IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.25463 of 2004 J.Suryakanth .. Petitioner Vs. 1. Chennai Metropolitan Development Authority, Represented by its Member Secretary. 2. The Chief Executive Officer, Chennai Metropolitan Development Authority, (Both at No.1, Gandhi Irwin Road, Egmore, Chennai-600 008) .. Respondents Prayer: Writ Petition came to be numbered under Article 226 of Constitution of India praying for a writ of certiorarified mandamus, calling for the records of the respondents in their letter No.K5/3704/2001, dated 02.07.2004 and notice, dated 04.08.2004 for the demand of Rs.15,77,348/-, including penal interest towards balance sale agreement instalments for Restaurant shop No.F/A/70 at Kamaraj Building, Flower Market, Koyambedu, Chennai 600 092, quash the same insofar as the demand of penal interest and direct the respondents to forbear them from interfering in any manner with the allotment, possession of the petitioner. For petitioner :Mr.D.S.Rajasekaran For respondents :Mr.C.Kathiravan, C.M.D.A. O R D E R The petitioner has challenged the order dated 02.07.2004 of the Chennai Metropolitan Development Authority, represented by its Chief Executive Officer, Chennai, the 2nd respondent herein, to pay the arrears of Rs.15,77,348/- including penal interest and the notice, dated 04.08.2004, and consequently, prayed for a direction to permit the petitioner to run the restaurant shop No.F/A/70 at Kamaraj Building, Flower Market, Koyambedu, Chennai 600 092. https://hcservices.ecourts.gov.in/hcservices/ 2. It is the case of the petitioner that he was the successful bidder of a shop meant for a restaurant in Koyambedu Market Complex in the year 1997. The shop was allotted to the petitioner and as per the allotment conditions, the petitioner was required to pay 25% of the cost and the balance amount of 75% was to be paid in eight equal instalments. It is the case of the petitioner that when he took over the shop, after paying the initial deposit, there were many unauthorised vendors selling eatables inside the market and therefore, his hotel business did not start well and he could not remit the balance two instalments in time. The respondent issued a show cause notice dated 08.11.2001, calling upon the petitioner to explain, as to why, the allotment should not be cancelled. He filed W.P.No.5609 of 2003 and obtained an interim stay, on condition that he would pay the balance sum of Rs.7 Lakhs and he paid the said amount and stay was made absolute on 16.06.2003. Be that as it may, the respondent has issued impugned show cause notice, dated 02.07.2004, demanding the petitioner to pay the arrears of Rs.15,77,348/-, including penal interest. Challenging the same, the present writ petition has been filed. 3. Assailing the same, Mr.D.S.Rajasekaran, learned counsel for the petitioner submitted that the respondent department cancelled many allotments and called for fresh applications during March' 1999 for service shops as well as restaurants. But the rate offered was Rs.3,000/- per sq. ft. (Rs.50/- per sq.ft. less than the previous rate). 75% of the cost was to be paid in 40 quarterly instalments, spread over to 10 years. The petitioner became very sick during the month of June 2000 and he was not able to concentrate in his business and therefore the respondent ought to have considered the case of the petitioner sympathetically. 4. Learned counsel for the petitioner further submitted that even though the petitioner had remitted the six instalments, there were unauthorised vendors in the Market Complex. The respondents have failed to vacate the unauthorised vendors occupying the market. According to the learned counsel for the petitioner, due to the inaction on the part of the respondents, the petitioner suffered loss in the business and therefore he could not pay the instalments in time. 5. Learned counsel for the petitioner further submitted that after 1999, the allottees were permitted to deposit 25% of the initial deposit and pay the remaining https://hcservices.ecourts.gov.in/hcservices/ 75% of the cost price on hire purchase for a period of 10 years and therefore, the respondents ought to have applied the special concession to the case of the petitioner also. But a different yardstick has been applied, which amounts to violation of Article 14 of the Constitution of India. 6. Learned counsel for the writ petitioner further submitted that the respondents failed to provide basic amenities like over head water tank, washing area, etc. and therefore, he could not run his business properly, which resulted in belated payment. For the above said reasons, he prayed to set aside the impugned order of cancellation. Learned counsel for he petitioner submitted that the petitioner is ready and willing to pay the arrears of the amount towards hire purchase agreement with interest. Hence, prayed for time. 7. The Chief Executive Officer, Chennai Metropolitan Development Authority, Chennai, 2nd respondent herein, in his counter affidavit has submitted that a restaurant building bearing No.F/A/70 in Flower Market, Koyambedu Wholesale Market Complex was allotted to the petitioner in open auction, held on 10.4.1997. The cost of the premise is Rs.3,050/- per sq.ft. The respondent has further submitted that a sum of Rs.7,04,250/- was paid on 15.5.1997 by the allottee towards initial deposit i.e.25% of total cost of the shop and the balance 75% of the total cost was to be paid in eight quarterly instalments of Rs.3,53,005/- commencing from 30.9.1997 and ending on 30.6.1999. He has remitted only four quarterly instalments totalling to Rs.21,35,000/- as on 20.10.2000. He further submitted that the allottee in his petition dated 30.11.1999 requested the respondent to allow him to pay the instalments in 40 quarterly instalments instead of eight quarterly instalments. 