JUDGMENT
AR. Lakshmanan, J.
1. This writ appeal has been filed against the order in W.P. No. 12108 of 1994 dated 14.7.1994, dismissing the writ petition filed by the appellant herein, to issue a writ of certiorarified mandamus, calling for the records relating to the order in W.D.C. No. DA/D8/66/94, dated 27.5.1994 and to quash the same as illegal, arbitrary and without jurisdiction and consequently direct the respondents 1 and 2 to issue a demolition order for the premises No. 14, Padmanabhan Street, T. Nagar, Madras-17 without insisting on production of ‘no objection letter’ from the tenant of the appellant herein.
2. The appellant is the owner of the property bearing Door No. 14, Padmanabhan Street, North T. Nagar, Madras-17. For the purpose of improvement of the property, the appellant had decided to demolish the existing structure standing over the walls and therefore, applied to the Assistant Executive Engineer, Town Planning, Corporation of Madras, 2nd respondent for sanction to demolish the existing asbestos shed and other walls to enable him to put up a new construction on the site so demolished. The application was submitted on 14.2.1994 in Application No. 166 of 1994. The appellant also has paid the necessary fee for sanction of demolition application. On 1.3.1994 a communication was sent by the Corporation of Madras requesting the appellant herein to comply with certain particulars for consideration of his planning permission and application. The appellant was asked to produce the sanctioned plan for the existing building and also to produce the tax receipt for the period prior to 1975. He was also directed to produce a ‘no objection certificate’ from the tenant. On 9.3.1994 the appellant through his counsel sent a reply stating that in view of the litigation pending in the Rent Control Court between him and the tenant, the tenant will not come forward to give any no objection letter. He further requested the authorities to proceed with the sub-division and plan sanction for the demolition of the old building without insisting on the ‘no objection letter’ from the tenant. The appellant was again reminded by their proceedings dated 11.5.1994 to comply with the earlier letter dated 1.3.1994 within seven clear working days from the date of receipt of the said letter, failing which the planning permission applied for by the appellant would be disposed of on merits without any further intimation. On 27.5.1994 the impugned order was passed which reads thus:
From
The Assistant Executive Engineer Works Department
Town Planning Section,
Corporation of Madras,
Ripon Buildings, Madras-600 003.
To
Thiru P.B. Ramanujam, Advocate
31, Bagirathi Ammal St.,
T. Nagar,
Madras-17
W.O.C. No. DA/D8/66/94 dt. 27.5.94.
Sir,
Sub: Division and demolition of existing building-sanction of plan – N.O.C. not produced-regarding.
Ref : 1. P.P. A. No. D8/SD/DA 66/94 dt. 14.2.1994.
2. Your letter dated 9.3.1994.
3. Your letter dated 20.5.1994.
*****
With reference to the above, this is to inform you that your client’s application for demolition of the building could be sanctioned only on production of no objection certificate (N.O.C.) from the tenant or if the building is vacant.
Sd. X.X.X.X.
Assistant Executive Engineer (T.P.)
3. A reply was sent to the said order on 18.6.1994 stating that the appellant will not straight away demolish the existing structure and that he can enforce the order only subject to the outcome of the eviction proceedings pending before the Rent Controller. Therefore, he requested the authorities to dispense with the production of the ‘no objection’ letter from the tenant. Since the request by the Corporation was not complied with, the Corporation by their proceedings in W.D.C. No. D8/DA/66/94, dated 1.7.1994 returned the application to the appellant herein reserving the liberty to the appellant to apply again with fresh application with all the details required.
