Thangarasu v. The District Collector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2023
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU Thangarasu ... Petitioner -vs1. The District Collector, Erode District.
2. The Executive Officer, Town Panchayat, Andhiyur Area, Erode District.
... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Mandamus, directing the Respondents to consider the Petitioner's Representation dated 02.08.2023 and 06.11.2023 requesting for allotment of a Beef Stall to the Petitioner in the newly constructed Shopping Complex, Andhiyur.
For Petitioner :
Ms. S.Deepika For Respondents :
Mr. E. Veda Bagath Singh (R1) Special Government Pleader Mr. Stalin Abhimanyu (R2) Additional Government Pleader 1/13
O R D E R
Heard Ms. S.Deepika, Learned Counsel for the Petitioner, Mr. E. Veda Bagath Singh, Learned Special Government Pleader appearing for the First Respondent and Mr. Stalin Abhimanyu, Learned Additional Government Pleader appearing for the Second Respondent and perused the materials placed on record, apart from the pleadings of the parties. 2.
The grievance ventilated by the Petitioner is that he had made representations dated 02.08.2023 and 06.11.2023 requesting for allotment of a Beef Stall to him in the newly constructed Shopping Complex, Andhiyur, but as it did not evoke any response, it has necessitated the filing of this Writ Petition. 3.
In response, the Second Respondent has filed status report dated 20.12.2023 stating as follows:- "3.
This respondent humbly submits under Kalaingar Nagarapura Mempattu Thittam Scheme for the year 20212022, Weekly Shandy (thur;re;ij) Complex construction works are being carried out at Town Andhiyur Panchayat, Taluk, Erode District. 90% of the construction works are alone completed. The balance 10% of the construction works are 2/13
expected to be completed by February, 2024.
4.
This respondent further states that once the construction works are completed, by March, 2024 the respondents herein will go for a public advertisement, for a public auction regarding allotment of shops at the newly constructed Shopping Complex, Andhiyur. Thereafter public auction will take place. Only then, successful bidders will be allotted shops in the new complex.
5.
This respondent states that it was informed to the petitioner vide this office letter No.68/2023 dated 18.08.2023 and subsequently on 02.11.2023 that only after completion of complex works, his petition will be considered based on the rules and regulations, and Panchayat Resolution. However, the petitioner has rushed before this Hon'ble Court praying for allotment of a Beef Stall to the petitioner in the newly constructed Shopping Complex, Andhiyur. As the construction of shopping complex works is under process and not yet fully completed, after fully completion of Shopping complex works 3/13
his petition will be considered based on the Rules & Regulations and Town Panchayat's resolutions. 6.
This respondent submits that the averments raised by the petitioner in his affidavit that shops are being assigned to various Shop owners like Chicken, Mutton Pork, etc., however, the 2nd Respondent is not willing to allot any shops for Beef Sellers despite long pending demand, reflects only the figment of imagination of the petitioner.
7.
This respondent states that there is no policy decision taken by the respondents herein, like not to allot beef stalls in the newly constructed shopping complex. If the petitioner is one among the successful bidder, shops will certainly be allotted to him as well.
8.
This respondent further states that utmost transparency and due process of law, will be followed while allotting shops in the newly constructed shopping complex at Andhiyur Taluk, Erode District."
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At this juncture, it requires to be noticed that disposal of public property by the State or its instrumentalities partakes the character of a trust and the methods to be adopted for its disposal must be fair and transparent providing an opportunity to all the interested persons to participate in the process and the law in that regard has been lucidly explicated by the Hon'ble Supreme Court of India in Kasturi Lal Lakshmi Reddy -vs- State of Jammu & Kashmir [(1980) 4 SCC 1] in the following words:- "10. There is increasing expansion of the magnitude and range of Governmental functions, as we move closer to the Welfare State, and the result is that more and more of our wealth consists of these new forms of property.
Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. The law has however not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection.
checking Government discretion in the matter of grant of such largess. The discretion of the government has been held to be not unlimited in that the Government cannot give largess in its arbitrary discretion or as its sweet will or on such terms as it chooses in its absolute discretion. There are two limitations imposed by law which structure and control the discretion of the Government in this behalf. The first is in regard to the terms on which largess may be granted and the other in regard to the persons who may be recipients of such largess.
11. So far as the first limitation is concerned, it flows directly from the thesis that, unlike a private individual, the State cannot act as it pleases in the matter of giving largess. Though ordinarily a private individual would be guided by economic considerations of self-gain in any action taken by him, it is always open to him under the law to act contrary to his self-interest or to oblige another in entering into a contractor dealing with his property. But the Government is not free lo act as it likes in granting largess such as awarding a contract or selling or leasing out its property. Whatever be its activity, the Government is still the Government and is, subject to restraints 6/13
inherent in its position in a democratic society. The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in and unprincipled manner; it has to be exercised for the public good. Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touch-stone of reasonableness and public interest and if it fails to satisfy either best, it would be unconstitutional and invalid.
14. .... It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration 7/13
less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. ....
15. The second limitation on the discretion of the Government in grant of largess is in regard to the persons to whom such largess may be granted. It is now well settled as a result of the decision of this Court in Ramana Dayaram Shetty -vsInternational Airport Authority of India [(1979) 3 SCC 489] that the Government is not free like an ordinary individual, in selecting the recipients for its largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The law is now well established that the Government need not deal with anyone but if it does so, it must do so fairly without discrimination and without unfair procedure. Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with some standard or norm which is not arbitrary, irrational 8/13
or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Article 14. ...." The Constitution Bench of the Hon'ble Supreme Court of India in Natural Resources Allocation, In Re, Special Reference [(2012) 10 SCC 1] has reiterated the said view, which continues to hold the field. 4.
It would be evident from the foregoing discussion that the Petitioner neither has any enforceable right to claim any allotment of the public property from the Second Respondent, nor the Second Respondent has any legal obligation to take a decision on granting the same to the Petitioner. Reference may in this backdrop be made to the ruling of the Hon'ble Supreme Court of India in Director of Settlements, A.P. -vs- M.R. Apparao [(2002) 4 SCC 638], wherein it has been expounded as follows:- "17. ....One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, 9/13
which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.
A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh -vs- State of U.P. (AIR 1962 SC 1183) ).
enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law...."
As such, there is absolutely no justification for issuing any direction to dispose the futile representations in which the relief claimed by the Petitioner cannot at all be considered by the concerned authorities. 5.
Though obvious, it is clarified that refusal by the Court to entertain this Writ Petition shall not be construed as precluding the Petitioner, if he is otherwise eligible and not disqualified, to participate in any tender or public auction whenever conducted for lease of that public property following the prescribed procedure.
In the result, the Writ Petition is dismissed with the aforesaid observations. No costs.
21.12.2023 Index: Yes/No NCC: Yes/No Note: Issue order copy by 14.02.2024.
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To
1. The District Collector, Erode District.
2. The Executive Officer, Town Panchayat, Andhiyur Area, Erode District.
12/13
P.D. AUDIKESAVALU, J.
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