IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.4.2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petition No.21423 of 2010 & M.P.No.1 of 2010 1.Mrs.Vanitha Rani 2.Dr.Kanagaraj Priya 3.K.Anand Represented by their power of attorney P.Venkatachalapathy ... Petitioners Vs. 1.The Commissioner, Corporation of Chennai, Rippon Building, Chennai-3. 2.The Director General of Police (Fire & Rescue Services), 17, Rukmani Lakshmipathy Salai, Egmore, Chennai-8. 3.The Chairman, Tamil Nadu Pollution Control Board, 76, Anna Salai, Guindy, Chennai-32. 4.The Chairman, The Tamil Nadu Electricity Board, 144, Anna Salai, Chennai-2. 5.Mr.Murali, Proprietor, Sri Krishna Sweets, Old No.5, New No.6, Dr.Singaravelu Street, Thyagaraya Nagar, Chennai-17. ... Respondents * * * Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the respondents 1 to 4 to initiate coercive action as against the 5th respondent for not complying with the Pollution Laws, Electricity Laws, Fire Service Laws and Corporation Laws. (This is an amended prayer, carried on as per the order of the Court dated 15.3.2011 made in M.P.No.1/2011 in WP.21423/2010) * * * For petitioners : Mr.K.V.Venkatapathi, Senior Counsel for M/s.N.Srinivasavan & A.P.Rajaprabhu For R.1 : Mr.V.Bharathidasan For R.2 : Mr.V.Viswanathan, AGP For R.3 : Mr.R.Ramanlal For R.4 : Mr.J.Ravindran For R.5 : Mr.R.Parthasarathy for M/s.Sathish Parasaran * * * O R D E R ELIPE DHARMA RAO, J. The property in question i.e. old Door No.5, Dr.Singaravelu Street, T.Nagar, Chennai was the absolute property of one K.Mohanakrishnan. The said K.Mohanakrishnan died on 7.7.2001, leaving behind a Will, dated 13.5.1998, executed in favour of his two sons M.Ravindran and M.Maheswaran (the vendor of the petitioners) and four daughters viz. Vijayalakshmi, Shenbagavalli, Jayalakshmi and Nalini. The Testator also left behind him his wife Adhilakshmi, at the time of his death. 2. As per the terms of the said Will, the entire old Door No.5 (New Door No.6) consists of three portions, North, Central and South; that Northern portion consists of Ground+ First Floor + Second floor, of which first floor was let out to one software company and the ground and second floors were let out to the fifth respondent. The central portion consists of basement + ground + first + second floors, out of which the basement was let out to the 5th respondent and in the ground, first and second floors a Kalyana Mandapam under the name and style of 'Bhuvaneswari Kalyana Mandapam' is running. The Southern portion consists of ground + first + second floors, of which while the ground floor was let out to the 5th respondent, the first floor was let out to the said Kalyana Mandapam and the second floor was in the possession and occupation of the owner/Testator for his residential purposes. Thus, the Ground and second floors in the Northern portion, basement in the Central portion and ground floor in the Southern Portion are let out to the 5th respondent and from the averments of both the parties, it is seen that the 5th respondent continues to be the tenant for all the above said portions from the year 1995 onwards. 3. After the demise of the original owner, disputes erupted between his legal heirs and in O.P.No.643 of 2001 filed on the original side of this Court for Probate of the last Will and testament of K.Mohanakrishnan, various orders seem to have been passed regarding deposit of monthly rentals by the tenants, including the 5th respondent herein. Ultimately, the said Will got probated on 27.2.2003 in O.P.No.643 of 2001. 4. It is also seen that M.Maheswaran, the elder son of the Testator succeeded as life estate holder, to the basement in the central part and the entire North portion, after the demise of his mother Audilakshmi, the original life estate holder of the said portion, on 1.3.2005. Thereafter, the said M.Maheswaran for himself and as the guardian of his minor children has sold the said portions to the petitioners under a registered sale deed dated 12.12.2005, whereupon the petitioners became the owners of the said property. 5. It is also seen that a civil suit in C.S.No.674 of 2009 has been filed on the original side of this Court by the three daughters of late K.Mohanakrishnan as against another daughter R.Vijayalakshmi and two sons M.Maheswaran and M.Ravindran and others, including the petitioners and the 5th respondent herein, praying for partition of the said property and to declare the sale deed dated 12.12.2005 executed by M.Maheswaran and his minor children in favour of the petitioners as null and void. 6. From the materials placed on record it is also seen that after purchase of the property, the petitioners have also initiated proceedings before the Rent Control Court, in R.C.O.P.Nos.100/2008; 101/2008 and 412/2010 respectively praying to order eviction of the 5th respondent and to deliver vacant possession of the entire Northern portion since they intend to demolish the existing old building and to build a modern structure for a shopping complex; to fix fair rent and seeking eviction of the tenant on ground of wilful default in payment of agreed rents. Even the earlier landlord seems to have filed an application before the Rent Controller in RCOP.No.1207 of 2005 as against the 5th respondent for fixation of fair rent. 7. While that be so, the petitioners have come forward to file this writ petition alleging that after they purchased the property, the 5th respondent, without their knowledge had put up unauthorized and illegal structure; that the staircase, which was in existence for long, had been shifted and moved and the 5th respondent had deliberately put up temporary asbestos roof structure over and above the second floor and further illegally linked the Northern portion to the Southern portion for ingress and egress without consent and permission from competent authority. It has also been their contention that the 5th respondent is running a restaurant-cum-fast food without proper licence from the competent authority; that for running a fast food centre, permission from the Corporation of Chennai has to be obtained, but, even though the 5th respondent is running a regular hotel in the first floor of the premises apart from a fast food court, no permission had been obtained by them and cooking, packing and distribution take place without any valid licence and without adopting any safety measures. According to the petitioners, since all their efforts to bring to the notice of the official respondents for suitable action as per law for the violations committed on the part of the 5th respondent did not evince any fruitful result, they have come forward to file this writ petition. 