4. The appellant aggrieved by the said communication dated 27.5.1994, filed the writ petition for a certiorarified mandamus and to quash the proceedings dated 27.5.1994 and consequently direct the respondents 1 and 2 to issue demolition order for the premises in question without insisting on the production of ‘no objection certificate’ from his tenant. It was contended before the learned single Judge that the order of the 2nd respondent was vitiated on the ground that the requirement of a ‘no objection letter’ from the tenant of the appellant is not a condition precedent for sanction of demolition application and the same is nowhere contemplated under any of the provisions of the Madras City Municipal Corporation Act and therefore, the impugned order has to be quashed. The learned single Judge rejected the writ petition by observing as follows:
I have carefully considered the submission of the learned Counsel appearing for the petitioner. I am of the view that the grievance sought to be made out is not a valid one. Whatever may be the purport of the communication in unmistakable terms states that the petitioner must produce either a no objection certificate from the tenant or it should be that the building is vacant. Consequently, the insistence by the second respondent upon either showing a vacant possession of the property or producing a no objection letter from the tenant does not appear to be either contrary to any provisions of law or unreasonable. On the other hand, a sanction if accorded for demolition in respect of an existing property with a tenant in occupation is likely to create problems, which may even involve ultimately law and order and disturbance of peace. In my view, it is also likely to cause avoidable hazards leading to test of mustle power. The reliance placed on Section 14(1)(b) of the Act is inappropriate. The provisions of the Act, as also the judicial pronouncements on the scope of the said provision only contemplate an undertaking given by the tenant and it is not the requirement of the section to also annex to such an undertaking a permission by the competent authority, like the second respondent for demolition also. The sanction could be accorded by the second respondent only in respect of a property, which is otherwise ready for demolition and in this case since it is in occupation of a statutory tenant for the eviction of whom, admittedly a proceeding instituted under the Rent Control Act is pending, the second respondent was well within his rights in declining to grant the sanction as prayed for, except on the petitioner satisfying in the alternate either of the two requirements, viz., no objection letter or in the alternate showing that he has absolute physical possession of the building or that the building is otherwise vacant. In my view, no exception could be taken to the well merited reply sent under the impugned communication. The writ petition, therefore, fails and shall stand dismissed.
5. The correctness of the above order is challenged in this writ appeal. Mr. J.R.K. Bhavanandam, learned Counsel appearing for the appellant submitted that Section 246-A of the Madras City Municipal Corporation Act does not contemplate production of a consent letter or ‘no objection certificate’ from the tenant of the appellant and as such, the order of the 2nd respondent is liable to be quashed. He would further submit that the rejection of the demolition application by the second respondent on the ground that no objection letter has not been obtained is highly imaginary and that the landlord cannot be thrown at the mercy of his tenant to exercise his legal right in obtaining sanction for demolition.
6. We have carefully considered the submissions advanced by the learned Counsel for the appellant. Section 246-A of the Madras City Municipal Corporation Act, 1919 reads thus:
A. Demolition of buildings : (1) If any person intends to demolish a building either in whole or in part, he shall send an application to the commissioner in writing for permission to execute the work,
(2) The commissioner shall grant permission to execute the work subject to such conditions as he may deem necessary for ensuring the health or safety of the people living within or near the building.
(3) The demolition of a building shall not be begun unless and until the commissioner has granted permission for the execution of the work, and the work shall not be executed without complying with the conditions, if any, subject to which the permission has been granted.
7. The said section deals with “Demolition of buildings”. The said section provides that if any person intends to demolish a building either in whole or in part, he shall send an application to the commissioner in writing for permission to execute the work. The Commissioner shall grant permission to execute the work subject to such conditions as he may deem necessary for ensuring the health or safety of the people living within or near the building. Clause III of Section 246-A of the Act provides that the demolition of a building shall not be begun unless and until the Commissioner has granted permission for the execution of the work, and the work shall not be executed without complying with the conditions, if any, subject to which the permission has been granted. A reading of the above provision, would only show that the Commissioner shall grant permission subject to such conditions as he may deem necessary for ensuring the health or safety of the people living within or near the building. In the instant case, the appellant has applied for demolition of the premises in accordance with the provisions of Section 246-A of the Act. He has also paid the necessary fees for the same. The Commissioner, on receipt of the application, shall consider and grant permission to execute the work subject to such conditions as he may deem necessary for ensuring the health or safety of the people living within or near the building.
