying the property tax to the Corporation, the learned Single Judge,
accepting the claim of the writ petitioner, has observed that the writ
petitioner should be allotted an alternative site. Accordingly, the appellants
were directed to allot the alternative site to the writ petitioner.
5.We also find merits on the submission made by the learned counsel
for the writ petitioner. Firstly, the reasoning given by the learned Single
Judge is based on the certificate dated 16.07.1981, issued by the Refugees
Relief Committee. A perusal of the above certificate shows that Shri
Bhagawandas, son of late Shri Hemraj, residing at No.60, Paper Mills Road,
Madras-11 is a bonafide displaced person from Karachi, West Pakistan and
he is now domiciled in Madras and the application of the writ petitioner is
being considered under the Refugee Quota. Since the writ petitioner's father
has been considered as a bonafide displaced person from Karachi, West
Pakistan and the writ petitioner has been paying the property taxes, levied
by the Corporation upto date and the receipt of the property tax would prove
the said fact, the learned Single has accepted that he was not an encroacher.
When the writ petitioner's possession has been proved by filing documents,
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W.A. No.2358 of 2019
the learned Single Judge has come to the conclusion that he should be
allotted an alternative plot.
6.Learned counsel for the appellants, drawing our attention to G.O.
Ms.No.730 Rural Development and Local Administration Department dated
14.04.1976, submitted that when the said G.O. has imposed ban not to
execute any sale or exchange or mortgage deed and not to sanction of lease,
exceeding 9 years in respect of Government Department and Corporate
Bodies, constituted by the Central and the State Government by a special
status, the direction given by the learned Single Judge to provide alternative
shop cannot be implemented is far from acceptance.
7.A mere perusal of the said G.O. shows that the same applicable only
to the Government land, but, not to the land belonging to the Madras City
Municipal Corporation. It is therefore pertinent to extract the relevant
paragraph as under:
'6.Under Section 75 of the Madras City Municipal Corporation
Act, 1919, the Madras City Municipal Corporation Council is
competent to dispose of any immovable property. As the
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W.A. No.2358 of 2019
Government cannot a ban on the disposal of such properties
belonging to the Madras City Municipal Corporation Council,
the Commissioner is requested to place the above decision of
the Government, before the Special Officer-in-Council and
request him to pass a special resolution, imposing a ban on the
disposal of immovable properties belonging to Madras City
Municipal Corporation, to be in confirmity with the policy
decision taken by the Government, in respect of properties
belonging to the Municipalities and send a report to the
Government.'
8.The said G.O. says that the Madras City Municipal Corporation is
competent to dispose of any immovable property because the Government
cannot impose a ban on the disposal of such properties belonging to the
Madras City Municipal Corporation Council and therefore, the
Commissioner was requested to place the above decision of the Government
before the Special Officer-in-Council to show that the ban has not been
made applicable to the land belonging to the Madras City Municipal
Corporation.
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W.A. No.2358 of 2019
9.Secondly, one another communication dated 15.04.2016 addressed
by the Zonal Officer, Greater Chennai Corporation shows that sufficient
land is available behind the present place in occupation. When the above
communication shows that sufficient land is available behind the existing
place, the direction given by the learned Single Judge to allot alternative site
to the writ petitioner, a Refugee of West Pakistan cannot be disturbed.
10.As we are unable to find any justification in the appeal filed by the
appellants, this Court is not inclined to interfere with the order passed by the
learned Single Judge. Accordingly, the writ appeal stands dismissed.
Consequently, C.M.P. No.15592 of 2019 is closed. No costs.
11.It is made clear that the writ petitioner is directed to pay regularly
the necessary charges as per law to the Corporation.
[T.R.,J] [T.V.T.S.,J]
26.08.2021
vga
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W.A. No.2358 of 2019
To
The Secretary of Government,
Municipal Administration and
Water Supply Department,
Fort St. George,
Chennai – 600 009.
https://www.mhc.tn.gov.in/judis/
W.A. No.2358 of 2019
T.RAJA,J.
and
T.V.THAMILSELVI,J.
vga
W.A.No.2358 of 2019 and C.M.P. No.15592 of 2019
26.08.2021
https://www.mhc.tn.gov.in/judis/
