Mohamed Manzoor v. The Member Secretary,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.10.2018 CORAM :
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.5203 of 2018 and W.M.P.No.6366 of 2018 Mohammad Manzoor ... Petitioner Vs
1. The Member Secretary, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai - 600 008.
2. The Chief Executive Officer, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai - 600 008.
3. The Chief Administrative Officer, Market Management Committee, Koyambedu Wholesale Market Complex, Koyambedu, Chennai.
... Respondents Prayer:
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents not to convert the platform / pavement attached to the petitioner's shop bearing T/A/3 in Anna Fruit Market, Koyambedu Wholesale Market Complex, Koyambedu, Chennai, contrary to Master Plan of Koyambedu Wholesale Market Complex, Koyambedu, Chennai and further direct the respondents to maintain the platform attached to the shops in Anna Fruit Market as it found in the original Master Plan of Koyambedu Wholesale Market Complex, Koyambedu, Chennai.
For Petitioner : Mr.Su.Srinivasan for Ms.Vanathi Srinivasan For Respondents : Mr.P.Tamilmani Standing Counsel for CMDA
O R D E R
The relief sought for in this writ petition is to direct the respondents not to convert the platform / pavement attached to the petitioner's shop bearing No.T/A/3 in Anna Fruit Market, Koyambedu Wholesale Market Complex, Koyambedu, Chennai, contrary to Master Plan of Koyambedu Wholesale Market Complex, Koyambedu, Chennai and further direct the respondents to maintain the platform attached to the shops in Anna Fruit Market as it is found in the original Master Plan of Koyambedu Wholesale Market Complex, Koyambedu, Chennai.
2. The learned counsel appearing on behalf of the writ petitioner states that the petitioner is in possession and occupation of the aforesaid shop and is running his business of selling vegetables/fruits in the said shop. However, in the recent past, the respondents, with the simple approach of making money from the traders, are taking steps to allot platforms as shops to some third parties. Such allotments would cause not only inconvenience, but would be detrimental to the business interests of the writ petitioner. This apart, the respondents are bound to ensure that ingress and egress are provided to the petitioner for the peaceful running of the business in that locality. Since, the same has not been provided to the writ petitioner, he is constrained to move the present writ petition. This apart, it is brought to the notice of this Court that the respondents are selling the common areas, which are alloted for common usage of all the Vendors and the public in general.
3. It is brought to the notice of this Court that the Hon'ble Divisional Bench of this Court has passed an order on similar issue in W.P.Nos.28520 and 28521 of 2011 on 28.07.2015. The operative portion of the order is extracted hereunder: "23. For the reasons mentioned herein above, we have no hesitation to hold that the allottees/purchasers have merely the right to enjoy the common areas such as roads, pathway, passage, corridors, verandah, parking, drainage, water course, etc., and cannot claim ownership of the same.
24. However, we make it clear that if the respondent-authority decides to allot platform shops, the terms and conditions of the Act, 1996 have to be strictly adhered to, as the area is declared as a wholesale marked area in respect of congestion in the area.
25. Before parting with the matter, we would like to place on record that the Court Commissioner has submitted a fair report clearly observing that there
is no obstruction to the ingress and egress to the petitioners shops and the also inflow and outflow of air and light to their shops is not affected. However, there is the problem of congestion, which ought to be effectively addressed at first. There is no dispute that on inspection, it was found that there were several encroachments and the common space was also used by the allottees for keeping their goods. It is also not in dispute that the allocation of platform on the service road to new shops may add to the congestion in the already heavily choked and clogged wholesale shopping complex. Though the said platforms were not used as service roads, the service road is left intact for loading and unloading of goods by the shop owners and for garbage vans and other such services. Some small kiosks were already found located on the service road. But, service road is not available for being converted into shopping lanes as there are already several encroachers. The other Technical member has submitted the separate report in tune with the official stand of the respondent authority.
26. Noticing the said report and also certain photographs produced before us, it is evident that the area in question is clogged and there is severe congestion in the area. This congestion was on account of the alleged encroachers on the service road also. No doubt, the platform is not a part of service road and also, the ownership and title do not vest with the allottees or the purchasers. However, it is for the authority to ensure that the market complex is neat and clean with clear service road, wherein, the movement of people and vans is easily possible. Even if allotments are made on the platform shops, they should be strictly regulated in such a way that they do not spread their trading activity outside the allotted area. The original allottees/vendors be also directed to conform to the terms and conditions and not to create any congestion in the open space available for the benefit of all, by dumping their goods outside the alloted area".
4. The Hon'ble Division Bench in Para No.25, has clarified that based on the Advocate Commissioner's report, there is no obstruction to the ingress and egress to the petitioners shops and also the inflow and outflow of air and light to their shops is not affected.
5. This Court is of an opinion that the said observations made by the Hon'ble Division Bench is to be maintained in respect of the shop, which belongs to the writ petitioner also. When the Advocate Commissioner, during the relevant point of time, found that the ingress and egress are not affected, the same position should be allowed to be continued, even in future, by the respondents and any such obstructions will cause prejudice to the interest of the writ petitioner. This being the order passed by the Hon'ble Division Bench, the respondents are bound to follow the same in respect of the premises, which belongs to the writ petitioner also.
6. With these observations, the writ petition stands disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar mkn/ssr To
1. The Member Secretary, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai - 600 008.
2. The Chief Executive Officer, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai - 600 008.
3. The Chief Administrative Officer, Market Management Committee, Koyambedu Wholesale Market Complex, Koyambedu, Chennai.
+1 cc to Mr.P.Tamilmani, Advocate Sr.No.75025 +1 cc to M/s.Vanathi Srinivasan, Advocate Sr.No.73846 W.P.No.5203 of 2018 and W.M.P.No.6366 of 2018 RV(CO) CSL/27.11.2018