8. Originally, this writ petition was filed praying to issue a Writ of Mandamus to direct the third respondent to initiate coercive action as against the 5th respondent for not complying with the pollution laws. Since there was no representation for the petitioners on 5.10.2010, when the matter was taken up for consideration, the matter was dismissed for non-prosecution. Subsequently, the petitioners have come forward to file miscellaneous petitions, by filing change of vakalat, engaging the present counsel on record, with prayers to condone the delay in filing the set aside application, to set aside the default order dated 5.10.2010 and to amend the prayer in the writ petition. All the said petitions were allowed on different dates, restoring the matter to file and amending the prayer of the writ petition. 9. The 5th respondent has filed a counter affidavit, denying all the allegations of the writ petition. Narrating the litigation pending between the legal heirs of the original owner, this respondent would contend that the present petitioners do not have any right, title or interest over the third floor in the Northern portion of the building and cannot make the same a subject matter of the present writ petition. It has also been contended by them that even at the time when they were inducted as tenant in 1995, the third floor was in existence and the 5th respondent has constructed the asbestos roofing with the permission of the original owner K.Mohanakrishnan; that the petitioners are not concerned with the third floor since they do not own the same; that the third floor was already energised with electricity and there is no question of the 5th respondent illegally drawing any electricity line for the third floor; that this respondent is not running a restaurant in the first floor since August 2010 and there are only two LPG cylinders on the ground floor as on date, with proper ventilation and exhaust and there is no danger to the safety of any person on account of the same; that the Fire Safety Licence has been renewed till March, 2012; that all the show cause notices issued to this respondent at the instance of the petitioners were properly answered by this respondent, thus complying with all the mandatories and this writ petition has been filed by the petitioners with the sole aim of somehow evicting this respondent from the property. 10. We have heard, at length, the arguments advanced by the learned senior counsel appearing for the petitioners and the learned senior counsel appearing for the 5th respondent and also the counsel appearing for the other official respondents. 11. In para No.3 of the counter affidavit filed in support of his contentions, the 5th respondent has stated that the 'building owned by Mohanakrishnan comprised of three portions viz., the Northern portion consisting of ground + three floors, the central portion consisting of basement + ground + 2 floors and the Southern portion consisting of ground + 2 floors.' It has further been stated that this respondent 'was inducted as a tenant only in the Northern portion consisting of ground + three floors, the basement in the central portion and the ground floor Southern portion, with the rest of the portions continuing to be occupied by the said Mohanakrishnan and his family members, as residents as well as running a Kalyana Mandapam.' 12. In the typed set of papers, the 5th respondent has filed the copy of the said last Will and testament of K.Mohanakrishna. Neither the recitals of this Will nor the copy of the sale deed dated 12.12.2005 executed by M.Maheswaran and his minor children in favour of the petitioners, depict the third floor in the Northern portion, except the lease deed dated NIL of June, 2000 (filed by the 5th respondent at pages 6-14 of the typed set of papers), which raises a substantial doubt about the propriety and existence of the construction of the third floor. It is to be pointed out that the 5th respondent is the tenant in the premises from the year 1995 and the lease deed entered into by them at the first instance has not been produced before us, so as to verify whether there was any third floor in the Northern portion at that point of time. When the case of the petitioners is that the fifth respondent has unauthorisedly constructed the third floor, without any permission from the owners and there is also material available on record in the form of information furnished by the Corporation of Chennai, by their letter dated 23.1.2009 and the counter filed by the Corporation that the construction of temporary asbestos structure in the third floor is not an approved one and that the Corporation has also not taken any action to demolish the said unauthorised construction, the onus lies on the fifth respondent to substantiate his plea that the third floor was in existence even when they entered into lease in the year 1995 and that they have constructed the asbestos roofing with the permission of the