Madras High Court

P.Manoharan vs The Commissioner on 10 November, 2021

                                                                  W.P(MD).Nos.9745 and 10059 of 2021


                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                       ORDER RESERVED ON         : 13.06.20221

                                       ORDER PRONOUNDED ON : 20 .06.2022

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

                                        W.P.(MD).Nos.9745 and 10059 of 2021
                                                        and
                                        WMP(MD).Nos. 7447, 7448, 7449 7450,
                                            7777, 7778 1 and 8343 of 2021

                     W.P(MD).No.9745 of 2021


                     P.Manoharan                                           ...Petitioner


                                                        Vs
                     1.The Commissioner
                     Corporation of Madurai
                     Anna Malligai
                     Madurai

                     2.The Assistant Commissioner
                     Corporation of Madurai Zone -3
                     Anna Malligai
                     Madurai

                     3.The Executive Engineer
                     TANGEDO
                     Theppakulam
                     Madurai

                     4.The Assistant Engineer
                     TANGEDO
                     Theppakulam
                     Madurai
https://www.mhc.tn.gov.in/judis

                     1/20
                                                                          W.P(MD).Nos.9745 and 10059 of 2021



                     5.Kasirajan                                           ....Respondents

W.P(MD).No.10059 of 2021

N.Nageswaran ...Petitioner

1.The Commissioner Madurai Corporation Madurai

2.The Assistant Commissioner Zone No.3, Madurai Corporation Madurai

3.Dr.S.Kasirajan

4.R.Kousalya

5.T.Nagajothi

6.A.Thiyagarajan Chettiar ....Respondents

(Respondents 4 to 6 are impleaded vide Court order dated 10.11.2021)

Prayer in W.P(MD).No.9745 of 2021: This Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the entire records pertaining to the impugned order passed by the second respondent vide his proceedings Ref: No.M3A4:/2438/2021 dated 26.05.2021, quash the same.

Prayer in W.P(MD).No.10059 of 2021: This Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the entire https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

records pertaining to the impugned order passed by the second respondent in Ref: No.MTHI3/007654/2020 dated 07.05.2021 and the consequential order made by the second respondent in M3A4/2438/2021 dated 26.05.2021 and quash the same as illegal.

                                        For Petitioner           : Mr.Niranjan S.Kumar
                                                                 in W.P.No.9745 of 2021

                                                                 Mr.M.Ajmal Khan
                                                                 Senior Counsel
                                                                 For Mr.M.Mahaboob Athiff
                                                                 in W.P.No.10059 of 2021

                                                                 : Mr.A.R.L.Sundaresan
                                                                 Senior Counsel
                                                                 For Mr.J.Anandkumar for R5
                                                                 in W.P.No.9745 of 2021
                                                                 and for R2 & R3
                                                                 in W.P.No.10059 of 2021

                                                                 : Mr.R.Murali, Standing Counsel
                                                                  for Madurai Corporation
                                                                  in both petitions

                                        For R4 to R6             : No appearance



                                                    COMMON ORDER

The petitioner in both the writ petitions are tenants who are running a

restaurant and a sweet stall in the property belonging to one Kasirajan. Both

the writ petitions have been filed challenging an order passed by the Madurai

Municipal Corporation on 26.05.2021 under which the Corporation has

granted permission for demolition of the buildings on the ground that the said

https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

buildings are damaged due to rain and they are in a dangerous condition

likely to fall upon the general public.

2.The learned Senior Counsel appearing for the writ petitioner has

contended as follows:

(i). The petitioner in WP(MD).No.10059 of 2021 has taken the Door

No.36, East Veli Street, Madurai on lease from one Kasirajan and he has been

keeping the premises in good condition after carrying out repair and

renovation works. Rent control proceedings were initiated by the landlord in

RCOP.No.170 of 2007 on the file of the Rent Controller, Madurai seeking

possession of the property on the ground of demolition and reconstruction.

