IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.9.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.2817 of 2001 Koyambedu Periyar Complex Viabarigal Deiveega Peravai Podunala Sangam rep. by its General Secretary D.Bakthavatchalu Koyambedu Wholesale Market Complex Chennai-600 092 .. Petitioner vs. 1. The Member Secretary Chennai Metropolitan Development Authority 8, Gandhi Irwin Road Egmore, Chennai-8 2. The Chief Executive Officer Chennai Metropolitan Development Authority 8, Gandhi Irwin Road Egmore, Chennai-8 .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records from the file of the second respondent in his proceedings No.K5/11828/98, dated 12.5.2000, 11.7.2000, 16.11.2000 and 23.1.2001 and quash the same. For petitioner : Mr.K.V.Sajeev Kumar For Respondents : Mr.C.Kathiravan for R1 No Appearance for R2 O R D E R This writ petition has been filed by the petitioner Association praying for a writ of Certiorari to call for the records relating to the proceedings No.K5/11828/98, dated 12.5.2000, 11.7.2000, 16.11.2000 and 23.1.2001, issued by the second respondent demanding the payment of rent due from the petitioner Association for the premises No.E-83 in the Koyambedu Wholesale Market Complex. https://hcservices.ecourts.gov.in/hcservices/ 2. It has been stated that the petitioner is a registered Association, registered in the year, 1998, with registration No.76/98. The members of the petitioner Association were carrying on their business in George Town Area in Kothawal Market Complex. They were given preference in allotment of their shops in the newly built Koyambedu Wholesale Market Complex. On the request of the petitioner Association, the first respondent had orally allotted a vacant shop with No.E-83 in the Koyambedu Wholesale Market Complex for carrying on the activities of the Association for having its office in the said shop, free of rent. This facility was extended to the Association, as it was carrying on the activities between the traders and the respondents. 3. It has been further stated that the petitioner Association had made a request to the respondents for allotment of the shop to the petitioner Association, on 18.5.1998. After the shop was handed over to the petitioner Association, on 21.5.1998, a sum of Rs.60,000/- had been spent towards white washing, painting and providing of doors and windows in the said shop to convert it into an office. While so, the authorities of the Chennai Metropolitan Development Authority had asked the petitioner Association to surrender the shop and to hand over the keys, without issuing any prior notice to the petitioner. Therefore, the petitioner Association had filed a writ petition before this Court in W.P.No.8272 of 1998. The writ petition had been admitted and an order of interim stay had been granted, by an order, dated 7.8.1998. Subsequently, the first respondent had filed a counter in the said writ petition stating that the petitioner Association has requested the then Chief Administrative Officer, on 19.5.1998, to permit the Association to use the vacant space in the shop No.E-83 in the Vegetable Market, temporarily, for assisting the allottees of shops for perishable items in the Koyambedu Wholesale Market Complex to fill up the application forms and for obtaining the licence for registration and for obtaining the electricity connection in the name of the allottees of the shop. While making such a request, the petitioner Association had assured that the shop would be vacated as and when requested by the respondents, by a letter of the undertaking, dated 20.5.1998. Though the petitioner Association had been permitted to use the space in shop No.E-83, no official allotment had been issued to the petitioner Association. By an order, dated 4.10.1999, this Court had directed the respondents to consider the representation of the petitioner Association for allotment of the premises, on rental basis or for the allotment of the premises to the petitioner Association on payment of full costs. Pursuant to the said order, the request of the petitioner Association had been rejected by the Chief Administrative Officer and he had directed the petitioner Association to hand over the vacant possession of the premises. Accordingly, the possession of the premises was handed over to the Chief Administrative Officer by the petitioner Association. https://hcservices.ecourts.gov.in/hcservices/ 4. It has been further stated that at the time of granting of the oral permission to the petitioner Association for its use and at the time of the filing of the counter affidavit, there was no reference or mention about the requirements of the petitioner Association to pay the rent for the premises. However, without any prior notice to the petitioner Association, the second respondent had directed the petitioner Association to pay an amount of Rs.9,58,668/-, on or before 31.5.2000, stating that the said amount was due from the petitioner Association as rental amount due for the period from 20.5.1998 to 19.1.2000, for the premises E-83 in the Koyambedu Wholesale Market Complex. On 6.6.2000, a detailed reply had been sent on behalf of the petitioner stating that no rent was payable by the petitioner Association for occupying the said premises, as there was no agreement for payment of rent. On 5.6.2000, the petitioner had sent a letter to the second respondent clarifying the position. On 11.7.2000, the second respondent had once again demanded the rent from the petitioner Association. On 1.8.2000, a reply had been sent on behalf of the petitioner Association stating that the said association had been permitted to use the vacant space and there was no reference about the payment of the rent and there was no agreement between the petitioner Association and the respondents, till then. On 16.11.2000, another notice had been sent by the second respondent asking the petitioner to pay Rs.10,41,368/- as the rental arrears. A reminder, dated 23.1.2001, had also been issued by the second respondent. In such circumstances, the petitioner has filed the present writ petition before this Court, under Article 226 of the Constitution of India. 5. In the counter affidavit filed on behalf of the respondents, it has been stated that the writ petition filed by the petitioner Association is not maintainable as it is devoid of merits. 