C.D.Saravana Kumar, v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.03.2018

CORAM

THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM WP.Nos.5491 to 5499 & 5514 to 5518 of 2018 and W.M.P.Nos.6779 to 6787 & 6815 to 6824 of 2018 C.D.SARAVANA KUMAR ... PETITIONER IN W.P.5491/18 N.RAJENDRAN ... PETITIONER IN W.P.5492/18 B. MOHAN ... PETITIONER IN W.P.5493/18 K. GOVINDRAJ ... PETITIONER IN W.P.5494/18 RAFIYA BEEVI ... PETITIONER IN W.P.5495/18 P.BALAMURUGAN ... PETITIONER IN W.P.5496/18 K. MUSHAFA JALUL ... PETITIONER IN W.P.5497/18 A.P. CHELLAKKAN ... PETITIONER IN W.P.5498/18 R. SAATHA NAIR ... PETITIONER IN W.P.5499/18 D.KOTHANDAN ... PETITIONER IN W.P.5514/18 D.DASARATHAN ... PETITIONER IN W.P.5515/18 D.VIJAYA ... PETITIONER IN W.P.5516/18 I.CLEATUS ... PETITIONER IN W.P.5517/18 V.MALARVIZHI ... PETITIONER IN W.P.5518/18 VS.

1. State rep. By its PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF MUNICIPAL ADMINISTRATION & WATER SUPPLY, CHENNAI - 600 009.

2. THE EXECUTIVE OFFICER, NAARAVARIKUPPAM TOWN PANCHAYAT, REDHILLS, CHENNAI - 600 052.

... RESPONDENTS IN W.P.NO.5491 TO 5499 OF 2018 1 THE DISTRICT COLLECTOR, TIRUVALLORE.

2 THE ASSISTANT DIRECTOR OF TOWN PANCHAYAT, TIRUVALLORE DISTRICT, TIRUVALLORE.

3 THE EXECUTIVE OFFICER, UTHUKKOTTAI TOWN PANCHAYAT, TIRUVALLORE DISTRICT.

.. RESPONDENTS IN WP.5514 TO 5518/18 PRAYER in W.Ps.No. 5491 TO 5499 of 2018:

Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records pertaining to impugned notice No.Na.Ka.No.52/2015, A1, dated 03.03.2018 issued by the 2nd respondent and quash the same as far as the petitioner is concerned.

PRAYER IN Wps.5514 TO 5518 OF 2018: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus or any other appropriate writ order or direction Calling for the records relating the proceedings of the 3rd respondent in auction notification in Na.Ka. No.35/2018 A1 dated 21.02.2018 in so far as the shops NO.1,3,4,5, 2 in SL No.1 of the notification and quash the same and consequently directing the respondents to renew the lease of the shop in shop No.1, Rural Development shops with enhanced rent of 15% for the ensuing 3 year period from 01.04.2018 to 30.03.2021 as this Honourable Court deem fit and pass such further or other order as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render Justice. For Petitioner : MR.S.NAMONARAYANAN (in W.P.No.5491 to 5499 of 2018) For Petitioner : MR. R. SURESH KUMAR, FOR M/S.K.M.VIJAYAN ASSO.

(in W.P.No.5514 TO 5518 of 2018)

For Respondents :

MR.V.SHANMUGASUNDARA, Special Government Pleader For R1 in WPs.5491 to 5499/18 R1, R2 in Wps.5514 to 5518/18 MR.S.SURESH KUMAR, GA R2 in WPs.5491 to 5499/18, WP.5499/18 M/S.ROSEKAMALAM GA R2 in WPs.5493 & WP5499/18 MR.R.PRATHPSING, R2 IN WP.5495 OF 2018 MR.K.S.SURESH, R2 IN WP.5496/18 M/S.A.MADHUMATHI, AGP, R3 IN WP.5518 OF 2018 MR.R.VENKATESH, GA R2 IN WP.5497/18 5498/18 MR.E.BALAMURUGAN, GA, R3 IN WP.5514, 5515 OF 2018 MR.K.REVENDRAN, AGP, R3 IN WP.5516 & 5517/2018 COMMON ORDER These Writ Petitions have been filed to quash the impugned notice issued by the respondent - Executive Officer and to renew their lease.

2. According to the petitioners, they are lessees under the tenancy of the respondent-Town Panchayat. After expiry of tenure of lease period, they want to continue the lease for a further period of three years in accordance with G.O.Ms.No.92, Municipal Administration and Water Supply Department dated 03.07.2007. However, the respondents have been taking steps to

conduct auction without renewing the lease. Hence, these Writ Petitions have been filed.

3. The issue involved in the case is no longer res integra. This court, in the following decisions has consistently taken the view that the licensees of the Panchayat / Municipal Shops have no vested right to seek renewal of licence in perpetuity and the shops/buildings of the Local Bodies to be put in public auction with an object to augment more Revenue and also to provide opportunity to the general public to participate in the auction.

4. The Division Bench of this court in A.Sathar Vs. The District Collector, Coimbatore and Another (AIR 1998 MAD 217) has held as follows:- "...We are of the view that the appellant has no vested right to continue in occupation of the premises in question belong to the second respondent/panchayat which is entitled to lease out the properties owned by it by public auction. As rightly pointed by the learned single judge, properties owned by the Municipality are also a source of revenue to the Municipality and the interest of the Municipality has to be balanced as against the interest of the shop owner lessee. It cannot be disputed that the lessees may also be entitled to a fair terms and the Government, had, therefore, allowed the lessees to continue their occupation for a second term. As already seen the appellant was given extension of lease period from time to time from the year 1988 to 31.02.1997 on terms.

