Pottammal v. Thanjavur Municipal Corporation

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 16.12.2021 PRONOUNCED ON : 11.01.2022

CORAM

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN W.P.(MD)Nos.15157 to 15160 and 18599 to 18602 of 2021 and W.M.P.(MD)Nos.12102, 12106, 12108, 12111, 15334, 15340, 15337, 15338, 17204, 17208, 17209, 17210, 17211, 17204, 17207, 17206 and 17205 of 2021 1.Pottammal ... Petitioner in WP(MD).15157 of 2021 2.I.Gnanakumari ... Petitioner in WP(MD).15158 of 2021

3. Mani ... Petitioner in WP(MD).15159 of 2021

4. Banumathy ... Petitioner in WP(MD).15160 of 2021

5. Pottammal ... Petitioner in WP(MD).18599 of 2021

6. Banumathy ... Petitioner in WP(MD).18600 of 2021

7. Mani ... Petitioner in WP(MD).18601 of 2021

8. I. Gnanakumari. ... Petitioner in WP(MD).18602 of 2021 vs.

Thanjavur Muncipal Corporation, through its Commissioner, Thanjavur.

... Respondent Prayer in WP(MD). 15157 to 15160 of 2021 : Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari,to call for the records relatin gto the tender notification, dated 27.07.2021 in Na.Ka.No.7485/2015.M.C.A.5 of the respondent Corporation published in Dailly Thanthi Newspaper on 17.08.2021 for auctioning the Shop No.1, situated at Saraboji College Road, nearby New Bus Stand, Thanjavur, which is in possession of the petitioner herein and quash the same as illegal. Prayer in WP(MD). 18599 to 18602 of 2021 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a Writ of Certiorari or any other appropriate writ or order or direction in the nature of writ of Certiorari calling for the records relating to the impugned proceedings in Na.Ka.No.7485/2015/MCA5, dated 01/10/2021 , issued by the respondent corporation and quash the same as illegal and pass such further or other orders as this Honble Court may deem fit and proper in the circumstances of the case and thus render justice For Petitioner :Mr.VR.Shanmuganathan (in all WP's ) For Respondent :Mr.N.Dilip Kumar (in all WP's) 1/12

COMMON ORDER W.P(MD)Nos.15157 and 18599 of 2021 have been filed by Pottammal, both in the nature of Certiorari, respectively questioning the tender notification dated 27.07.2021 of the respondent bringing to auction, Shop No.1 at Saraboji College Road, near New Bus Stand Thanjavur, and questioning the proceedings dated 01.10.2021 issued by the respondent cancelling the license of the said shop granted to her late husband S. Sundaram. 2.W.P(MD)Nos.15158 and 18602 of 2021 have been filed by I.Gnanakumari, both in the nature of Certiorari, respectively questioning the tender notification dated 27.07.2021 of the respondent bringing to auction, Shop No. 6 at Saraboji College Road, near New Bus Stand Thanjavur, and questioning the proceedings dated 01.10.2021 issued by the respondent cancelling the license of the said shop.

3.W.P(MD)Nos.15159 and 18601 of 2021 have been filed by Mani, both in the nature of Certiorari, respectively questioning the tender notification dated 27.07.2021 of the respondent bringing to auction, Shop Nos. 4 & 5 at Saraboji College Road, near New Bus Stand Thanjavur, and questioning the proceedings dated 01.10.2021 issued by the respondent cancelling the license of the said shops. 4.W.P(MD)Nos.15160 and 18600 of 2021 have been filed by Banumathy both in the nature of Certiorari, respectively questioning the tender notification dated 27.07.2021 of the respondent bringing to auction, Shop Nos. 2 & 3 at Saraboji College Road, near New Bus Stand Thanjavur, and questioning the proceedings dated 01.10.2021 issued by the respondent cancelling the license of the said shops granted to her late husband Sekar.