8. The section in our opinion, does not contemplate the production of a ‘no objection certificate’ by the applicant from the tenant before obtaining the permission for demolition. Such a condition, in our view, cannot be insisted upon as a condition precedent for sanctioning the demolition work. However, we cannot also ignore an important factor viz., the pendency of a petition under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is not in dispute that in the portion which is now sought to be demolished is now occupied by the tenant and that the landlord himself has filed an application under Section 14(1)(b) of the Act for demolition and reconstruction of the said structure which is now in occupation of the tenant. Section 14(1)(b) contemplates the condition of the building as a vital factor. In a petition filed under Section 14(1)(b), the landlord has to prove that the building is bona fide required by him for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. No eviction order can be passed by the Rent Controller unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller, may, for reasons to be recorded in writing, allow. Therefore, before obtaining the order of eviction, the landlord has to prove the bona fide requirements by him for the immediate purpose of demolishing the structure and also to give an undertaking that he would demolish the building within the time stipulated in Sub-clause 2(b) of Section 14 of the Act. Therefore, the Rent Controller before ordering the eviction has to take the condition of the building as one of the very vital and relevant factor. Unless these conditions are satisfied, the eviction of the tenant under Section 14(1)(b) is not possible. Therefore, the rights of the tenant are fully safeguarded under the provisions of the Act from any unlawful eviction. This apart, any order passed by the Rent Controller is subject to further appeal and revision.
9. It was also brought to the notice of the learned single Judge about the pendency of the application under Section 14(1)(b) of the Act before the Rent Controller. However, the learned Judge was of the view that a sanction if accorded for demolition in respect of existing property with a tenant in occupation is likely to create problems which may even involve ultimately law and order and disturbance of peace. The learned Judge was also of the view that the sanction if any accorded is also likely to cause available hazards leading to, “test of mustle power. With great respect, we are unable to subscribe our views to the opinion” expressed by the learned single Judge. It is rather unreasonable to accept a tenant to give a ‘no objection’ letter to the landlord especially when such a proceeding for eviction is pending before the Rent Controller between the same tenant and the landlord.
10. The only question that has to be considered is whether the provision of Section 246-A of the Act, the Commissioner can insist on the production of a ‘no objection certificate’ from the tenant before granting permission to execute the work of demolition. The section envisages that the Commissioner should consider whether permission for demolition should be granted by ensuring health and safety of the people living within or near the building. The express specific language of the section does not even by implication require a ‘no objection certificate’ from the tenant. If we have to understand the section as requiring ‘no objection certificate’ then such certificate has to be obtained not only from the person living there whether as a tenant or a licensee but also from persons living near the building. The section does not lend itself to such interpretation. On the contrary, it only imposes an obligation on the Commissioner to satisfy himself that by demolishing the building, the health or safety of the people living in or near the building is not affected and for this purpose alone the Commissioner is empowered to impose necessary conditions. By no stretch of imagination the Commissioner under the provisions of this section can insist on the production of ‘no objection certificate’ for granting permission for demolition. By the Commissioner granting permission for demolition the rights of the tenant are not affected’ in any manner. Nothwithstanding the permission granted by the Commissioner, the tenant can raise all legal contention open to him before the Rent Control Authority stating that the building does not require demolition. There is no scope for reading into the provision, the requirement of obtaining ‘no objection certificate’ from the tenant.
11. Section 246-A of the Madras City Municipal Corporation Act does not require or contemplate a ‘no objection certificate’ being produced by the landlord before the Corporation authorities before granting permission to demolish the building. Therefore, in our opinion, the order of the learned single Judge is not sustainable in law and against the scope and ambit of the provisions under Section 246-A of the Madras City Municipal Corporation Act. Therefore, the order impugned in this writ appeal is liable to be set aside. In view of the order now passed, the Corporation Authorities are directed to consider the matter afresh on the basis of the application already filed by the appellant and dispose of the same within two months from the date of receipt of the order copy without insisting upon the production of a ‘no objection letter’ from the tenant. We also make it clear that any certificate that may be issued by the Corporation would be put into operation only subject to the out come of the Rent Control Proceedings now pending on the file of the Rent Controller in R.C.O.P. No. 739 of 1994.
12. In the result, the writ appeal is allowed. No costs.
13. Consequently, C.M.P. No. 10911 of 1994 is dismissed as no orders are necessary.