8. The respondent has further submitted that the allottee/petitioner was issued with a show cause notice dated 11.3.1999, to explain as to why the allotment made to him should not be cancelled for alteration and additions made in the restaurant without approval of CMDA. Again the allottee in his petition dated 19.5.1999, requested to allow him to pay the balance cost of the restaurant in 40 quarterly instalments. He further submitted that the petitioner filed W.P.M.P.No.7163 of 2000 in W.P.No.4675 of 2000 and an interim stay was granted with a condition that the petitioner shall deposit Rs.4,00,000/- within a period of three weeks from 27.3.2000. The petitioner had remitted the amount within time. Again, the petitioner filed W.P.M.P.No.4780 of 2001 in W.P.No.3454 of 2001 and this https://hcservices.ecourts.gov.in/hcservices/ Court ordered the petitioner to pay Rs.5,00,000/- within a period of four weeks. He has also remitted the said amount on 22.3.2001. The Writ petition filed in W.P.No.4675 of 2000 was dismissed on 22.11.2000. 9. The respondent has further submitted that the allotment was given to run a restaurant. The petitioner made a request to provide facilities like washing areas, which is already provided in the restaurant and if any addition and alteration has to be made, in the constructed allotted shops, the stability of the building would be affected. The petitioner has made some alterations, in the building is in violation of the allotment condition. The respondent further submitted that the allottee failed to pay the instalments regularly, with the result there was accumulation of arrears and therefore the allotment was cancelled, after the issuance of the show cause notice. 10. The respondent has further submitted that during the pendency of W.P.No.3454 of 2001, the petitioner has filed another writ petition in W.P.No.5609 of 2003 for the relief, to issue suitable directions to the respondent to receive Rs.10,59,015/- towards the principal instalment due, together with interest at the rate of 20.5% per annum as per the demand made in his letter dated 8.11.2001 and to execute the sale deed in his favour. But he did not make any payment. Again the petitioner filed W.P.No.25463 of 2004, on a new ground, when the petitioner was called upon to pay Rs.15,77,348/- towards instalments due with penal interest as on 31.7.2004. The petitioner has failed to pay the amount admitted in W.P.No.5609 of 2003 and also failed to comply with the conditional order passed by this Court in W.P.No.25463 of 2004 in which a direction was given to the petitioner to pay Rs.8,03,277.77. When the petitioner is so indifferent and failed to comply with the directions, and enjoying the shop without paying the amounts due to the respondent, Writ Petition has to be dismissed with exemplary cost. As the petitioner has failed to comply the order passed by this Court, the respondent was constrained to issue the impugned notice and in order to prevent the authorities from collecting the money due from the petitioner, the petitioner has chosen to file one more writ petition. He has further submitted that the petitioner has to pay a sum of Rs.21,91,986/- as on 30.9.2008. https://hcservices.ecourts.gov.in/hcservices/ 11. The respondent has further submitted that the petitioner has also filed W.P.No.5118 of 2005 to reduce the price of the shop and also filed another Writ petition in W.P.No.23185 of 2005 for a direction, directing the respondent not to interfere with the petitioner's business by seeking to remove the over head tank or the name board installed in the premises. The respondent has further contended that the allegations made by the petitioner are frivolous and imaginary. The petitioner has unauthorisedly demolished the main super structure and made way on the northern side of the complex and also removed the window and sublet a portion to run a betel nut shop. The allegation of removal of water tank and the name board by the respondent is false and in these circumstances, prayed for dismissal of the writ petition. 12. During the course of argument, learned counsel appearing for the respondents submitted that though the petitioner has made a statement before this Court as early as in the year 2001, that the suit filed by him in O.S.No.6625 of 1998 on the file of the City Civil Court, Madras would be withdrawn as it is not an effective remedy, citing the pendency of the present writ petition, where there is an interim stay of order of cancellation, the petitioner has not withdrawn the suit so far. 13. Learned counsel for the respondent also brought to the notice of this court that on an earlier occassion, when W.P.No.5609 of 2003, was filed challenging the demand dated 30.6.2004, for a sum of Rs.8,03,277.77, at that time, the Learned counsel appearing for the writ petitioner submitted that the petitioner was willing to pay the entire amount demanded by the respondent. On the basis of the undertaking the writ petition was disposed of. But the petitioner has been filing writ petitions one after another. W.P.Nos.5118 of 2005 and W.P.No.23185 of 2005 were filed suppressing the material fact and the undertaking given before this Court. Therefore, present writ petition deserves to be dismissed, on the ground of suppression alone. He submitted that equitable jurisdiction cannot be extended to the case of the petitioner and prayed for dismissal of the writ petition in limini. Heard Mr.Rajasekaran, learned counsel appearing for the petitioner and Mr. C.Kathiravan, learned counsel appearing for Chennai Metropolitan Development Authority and perused the material on record. 