4.In the affidavits filed in support of the Writ Petitions challenging the notification issued by the respondent bringing the aforesaid shops for action, it had been uniformly claimed that the shops are the only source of income for the respective petitioners, that they/their late husbands had been granted license in 2001, that they have been in possession continuously, that licenses were renewed periodically and lastly in 2019 for a period of three years and that they have paid the license fees without default. 5.The petitioners further claimed that their right to continue to be licensees cannot be curbed by the respondent and further faulted the notifications alleging violations of statutory provisions.

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6.On 24.08.2021, a learned Single Judge had withheld a definite finding on the fact of renewal of license in 2019, permitted auction of the shops, but restrained declaration of result and protected possession of the petitioners.

7.On 01.10.2021, the respondent issued proceedings cancelling the licenses, alleging sufferance to the respondent owing to unauthorised encroachment of additional area / unauthorized subletting / default in license/rent amount and change of usage. 8.This had propelled the filing of a second set of Writ Petitions by the petitioners.

9.The respondent has also alleged production of forged proceedings granting renewal of license in 2019. They have given a complaint before the District Crime Branch, leading to registration of First Information Reports against the petitioners. 10.Pursuant to permission granted by the learned Single Judge to proceed with the auction, the respondent had so proceeded and claim that if results are confirmed, the shops have potential to augment income by over 900 times. The names of the successful bidders and the highest bid amounts have been disclosed in the counter affidavit.

11.Heard arguments advanced by Mr.V.R.Shanmuganathan, learned Counsel for the petitioners and Mr.N.Dilip Kumar, learned counsel for the respondent.

12.It is the contention of Mr.V.R.Shanmuganathan, learned Counsel for the petitioner that the petitioners have been hard done by the notification to auction the shops in their lawful possession. Learned Counsel stated that the petitioners are ready to pay the rent as determined and demanded by the respondent. The respondent had however issued the notification, and though the Court had granted protection of possession, had proceeded to issue the proceedings impugned in the second set of Writ Petitions. Learned Counsel stated that the petitioners were innocent of forgery, and was insistent in his submission that the renewal of license in 2019 had been granted in accordance with procedure. Learned Counsel also dropped a hint that the respondent must be called in contempt for having issuing the proceedings terminating the license. Learned Counsel stated that the clock should be set back and the petitioners 3/12

must be given an opportunity of presenting their case before the respondent and both notification and the proceedings impugned in the two sets of Writ Petitions should be interfered with by this Court and should be set aside.

13.Mr.N.Dilip Kumar, learned Counsel for the respondent contended otherwise. Learned Counsel pointed out that two of the Writ petitioners, Pottammal and Banumathy have no locus to maintain the petitions. They were not granted license. They had not applied to mutate the license in their names after the death of their respective husbands. Learned Counsel further pointed out the specific allegation of the respondent that the petitioners have encroached additional area unauthorisedly and had also sublet the shops. Specific names were given in the proceedings cancelling the licenses. There was also default in the amounts payable to the respondent.

14.Learned Counsel was emphatic that the alleged renewal proceedings produced by the petitioners were forged documents. Complaints had been lodged with the District Crime Branch, who registered First Information Reports, as cognizable offence had been alleged and prima facie, made out. Criminal prosecution had been set in motion, not only with respect to forgery, but also with respect to unauthorized sub-letting. The petitioners can never feign innocence. Learned Counsel also pointed out the rent now paid by the petitioners, the amount for which they had sub-let the shops and the amount which the respondent would benefit from if the auction were to be confirmed. He stated that the petitioners can never claim any privilege to continue to be in possession, having come to Court with forged documents. He urged the Court to dismiss the Writ Petitions. 15.I have carefully considered the arguments advanced and perused the records.