6. It has been further stated that the petitioner Association was allowed to use the shop No.E-83, in the Koyambedu Wholesale Market Complex based on their specific request. There was no written orders for the allotment of the shop to the petitioner Association even though the shop might have been allotted to the petitioner Association, temporarily, for its use. Even though there is no written order with regard to the payment of rent, there is sufficient recorded evidence to show that the petitioner Association had used the premises in E-83, in the Koyambedu Wholesale Market Complex. Between 20.5.1998 and 19.1.2000, the association had occupied the premises, without any rent. The occupation of the petitioner Association is unauthorised. Since the petitioner Association was using the premises for its use, as it was assisting the allottees to fill up the forms to obtain the licence, registration etc, it is liable to pay the rent due for the premises E-83. https://hcservices.ecourts.gov.in/hcservices/ 7. It has also been stated that the petitioner Association had requested the respondent authority to allot the premises at Rs.3 per square feet, whereas, the Chennai Metropolitan Development Authority had worked out the rate of allotment at Rs.30 per square feet. Based on which the demand for payment had been made by the office letters, dated 12.5.2000, 11.7.2000 and 3.1.2001. Since the petitioner had failed to pay the rental amount due from the association, the respondent authority had asked the petitioner to vacate the premises. When the petitioner Association had been using the premises, it cannot be said that the respondent authority cannot demand the rental dues payable by the petitioner Association. The rental amount fixed by the respondent authority is not arbitrary and it is as per the prevailing rent. Since the payment made by the respondent authority is reasonable and justifiable, the petitioner Association cannot have any grievance, as alleged in the writ petition. In such circumstances, the writ petition filed by the petitioner Association is liable to be dismissed. 8. The learned counsel appearing for the petitioner Association has stated that the demand of the second respondent to pay the rent for the premises E-83, in the Koyambedu Wholesale Market Complex is without jurisdiction, arbitrary and illegal. He has further stated that the second respondent, while issuing the impugned proceedings, had failed to see that as per the counter affidavit filed in W.P.No.8272 of 1998, the premises in question had been used by the petitioner Association on condition that the petitioner Association was to vacate and hand over the possession of the premises as and when it was demanded. The request of the petitioner Association to fix the rent and to allot the premises to the petitioner was not accepted by the respondent authority. The second respondent had also failed to see that the petitioner Association had been permitted to use the shop for carrying on the activities of the association and that no rent had been fixed by any order or by any agreement. The shop had been given to the petitioner Association for its use without any rent or costs. Further, no show cause notice had been issued to the petitioner Association before the impugned proceedings had been passed by the second respondent. The impugned proceedings had not been issued under any provision of law, order or regulation and no guidelines have been followed before fixing the rent said to be due from the petitioner Association. 9. It has also been stated that if the respondents had come to the conclusion that the petitioner Association was under unauthorised occupation, they could have proceeded against the petitioner Association for eviction, invoking the relevant provisions of law. However, the respondents had not chosen to initiate any such action against the petitioner Association for the reason that the premises in question had been allotted to the petitioner Association for https://hcservices.ecourts.gov.in/hcservices/ carrying on its activities without any rent having to be paid for the use of the premises. 10. It is not the case of the respondents that the petitioner Association had occupied the premises agreeing to pay the rent for the same, at the time they were permitted to use the said premises for carrying on the activities of the association. While so, it would not be proper for the respondents to fix the rent, unilaterally, and demand the payment of the rental arrears from the petitioner Association, without even giving them an opportunity to putforth their case. In such circumstances, the impugned proceedings of the second respondent are liable to be set aside. 11. The learned counsel appearing for the respondent authority has not been in a position to show any agreement or order by which the petitioner Association is liable to the pay the rent for the premises under their occupation. No records have been produced on behalf of the respondents to show that they have demanded the payment of rent for the shop No.E-83, in the Koyambedu Wholesale Market Complex, under the occupation of the petitioner, on earlier occasions. On the other hand, it is seen that the premises in question had been given to the petitioner Association for carrying on its activities, without charging any rent or costs. Though the petitioner Association had made several requests to the respondents for allotting the premises to the petitioner Association, either on rental basis or on the demand of full costs, no action had been taken by the respondents on such representations. In such circumstances, the petitioner Association had come before this Court by filing the writ petition in W.P.No.8272 of 1998, wherein an order had been passed by this Court directing the respondents therein to dispose of the representation made by the petitioner Association, on merits and in accordance with law. Even in the counter affidavit filed on behalf of the respondents in the said writ petition, nothing has been stated to show that the petitioner Association was liable to pay the rent or any other charges for the shop No.E-83, in the Koyambedu Wholesale Market Complex, which was under the occupation and use of the petitioner Association. Further, no show cause notice had been issued to the petitioner Association asking the petitioner as to why it should not be made liable to pay the arrears of rent said to be due from the petitioner Association. In such circumstances, the writ petition stands allowed. However, it would be open to the respondent authority to initiate appropriate action against the petitioner Association, in accordance with the relevant provisions of law, if so https://hcservices.ecourts.gov.in/hcservices/ advised, if any amount is found to be due from it, after giving sufficient opportunity to the petitioner Association to putforth its case. Consequently, connected W.M.P.No.3872 of 2001 is also closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To: 1. The Member Secretary Chennai Metropolitan Development Authority 8, Gandhi Irwin Road Egmore, Chennai-8 2. The Chief Executive Officer Chennai Metropolitan Development Authority 8, Gandhi Irwin Road Egmore, Chennai-8 + 1 CC To Mr.B.S.Gnanadesikan, Advocate SR NO.55143 + 1 CC To Mr.C.Kathiravan, Advocate SR NO.54779 W.P.No.2817 of 2001 TS {CO} TP/10.11.08 https://hcservices.ecourts.gov.in/hcservices/