K. Sekar v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28.11.2017

CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.No.12853 of 2017 & W.M.P.No.13708 of 2017, W.P.No.12854 of 2017 & W.M.P.No.13710 of 2017, W.P.No.13312 of 2017 & W.M.P.No.14310 of 2017, W.P.No.13105 of 2017 & W.M.P.No.14000 of 2017, W.P.No.13102 of 2017 & W.M.P.No.13395 of 2017 and W.P.No.15759 of 2017 & W.M.P.Nos.17037 & 17038 of 2017

1. K.Sekar

2. K.Srinivasa Moorthy

3. P.Arumugam

4. A.Devendran

5. P.S.Shanmugam

6. T.Sampath

7. U.Chandran

8. T.Munusamy

9. K.Dimitrao 10.N.Selvam 11.S.Balaji 12.S.R.Kirubanandam 13.B.Maheswari 14.V.Arulkumar 15.V.Lalitha 16.J.Shyamsundar 17.S.Sulochana 18.N.Krishnamoorthy 19.K.Senthilkumar 20.K.Gunasekaren .. Petitioners in W.P.No.12853 of 2017 1 T.N.THIRUNATHAN 2 D.DHANANCHEZHIYAN 3 K.A.SUBRAMANI 4 P.RAMESH 5 M.P.BABU 6 M.N.SABAPATHI 7 M.N.BASKARAN 8 P.V.DURAISWAMI 9 K.MURUGAN 10 R.K.JANAKIRAMAN 11 P.S.MANIKANDAN 12 R.MOHANKUMAR 13 D.RAJENDRAN 14 J.MURALI

15 P.S.SHANMUGAM 16 P.PURUSOTHAMAN 17 G.SELVI 18 M.MUTHUSWAMY 19 K.VENKATESAN 20 R.KUMADHAVALLI 21 S.G.JAYARAMAN 22 D.USHA 23 M.N.JAYARAMAN 24 D.RAJENDRAN 25 D.RAMALINGAM 26 M.N.PARANTHAMAN ... PETITIONER in WP No.12854 of 2017 1 K.RAMESH BABU 2 M.D.NAGARATHINAM 3 E.N.VELMURUGAN 4 D.RAJENDRAN 5 M.N.PANEERSELVAM 6 R.KRISHNAMOORTHY 7 N.KUPPAN 8 R.JAGANATHAN 9 KARIMA @ FATHIMA 10 V.KUBENDRAN 11 KARIMA @ FATHIMA 12 R.DEVAKI 13 K.SHAGUL HAMEED 14 K.SRINIVASAMOORTHY 15 V.ARUN KUMAR 16 S.ANBU 17 G.ARUL KUMAR 18 R.KRISHNAMOORTHY 19 CHANDRAMMAL ... PETITIONER in WP No.13312 of 2017 1 K.A.SHANMUGAM 2 K.GOVINDASAMY 3 D.RAJENDRAN 4 K.THIRUGNANAM 5 A.SATHIYANARAYANAN 6 D.RAJENDRAN 7 A.M.KALYANASUNDARAM ... PETITIONER in WP No.13105 of 2017 1 R.SUBRAMANI 2 A.SUGUMARAN 3 S.JAGAN 4 H.KHADER SHERIFF 5 J.PALANI 6 M.RAJAPERUMAL 7 KHADER SHERIFF 8 S.JAYAPRAKASH 9 S.JAGADEESAN

10 B.NAGARAJAN 11 V.KARUNANIDHI 12 G.PALANI 13 K.SASIKUMAR 14 V.KARUNANIDHI 15 N.SARAVANAN 16 G.SANKAR 17 P.GNANAPRAKASAM 18 S.SENTHILNATHAN 19 N.K.RAMAMURTHY 20 THANGARAJ 21 L.KHADER BHASA 22 A.S.N.PIARIJOHN 23 V.KAMALAKKANNAN 24 H.BASHEER SAHIB 25 ABDUL MUNAF 26 C.KUPPUSAMY 27 V.SOUNDARARAJAN 28 A.S.N.JOHN BASHA 29 S.GULSARKHAN 30 P.PRAKASH 31 SMT.VANASUNDARI 32 SYED SARDAR 33 C.HUSSAINI SAHIB 34 ALLAH BAKASH 35 SMT.MUNIRA BANU 36 PUGAZHENTHI 37 MUNJEEB 38 NOOR MOHAMMED 39 K.WAHID 40 MUBARAK BASHA 41 P.V.KAMALAMULLA 42 S.SANKAR GANESH 43 ABDUL RAKEEM 44 K.SIVAKUMAR 45 S.ABFSAL BASHA 46 V.MANJULA ... PETITIONER in WP No.13102 of 2017 1 MR.A.LOUIS DANIEL ... PETITIONER in WP No.15759 of 2017

Versus

1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai - 600 009.

2. The Director of Municipal Administration, Municipal Administration, Department,

Ezhilagam, Chepauk, Chennai - 600 005.