16.In S.Selvarani vs The Commissioner of Karaikudi Municipality, reported in (2005) 1 CTC 81 : (2005) 1 Mad LJ 394, a Division Bench of this Court, while examining the applicability of The Tamil Nadu Transparency in Tenders Act, 1998 with respect to auction of lease of shops had opined as follows : "...we are of the opinion that The Tamil Nadu Transparency in Tenders Act, 1998, may not be applicable to the facts of the present case, because the word "Procurement" in the aforesaid Act has been defined in Section 2(d) as follows:

" 'Procurement' means acquisition by any means by purchase of goods or services and also of construction." 4/12

We are at a loss to understand as to how the right to collect rent from the road-side vendors can be said to be a 'procurement' as defined in aforesaid Act. The said right is neither purchase of goods nor of services." 17.Thus the petitioners have no right to allege violations of the provisions of the Tamil Nadu Transparency of Tenders Act, 1988 or the Rules since the said Act or the Rules are not applicable to them at all.

18.In Nagar Nigam Meerut v. AL Faheem Meat Exports (P) Ltd., reported in (2006) 13 SCC 382, it had been laid down as follows: "It is now a well-settled principle of law that having regard to the provisions of Article 14 of the Constitution, State within the meaning of Article 12 thereof cannot distribute its largesse at its own sweet will. The court can ensure that the statutory functions are not carried out at the whims and caprices of the officers of the Government/local body in an arbitrary manner...

"All contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in wellknown newspapers having wide circulation, so that all eligible persons will have an opportunity to bid in the auction, and there is total transparency. This is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence...The State or its instrumentalities should not give contracts by private negotiation but by open public auction/tender after wide publicity."

19.In A.Sathar v. District Collector, reported in 1997 SCC OnLine Mad 491 : AIR 1998 Mad 217, it had been held as follows : "4. 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 1-4-1997 to 313-2000 on an enhancement of 15 per cent of the previous rent. The extension granted earlier by the Panchayat, to the appellant would not mean 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 to 5/12

the Panchayat. Therefore, the interest of the Panchayat cannot be jeoparadised 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. It is represented by the learned Government Advocate for the respondents that the public auction was held pursuant to the notification issued earlier. Second respondent/Panchayat was restrained by an order of this Court in C.M.P. No. 4352 of 1997 dated 26-3-1997 from dispossessing the writ petitioner/appellant till 7-4-1997.

6. In view of the dismissal of the Writ Appeal, second respondent Panchayat is at liberty to proceed with the matter in accordance with law."

20.It is thus seen that it is clear that the respondent has a right to auction the shops and the petitioners have no right to question such step. They are only licensees. They cannot claim the right of a statutory tenant.

21.Let me now examine the bonafide of each Writ Petitioner. 22.The petitioner, Pottammal, who had filed W.P.(MD)Nos.15157 and 18599 of 2021, had not disclosed that she was not the licensee, but that her husband was the licensee. She cannot claim any right to be considered for extension of lease. In the notice impugned by her in W.P.(MD)No.18599 of 2021, it had been very clearly stated that the license was granted in the name of Sundaram, that explanation was sought from her regarding encroachment of additional space and extension of shop unauthorisedly, that she had sub-let the shop to one Mani and that there were dues of Rs.2,975/- to the respondent and that she had not replied to the notice. These are serious violations.

23.The petitioner had filed as a document before this Court, a copy of proceedings dated 06.12.2019 granting extension of license period. This document is alleged by the respondent to be forged and fabricated document. The respondent had also lodged a complaint with the District Crime Branch, who had registered F.I.R. in Crime No. 74 of 2021 u/s 465, 468, 471 and 420 I.P.C. against her and others. A prima facie opinion can therefore be drawn that she had come to Court with a document whose genuinity is suspect. 24.The Judgments cited have recognized the right of the 6/12

respondent to bring the shop to auction. Auction has also been conducted. Details of the successful bidder have been given in the counter affidavit. The petitioner cannot claim extension of license as a matter of right. I hold that the petitioner cannot maintain either of the two Writ Petitions in the face of allegations of forgery and fabrication of a document granting extension of lease. 25.The petitioner, Gnanakumari, who had filed W.P.(MD)Nos. 15158 and 18602 of 2021, had not produced the order granting her license to run the shop in question. Her status itself is therefore questionable. In the notice impugned by her in W.P.(MD)No.