14. As per the letter of Allotment No. https://hcservices.ecourts.gov.in/hcservices/ K5/4467/97, dated 17.4.1997, a sum of Rs.7,47,250/- has to be paid as initial deposit for the allotment of restaurant shop No.F/A/70 on hire purchase basis. The balance amount has to be paid in eight quarterly instalments as detailed below: Sl.No. Due date Amount to be paid in each quarterly instalments 1 30.09.97 3,53,005.00 2 31.12.97 3,53,005.00 3 31.3.98 3,53,005.00 4 31.06.98 3,53,005.00 5 30.9.98 3,53,005.00 6 31.12.98 3,53,005.00 7 31.03.99 3,53,005.00 15. The petitioner is stated to have paid the first instalment on 28.4.1997. A representation seemed to have been made through a learned Counsel stating that there were unauthorised vendors in the Market Complex and that he was not permitted to put any additions or alterations etc. in terms of the agreement. The complaint made on 14.12.1997 is vague. As per the allotment order, the petitioner was permitted to pay 25% as advance and the balance of 75% has to be paid in instalments. Ultimately, he would become the owner, after the entire amount is remitted within the stipulated time. When the petitioner defaulted in payment of the 2nd and 3rd quarterly instalments, due on 31.12.97 and 31.3.98 respectively, Chennai Metropolitan Development Authority, Chennai, in its letter dated 1.6.98, has directed the writ petitioner to remit the 2nd and 3rd quarterly instalments, within 3 days from the date of receipt of the letter and further informed that in default, further course of action would be taken. 16. By letter dated 7.8.98, a show cause notice was issued to the writ petitioner stating that he was in arrears of Rs.10,59,015/- as on 30.6.98 towards instalments and penal interest has to be paid, in addition to the arrears. As per clause 11(c) of lease agreement, on default of payment of three consecutive instalments from the due date, the authority has the right to cancel the allotment. Therefore, the petitioner has been called upon to show cause within 15 days from the date of receipt of the letter, as to why the allotment made should not be cancelled for non-compliance of the conditions of Lease https://hcservices.ecourts.gov.in/hcservices/ agreement. At this juncture, the petitioner has come out with a request to convert the payment schedule from 8 quarterly instalments to 10 years, which was also rejected on 2.9.98 by the Member Secretary, Chennai Metropolitan Development Authority. 17. Material on record shows that the petitioner has submitted a letter dated 19.5.99 and 16.6.99 respectively stating that basic amenities were not provided for running the restaurant business. The contention of the petitioner that the price of the service shop/restaurant ought to have been reduced by C.M.D.A., to Rs.3,000/- per sq.ft., as per the resolution of the respondent cannot be countenanced, in view of the decision of the Hon'ble Division Bench in W.A.Nos.2033 to 2040 of 2003, dated 9.4.2007. The contention of the petitioner that the instalments should be extended for a period of 10 years also cannot be countenanced, since one of the terms and conditions of the allotment of restaurant through open market is that the total number of quarterly instalment is restricted to only 8 months. 18. The next contention of the petitioner for not providing certain basic amenities he could not pay the instalments in time is liable to be rejected, as it could be seen from the materials that at every stage of demand, the petitioner has been fishing out a new ground, just to thwart the attempt to cancel the allotment, for payment of instalments in time. The above contention has been made only for the purpose of protracting the payment schedule in that year. 19. Finally, having given an undertaking before this Hon'ble Court in W.P.No.5609 of 2003 that he would willing to pay the entire amount with interest, as demanded by the respondent suppressing the same, the petitioner has filed two more Writ petitions in W.P.No.5118 of 2005 and W.P.25463 of 2005 without disclosing the undertaking before this Court. It is a clear case of suppression of the undertaking before this Court. As rightly contended by the learned counsel for the respondent, the petitioner is not entitled to equity. 20. It is also to be noted that even the suit in O.S.No.6625 of 1998 on the file of the city Civil Court, Madras is still stated to be pending, on the representation of the writ petitioner that the present writ petition is pending. Having obtained the allotment order from CMDA, the petitioner is bound by the terms and conditions of the allotment order. Having failed to remit https://hcservices.ecourts.gov.in/hcservices/ the instalment amounts, in order to protract the payment of instalments, he has filed the present writ petition. The petitioner is not entitled to the relief prayed for. The overall conduct of the petitioner does not deserve any consideration to extend the equitable relief as he has filed frivolous writ petitions. 21. For the above said reasons, the writ petition is dismissed. No costs. Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar skm To, 1.The Member Secretary , Chennai Metropolitan Development Authority, Egmore ,Chennai. 2. The Chief Executive Officer, Chennai Metropolitan Development Authority, (Both at No.1, Gandhi Irwin Road, Egmore, Chennai-600 008) W.P.No.25463 of 2004 A.SK(04/11/2019) https://hcservices.ecourts.gov.in/hcservices/