IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:30.3.2011 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition No.125 of 2011 A.Kalai Mary. ... Petitioner vs. 1.The Commissioner, Corporation of Chennai, Ribbon Building, Chennai 2.The Junior Engineer, Corporation of Chennai, 134, Jones Road, Chennai-600 015. 3.Inspector of Police, J-1 Saidapet Police Station, Saidapet, Chennai-600 015. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to hand over the materials taken away on 7.2.2009 from the shop portion at 3/2, Jones Road, West Saidapet, Chennai-15. For Petitioner : Dr.R.Sampathkumar For Respondents : Mr.V.Bharathidasan, for R1 and R2 Mr.S.Shivashanmugam for R3 O R D E R Writ Petition is filed praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to hand over the materials taken https://hcservices.ecourts.gov.in/hcservices/ away on 7.2.2009 from the shop portion at 3/2, Jones Road, West Saidapet, Chennai-15. 2. Mr.V.Bharathidasan, learned counsel, appears on behalf of the respondents 1 and 2. Mr.S.Shivashanmugam, learned Government Advocate, appears on behalf of the third respondent. 3. Petitioner claims to be a tenant in shop situated at 3/2, Jones Road, West Saidapet, Chennai-15 owned by one Mr.Sampathraj. Petitioner was running a sweet stall since 2002. According to the petitioner, in the year 2007, the first respondent Corporation of Chennai, wanted to undertake subway work. The authorities, however, proceeded to demolish the shop without giving proper notice to the petitioner. According to the petitioner, Rs.2,00,000/- worth of materials were inside the shop and that has been taken away by the respondents 1 and 2. Petitioner has also given a police complaint to the Commissioner of Police as well as to the third respondent. The complaint has been registered as CSR No.40/J/IX/2009. As per the complaint, the demolition of the shop happened on 6.2.2009 and the complaint is registered based on the registered letter. Petitioner has given series of complaints to the Junior Engineer, Corporation of Chennai; Assistant Commissioner, Corporation of Chennai and the Worshipful Mayor of the Corporation of Chennai stating that the authorities have illegally demolished the building and taken away the materials. The present writ petition has been filed for a mandamus to direct the respondents 1 and 2 to hand over the materials taken away on 7.2.2009. 4. Respondents 1 and 2 have filed separate counter-affidavits. The counter-affidavit of the first respondent reads as follows:- "2. I respectfully submit that, as per the records on 17.2.2009, the petitioner has sent a complaint regarding removal of materials to the Commissioner, which was received in the Corporation on 18.02.2009, and the same was forwarded to the Zonal Office, Zone-9, on 04.03.2009, and it was send to the concerned Junior Engineer on 06.03.2009 for remarks. In the mean time the petitioner also given a complaint before the Inspector of Police, J-1 Saidapet Police Station, and pursuant to the complaint, an enquiry notice has been issued to the concerned Junior Engineer, and the Junior Engineer also appeared before the Inspector of Police, Saidapet on 04.03.2009, and submitted a written explanation, stating that at the time of removal of encroachment, there is no material available inside the huts. Since a criminal complaint has been lodged by the petitioner and https://hcservices.ecourts.gov.in/hcservices/ pursuant the same an enquiry was also conducted, in which the concerned Junior Engineer appeared for enquiry and submitted his explanation, the Respondent Corporation did not issue any reply to the petitioner. 3. I respectfully submit that so far as the removal of huts are concerned as per the records only 8 huts were removed, and it was decided by the Zonal Committee to request the Tamil Nadu Slum Clearance Board to accommodate all the occupiers, and the request was also sent to the Managing Director, Tamil Nadu Slum Clearance Board on 10.03.2009, by the Corporation. All the 8 occupiers were also enumerated by the Zonal Office, all particulars were also sent to the Tamil Nadu Slum Clearance Board, now the Tamil Nadu Slum Clearance Board sent a communication to the Corporation on 21.09.2010, stating that there is no vacancy available now as and when the vacancy arises, our request will be considered for allotment on payment of cost." The counter-affidavit of the second respondent reads as follows:- "2. I respectfully submit that so far as the averments contained in paras -4, 5, 6 and 7 of the affidavit, the petitioner is put to strict proof of the same. So far as the averments contained in para-4 of the affidavit, I respectfully submit that the area in which the petitioner has alleged to had a shop was a land belonging to Corporation of Chennai and the Southern Railway. I respectfully submit that the above said land was cleared of encroachment to built a vehicular subway under the Railway track for use of the public. 