18602 of 2021, it had been very clearly stated that explanation was sought from her regarding encroachment of additional space and extension of shop unauthorisedly, that she had sub-let the shop to one Mani and that there were dues of Rs.6,145/- to the respondent and that she is unauthroisedly running a liquor bar. She had not replied to the notice. These are serious violations. She cannot claim protection when she is unauthorisedly running a liquor bar destroying and polluting social fabric. A document had been produced in Court by the respondent, wherein the petitioner had disclaimed knowledge of filing W.P.(MD)No.18602 of 2021. This puts up more questions than answers.

26.The petitioner had filed as a document before this Court, a copy of proceedings dated 06.12.2019 granting extension of license period. This document is alleged by the respondent to be forged and fabricated document. The respondent had also lodged a complaint with the District Crime Branch, who had registered F.I.R. in Crime No. 76 of 2021 u/s 465, 468, 471 and 420 I.P.C. against her and others. A prima facie opinion can therefore be drawn that she had come to Court with a document whose genuinity is suspect. 27.The Judgments cited have recognized the right of the respondent to bring the shop to auction. Auction has also been conducted. Details of the successful bidder have been given in the counter affidavit. The petitioner cannot claim extension of license as a matter of right.

I hold that the petitioner cannot maintain either of the two Writ Petitions in the face of allegations of forgery and fabrication of a document granting extension of lease. 28.The petitioner, Mani, who had filed W.P.(MD)Nos.15159 and 18601 of 2021, has also come to Court on the basis of an alleged forged and fabricated extension of license. He cannot claim any right to be considered for extension of lease. In the notice impugned by him in W.P. No.

had sub-let one of the shops to one Baskar and that there were dues of Rs.2,975/- to the respondent and that he had not replied to the notice. Moreover, document had also been produced before this Court that he had entered into a lease with TASMAC without any authority sub-leasing one of the shops. These are serious violations. 29.The petitioner had filed as a document before this Court, a copy of proceedings dated 06.12.2019 granting extension of license period. This document is alleged by the respondent to be forged and fabricated document. The respondent had also lodged a complaint with the District Crime Branch, who had registered F.I.R. in Crime No.73 of 2021 u/s 465, 468, 471 and 420 I.P.C. against him and others. He had also been taken into custody. A prima facie opinion can therefore be drawn that he had come to Court with a document whose genuinity is suspect.

30.It must also be mentioned that the respondent had also lodged two other complaints against the petitioner alleging subletting of the shops to TASMAC and Baskar. First Information Reports in Crime Nos. 70 and 71 of 2021 have been registered by the District Crime Branch, Thanjavur against the petitioner u/s 406, 418, 420 and 423 IPC.

31.It is also seen that the sub-tenant, Baskar had filed O.S.No.58 of 2016 before the District Munsif Court, Thanjavur against this petitioner and another Kumar seeking protection from interference with possession. The petitioner and the said Kumar remained ex parte. An ex parte judgment and decree had been granted by the learned District Munsif on 14.07.2017. The respondent herein is not a party to the suit. The said ex parte decree is not binding on the respondent. The said suit is a fraud and abuse of process of Court. The said Baskar can claim no right of protection on the basis of such ex parte decree. He has no right to claim protection from the respondent as he is not the licensee, but a sub-lessee from a licensee who had no authority to sub-lease the shop. 32.In T. Arivandandam v. T.V. Satyapal, reported in (1977) 4 SCC 467, it had been held as follows :

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court...The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue,...and, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing..."

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...

"7. ...Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A Judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. ..."

33.The dictum laid down is clear and straightforward. If a suit is vexatious, frivolous and an abuse of process of Court and is a fraud on Court procedure, than it should be "nipped in the bud". I would therefore strike down from the records both the suit in O.S.No.58 of 2016, filed before the District Munsif Court, Thanjavur and the ex parte decree therein, dated 14.07.2017 as an abuse of Court and fraud played on Court. The said Baskar cannot also claim privilege of being heard, since he has played a fraud on Court by instituting a suit without impleading the respondent herein as a defendant in the suit, and it is clearly evident that the suit is a collusive action, wherein the defendants remained absent without filing written statement.