then owner K.Mohanakrishnan. In fact, even in this assertion made on the part of the 5th respondent, there is a material contradiction. If there is already a third floor in existence, what made the 5th respondent to construct an asbestos roofing there so as to term it as a 'third floor'? Further, if it is the case that there already existed a third floor (whatever be the superstructure therein), why has it not been mentioned in the last Will and testament executed by the original owner Mr.K.Mohanakrishnan? No answer, worth considering is coming from the side of the 5th respondent, except clinging on to the 'third floor' mentioned in the lease deed executed in the month of June, 2000. In the absence of production of the original lease deed of the year 1995 and in view of the clinching evidence available on record that the third floor was constructed by the 5th respondent, unauthorisedly, no importance could be attached to the terms of the lease deed of June, 2000. 13. From the communications emanated from the Electricity Department also it is seen that the 5th respondent drew unauthorised electric lines from the second floor, to the unauthorisedly constructed third floor, so as to make use of in the kitchen, which was subsequently disconnected at the instance of the Electricity Board. Had it been a fact that the third floor was in existence even by the time the 5th respondent entered into lease agreement with the original owner, why no separate electric connection was there for that so called third floor, when all other floors are admittedly having legal electricity connections? Even for this, no answer, worth considering is forthcoming from the 5th respondent. All this would, undoubtedly, prove that there is substantial force in the contentions urged on the part of the petitioners that the 5th respondent has raised unauthorised construction in the third floor, which was also left unpunished, very generously, by the Corporation officials, for the reasons best known to them, in spite of repeated representations submitted by the petitioners. We are forced to comment so, since legal notices were served by the Corporation as against the 5th respondent only for other violations like 'altering the existing staircase and remodelling the building inside and outside without leaving open place' and not for the unauthorised construction in the third floor. 14. The typed set of papers filed on behalf of the 5th respondent would themselves show that on behalf of the Health Department of Corporation of Chennai, a notice was issued on 3.6.2010, alleging that the 5th respondent is running the restaurant contrary to the conditions of licence issued under Section 279 of the Chennai City Municipal Corporation Act, requiring the 5th respondent to answer ten queries pointed out therein, including requiring them to produce No Objection Certificates from the Fire Department and Pollution Control Board. A demolition notice was shot at the 5th respondent on 18.6.2010 by the Corporation of Chennai for 'altering the existing staircase and remodelling the building inside and outside without leaving open place' without any authorisation. The reply sent by the 5th respondent to this notice show that they wanted to gain advantage from out of the disputes pending between the legal heirs of the deceased Testator and the petitioners. The Tamil Nadu Pollution Control Board has also shot many show-cause notices to the 5th respondent for contravening the pollution laws. All this would show that everything is not well with the 5th respondent's running the sweet shop and restaurant at the premises in question. 15. The undisputed fact is that the 5th respondent is the tenant under the original owner from the year 1995, whose tenancy continues even after the purchase of the property by the petitioners. An overall study of the entire materials placed on record and upon hearing the learned counsel for all the parties, we are able to see that the 5th respondent is trying to fish out some advantage from out of the property disputes persisting between the heirs of the original owner, since the original owner is no more. The learned senior counsel appearing for the petitioners would submit that the suit in C.S.No.674 of 2009 filed on the original side of this Court by the three daughters of the original owner, is nothing but a sponsored litigation of the 5th respondent, to thwart the family unity and to be an ultimate beneficiary of the same. But, we do not want to go into such aspects, since being out of the scope of the present litigation and a matter of adjudication in the said civil suit. 16. The material on record would establish the fact that the Corporation officials themselves have noted certain violations committed on the part of the 5th respondent. 17. In the counter affidavit filed by the first respondent/Corporation of Chennai, it has been stated that the 5th respondent had earlier made some alterations in the existing building without obtaining necessary permission from the Corporation and hence a notice under Section 56 and 57 r/w. Section 85 of the Town and Country Planning Act was issued to the 5th respondent on 18.6.2010 to stop the alteration work, but the 5th respondent continued the alteration work and hence further notice under Section 56 r/w.Section 85 of the said Act was issued to demolish the unauthorised alteration and after receipt of the notice, the 5th respondent himself demolished the altered portion and hence no further action was taken; that apart from that, the 5th respondent also put up an unauthorized asbestos roof structure over the second floor and also illegally linked the Northern portion to the Southern portion for ingress and egress and since the above construction was made prior to 2007 and in view of the Ordinance issued by the Government of Tamil Nadu, the Corporation could not take any step to remove the unauthorised construction and now the Corporation will issue necessary notice to the owner as well as the occupier to remove the unauthorized construction put up in the second floor. 