Madras High CourtWA(MD)/493/2021dismissed

The Nagercoil Municipal Corporation, v. V.Manokaran,

2022-03-22Honourable Mr Justice Paresh Upadhyay,Honourable Mr Justice Krishnan Ramasamy6 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.03.2022

CORAM:

THE HONOURABLE MR.JUSTICE PARESH UPADHYAY and THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY W.A(MD)Nos.493 to 496 of 2021 and C.M.P.(MD)Nos.2102 to 2105 of 2021 and C.M.P.(MD)Nos.4700 and 4701 of 2021 The Nagercoil Municipal Corporation, 166, Balamore Road, Nagercoil - 629001, Kanyakumari District, Rep. by its Municipal Commissioner. ... Appellant in all Writ Appeals.

Vs.

1.V.Manokaran ... 1st Respondent in 2.T.Babu ... 1st Respondent in W.A.(MD)No.494 of 2021 3.D.Dhanasekar ... 1st Respondent in W.A.(MD)No.495 of 2021 4.Menaka Devi ... 1st Respondent in W.A.(MD)No.496 of 2021 5.The Government of Tamilnadu, Rep. by its Secretary to Government, Municipal Administration and Water Supply Department, St.Fort George, Chennai - 600 009.

6.The Commissioner of Municipal Administration, No.78, Urban Administrative Building, Santhome High Road, MRC Nagar, Raja Annamalaipuram, Chennai - 600 028.

7.The District Collector, Kanyakumari @ Nagercoil, Nagercoil, Kanyakumari District - 629 001.

... Respondents 2 to 4 in all Writ Appeals 1/6

COMMON PRAYER: Writ Appeals are filed under Clause 15 of the Letters Patent against the orders dated 01.02.2021 passed in W.P(MD) Nos.19630, 19634, 19868 and 19872 of 2020 by the learned Single Judge.

Prayer in WP(MD). 19868/ 2020 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus or any other writ, order or direction in the nature of writ calling for the records of the impugned notice of the 4th respondent dated 07.12.2020 made in Na.Ka.No.7841/2017/A13 and quash the same and consequently forbear the respondents from demanding license fee from the petitioner for the period from 24.03.2020 to 06.09.2020 and to reduce revise and re-fix the license fee in a manner proportionate with the opening time permitted for the period from 07.09.2020 onwards for Municipal Old shop.No.8, Anna Bus Stand, Nagercoil in view of Covid -19 Pandemic Government Total Lockdown Regulations as per petitioner representation dated 12.12.2020 and pass such further or other orders as this Hon`ble Court may deem fit and proper in the facts and circumstances of the and thus render justice.

Prayer in WP(MD). 19872/ 2020 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus or any other writ, order or direction in the nature of writ calling for the records of the impugned notice of the 4th respondent dated 07.12.2020 made in Na.Ka.No.7841/2017/A13 and quash the same and consequently forbear the respondents from demanding license fee from the petitioner for the period from 24.03.2020 to 06.09.2020 and to reduce revise and re-fix the license fee in a manner proportionate with the opening time permitted for the period from 07.09.2020 onwards for Municipal Old shop.No.5, Anna Bus Stand, Nagercoil in view of Covid -19 Pandemic Government Total Lockdown Regulations as per petitioner representation dated 12.12.2020 and pass such further or other orders as this Hon`ble Court may deem fit and proper in the facts and circumstances of the and thus render justice.

Prayer in WP(MD). 19630/ 2020 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court Pleased to issue a writ of Certiorarified Mandamus or any other writ order or direction in the nature of writ calling for the records of the impugned notice of the 4th Respondent dated 07.12.2020 made in Na.Ka.No.7841/2017/A13 and quash the same and consequently forbear the respondents from demanding licence fee from the Petitioner for the period from 24.3.2020 to 06.09.2020 and to reduce revise and re-fix the license fee in a manner proportionate with the opning time permitted for the period from 07.09.2020 onwards for municipal New Shop No.9 Anna Bus 2/6

Stand Nagercoil in view of COVID-19 Pandemic Government Total Lockdown regulations as per petitioner representation dated 12.12.2020 and pass such further or other orders as this Hon`ble Court may deem fit and proper in the facts and circumstances of the and thus render justice.

Prayer in WP(MD). 19634/ 2020 :

For Appellant : Mr.P.Athimoolapandian, Advocate in all WAs.

For Respondent No.1 : Mr.N.Dilipkumar, Advocate in all WAs.

For Respondents 2 to 4 : Mr.K.Balasubramani, in all WAs.

Special Government Pleader.

C O M M O N J U D G M E N T [Delivered by PARESH UPADHYAY, J.] Challenge in these appeals is made to the common order dated 01.02.2021 recorded on W.P. (MD)Nos.19630, 19634, 19868 and 19872 of 2020. These appeals are by the respondent Municipal Corporation. By the impugned order, learned Single Judge has granted relief to the writ petitioners of not paying any licence fee to the Municipal Corporation (for the shops they are occupying), for the lock-down period (March to September, 2020).

