IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.08.2010 CORAM THE HONOURABLE MS.JUSTICE K.B.K. VASUKI W.P. No.25660 of 2009 G. Kumarappan .. Petitioner vs The Commissioner, Alandur Municipality, Alandur, Chennai-600 016 .. Respondent Writ Petition is filed under Article 226 of the Constitution of India for issuance of writ of Certiorarified Mandamus calling for the records of the respondent relating to his notice in Na.Ka.No.2611/2008/A1 dated 25.09.2009 and to quash the same and to direct the respondent to execute the agreement in favour of the petitioner for the premises i.e. Commercial Complex – II Floor, Near G.S.T. Road, Alandur, Chennai-600 016. For Petitioner : Mr. V. Sanjeevi For Respondent : Mr. P. Srinivas ORDER On consent, the writ petition is taken up for final hearing. 2. The writ petition is filed to quash the order of the respondent in Na.Ka.No.2611/2008/A1 dated 25.09.2009 and to direct the respondent to execute the agreement in favour of the petitioner for the premises i.e. Commercial Complex – II Floor, Near G.S.T. Road, Alandur, Chennai-600 016. 3. The respondent herein is by notification dated 10.01.2008 notified the building belonging to the Municipality for grant of lease and the petitioner participated in the auction held on 15.02.2008 and he having offered the highest bid was declared as the successful bidder in respect of the building measuring 4532 sq.ft. in second floor of the commercial complex, near GST Road, Alandur, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 4. The dispute arises before this Court is as to the date on which the petitioner is put in possession of the property and the date from which he is due to pay rent to the premises taken on lease. The petition mentioned building consisting of basement, ground floor, plus two floors. The petitioner was given the lease in respect of the second floor. The lease in respect of the remaining portion that is basement, ground floor and first floor are already given in favour of third party. After the declaration of bid in respect of the second floor in his favour the petitioner deposited on 02.05.2008 nine months rent as advance and a sum of Rs.5,000/- towards caution deposit for obtaining the electricity connection. However the vacant possession of the building was not admittedly handed over to the petitioner immediately thereafter. 5. It is not in dispute that at the time of allotting the second floor on lease to the petitioner, the portion was under lock and seal of East West Airlines and the goods belonging to the East West airlines were dumped in the second floor portion. The respondent has also brought for auction the right to remove the goods and the same was sanctioned in favour of one Sundar and he remitted the deposit amount for such right sanctioned to him on 02.05.2008. 6. In this regard one of the documents produced herein is the letter given by the said Sundar with regard to the period during which the goods are removed from the portion in question. Those two letters are dated 02.05.2008 and 29.07.2008. Though the same are said to be the letters intimating the respondent about the removal of goods and asking for refund of the caution deposit of Rs.50,000/-, both the letters do not mention the date on which the goods of East West Airlines are removed from the second floor portion. If that is so the respondent would not have been able to hand over the buildings to the petitioner either during March or June as contended herein. As a matter of fact the respondent is not definite about the date on which the possession is handed over to the petitioner. The respondent has mentioned different dates at different stage. The respondent has no definite case as to whether it is during March or June. However, the learned Standing Counsel for the respondent has in the course of argument fairly conceded that the possession was handed over during June 2008 on the basis of the letter dated 02.06.2008 purported to be given by the Assistant Revenue Officer, but the same is seriously objected to on the side of the petitioner. This Court is also not inclined to rely on the same in support of the respondent's case for the simple reason that the same containing no endorsement of the petitioner for having taken over possession of the building on 02.06.2008. https://hcservices.ecourts.gov.in/hcservices/ 7. Be that as may be the building in question is admittedly taken on lease for commercial purpose. The contention raised on the side of the petitioner that the lease was granted to him at the highest rate than the allottees of other portions i.e. at the rate of Rs.22.50 paise per sq.ft. for 4532 sq.ft. per month is not denied on the side of the respondent. The lease agreement is also till date, not executed in favour of the petitioner. It is not in dispute that it is the responsibility of the respondent to obtain electricity connection and though the petitioner has deposited the caution deposit for obtaining the same as early as on 02.05.2008, the respondent has admittedly applied for the electricity connection, after getting the approval from the authority concerned obtained the connection only on 31.12.2008. 8. According to the petitioner, the possession of the building was actually handed over to him only on 01.01.2009 after obtaining the connection and thereafter he had carried on repairing and alteration work. It is his further case that though the alteration work was completed, he is not able to declare it open and to commence his business as there is some open drainage in front of the building. This Court is not inclined to accept such contention raised on the side of the respondent. The petitioner having participated in the bid only after inspecting the premises, cannot be now heard to say that he will be able to occupy the property only after the drainage is removed. 9. In my considered view, the electricity connection was obtained by the respondent as agreed between the parties on 31.12.2008 and the possession is even according to the petitioner immediately handed over to the petitioner for the purpose of carrying out certain repairing work to make it fit for his occupation for the purpose which is taken on lease. That being so, the petitioner is deemed to be in occupation of the same from January 2009. 10. In that event the petitioner is liable to pay the rent from January 2009. This Court has while admitting this writ petition granted conditional interim stay thereby directing to the petitioner to pay arrears from January 2009 till April 2009 and the petitioner has also duly complied with the conditional order. It is also represented by the learned counsel for the petitioner that the petitioner has been paying the rent for the subsequent months regularly and he is not in arrears as on today. It is further represented by the learned counsel for the petitioner that the second floor portion was allotted to him and the petitioner did not come forward to pay the rent in view of the dispute relating to the period from which the rent is payable and after the compliance of the conditional stay order lock and seal was https://hcservices.ecourts.gov.in/hcservices/ removed and the possession and the property was restored to him and he has been continuously in the occupation of the same. That being so, this Court is of the definite view that the actual possession of the building after completing all the acts on the part of the respondent and after obtaining electricity connection is deemed to be handed over to the petitioner on 01.01.2009 and the liability of the petitioner to pay the rent arises only thereafter from January 2009 as such the impugned notice claiming rent from June 2008 is highly objectionable and improper and deserves interference. The rental arrears from January 2009 is duly paid by the petitioner and the lock and seal put up by the respondent herein is already removed as such the respondents have no other ground to postpone execution of the lease deed and the relief sought for herein is hence granted. 11. In the result, the impugned notice dated 25.09.2009 is set aside with further direction issued to the respondent to execute the lease deed in favour of the petitioner in respect of the premises in question as expeditiously as possible not later than two weeks from the date of receipt of the copy of this order. 12. Accordingly, the writ petition is ordered. No costs. Consequently, connected M.P. is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vga To The Commissioner, Alandur Municipality, Alandur, Chennai-600 016 1 cc to Mr.P. Srinivas, advocate, Sr. 59934 1 cc to Mr.V. Sanjeevi, Advocate, Sr. 59682 W.P. No.25660 of 2009 NSM (CO) kk 16/9 https://hcservices.ecourts.gov.in/hcservices/