34.The Judgments cited earlier have recognized the right of the respondent to bring the shop to auction. Auction has also been conducted. Details of the successful bidder have been given in the counter affidavit. The petitioner cannot claim extension of license as a matter of right. I hold that the petitioner cannot maintain either of the two Writ Petitions in the face of allegations of forgery and fabrication of a document granting extension of lease. 35.The petitioner, Banumathy, who had filed W.P.(MD)Nos.15160 and 18600 of 2021, had not disclosed that she was not the licensee, but that her husband was the licensee. She cannot claim any right to be considered for extension of lease. In the notice impugned by her in W.P. (MD)No.

18600 of 2021, it had been very clearly stated that the license was granted in the name of Sekar, that explanation was sought from her regarding encroachment of additional space and extension of shop unauthorisedly, that she had sub-let the shop to one Mani and that there were dues of Rs.2,869/- to the respondent and that she had not replied to the notice. These are serious violations.

36.The petitioner had filed as a document before this Court, a copy of proceedings dated 06.12.2019 granting extension of license period. This document is alleged by the respondent to be forged and fabricated document. The respondent had also lodged a complaint with the District Crime Branch, who had registered F.I.R. in Crime No. 75 of 2021 u/s 465, 468, 471 and 420 I.P.C. against her and others. A 9/12

prima facie opinion can therefore be drawn that she had come to Court with a document whose genuinity is suspect. 37.The Judgments cited have recognized the right of the respondent to bring the shop to auction. Auction has also been conducted. Details of the successful bidder have been given in the counter affidavit. The petitioner cannot claim extension of license as a matter of right. I hold that the petitioner cannot maintain either of the two Writ Petitions in the face of allegations of forgery and fabrication of a document granting extension of lease. 38.In S.P. Chengalvaraya Naidu v. Jagannath, reported in (1994) 1 SCC 1, it had been held as follows :

"6. ... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage....A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."

39.The principle would also apply when litigants produce forged or fabricated documents, as alleged by the respondent in these Writ Petitions. I do agree that the issue whether the proceedings granting extension of lease on 06.12.2019 are forged and fabricated has to be decided only during the course of investigation and subsequent trial pursuant to the registration of the First Information Reports, but a prima facie opinion can be drawn that the petitioners cannot, as a matter of right, seek extension of license. 40.It is evident that auction of the shops has been conducted. It had been permitted by the learned Single Judge. A direction is now issued to declare the results and hand over the shops involved in these Writ Petitions to the successful bidders within three days from today.

The impugned proceedings cancelling the licenses had also given three days to the Writ Petitioners to vacate and hand over. During the arguments, no complaint had been made with respect to that time limit. I shall therefore keep to the same time limit. The respondent is also permitted to seek the assistance of the police to take physical possession of the shops under question. 41.The Writ Petitions are an abuse of process of Court.

bona fide of the Writ Petitioners are suspect. The circumstances invite costs to be imposed.

42.In the result i.W.P.(MD)No.15157 of 2021 & W.P.(MD)No.18599 of 2021 filed by Pottammal are both dismissed with costs of Rs.10,000/- (Rupees ten thousands only) each, which would imply that the total costs imposed is Rs.20,000/- (Rupees twenty thousands only). ii.W.P.(MD)No.15158 of 2021 & W.P.(MD)No.18602 of 2021 filed by Gnanakumari are both dismissed with costs of Rs.10,000/- (Rupees ten thousands only) each, which would imply that the total costs imposed is Rs.20,000/- (Rupees twenty thousands only). iii.W.P.(MD)No.15159 of 2021 & W.P.(MD)No.18601 of 2021 filed by Mani are both dismissed with costs of Rs.10,000/- (Rupees ten thousands only) each, which would imply that the total costs imposed is Rs.20,000/- (Rupees twenty thousands only). iv.W.P.(MD)No.15160 of 2021 & W.P.(MD)No.

