S.Sekar, v. The Member Secretary,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :10.10.2018
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.Nos. 3202 to 3205 of 2018 and W.M.P.NOs.3938 to 3941 of 2018 S.Sekar ... Petitioner in WP.No.3202 of 2018 S.Maran ... Petitioner in WP.No.3203 of 2018 R.Anandhi ... Petitioner in WP.No.3204 of 2018 M.E.Mohamed Adam ... Petitioner in WP.No.3205 of 2018 Vs
1. The Member Secretary, Chennai Metropolitan, Development Authority, Thalamuthu Natarajar Maligai, No.2, Gandhi Irwin Road, Egmore, Chennai - 600 008.
2. The Chief Executive Officer, Chennai Metropolitan Development Authority, Thalamuthu Natarajar Maligai, No.2, Gandhi Irwin Road, Egmore, Chennai - 600 008. ...Respondents in all WPs Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus forbearing the respondents in allotting any pavement shops next to the petitioners shop vide No.T/B-2, T/D 18, T/A 18, T/C47, Anna fruit Market, wholesale Koyambedu Market Complex to any third parties and consequently direct the respondents to allot such shops in their favour at the prevailing rate quoted in the tariff fixed by CMDA.
For Petitioners in all W.Ps. : Mr.D.Ashok Kumar For Respondents in all W.Ps.
: Mr.Tamil Mani
O R D E R
The relief sought for in these writ petitions is to forbear the respondents in allotting any pavement shops next to the petitioners shop vide No.T/D 46, Anna fruit Market, wholesale Koyambedu Market Complex to any third parties and consequently direct the respondents to allot such shops in their favour at the prevailing rate quoted in the tariff fixed by CMDA.
2. The learned counsel appearing on behalf of the writ petitioners states that the petitioners had purchased the shops for running the vegetables/fruits business. However, the respondents 1 and 2 are granting allotment for many other vendors to continue their trade in the pavement area. Such allotments are causing not only inconvenience, it is detrimental to the business interests of the writ petitioner. This apart, the respondents 1 and 2 are bound to ensure that ingress and egress are provided to the petitioners for the peaceful running of the business in that locality. Since, the same has not been provided to the writ petitioners, they are constrained to move these writ petitions. 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 25, clarified that based on the Advocate Commissioner report, no obstruction to the ingress and egress to the petitioners shops and 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 shops belong to the writ petitioners 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 petitioners. This being the order passed by the Hon'ble Division Bench, the respondents are bound to follow the same in respect of the premises belongs to the writ petitioners also.
6. With these observations, the writ petitions stand disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar pns/sk To
1. The Member Secretary, Chennai Metropolitan, Development Authority, Thalamuthu Natarajar Maligai, No.2, Gandhi Irwin Road, Egmore, Chennai - 600 008.
2. The Chief Executive Officer, Chennai Metropolitan Development Authority, Thalamuthu Natarajar Maligai, No.2, Gandhi Irwin Road, Egmore, Chennai - 600 008.
+4cc to Mr.P.Tamil Mani, Advocate, S.R.No. 70710, 70712, 70721 & 70722 W.P.No. 3202 to 3205 of 2018 SKV(CO) GN(02/11/2018)