3. The Regional Director of Municipal Administration, Sarathi Nagar, Kakithaipattarai, Vellore - 12.

..RR 1 TO 3 IN WP.12853, 12854, 13312, 13105 & 13102/17

4. The District Collector, Vellore District, Vellore.

5. The Commissioner, Municipal Commissioner, Gudiyattam Municipality, Gudiyattam, Vellore District.

..RR 4 & 5 IN WP.12853, 12854, 13312 & 13105/17

6. The District collector, Thiruvannamalai .. R4 IN WP.13102/17

7. THE COMMISSIONER, ARANI MUNICIPALITY THIRUVANNAMALAI DT., THIRUVANNAMALAI .. R5 IN WP.13102/17

8. THE COMMISSIONER, GRATER CHENNAI CORPORATION, RIPPON BUILDING, CHENNAI 600 003.

.. R1 IN WP.15759/17

9. THE ZONAL OFFICER, ZONE 13, CREATER CHENNAI CORPORATION, NO.115, DR.MUTHULAKSHMI SALAI, ADYAR, CHENNAI 600 020.

..R2 IN WP.15759/17 Prayer in Writ Petition Nos.12853, 12854, 13312 & 13105 of 2017 is filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari, calling for the records relating to the impugned notices Na.Ka.No.846/2016/A1, dated 27.02.2017, 27.03.2017 and 10.04.2017, in respect of the petitioners' Shops Nos.3,9,2A,4,7,8,12,10,14,1,5,6,8,2,7,9,3,2,5 and 1 respectively situated at Santhapettai, Municipal office building, Anna Street, Veerabathran Street, J.K.Street, Government Hospital Road, Gudiyattam,(in WP.12853 OF 2017) shop Nos.7, 4, 5, 8, 6, 1, 2, 7, 1, 4, 5, 1, 11, 2, 6, 5, 3, 4, 3, 2, 3, 6, 3, 3, 2 & 12 respectively situated at Santhapetti, Thalaiyattam Bazzar, Anna Street, J.K. Street, Veerabatran Street, South Kulakarai Street, Gudiyattam, (in WP No.12854 of 2017), Shops No. 2, 11, 8. 11, 6, 9, 10, 5, 4, 10, 3, 2, 9, 4, 6, 1, 1, 10 & 10, i.e. totally 19 shops at Santhapetti, Veerabatran Street, South Kulakari Street, Old Shops Around Municipal Buildings, Government Hospital Street

at Gudiyattam, (in WP No.13312 of 2017), shops Nos.2,5,4,9,4,12 &1 respectively situated at Santhapettai, Veerabathran street, Thazhaiatham Bazaar Street, Gudiyattam, (in WP No.13105 of 2017), on the file of the 5th respondent and quash the same. PRAYER IN WP No.13102 of 2017 This Petition is filed Under Article 226 of the Constitution of India praying issue writ of certiorari, calling for the records relating to the impugned Notice bearing Na.Ka.No. 1408/ 2016/ A3 dated 03.03.2017 and 26.04.2017 in respect of the petitioners Shops No.

7, 5, 4, 3,15, 6, 2, 89, 7, 16, 180, 116, 181, 186, 19, 184, 7, 26, 80, 79, 47, 31, 200, 23, 10-A, 14, 63, 39, 34 & 35, 43, 44, 65, 66, 76, 59, 64, 74, 84, 1B, 198, 197, 18, 61, 25, 5 & 17 situated at Periyar Maligai, Back Side of Anna Road, Old Market, New Market, New Bus Stand, Old Bus Stand, Totally 47 Shops. on the file of the 5th respondent and quash the same PRAYER IN WP NO.15759 OF 2017 This Petition is filed Under Article 226 of the Constitution of India praying issue writ of certiorarified mandamus directing the respondent authority to give police protection and permission to conduct Cultural Programme (Adal Padal) in Kadapakkamkuppam Arulmigu Sree Gangaiamman Temple Festival, at Seiyur Taluk, Kanchipuram District on 25.07.2017 by considering the Petitioners representation dated 16.06.2017 For Petitioner in W.P.No.

12853,12854, 13312, 13102 & 13105 of 2017 : M/s.Kamachi D in W.P.15759/17 : Mr.Aravind Subramaniam For Respondents in W.P.No.12853 of 2017 : Mr.R.Venkatesh, G.A. (for RR1 to 4) Mr.P.S.Sivashanmugasundaram, (for R5) in WP.15759/17 : R.ARUNMOZHI FOR RR 1 & 2 IN WP.13102/17 : O.SELVAM, GA(FOR RR1 TO 4) IN WP.13105/17 : S.DIWAKAR, SGP (FOR RR1 TO 4) IN WP.13102/17 : MR.PAULRAJ FOR R5 IN WPS.13312, 13105/17 : P.S.SHIVASHANMUGASUNDARAM FOR FOR R5, MR.S.

C O M M O N O R D E R As the facts are same in these batch of writ petitions, they are disposed of by this common order. For better clarify, the facts in W.P.No.12853 of 2017 are discussed in this order.