Even the last lease was extended for three years by enhancing the rent by 30 per cent.

Under these circumstances, it is not fair on the part of the appellant to ask for the extension of the lease for further term of three years from 01.04.1997 to 31.03.2000 on an enhancement of 15 per cent of the previous rent.

The extension granted earlier by the Panchayat, to the appellant would not meant that the appellant is entitled to continue in possession of the premises in question for ever by paying ridiculously low rent. We are of the view that the extension of the lease to the appellant is against the interest of the Panchayat. As already noticed the rental

income from the properties owned by the Panchayat is one of the sources of income of the Panchayat. Therefore, the interest of the Panchayat cannot be jeopardized by permitting the appellant to continue in possession of the premises in question at the enhanced rate of 15 per cent as prayed for. There are absolutely no merits in this writ appeal and the same is dismissed."

5. In the case of O.A.Nowshad Farooq vs. The Commissioner, Tiruelveli Municipal Corporation, Tirunelveli and another (W.P (MD)No.3535 of 2009, dated 30.04.2009), reported in Indiankannon.org/doc/1721899, has held that the petitioner is not entitled for an automatic renewal of his licence on the basis of the Government Order in G.O.Ms.No.92, Municipal Administration and Water Supply Department, dated 03.07.2007 as well as the Government Order in G.O.Ms.No.181, Municipal Administration and Water Supply Department, dated 19.09.2008. It is also observed that the Government Order is not applicable to the existing licensees and thereby, licence would be renewed for a further period and there is no such condition incorporated in the Government Order.

6. In WA(MD)No.546 of 2010, dated 19.08.2010 (P.Ravi vs. 1.Madurai City Municipal Corporation Council, represented by its Hon'ble Mayor, Madurai City Municipal Corporation, Tallakulam, Madurai and another, the Division Bench of this Court has observed in para 6 as follows:- "6.In the award of public largesse, particularly involving the revenue, the municipal Corporation should have the paramount interest of augmenting the revenue. ....... We may also point out that even in case of the Government Orders granting such benefit, those Government Orders should be considered and interpreted to be of advantage of the Corporation and not to the licensee.

This again is on the principle of augmenting the revenue to the Corporation. As the appellant had not satisfied this Court as to his entitlement for the renewal of licence for a further period of two years, though he has relied upon the Government Order dated 25.5.2009."

7. Similar issue came up in the case of M.Periya Samy vs. The Assistant Director of Town Panchayats, Madurai, Madurai District and The Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai reported in Indiankannon.org/doc/21280938.

In that case, the shops situated in T.Kallupatti Town Panchayat Bus Stand Commercial Complex was auctioned in the year 2012 for a period three years and after expiry of the licence period, the local authority issued a notification for a fresh auction, which was challenged contending that the existing licensee is entitled for extension of licence period as per G.O.Ms.No.92, Municipal Administration and Water Supply Department, dated 03.07.2007. In that case, the Division Bench of this court held that the licence period is only for three years and after expiry of the same, it is for the local authority, to decide, as to whether extension of the lease has to be made, by upward revision of lease amount, as per the terms and conditions of the Government Order or to go for public auction, to augment more revenue, holding so rejected the case of the licensees.

8. Following the decision reported in 2014(5) MLJ 129 in the case of P.Muthusamy vs. State of Tamil Nadu, in the case of C.Vinoba Vs. The Commissioner, Palladam Municipality (2015(3) CTC 170), directed the respondent municipality to put the shops to fresh auction with a view to find out the fair market rent.

9. In (2016)3 MLJ 698 in the case of P.P.M.S.C.L.W.Assn. vs. Commissioner, after considering a number of decisions of this court as well as the Supreme court, in para 26, held as follows:- "26.There is no two option of a vital fact that the 2nd respondent/Municipality is the competent/appropriate authority to determine what rent a particular shop of the Panchayat may fetch and it is well settled principle in Law that a lease cannot be extended much to the detriment of panchayat and in any event, the panchayat cannot be a loser on any score."

10. In the light of the above decisions, the petitioners cannot seek extension of lease by relying upon G.O.Ms.No.92, Municipal Administration and Water Supply Department, dated 03.07.2007, which in my view, would be against the interest of the local body.

11. In such view of the matter, the Writ petitions fail and they are dismissed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar

pvs TO

1. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF MUNICIPAL ADMINISTRATION & WATER SUPPLY, CHENNAI - 600 009.

2. THE EXECUTIVE OFFICER, NAARAVARIKUPPAM TOWN PANCHAYAT, REDHILLS, CHENNAI - 600 052.

3 THE DISTRICT COLLECTOR, TIRUVALLORE.

4 THE ASSISTANT DIRECTOR OF TOWN PANCHAYAT, TIRUVALLORE DISTRICT, TIRUVALLORE.

5 THE EXECUTIVE OFFICER, UTHUKKOTTAI TOWN PANCHAYAT, TIRUVALLORE DISTRICT.

+9cc to Mr.S.NAMONARAYANAN Advocate, S.R.No. 18922 +1cc to the Government Pleader, S.R.No. 19670 +1cc to Mr.R.P.PRATHAP SINGH Advocate, S.R.No. 18646 +1cc to Mr.K.M.VIJAYAN ASSO Advocate, S.R.No. 18616 WP.Nos.5491 to 5499 & 5514 to 5518 of 2018 VSN(CO) TR(03/04/2018)