2.Learned advocate for the appellant has submitted that the relief granted by learned Single Judge of waiving the licence fee for the entire lock-down period i.e., for the period from 24.03.2020 to 06.09.2020 is inconsistent with the policy of the State and no relief could have been granted to the petitioners. It is submitted that, when the shops in question were leased, the tender condition 3/6

also stipulated that in the event of default of payment of rent / license fee, no concession will be granted under any of the circumstances including pandemic. Learned advocate for the appellant - Municipal Corporation has further submitted that, in view of the Government Order dated 02.09.2020 waiving the lease / rent for only two months i.e., for April and May, 2020, it is not open to the Corporation to give any further concession. It is submitted that these appeals be entertained.

3.Learned Special Government Pleader for the State Authorities submitted that the action of the Municipal Corporation, on the basis of the Government Order cannot be said to illegal and therefore no interference should have been made by the Writ Court. It is further submitted that, since the proposal by the Commissioner of Municipal Administration dated 18.06.2020 was for two months, consequential Government Order was passed and beyond that no Government Order is passed by the State and therefore the writ petitioners were not entitled to any relief. It is further submitted that it is the policy of the State and therefore in such policy decisions, discretion under Article 226 of the Constitution of India should not be exercised.

4.On the other hand, learned advocate for the original writ petitioners has submitted that the entire affair of the Country was standstill in view of the total lock-down announced by the Government and the petitioners could not have gone to attend their livelihood much less to pay to the Government and therefore the discretion exercised by learned Single Judge is just and proper and no interference be made by this court. Attention of the Court is also invited to G.O.(D)No.298, dated 02.09.2020, which was stated to have been issued on the basis of the recommendation of the Commissioner of Municipal Administration dated 18.06.2020. It is submitted that these appeals be dismissed.

5.The point at issue before this Court in these appeals is, whether the relief granted by learned Single Judge to the writ petitioners of waiver of license fee for the period of lock-down (from 24.03.2020 to 06.09.2020 - in this case upto 31.08.2020) can be said to be erroneous in any manner, which may call for any interference in these intra-court appeals.

6.Having heard learned advocates for the respective parties and having considered the material on record this Court finds as under:- 6.1 The difficulties faced by the nation (during March to September, 2020) was like once in century. The extraordinary circumstances can not be met with by ordinary measures. The State in its wisdom thought it proper not to permit any citizen even to walk on the road during the said period. No one would go out to earn money, no one would go out to spent money.

4/6

6.2 Considering this, Government passed order on 02.09.2020 accepting the proposal of the Commissioner of Municipal Administration dated 18.06.2020, which was for waiver of the license fee for the months of April and May 2020. We do not find any fault in the proposal of the Commissioner which was made in the month of June, 2020 because that would not have taken into consideration the eventualities of the months coming thereafter. If the said proposal was based on the lock-down for the months of April and May, 2020, we do not see any change of circumstances for remaining period of the lock-down upto September, 2020. Only because no proposal was made by the Commissioner of Municipal Administration in that regard or the Government not passing any consequential order can not be a guiding factor to meet with such circumstances. 6.

3 We find that, these are circumstances in which the State on its own should have taken care of the citizen. Having failed to do so, when this Court in exercise of powers under Article 226 of the Constitution of India has granted that relief, the same can not be said to be erroneous in any manner. Not only we do not find any error therein, we confirm the said view. For these reasons, these appeals need to be dismissed.

7.For the above reasons, these appeals are dismissed. No costs.

Consequently, connected Miscellaneous Petitions are dismissed.

Sd/- Assistant Registrar // True Copy // / /2022 Sub Assistant Registrar(CS) To 1.The Secretary, Municipal Administration and Water Supply Department, Government of Tamil Nadu, St. Fort George, Chennai - 600 009.

2.The Commissioner of Municipal Administration, No.78, Urban Administrative Building, Santhome High Road, MRC Nagar, Raja Annamalaipuram, Chennai - 600 028.

5/6

3.The District Collector, Kanyakumari @ Nagercoil, Nagercoil, Kanyakumari District - 629 001.

+2 CC to M/s.SPL GP ( SR-13880,13868[F] dated 23/03/2022 ) +2 CC to M/s.P.ATHIMOOLAPANDIAN, Advocate ( SR-14116, 14119[F] dated 24/03/2022 ) +1 CC to M/s.R.GOWRI SHANKAR, Advocate ( SR-13975[F] dated 23/03/2022 ) W.A(MD)Nos.493 to 496 of 2021 Date:22.03.2022 SA(31.03.2022) 6P 9C 6/6