R.Anjali, v. The Commissioner
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.06.2018
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARYANAN AND THE HONOURABLE MR. JUSTICE S.RAMATHILAGAM W.A.No.1052 of 2018 & C.M.P.No.8857 of 2018 R.Anjali ..
Appellant/Petitioner
Versus
1.The Commissioner Corporation of Chennai Rippon Buildings, Chennai - 600 003 2.The Commissioner Municipal Administration and Water Supply Department Chepauk, Chennai - 600 005 3.The Asst. Revenue Officer Chennai Corporation, Rippon Buildings Chennai - 600 003 4.The Zonal Officer, Zone-9 Chennai Corporation No.1, Lake Area, 4th Cross Street Nungambakkam, Chennai- 600 034 ..
Respondents/Respondents Writ Appeal filed under Clause 15 of the Letter Patent to set aside the order dated 09.02.2018 made in W.P.No.2766 of 2018. Prayer in W.P.No.2766 of 2018:
The petition filed under Article 226 of the constitution of india praying for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned demand notice MA.A.9 Va. Thu Na.Ka. No.R3/ 0203/ 2017, dated 28.04.2017 issued by 4th Respondent in respect of the Petitioner's Shop No.1241
(18/24), 1st Floor at 3rd Cross Street, Raja Annamalaipuram Corporation Shopping Complex and quash the same as arbitrary and devoid of merit and consequently direct the respondents to revise and fix the fair rent for the said shop in accordance with the rules and recommended guidelines.
For Appellant :
Mr.S.Satish For Respondents :
Mr.K.Soundarajan Standing Counsel
JUDGMENT
[Judgment of the Court was made by M.SATHYANARYANAN, J.,] The appellant, who is the writ petitioner, aggrieved by the dismissal of the writ petition vide order dated 09.02.2018, has filed this writ appeal.
2. The petitioner claims to be the tenant / lessee of shop bearing Shop No.1241 (18/24), 1st Floor, 3rd Cross Street, Raja Annamalaipuram Corporation Shopping Complex, owned by the Corporation of Chennai and plinth area of the shop is 253 square feet and she was regularly paying a monthly rent of Rs.3809/- and also Service Tax of Rs.686/-. The appellant / petitioner would submit that to her shock and surprise, the fourth respondent issued a impugned demand notice dated 28.04.2017 demanding exorbitant rent of Rs.17,710/- with effect from 01.03.2017 based on the resolution dated 21.02.2017 bearing No.094/2017. It is the stand of the writ petitioner that the increase of the lease amount many fold is not supported by any rhyme or reason and before doing so, a reasonable and fair opportunity should have been given to the writ petitioner and in the absence of the same, the impugned proceedings demanding to pay increased rent per se unsustainable and prays for interference.
3. The learned single Judge, after taking note of the earlier decisions of this Court, including the decisions in P.N.Chinnasamy and 13 another Vs. The Assistant Director of Town Panchayat, Coimbatore District (2010 1 CTC 584), P.Muthysamy Vs. State of Tamil Nadu (2014 5 MLJ 129), C.Vinoba Vs. The Commissioner, Palladam Municipality (2015 3 CTC 170) and P.P.M.S.C.L.V.Association Vs. Commissioner (2016 3 MLJ 698 as well as unreported judgment in W.A (MD) 546 of 2010 dated 19.08.2010, found that the challenge made to the impugned communication of the fourth respondent is unsustainable and accordingly dismissed the writ petition and hence, the present
writ appeal.
4. The learned counsel appearing for the appellant /writ petitioner has invited the attention of this Court to the typedset of documents and would submit that the petitioner is in possession of meager extent of land and eking out her livelihood by carrying on business in a small scale and all of a sudden, without affording any opportunity whatsoever, the lease amount has been increased many fold and she is not economically sound to comply with the demand made by the fourth respondent in the impugned communication and further, the learned single, without properly appreciating the materials and facts and circumstances, had dismissed the writ petition erroneously and prays for interference.
5. Per contra, Mr.R.Udhayakumar, learned standing counsel, who accepts notice on behalf of the official respondents, would submit that the petitioner cannot claim to be lessees and she is only licencee and she availed the benevolence and benefit of G.O.Ms.No.92, Municipal Administration and Water Supply Department, dated 03.07.2007 and that the lease amount has been used as an augment of the revenue and though an option was given to the appellant/writ petitioner to pay the increased licence amount, they did not pay the same and as such, the shop in question is going to be auctioned through public auction and it cannot be found fault with and prays for dismissal of this writ appeal.
6.
This Court has carefully considered the rival submissions and also perused the materials placed before it. 7.This Court, on an earlier occasion, vide common judgment dated 12.04.2018 in W.A.No.660 to 664 of 2018, pertains to shop belonging to Tirpattur Municipality, had rejected the similar challenge. It is relevant to extract the following paragraphs of the judgment rendered by a Division Bench of this Court: "17. The said Government order also came up for consideration before the Division Bench of this Court in decision reported in 2014 5 MLJ 129 [P.Muthusamy Vs. State of Tamil Nadu, rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Chennai and another], wherein auction notice issued by the local body was put to challenge.
The Division Bench of this Court after tracing out the history of the said Government order, observed as follows: "20.The facts narrated above would clearly indicate that the petitioners have been given only a licence to run the shops. Just because the word "lease" has been mentioned, a licence cannot ipso facto be converted into a lease.
Admittedly, the licence issued has a fixed terms. Therefore, the petitioners do not have a legal or a vested right to continue in occupation for ever. There is no doubt that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1961, does not apply to the case on hand. The petitioners can very well participate in the proposed auction. In other words, they cannot claim the right of a statutory tenant.