The said application was rejected on 17.09.2019.

(ii). The landlord having failed in his attempt to take possession of the

property through the rent control proceedings, had approached the Municipal

Authority under Section 327 of Madurai City Municipal Corporation Act

1971 and has requested them to pass an order granting permission for

demolition of the building. According to the learned Senior Counsel, the said

order has been passed as against one Manonmani who had passed away long

back.

(iii). The learned Senior Counsel had further contended that the

landlord has presented an application on 10.05.2021 and the same has been https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

readily accepted by the Corporation and the impugned order has been passed

on 26.05.2021 and on the same day, amount has been remitted by the landlord

towards cost of demolition. The sequence of events will clearly show that the

entire exercise is actuated by malice in law.

3.The learned Senior Counsel referred to a Division Bench Judgment

reported in 2009 (6) CTC 623 ( The Commissioner, Corporation of

Chennai Vs. R.S.Vaideeswaran and others) to impress upon the Court that

without issuing a show cause notice to the tenant in possession of the

property and without arriving at a specific finding that the structure is

imminently dangerous to the inmates, any order passed by the Municipal

Authority is not legally sustainable. The learned Senior Counsel had further

relied upon another Division Bench Judgment reported in 2018 SCC SCC

Online Madras 5010 ( Manimegalai Vs. The Commissioner, Pudukkottai

Municipality and others) to impress upon the Court that without issuing a

notice to the occupier and conducting an inspection, the premises cannot be

sealed. He had further contended that a copy of inspection report should be

given to the occupier and the remarks should be called for from the landlord

and tenant. Without following the said process, the Madurai Corporation has

proceeded to grant permission in favour of the landlord on a mere

application without hearing the tenant or conducting any inspection. https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

4.The learned Senior Counsel further relied upon the judgment of this

Court reported in 2013- I- CWC- 723 (Rama Devi Vs. The Commissioner,

Corporation of Chennai and others) to impress upon the Court that where

the rent control proceedings are pending, it is not permissible to the landlord

to carry out the demolition of a building invoking the provisions of Municipal

Laws. The learned Senior Counsel also relied upon a judgment of Mr.Justice

N.Kirubakaran in W.P.No.27658 of 2016(R.Subramanian Vs. The District

Collector, Coimbatore and others) dated 09.08.2016 to contend that if the

building in dilapidated condition is occupied by the tenant, behind the back

of the tenant, demolition order cannot be issued by the Municipal

Corporation. The learned Senior Counsel further pointed out that in the said

judgment, it has been held that where a special statute is available to

safeguard the interest of the tenants as well as the landlords, the landlords

cannot invoke the General Act as a short cut method.

5.The learned Senior Counsel further contended that when the attempt

made by the landlord before the Rent Controller was not successful, the

landlord resorted to invoke the public law remedy only to dispossess the

tenant. When the Rent Controller had dismissed the application for

demolition and reconstruction after arriving at a specific finding that the

building is in a good condition and it does not require demolition and https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

reconstruction, the Municipal Authorities have no jurisdiction whatsoever to

arrive at a different finding. The learned Senior Counsel had further

contended that in the light of the judgements cited supra, any order passed by

the Municipal Authorities would be clearly in violation of principles of

natural justice and the impugned order is liable to be set aside.

6.The learned Senior Counsel further contended that the tenant was not

put on notice before an order was passed granting permission to the landlord

to demolish the building. He had further contended that the jurisdiction

conferred upon the Municipal Authorities is a conditional jurisdiction based

upon the subjective satisfaction of the authorities with regard to the condition

of the building. In the present case, no inspection was conducted by the

Municipal Authorities before passing the impugned order. On the above said

ground, the learned Senior Counsel prayed for setting aside the impugned

order and to allow the writ petition.

7.The learned Advocate for the petitioner appearing in W.P(MD).No.

