IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2008
CORAM:
THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
and
THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN
Writ Appeal No.1316 of 2004
1. The Tamilnadu Slum Clearance Board
rep. by its Chairman
Chennai.
2. The Secretary
Tamilnadu Slum Clearance Board
Chennai. Appellants
v.
1. V.Loganathan
Proprietor, Hotel Mithra
TNSCB Complex
Thirumangalam
Anna Nagar (West)
Chennai-600 040.
2. M/s.J.S.P.Automotive
rep. by its Proprietrix
Mrs.P.Jhansi
(Dealers for Honda Motor Cycles,
Scooters India (P) Limited)
No.Y-219, II Avenue, Anna Nagar
Chennai-600 040. Respondents
(2nd respondent impleaded vide order of Court dated 5.8.2004 made in W.A.M.P.No.5264 of 2004).
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge of this Court dated 1.3.2004 made in W.P.No.22989 of 2003.
For appellants : Mr.Y.Bhuvanesh Kumar
For 1st respondent : Mr.M.Sundar
For 2nd respondent : Mr.V.Radhakrishnan
for Mr.G.Anand Kumar
JUDGMENT
(Judgment of the Court was delivered by
K.RAVIRAJA PANDIAN, J.)
The correctness of the order of the learned single Judge dated 1.3.2004 made in W.P.No.22989 of 2003 is canvassed in this appeal by the Tamil Nadu Slum Clearance Board, the appellants herein.
2. The Tamil Nadu Slum Clearance Board is the owner of the basement, north wing of the Thirumangalam Commercial Complex, measuring 5,890 sq.ft. On 01.10.1993, the said complex was allotted to one Tmt.Selvamani on a monthly rent of Rs.35,340/- and she was running a hotel in that premises. Subsequently, by proceedings dated 07.06.1995, the appellant cancelled the allotment, as the said allottee Selvamani had defaulted in making the payment of rent. On 07.10.1996, the said Tmt.Selvamani and the first respondent Loganathan gave a joint representation to the appellant that they were the partners running the hotel business in the allotted complex; the allotment made in favour of Tmt.Selvamani in respect of the said portion may be transferred to Mr.Loganathan, the first respondent herein. The appellants, by proceedings dated 18.11.1996, reallotted the premise in the name of the first respondent V.Loganathan on an enhanced rent of Rs.40,461/- per month with a further condition that the respondent should pay two months’ advance and Rs.1,000/- towards electricity deposit, totalling to a sum of Rs.5,29,333/- within seven days.
3. Subsequently, on 06.05.1997, the Board issued an order of regularisation in favour of the first respondent Thiru Loganathan with a condition that from 01.08.1997, there would be an increase of rent at the rate of 10% every year. The first respondent also committed default in paying the rent and hence, the appellant served a notice in Form A on 05.08.1997 and Form-B notice was served on 03.12.1997. A final notice was also sent to the first respondent directing him to pay the arrears of rent within 15 days, on 09.01.1998. Ultimately, the appellant Board, on 16.07.1998, cancelled the allotment and directed the first respondent to give vacant possession. On 18.11.1998, the first respondent filed a suit in O.S.No.8133 of 1999 in the City Civil Court, Chennai, against the demand made against him for arrears of rent. In addition to that, he also filed a writ petition in W.P.No.20267 of 1998, challenging the demand notice dated 08.11.1998. In the writ petition, this Court originally granted stay till 05.01.1999 by its order dated 20.11.1998 in W.M.P.No.30700 of 1998 and ultimately, the stay granted by this Court was vacated on 12.03.2003. The writ petition also is admittedly stated to be dismissed. On 12.07.2003, the first respondent Loganathan was evicted. Subsequently, on 27.07.2003, the appellant Board issued a notification calling for sealed tenders for offering the commercial complex for rent. The first respondent herein filed a writ petition in W.P.No.22989 of 2003 to quash the tender notice. This Court, by way of an interim order dated 18.08.2003 in W.P.M.P.Nos.28420 and 29421 of 2003, injuncted the appellant from proceeding further, on condition of the first respondent depositing a sum of Rs.16.00 lakhs towards arrears of rent in two equal monthly instalments. The Court directed that the first instalment of Rs.8.00 lakhs should be paid on or before 01.10.2003; on such deposit the appellants should deliver possession of the portion to the first respondent; the second instalment should be paid paid on or before 01.11.2003. The first respondent was further directed to pay the rent payable by him as per the agreement, on or before 5th of every succeeding month; with a default clause to the effect that if any one of the conditions was breached by the first respondent, the interim injunction would be automatically vacated. The said order was not complied with by the respondent. However, the writ petition was disposed of finally by directing the respondent to pay the arrears in instalment and reducing the percentage of yearly increase in rent to 5% from 10%.