2. The petitioners are aggrieved by the enhancement of lease rent in respect of their shops. It is the case of the petitioners that they have been running the shops in question for several years on lease/rent. On coming to know of the revision of rent/lease through issuance of the impugned proceedings based on G.O.M.S.No.92, Municipal Administration and Water Supply Department, dated 03.07.2007, they have preferred these Writ Petitions for the relief stated supra.

3. It is the contention of the petitioners that the 5th respondent has taken a decision to renew the lease by revising the rent in an exorbitant rate in an arbitrary and capricious manner. The 5th respondent ought to have adopted a humane and practical approach while fixing the revised rent, and re-fixing the same in such excessive amount is unreasonable. It is further stated that the guideline value of the properties had been reduced to 33% by the State now and fixing it on the higher side, more particularly, asking the petitioners to pay the rent at exorbitant rate, needs to be interfered with by this Court.

4. Learned counsel appearing for the 5th respondent submitted that the petitioners have been periodically paying the revised rent once in every three years as per G.O.M.S.No.92, Municipal Administration and Water Supply Department, dated 03.07.2007. According to him, if the petitioner is not willing to pay the revised rent as demanded, it is open to him to go for a public auction. Referring to clauses 4(ii) and 4(iii) of the said G.O., he contended that an opportunity has to be given to the petitioners, once the revised rent is fixed and that if the petitioners do not accept the same, it is open for him to go ahead with a public auction.

5. Heard the learned counsel on either side and perused the material documents available on record.

6. The sum and substance of the issue in question is as to whether the Municipality is entitled to fix the rent on a higher side, be it lease/rent and demand the amount from the petitioner, as calculated by them.

7.

It is not in dispute that the petitioners is in occupation of the premises in question as a lessee and paying the rent regularly and that it was revised periodically once in

every three years as per the said Government Order. 8.

In a similar circumstance, a Division Bench of this Court in the case of P.V.Subramanian v. Secretary to Government, 2014 (5) MLJ 129, has held that licence can be converted into one of lease and that the object of letting out the shop is to collect more revenue for the Municipality/Corporation and that the extension granted to the existing licensees is only by way of concession and that the revision is made based on the prevailing market value and not otherwise. For better understanding, relevant portion of the said decision reads as under:

"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 respondent-Municipality, 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 respondent-Municipality, 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 respondent-Municipality 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 respondentMunicipality 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.

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."

9. From the above discussion and in the light of the decisions cited supra, the 5th respondent herein has fixed the rent with all due considerations. Merely because there is a reduction of 33% in the guideline value, it would not be a reason enough for the petitioners to interfere with the order of the decision of the 5th respondent. The Government might have revised the guideline value to 1/3 (33%) only to safeguard their own interest to avoid paying compensation to the landowners for the lands acquired by them, as they need to pay hefty compensation to the landowners in terms of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and not otherwise.

10. Thus, this Court finds no merit in these writ petitions, which are therefore, accordingly dismissed. It is upto the petitioners to accept the offer given by the 5th respondent, since they have been in occupation of the premises for several years, failing which, the 5th respondent shall go ahead with the auction. If there are any arrears and the petitioners want to continue with the enhanced rent amount, the arrears shall be paid within two months from the date of acceptance of the offer. In case the petitioners do not give consent for the payment of the enhanced amount within one month, it is open to the 5th respondent to go ahead with the auction, and till such time the auction is announced, the petitioners may continue to function in the same place.

As there is a possibility that the petitioners may challenge the auction notice and continue to function in the same place on account of any litigation or interim order, in order to avoid such circumstances, this Court holds that once the auction notification is published, the petitioners are deemed to have vacated the tenement and the respondents can enter the place with the help of police force, if required.

No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar pvs To

1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai - 600 009.

2. The Director of Municipal Administration, Municipal Administration, Department, Ezhilagam, Chepauk, Chennai - 600 005.

3. The Regional Director of Municipal Administration, Sarathi Nagar, Kakithaipattarai, Vellore - 12.

4. The District Collector, Vellore District, Vellore.

5. The Commissioner, Municipal Commissioner, Gudiyattam Municipality, Gudiyattam, Vellore District.

6. THE DISTRICT COLLECTOR, TIRUVANNAMALAI.

7. THE COMMISSIONER, ARANI MUNIcipalLITY THIRUVANNAMALAI DT.

8. THE COMMISSIONER, GRATER CHENNAI CORPORATION, RIPPON BUILDING, CHENNAI.

9. THE ZONAL OFFICER, ZONE 13, GRATER CHENNAI CORPORATION, NO.115, DR. MUTHULAKSHMI SALAI, ADAYAR, CHENNAI +5cc to M/S.S.KAMACHI.D. Advocate,S.R.No. 85641 TO 85645 +1cc to Mr.PAULRAJ Advocate, S.R.No. 84310 +1cc to the Government Pleader, S.R.No. 85101 TO 85104 W.P.Nos.12853, 12854, 13312, 13105, 13102 and 15759 of 2017 RV(CO) TR(02/01/2018)