9745 of 2021 had contended that he is in possession of the property as a

lessee for many years. One of the shops in the said building was in possession

of the landlord which was not properly taken care of by them. Only the said

building had collapsed due to rain. The landlord taking advantage of the https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

collapse of the said building, attempted to evict all the tenants in the said

building. He adopted the submissions of the learned Senior Counsel in

W.P(MD).No.10059 of 2021.

8.The contention of the learned Senior Counsel on the side of the

private respondents:

(i).The learned Senior Counsel Mr.A.R.L.Sundaresan appearing for the

landlord had contended that due to heavy rain, a portion of the building

started to fall down during the morning hours on 04.05.2021. Immediately,

the Corporation has issued notice to the landlord for demolition of all shops

on 04.05.2021 itself. Hence, the landlord filed an application before the

Madurai Corporation on 06.05.2021 seeking permission for demolition of

the building apprehending that the building may cause danger to the inmates

and the general public. The said fact was also published in a newspaper on

06.05.2021. Hence, according to the learned Senior Counsel, the action on

the part of the landlord was not actuated by malice but to escape from any

liability arising out of unfortunate death of general public.

(ii). The learned Senior Counsel relied upon a judgment of the Hon'ble

Supreme Court dated 14.09.2021 in Civil Appeal No.1833 of 2008 ( Abdul

Khuddus Vs. H.M.Chandiramani (dead), the Lrs. and others) in

Paragraph No. 38 to impress upon the Court that the Rent Control https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

Legislations have got a limited application for determining the rights of the

landlord owners and tenants but the Municipal enactments are wider and

welfare oriented towards the residents of the area of the Corporation.

9. In view of the above said Hon'ble Supreme Court judgement, the

learned Senior Counsel had contended that mere pendency of the rent control

proceedings or dismissal of the rent control proceedings for demolition and

reconstruction will not take away the statutory power of the Municipal

Authorities from ordering demolition of a building which is likely to

endanger the life and property of the inmates and the general public.

10.The learned Senior Counsel further contended that on 11.06.2021,

this Court has passed an order directing the Municipal Corporation to

conduct an inspection of the building on 16.06.2021 after issuing notice to all

the parties concerned. This Court has also directed that the said inspection

shall be fully videographed and copy of the report shall be furnished to the

parties along with photographs. The tenants had given an undertaking that

they would not carry on business activities in the premises. This Court has

further directed that the demolition of the building shall await the report of

the inspection by the concerned authorities and consequential action should

be taken to depend upon its out come. The said order was passed with the

consent of the parties appearing for the tenants also. https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

11.The learned Senior Counsel had further contended that by an order

dated 31.01.2021, the tenants were permitted to file their objection to the

inspection report. However, till date, no objection has been filed to the

inspection report. Again on 10.11.2021, this Court has passed an order

granting time till 17.11.2021 to file an objection. Relying upon the said

interim orders passed by this Court, the learned Senior Counsel contended

that only with the consent of the parties, a direction was issued by the Court

to the Assistant Executive Engineer of Madurai Corporation to inspect the

premises and file a report. However, so far no objections have been filed to

the said report.

12.The learned Senior Counsel referred to the inspection report of the

Engineer and contended that the entire building is 80 years old there is likely

to arise an untoward incident because of the continues nature of the building.

The learned Senior Counsel further contended that except the two petitioners,

all other shop owners have already vacated. The learned Senior Counsel had

further contended that after filing of the writ petitions, the petitioners have

been heard at length and their objections have been considered before passing

these interim orders by this Court. He had further contended that the

inspection has been conducted by the Engineer of Madurai Corporation in the https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

presence of the writ petitioners and the copy of the report has also been

furnished to the writ petitioners in June 2021. Whatever lacuna that is being

pointed out by the writ petitioners before passing of the impugned order, have

been rectified by this Court by granting an opportunity to the writ petitioners

and issuing a direction for inspection of the disputed premises. Hence, he

contended that no useful purpose would be served in remitting the matter

back to the Corporation Authorities. Hence, he prayed for sustaining the order

passed by the Authorities in which the permission was granted to demolish

the building.