18600 of 2021 filed by Banumathi are both dismissed with costs of Rs.10,000/- (Rupees ten thousands only) each, which would imply that the total costs imposed is Rs.20,000/- (Rupees twenty thousands only). v.The respondent is directed to take recourse to the Revenue Recovery Act, 1864, to recover statutory dues payable by each of one of the Writ Petitioners and also the costs aforementioned imposed. vi.W.M.P.(MD)No.12102 of 2021 in W.P.(MD) No. 15157 of 2021 and W.M.P.(MD)No.15334 of 2021 in W.P.(MD)No.18599 of 2021 filed by Pottammal seeking Interim Stay of the impugned notification and proceedings respectively in the two Writ Petitions are both dismissed. This would imply that W.M.P.(MD)No.17208 of 2021 in W.P. (MD)No. 15157 of 2021 and W.M.P.(MD)No.17204 of 2021 in W.P.(MD)No. 18599 of 2021 filed by the respondent are both allowed.

vii.W.M.P.(MD)No.12106 of 2021 in W.P.(MD)No.15158 of 2021 and W.M.P.(MD)No.15340 of 2021 in W.P.(MD)No.18602 of 2021 filed by Gnanakumari seeking Interim Stay of the impugned notification and proceedings respectively in the two Writ Petitions are both dismissed. This would imply that W.M.P.(MD)No.17209 of 2021 in W.P. (MD)No. 15158 of 2021 and W.M.P.(MD)No.17207 of 2021 in W.P.(MD)No. 18602 of 2021 filed by the respondent are both allowed. viii.W.M.P.(MD)No.12108 of 2021 in W.P.(MD)No.15159 of 2021 and W.M.P. (MD) No. 15337 of 2021 in W.P. (MD) No. 18601 of 2021 filed by Mani seeking Interim Stay of the impugned notification and proceedings respectively in the two Writ Petitions are both dismissed. This would imply that W.M.P. (MD)No.17210 of 2021 in W.P. (MD)No. 15159 of 2021 and W.M.P.(MD)No.17206 of 2021 in W.P.(MD)No.

18601 of 2021 filed by the respondent are both allowed. ix.W.M.P.(MD)No.12111 of 2021 in W.P.(MD)No.15160 of 2021 and W.M.P.(MD)No.15338 of 2021 in W.P.(MD)No.

Banumathy seeking Interim Stay of the impugned notification and proceedings respectively in the two Writ Petitions are both dismissed. This would imply that W.M.P.(MD)No.17211 of 2021 in W.P. (MD)No. 15160 of 2021 and W.M.P.(MD)No.17205 of 2021 in W.P.(MD)No. 18600 of 2021 filed by the respondent are both allowed. x.O.S.No.58 of 2016 filed before the District Munsif Court, Thanjavur, (N. Baskaran vs R.K. Mani & R.K. Kumar) and the resultant ex parte decree dated 14.07.2017 are struck down from the records as an abuse and fraud on Court. Registry is directed to forward a copy of this Common Order to the District Munsif Court, Thanjavur to make necessary entries in the Suit Register striking down aforementioned O.S. No. 58 of 2016 (N. Baskaran vs R.K. Mani & R.K. Kumar) from the records.

Sd/- Assistant Registrar (CS-II) // True Copy // / /2022 Sub Assistant Registrar(CS) cmr TO:

The District Munsif, Thanjavur.

+1 CC to M/s.N.DILIPKUMAR, Advocate ( SR-1235[F] dated 11/01/2022 ) +8 CC to M/s.V.R.SHANMUGANATHAN, Advocate ( SR-1347,SR-1356,SR1355,SR-1352,SR-1351,SR-1350,SR-1349,SR-1348[F] dated 12/01/2022 ) W.P.(MD)Nos.15157 to 15160 and 18599 to 18602 of 2021 11.01.2022 RD(28.01.2022) 12P 11C 12/12