K.Madheswaran v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 25.10.2016

CORAM

THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH AND THE HON'BLE MR.JUSTICE V.PARTHIBAN Writ Appeal No.1307 of 2016

1. K.Madheswaran

2. R.Rajendran

3. A.Shankar

4. R.Kalaivani

5. A.Shajahan

6. V.Elangovan

7. A.V.Gnanaprakasam

8. Arulmozhi

9. Manivasagan 10.Manivasagan 11.G.Jayaprakash 12.S.Gunasekaran 13.A.Ramadoss 14.Saravanan 15.Mohamed Kisher Sheriff 16.Thenmozhi 17.Renganathan 18.Bhuvaneswari 19.Sathiyamoorthy 20.A.Ahamed 21.Sakulen Basha 22.Md.Kisher Sheriff 23.K.Raghupathy 24.R.Ramesh Babu 25.B.Soramadevi 26.N.Gnanavel 27.J.Ravi 28.L.Raja Muthukumar 29.K.Madheswaran 30.T.Vijayalakshmi 31.Sujatha 32.M.Abdul Barid 33.R.Mohankumar

34.Sagin Banu 35.E.R.Ramasamy 36.R.Mohankumar 37.Gnanavel 38.B.S.Latha 39.R.Vidhya 40.J.Jamal Mohamed Ismaiyil 41.N.Mohan 42.R.Mohankumar 43.R.Mohankumar 44.R.Mohankumar 45.N.Babu 46.Sundaram ..

Appellants Vs.

1. The Commissioner

2. The Assistant Commissioner Ammapettai Ward Office ..

Respondents Appeal under Clause 15 of the Letters Patent filed against the interim order dated 27.9.2016 made in WMP No.19113 of 2016 in W.P.No.22418 of 2016.

For Appellant : Mrs.R.Hemalatha For Respondents : Mr.V.Ayyadurai Addl. Advocate General Assisted by Mr.S.Diwakar, Standing Counsel for Salem Corporation

J U D G M E N T

(Delivered by Huluvadi G.Ramesh,J) The appeal is directed against the interim order dated 27.9.2016 made in WMP No.19113 of 2016 in W.P.No.22418 of 2016. WMP.No.19113/2016 to grant on interim Stay of all further proceedings of the respondents dated 05.04.2016 and 30.05.2016 in na.ka.No.L8/676/2016 pending dispense as the above writ petition.

WP.No.22418/2016 Petition filed under Article 226 of the constitution of India praying that in the circumstances stated therein and in the affidavit filed therewith, the High Court will be pleased to call for the records of the respondent dated 05.04.2016 and 30.05.2016 in Na.Ka.No.L8/676/2016 and quash the same as illegal, unlawful without jurisdiction deside ultra vires.

2. Heard the learned counsel for the appellant and the learned Additional Advocate General for the respondent Corporation.

3. According to the appellants, as per the dates and events filed by them, they are lessees under the respondent Corporation in respect of the shops in a commercial complex near Salem Town Bus Terminus. The lease was initially for a period of three years and to be renewed thereafter for a period of nine years. Thereafter, the rent to be enhanced on the basis of prevailing market value. The respondent Corporation passed a resolution unilaterally increasing the rent by nearly 300%. The said resolution was challenged by the leaseholders Association, by way of writ petitions in W.P.Nos.16231 to 16233 of 2016. The said writ petitions were disposed of directing the Association to make a representation to the respondent Corporation and thereafter, directing the respondent Corporation to consider said representation.

In the meantime, the respondent Corporation issued notice to the leaseholders enhancing the caution deposit and rent of the shops and required them to give their consent for the enhanced rent, failing which the shops would be let out on lease by public auction. The said notices were challenged by the leaseholders in W.P.No.22418 of 2016. However, the respondent Corporation issued a proceedings on 14.6.2016 stating that the rental value and the security deposit have been enhanced in consultation with Government and therefore, it required the leaseholders to pay the enhanced rent, failing which, the shop would be let out in auction. An interim order was passed in the writ petition filed by the leaseholders, namely W.P.No.22418 of 2016. Challenging the said order, the appellants have come up with the above appeal.

4. The learned single Judge, by order dated 27.9.2016, passed an interim order, the relevant portion of which reads as follows:

"The Salem Corporation is directed to issue notice to the shop owners, who have not agreed to pay the amount fixed by the Salem Corporation, fixing the time to hand over the possession on or before 25.10.2016, failing which, they shall evict the shop on or before 28.10.2016, in terms

of the judgment passed in W.A.Nos.889 of 2016 and 909 to 918 of 2016 dated 21.7.2016."

5. Aggrieved by the above interim order passed by the learned single Judge, the appellants have come up with the above appeal.

6. This Court, while disposing a batch of cases in W.A.Nos.909 to 918 of 2016 filed by the other lessees in respect of other shops in Salem Bus Stand, against the interim order passed by the learned single Judge, has held as follows: "5. We have considered the submissions. In the cases on hand, as indicated by the learned single Judge, the appellants/licensees of the shops in question have not agreed for the enhanced rental.

However, taking into consideration the interest of the appellants/licensees, the respondent-Corporation shall provide one more opportunity to the appellants to negotiate in the matter and after the negotiations, still the matter is not settled between the appellants and the Corporation, the respondent-Corporation is at liberty to go for auction, in which case the appellants can very well participate in the auction process. However, it is the discretion of the Corporation to go on with the process in respect of those who have accepted the enhanced rental and paid the deposit and only in respect of those licensees who are not agreeable for the enhanced rental, it is very much open to the Corporation to go for auction in accordance with law and the highest bidders be given the shops.

If the appellants also happen to be the successful bidders, they are entitled to the possession or else they can make way for the highest bidders to take possession of the premises. Subject to the outcome of either of the above options, the appellants will vacate the premises on their own or else the respondentCorporation will issue eviction notices to the unsuccessful licensees to handover vacant possession of the respective shops to the Corporation within a period of three months therefrom. With these observations, the writ appeals are disposed of.

7. A perusal of the order of the learned single Judge would make it clear that the interim order passed by the learned

single Judge is only in terms of the order passed by this Court in W.A.Nos.909 to 918 of 2016. Therefore, we do not find any reason to interfere with the interim order of the learned single Judge.

8. Be that as it may, taking note of the fact that the appellants are in possession of the shops for many years and taking into consideration the difficulty expressed by the appellants, we direct the respondent corporation to notify the shops in question for public auction, in which, the appellants are at liberty to participate. In such auction, ultimately, only the highest bidders will be allotted the shops on lease. In case the appellants are unsuccessful in the auction, they shall be given one month time from the date of auction, to vacate the shops and hand over the same, subject to the condition that they shall give an undertaking to the respondent Corporation within one week from the date of auction, undertaking to vacate the shop and hand over the same within a period of one month from the date of auction.

In the event of no person participating in the public auction, the respondent Corporation may lease out the shops to the existing leaseholders, after reconsidering the rent enhanced by them and fixing a reasonable rent. The writ appeal is disposed of accordingly. There shall be no order as to costs. Consequently, CMP No.17010 of 2016 is closed.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar kpl To

1. The Commissioner

2. The Assistant Commissioner Ammapettai Ward Office +1cc to Mr.S. Diwakar, Advocate, S.R.No.61381 +1cc to Mr.R. Hemalatha, Advocate, S.R.No.60962 vd(CO) md(25/11/2016) W.A.No.1307 of 2016.