13.I have given anxious consideration to the submissions made on

either side.

14.There is no dispute with regard to the landlord and the tenant

relationship between the writ petitioners and the third respondent/fifth

respondent in the respective writ petitions. It is also an admitted fact that the

application filed by the landlord before the rent control authorities as against

both the tenants seeking eviction on the ground for demolition and

reconstruction was rejected by the Rent Controller by an order in

September-2019.

15.In view of the above said fact, the issue now that arises for

consideration is;

https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

(i).Whether the pendency /dismissal of the rent control proceedings for

demolition and reconstruction would be a bar for the Corporation Authorities

to initiate proceedings under Section 327 of the Madurai Municipal

Corporation Act?

(ii).If the authorities have got jurisdiction, what is the procedure to be

followed by them before permitting the demolition?

(iii).Whether not following the said procedure would vitiate the

impugned order in the present case?

16.The learned Senior Counsel appearing for the respondent/landlord

has brought to the notice of the Court a judgment of the Hon'ble Supreme

Court dated 14.09.2021 made in Civil Appeal No.1833 of 2008 ( Abdul

Khuddus Vs. H.M.Chandiramani (dead), the Lrs. and others) in

paragraph No.38 has held as follows:

“38.The High Court has returned a finding that the Rent Act will prevail over the Act. However, we are unable to agree with this observation. Both the statutes are enacted by the State of Karnataka. The Act deals with the Municipal functions which are wider and welfare -oriented towards the residents of the area of Corporation, whereas the Rent Act has a limited application for determining the rights of the land owner and tenant. Both operate in separate spheres as both have different objective to be achieved”.

https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

17.The Rent Control Legislation regulates the private rights of the

landlord and tenant. On other hand, the Municipal Law regulates the

relationship of the occupier of the property with that of the general public.

When the building is in dilapidated condition and the same is likely to cause

endanger only to the life and property of the occupants, the said issue could

be very well be left to the domain of the rent control authorities. However,

when the structural stability of a building is likely to cause endanger to the

life or property of the neighbours or the general public, the Municipal

Authorities cannot close their eyes and await for the verdict of the rent

control authorities. Not only a public but a statutory duty is cast upon them to

interfere and to see that the building is stabilised or demolished so that it does

not affect the life or property of the general public. Both the Rent Control

Legislations and the Municipal Laws relating to the demolition of the

building operate on two different fields depending upon the class of persons

likely to be affected by the dilapidated nature of the building. Hence, neither

there is an overlapping between two enactments nor it is a case of one

enactment prevailing over the other. Both operate in their respective fields

depending upon the class of persons likely to be affected by the dilapidated

condition of the building.

https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

17A. In the present case, the shops in question are a restaurant and a

sweet stall frequented by the general public. A perusal of the Engineer's

report ( appointed by this Court with the consent of the parties) discloses that

the disputed building is located in a busy bazaar area in the heart of Madurai

City. Considering the safety of the general public, the Corporation authorities

have rightly exercised the statutory power despite dismissal of the rent

control proceedings. In view of the judgment of the Hon'ble Supreme Court

and the reasons discussed above, I am of the opinion that the

pendency/dismissal of a rent control proceedings for demolition and

reconstruction would not be a bar for the Municipal Authorities to order

demolition of a building.

18.A portion of the building had started to fall down on 04.05.2021 and

immediately on the same day, the Corporation has issued series of notices to

the landlord directing him to get permission for demolition of the building.

This action has been initiated under Section 327 of Madurai Corporation Act.

Two days thereafter, the landlord has chosen to make an application on

06.05.2021 to the Corporation Authorities seeking permission for demolition

of the building. The impugned order has been passed after a period of 20 days

on 26.05.2021 granting permission for demolition of the disputed building.