21.The object of letting out the shops is to collect more revenue for the respondentMunicipality, which is meant to be used for welfare measures. The Government Orders, as narrated above, are very specific about the purpose of auction followed by lease/licence. Since the transactions are commercial in nature, the petitioners, being licensees, cannot insist that the rent, which as they think, just and proper alone is liable to be paid. Since the licence is to be granted by the respondentMunicipality, while making offer, the said authority can impose its own terms in accordance with law. While accepting the said offer, the petitioners cannot insist that the condition attached therein cannot be imposed.
A perusal of the Government Orders referred to above as well as the orders impugned make it clear that the rent has been fixed based upon the prevailing market value and not otherwise. What has been given by way of extension to an existing licensee was only a concession. The subsequent extension has been made during the pendency of the writ petitions. The said decision was made in view of the undertaking given by the licensees. An undertaking was given in connection with the payment as well as on the withdrawal of the writ petitions. The Government orders also state that in the event of non compliance of the conditions imposed including the payment of appropriate rent, a licensee is liable to be removed.
22.The resolution has been passed after making detailed discussion and it was also passed as a consequence of the earlier order dated 14.12.2012 by which rent was fixed. Since the said rent so fixed was not paid, the respondentMunicipality was made to pass the impugned resolution. Therefore, it cannot be said that the impugned resolution has been unilaterally passed and as such, the said decision is in accordance with the Government Orders passed, which confer
the power on the respondent-Municipality to take action towards the eviction from the shops in the event of non payment of rent payable. The extraction of the related paragraphs of the resolution would clearly show that relevant materials have been taken into consideration while passing the same. The respondent-Municipality has got its own duty and obligation to perform. Appointments will have to be made to the public office and salaries will have to be paid. Money will have to be spent towards the welfare measures. The assessment made also indicates that the proposed auction would bring more money. The best way to get the maximum revenue is by way of public auction. This will also create a level playing field enabling others to participate along with the petitioners/licensees.
Therefore, we do not find any arbitrariness in the action of the respondent-Municipality. The reliance made by the petitioners on the communication dated 12.03.2009 cannot be accepted since it cannot overreach the Government Orders which speak about removal when conditions are not complied with. The fact that the Commissioner of Municipal Administration directed the respondent-Municipality to fix the market rent as the rent payable based upon the Government Orders which in turn was complied with would also show that there is no quarrel with the position that the market rent shall be the basis for the fixation of the rent payable by the licensees. In any case, the petitioners, being the defaulters, cannot contend that they should be allowed to continue forever.
As the orders impugned have been passed by taking into consideration of the relevant materials, we do not find any room for interference.
24.It is settled law that an instrumentality of a State should always endeavour by following the procedure by way of public auction or inviting tender, as held in P.N.CHINNASAMY AND OTHERS V. THE ASSISTANT DIRECTOR OF TOWN PANCHAYAT, COIMBATORE DISTRICT AND OTHERS ((2011) 1 CTC 584), S.SELVARANI V. THE COMMISSIONER, KARAIKUDI MUNICIPALITY ((2005) 1 CTC 81), C.JAYANTHI V.
THE COMMISSIONER, METTUR MUNICIPALITY, SALEM DISTRICT ((2006) 5 CTC 236), D.KANNAN V. THE COMMISSIONER OF MUNICIPAL ADMINISTRATION, CHEPAUK (CDJ 2010 MHC 1636) and RAM AND SHYAM COMPANY V. STATE OF HARYANA AND OTHERS ((1985) 3 Supreme Court Cases 267)."
8. Admittedly, the appellant/writ petitioner had availed the benevolence and benefit of the above said Government Order and the fourth respondent Municipality has taken note of the public interest and in order to augment the Revenue, they have increased the lease amount and also afforded an opportunity to the appellant to pay the same. However, the appellant did not pay the same alleging that the fourth respondent without rhyme or reason and without providing any opportunity whatsoever, increased the lease amount and she is not economically sound to pay the said amount.
9. It is a well settled position of law that the licencees cannot claim perpetual possession of the shops in question and to augment the revenue of the local bodies, public auction will be resorted to and this would in turn benefit the local body. Therefore, this Court does not find fault with the reasons assigned by the learned single Judge for dismissing the writ petition. However, if the petitioner is so advised, she is at liberty to submit a detailed representation to the fourth respondent ventilating her grievance especially with regard to the increase of the licence amount and she may do so within a period of two weeks from the date of receipt of a copy of this order. On receipt of the same, the fourth respondent is directed to consider the said representation and give a disposal in accordance with law within a further period of three weeks thereafter and communicate the decision taken to the appellant/writ petitioner.
The writ appeal is dismissed subject to the above observation.
No costs.
Consequently, the connected miscellaneous petition is closed.
Sd/- Assistant Registrar(CS-II) //True Copy// Sub Assistant Registrar gpa To 1.The Commissioner Corporation of Chennai Rippon Buildings, Chennai - 600 003 2.The Commissioner Municipal Administration and Water Supply Department Chepauk, Chennai - 600 005
3.The Asst. Revenue Officer Chennai Corporation, Rippon Buildings Chennai - 600 003 4.The Zonal Officer, Zone-9 Chennai Corporation No.1, Lake Area, 4th Cross Street Nungambakkam, Chennai- 600 034.
+1cc to Mr.P.SIVAGAMINATHAN, Advocate, S.R.No. 34538 W.A.No.1052 of 2018 & C.M.P.No.8857 of 2018 NMI(CO) TR(14/06/2018)