D SURESH KUMAR Vs. CHIEF EXECUTIVE OFFICER CHENNAI

JUDGEMENT

(1.) THE petitioner has filed W.P.No.34629 of 2004, challenging the order of the second respondent, Member Secretary, Chennai Metropolitan Development Authority (in short, "CMDA") dated 01.07.2004 and consequently to direct the respondents to make refund to the petitioner on account of surrendering the possession of the shop bearing No.T/A-138 in accordance with Clause 12 of the Deed of Lease cum Sale Agreement dated July, 1998, entered between the petitioner's father and the respondents along with interest at the rate of 18% per annum. Under the impugned order, the second respondent has ordered the refund of Rs.4,29,921/- in respect of surrender of shop No.T/A-138 on Phase-I Fruit Market.

(2.) W.P.No.4271 of 2005 is filed by the petitioner challenging the order of the CMDA dated 13.05.2004 in respect of Shop No.T/A-136. By the said impugned order, the second respondent, CMDA has ordered the refund of Rs.9,49,232/- in respect of shop No.T/A-136.

(3.) IT is the contention of Mr. Sathish Parasaran, learned counsel appearing for the petitioner in both the cases that the respondents are bound by the terms of Lease cum Sale Agreement entered with the petitioner's father and it is not open to the respondents to deduct more amounts than what is permissible as per the Lease cum Sale Agreement. According to him, the purpose behind the entering of the Lease cum Sales Agreement and also incorporating Clauses 11 and 12 is the beneficial act shown by the Government, since the flourishing fruit vending business was conducted by the petitioner and his father in Kothaval market, in which the business was done in most satisfactory manner and when they were evacuated to Koyambedu, which is far away from the City, there was reduction in their business. As far as the deduction of 1% on the shop cost for 67 months made by the respondents in the impugned order is concerned, his submission is that the respondents have been acting in a commercial manner forgetting the beneficial act of the Government in evacuating the merchants from Kothaval market to Koyambedu. 5(a). IT is also his submission that admittedly, the petitioner and his father have been paying substantial amounts as quarterly instalments for 5 years and in fact, penal interest have also been paid and those amounts have been in possession of the respondents and that is why, while granting surrender right to the allottees, Clause 12 of the Agreement contemplate only 5% of amount towards nominal depreciation along with the actual damages caused to the shops and therefore, it cannot be said as if the respondent CMDA has not earned any benefit and the petitioner/allottee who surrendered the shops is not liable to pay the said amount of 1%, which was never contemplated under the Agreement. IT is his further submission that once the shops were surrendered even in the year 2003, it would have been open to the CMDA to allot the same to somebody else and therefore there is no question of loss caused to the CMDA by the conduct of the petitioner.