Falling down of a portion of the building has already been reported in

newspaper on 06.05.2021 itself. The sequence of the above said days would https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

clearly indicate that it was not the landlord who approached the Corporation

for demolition but it was otherwise. Hence, the contention of the writ

petitioner that the entire exercise of the Corporation is actuated by malice in

law is not legally sustainable.

19.The learned Senior Counsel appearing for the petitioner relied upon

various judgments of our High Court which considered the parimateria

provisions under Madras City Municipal Corporation Act. Our High Court

has arrived at a finding that whenever a building is in occupation of a tenant,

he should be put on notice and only after an inspection is conducted, the

order of demolition should be decided. The Inspection report should be

furnished to the landlord as well as the tenant and only thereafter, the

Corporation should proceed with the demolition work. Admittedly, in the

present case, the impugned order was not preceded with any notice to the

occupier nor an inspection was conducted by the Corporation. The said fact

has also been recorded in Paragraph No.10 of the interim order of this Court

dated 31.01.2021.

20.Now let us consider whether the non-compliance of the procedure

laid down by this Court would vitiate the impugned order of demolition by

the respondent Corporation. The petitioners have mainly attacked the

impugned order of demolition on the ground of jurisdiction citing the orders

in Rent Control Proceedings, non issuance of show cause notice to the tenant https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

and inspection to be conducted before passing the order of demolition. As far

as the legal issue of jurisdiction of the Corporation authorities are concerned,

the same has been answered as against the writ petitioners in the above said

paragraphs.

21.A Division Bench of our High Court in a judgment reported in

(2014) 8 MLJ 641 ( Om Metal Infra Projects Ltd. Vs. Union of India) in

paragraph No.35 has held as follows:

“35.Question (vi):Whether the impugned actions have violated the principles of natural justice and whether following of such principle is warranted under the facts and circumstances of the present case?

It is well settled that application of the principles of natural justice is not a straight-jacket formula to be applied in each and every case. Certainly, facts and circumstances of each case should be gone into to decide as to whether such principle needs to be applied or not.

The purpose of applying such principle is to put the affected person on notice and to get his views or explanation as to why such proposed action cannot be taken. If the person so affected, on receipt of notice gives explanation and satisfies the authority that the proposed action cannot be taken and/or it is not at all warranted, then the authority who is competent to take action, can take a view or decision based on such explanation. Therefore, it is crystal clear that such explanation or objection to be given by the affected person, much have a bearing on the decision to be taken by the authority concerned. In other words, https://www.mhc.tn.gov.in/judis

W.P(MD).Nos.9745 and 10059 of 2021

such objection or explanation must be in a position to make the authority concerned to take a different view also, other than the one proposed already. To put in a nut-shell, there must be two views possible, one in favour and the other against the noticee. Only under such circumstances, the requirement of issuing notice and following the principles of natural justice arises. If no other view is possible or the explanation or objection to be made by such person cannot alter or have any bearing on the decision to be taken, there is no need to issue such notice. In those cases, issuance of notice would be only an empty formality”.

22.After filing of the writ petitions, the writ petitioners have consented

before this Court for appointment of an engineer of the Madurai Corporation

to inspect the disputed property and file a report. Accordingly, the Engineer

has inspected the property in the presence of the writ petitioners and has filed

a report. The entire inspection has been videographed and photographed. A

copy of the report has also been furnished to the writ petitioners. Though the

inspection report was furnished to the writ petitioners in June 2021, the

petitioners have not chosen to file any objection to the said report. The report

of the Engineer also indicates that the building is in a dangerous condition

warranting demolition. The above said facts would clearly indicate that even

if the demolition order is quashed and remitted to the Corporation authorities,

the writ petitioners would not have any further explanation to offer. Hence, https://www.mhc.tn.gov.in/judis