3. I respectfully submit that the removal of encroachment on the above said land was carried out on various date from 8.9.2008 to 28.4.2009. I respectfully submit that in the above said land there was no shop as on 6.2.2009, as alleged by the petitioner. I submit that there were no materials available as alleged petitioner in the above said land, and only 8 huts were alone removed and there were no material available inside the shop. https://hcservices.ecourts.gov.in/hcservices/ 4. I respectfully submit that from 4.2.2009 to 6.2.2009 myself along with Assistant Executive Engineer, Executive Engineer and Zonal Officer were present and the removal of encroachment was carried out. I submit that there were no shop or no materials in any of the building was available as alleged by the petitioner when the removal of encroachment was carried out on 6.2.2009." 5. The second respondent has filed an additional counter- affidavit stating that based on the direction issued by the Worshipful Mayor some of the persons who have been removed from the place of the encroachment have been accommodated in Tamil Nadu Slum Clearance Board as tenant and they have been issued ration card, voter identity card etc. 6. The stand of the respondents is that the petitioner's admitted case is that she has closed the shop in 2007 itself. Therefore, the question of materials being there does not arise at the time of removal in February, 2009. It is further stated that the third respondent Inspector of Police has enquired the second respondent based on the complaint and they have given a written explanation to the police stating that at the time of removal of encroachment there is no material inside the hut. 7. Since the petitioner has already approached the police authorities, the respondents 1 and 2 did not choose to reply to the petitioner to the individual complaints. 8. Furthermore, it is pointed out by Mr.S.Shivashanmugam, learned Government Advocate appearing for the third respondent that the police based on the enquiry have recorded that the petitioner has relocated her shop at T.Nagar, near Jeyachandran Textiles. It is also stated by the third respondent that after investigation and enquiry it is come to notice that the complaint itself is false. Therefore, further action was dropped. 9. In these background of the case, this Court is of the view that the relief sought for by the petitioner for a mandamus to direct the respondents 1 and 2 to hand over materials said to have been taken away on 7.2.2009 cannot be granted as many of the issues raised by the petitioner are disputed by the respondents. Furthermore, the respondents have taken a specific stand that demolition of all the 8 shops were done after notice to the land owners. Therefore, there is no illegality and impropriety in the action taken. It is, therefore, for the petitioner to establish her claim in an adjudicatory process and this Court under Article 226 is not inclined to go into the merits of the petitioner's claim primarily on the ground that the facts as pleaded by the petitioner is wholly disputed by the respondents. https://hcservices.ecourts.gov.in/hcservices/ 10. In such view of the matter, the relief sought for in the mandamus claim in this writ petition cannot be granted. Therefore, this Writ Petition is dismissed. Petitioner is at liberty to pursue any other alternative remedy as may be advised. No costs. Sd/- Asst. Registrar /True copy/ Sub. Asst. Registrar ts To 1.The Commissioner, Corporation of Chennai, Ribbon Building, Chennai 2.The Junior Engineer, Corporation of Chennai, 134, Jones Road, Chennai-600 015. 3.Inspector of Police, J-1 Saidapet Police Station, Saidapet, Chennai-600 015. 1 cc To Mr.V.Bharathidasan, Advocate Sr 23003 1 cc To The Govt. Pleader Sr 23409 W.P.No.125 of 2011 TS(CO) CS (7.4.11) https://hcservices.ecourts.gov.in/hcservices/