4. In the meantime, pursuant to the notification issued by the appellant Board, the second respondent applied for allotment of the premises on payment of higher rent at the rate of Rs.6 per sq.ft with for annual increase at 10%. The appellant passed an allotment order on 11.02.2004 and the premises was handed over to the second respondent on 16.02.2004. In those circumstances, the present appeal has been filed. During the pendency of the writ appeal filed by the appellant, originally, this Court, by order dated 05.04.2004, granted interim stay of the order of the learned single Judge with a rider that till further orders are passed, the property should not be handed over to any third party, i.e., the second respondent. Finally, on 01.12.2004, the Division Bench of this Court made the interim stay absolute; and allowed the appellants to proceed further as per the proceedings dated 11.02.2004, allotting the premises in favour of the second respondent. Pursuant to the same, the second respondent has taken possession and she is in possession and enjoyment of the property.
5. Learned counsel appearing for the appellant contended that the first respondent has no right whatsoever to challenge the notification calling for tender for leasing out the premises, as the first respondent has already been evicted for the default committed by him in payment of rent. Even assuming for a moment that he has locus to maintain the writ petition, the order dated 01.12.2004 made by the Division Bench has virtually disposed of the writ appeal, in the sense, the order dated 01.12.2004 has narrated the entire events that took place during the interregnum period. It also narrated as regards the suit filed by the first respondent herein before the City Civil Court; ultimately, by pointing out that the concessional order granted in favour of the first respondent by the learned single Judge having not been complied with, the first respondent was not entitled to any indulgence from this Court and thus, while making the interim stay absolute, the Division Bench granted liberty to the appellants to proceed further with the renting out of the premises to the second respondent.
6. However, learned counsel appearing for the first respondent has submitted that while dispossessing the first respondent, the appellants have taken away the articles such as chair, table and other utensils used for the hotel business run by the first respondent, for which he has also filed a suit for damages, which is pending before this Court.
7. We heard the learned counsel on either side and perused the materials on record.
8. As rightly contended by the learned counsel appearing for the appellants, the interim order dated 01.12.2004 passed in this appeal making absolute the interim stay of further proceedings of the order of the learned single Judge and vacating the condition that the appellant shall not hand over possession to any third party, virtually resolved the writ appeal itself. Pursuant thereto, the second respondent, who has become successful bidder, pursuant to the notification issued for the purpose of renting out the premises, has been put in possession and he is in possession and enjoyment of the same by paying rent. The cancellation of the allotment order in respect of the premises in favour of the first respondent has not been challenged. Thus, even at the time of filing the writ petition and passing of the order of the learned single Judge, there was no relationship of lessor or lessee or licensor and licensee between the parties. Hence, we are of the considered view that the first respondent has no locus standi to challenge the notification offering the subject premises for rent by the appellant Board. The renting out of the premises owned by the appellant is in the realm of contract. Fixing of the rent for the premises owned by the appellant and yearly enhancement of certain percentage is purely out of discretion of the appellant Board. That cannot be questioned by the tenant in a writ petition under Article 226 of the Constitution of India.
9. When that being the position, the learned single Judge is not correct in varying the terms. Even the varied terms, which is rather concessional in favour of the first respondent has not been complied with. Of-course, having regard to the totality of the circumstances of the case, the Court, while exercising its extraordinary jurisdiction under the Constitution can mould the prayer in order to render justice based on equity. But, in our humble opinion, even such an order should be within the framework of law as it is well settled that equity follows law only. Hence, we are of the considered opinion that the order impugned in the writ appeal has to be set aside and the same is set aside by allowing this appeal. No costs.
10. Learned counsel for the respondent submitted that while passing the order of termination of the allotment of the subject premises, the appellant has kept the articles/goods available in the premises under their custody and those articles/goods may be directed to be handed over to the first respondent.
11. In the impugned order in paragraph 7 reference has been made to the earlier order dated 18.02.2004 wherein the first respondent was permitted to inventorise the list of articles belonging to him and kept by the appellant in a godown in the presence of the officials of the appellant-Board. It is not made known to this Court whether such an exercise has been done by the first respondent. The learned counsel for the respondent is also not in a position to explain before this Court whether such an inventory has been taken. In order to minimise the litigation, if such an inventory has been taken by the first respondent, pursuant to the order dated 18.02.2004 and the articles/goods still remain with the appellant, it is open to the first respondent to approach the appellant on prior intimation and on the first respondent approaching with the inventory copy, the appellant is directed to handover the articles/goods to the respondent with due acknowledgment. In case such inventory has not been taken, it is still open to the respondent to get back the article alleged to have been kept under possession of the appellant as per the procedure known to law.
ksv/mf
To
1. The Chairman
Tamilnadu Slum Clearance Board
Chennai.
2. The Secretary
Tamilnadu Slum Clearance Board
Chennai.