18. During the course of hearing, when we posed a specific question to the learned standing counsel appearing for the first respondent/Chennai Corporation, as to why no action has been taken against the 5th respondent for the unauthorised third floor construction, as has been agreed in the counter affidavit of the first respondent himself, the learned standing counsel has argued that because of a status-quo order passed by the Honourable Apex Court in SLP(Civil) No.23098 of 2007, which has been filed challenging the amendments brought into the Tamil Nadu Town and Country Planning Act earlier, they could not take action against the 5th respondent, even though they have issued a notice under Section 56 of the Tamil Nadu Town and Country Planning Act. He would further submit that since the status-quo order has been vacated by the Honourable Apex Court by the order dated 15.3.2011, they would now proceed to initiate action against the 5th respondent for the irregularities committed by them. The learned standing counsel for the first respondent/Corporation would also submit a copy of the order dated 15.3.2011 passed by the Honourable Apex Court in SLP (Civil) No.23098 of 2007, which reads as follows: "Mr.Mohan Parasaran, learned Additional Solicitor General submitted that the recommendations made by Justice Mohan Committee for amendments to the Tamilnadu Town & Country Planning Act, 1971 is pending with the Legislature Department. On the last date of hearing, time was finally extended. Hence request for further extension rejected. Heard. Having regard to the inordinate delay in the entire process and the law laid down by this Court in Consumer Action Group vs. State of Tamilnadu 2000 (7) SCC 425, the status quo order granted by this Court on 4.12.2007 and extended thereafter stands vacated. It is made clear that the pendency of these matters will not come in the way of progress or disposal of any matter pending before the High Court. Leave granted." 19. Thus, as the status-quo order passed by the Honourable Apex Court has now been vacated, there is no impediment or bar for the first respondent to initiate action against the 5th respondent for the unauthorised and illegal constructions made by him. The entire material on record would establish the fact that the 5th respondent was neither fair nor loyal to his landlord nor obeyed the law of the land and the law implementing authorities, but is trying to fish out personal gains from the troubled waters in the family of the original owner. We wonder as to how such constructions could be made by a tenant, without the permission or the knowledge of the landlord, that too in complete violation of the law occupying the field. 20. In view of what has been stated above and in view of the assertions made before us by the learned standing counsel for the first respondent that they have already issued a notice under Section 56 of the Tamil Nadu Town and Country Planning Act to the 5th respondent and that they would proceed against the 5th respondent in accordance with law, so as to make the 5th respondent himself to demolish the unauthorised construction in the third floor and any other such constructions since the status-quo order passed earlier by the Honourable Apex Court in the matter pertaining to the challenge made to the amendments brought into the Tamil Nadu Town and Country Planning Act has now been vacated by the Honourable Apex Court, we direct the first respondent to proceed against the 5th respondent in accordance with law for the violations committed by the 5th respondent, within four weeks from the date of receipt of a copy of this order, so as to make the 5th respondent himself to demolish the unauthorised construction put up by him in the third floor and any other such illegal and unauthorised constructions. 21. Even though in the counter affidavit filed by the first respondent it has been stated that the fire licence was not renewed for the year 2011-2012 to the restaurant of the 5th respondent, the 5th respondent has filed at Page No.114 of his typed set of papers, the fire service licence issued by the fire services department for the year 2011-2012. Therefore, a presumption would arise that only after complying with the latches pointed out by the fire services department, the licence had been renewed in favour of the 5th respondent. But, that does not mean that the activities of the 5th respondent should go unchecked hereafter. 22. Since there is also material on record showing violation of pollution laws and violation of electricity laws by the 5th respondent, even though they are said to have been complied with by the 5th respondent subsequently, the respondents 2 to 4 are also directed to conduct frequent surprise checks in the premises, now under occupation of the 5th respondent, every English calendar month and to take action against the 5th respondent in accordance with law, if any violation or deviation is found by them. This writ petition is ordered accordingly. No costs. Consequently, M.P.No.1 of 2010 is closed. Index: Yes/No Internet: Yes/No (E.D.R., J.) (M.V., J.) Rao 20.4.2011 To 1.The Commissioner, Corporation of Chennai, Rippon Building, Chennai-3. 2.The Director General of Police (Fire & Rescue Services), 17, Rukmani Lakshmipathy Salai, Egmore, Chennai-8. 3.The Chairman, Tamil Nadu Pollution Control Board, 76, Anna Salai, Guindy, Chennai-32. 4.The Chairman, The Tamil Nadu Electricity Board, 144, Anna Salai, Chennai-2. ELIPE DHARMA RAO, J. AND M.VENUGOPAL, J. (Rao) Pre-delivery Order in W.P.No.21423 of 2010 20.4.2011