K.Baskaran v. The District Collector
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL and W.M.P.(MD)No.21704 of 2023 K.Baskaran : Petitioner Vs.
1.The District Collector, Collectorate, Dindigul District.
2.The Assistant Director, Town Panchayats Office, District Collector Office Campus, Dindigul.
3.The Executive Officer, Nilakottai Town Panchayat, Nilakottai.
4.Mrs.SubashiniKathiresan, President, Nilakkottai Town Panchayat, Nilakkottai, Dindigul District.
: Respondents 1/17
PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for a Writ of Mandamus, directing the respondents to conduct open public auction with regard to the 69 Town Panchayat Flower Commission Shops situated at Nilakottai Varasanthai Valagam by following due process of law and by taking into account the second respondent proceedings dated 14.07.2023. For Petitioner : Ms.A.Rajini For Respondents 1 to 3 : Mr.P.Thilak Kumar Government Pleader For Respondent No.4 : Mr.A.Murali Kumar
O R D E R
************ [Order of the Court was made by M.SUNDAR, J.] Captioned Writ Petition has been filed in this Court on 13.10.2023 as a 'Public Interest Litigation' [hereinafter 'PIL' for the sake of brevity].
2.Factual matrix in a nut shell according to PIL petitioner is that there are 69 Town Panchayat Flower Commission shops situate in Nilakottai Varasanthai Valagam; that the 69 shops are being periodically auctioned qua lease; that PIL petitioner has sent a representation dated 03.07.2023 requesting conduct of auction; 2/17
that the second respondent [Assistant Director of the Town Panchayat's office] has made proceedings dated 14.07.2023 bearing reference e.f.vz;.1311/2023/ngU:3 [hereinafter 'said proceedings' for the sake of convenience and clarity] pursuant to such representation from the petitioner; that vide said proceedings second respondent has addressed the third respondent and requested conduct of auction in a manner that yields income for the local body; that auction is proposed; that it is the allegation of PIL petitioner that proposed auction lacks transparency; that captioned PIL has been filed with a Mandamus prayer to direct the respondents to conduct open auction qua said proceedings. 3.Today, Ms.A.
Rajini, learned Counsel for PIL petitioner who is before us reiterated the aforementioned facts and submitted that auction has to be conducted in accordance with the Tamil Nadu Panchayats (Procedure for Conducting Public Auction of Leases and Sales in Panchayats) Rules, 2001 which is a piece of Subordinate Legislation made by the Executive Arm in exercise of Rule making power vide Section 242(2)(xix) of the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994).
to as 'Urban Bodies Act and Urban Bodies Rules']. We also notice that Part II of Urban Bodies Rules deals with 'Licensing of Immovable Property of Municipality'. Therefore, the auction shall be governed by urban bodies Act and Urban Bodies Rules. 4.Learned Counsel also pointed out that a similar issue arose earlier and similar petitions were filed in this Bench vide W.P.(MD)No.4419 of 2017 etc., and the same came to be disposed of by a Coordinate Hon'ble Division Bench in and by an order dated 31.08.2017. It is the further submission of learned Counsel that an Advocate Commissioner was appointed and the auction process was monitored by the learned Advocate Commissioner vide this earlier order dated 31.08.2017.
5.Issue notice. Mr.P.Thilak Kumar learned Government Pleader accepted notice for respondents 1 to 3 and Mr.A.Murali Kumar [Enrl. No.830/10], learned Counsel with address of service at No.80,Law Chamber, High Court Buildings, Madurai - 625 023, accepted notice for fourth respondent.
6.Owing to the narrow scope of the captioned matter and considering that the same issue has been dealt with by another Hon'ble Coordinate Division Bench earlier, with the consent of both sides main writ petition was taken up.
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7.Before we proceed further, it is necessary to record the proceedings made by another Hon'ble Coordinate Division Bench in the previous listing on 20.10.2023. A scanned reproduction of the same is as follows:
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8.Adverting to aforementioned proceedings learned Government Pleader reiterated the position that as regards 43 shops ie., Shop Nos.1 to 43, auction has already been held on 28.07.2023 and the proceedings of the third respondent has been placed before us. Learned Government Pleader has also favoured the learned Counsel for petitioner with a copy of the same. In this back drop learned Counsel for PIL petitioner drew our attention to a notification which is as follows:
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9.Learned Counsel submitted that the aforementioned notification is a photocopy of what was pasted in the notice board of the office of third respondent. A careful perusal of the same shows that it is specifically for Shop Nos.44 to 69 and that the date of auction is 05.10.2023. Therefore the following position emerges: 9.1.As regards said shops ie., 69 shops, with regard to shop Nos.1 to 43, auction has already been held on 28.07.2023 and various successful bidders have commenced business and different rents have been fixed for various shops. To be noted, the tabulation placed before us shows that there is an enhancement of rent qua previous period.
9.2.The proceedings of the third respondent placed before us is as follows:
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9.3.To be noted, the above is the proceedings which we had adverted to earlier and a copy of which has been furnished to the learned Counsel for petitioner.
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10.This now leaves us with 26 shops ie., Shop Nos.44 to
69. Learned Government Pleader and learned Counsel for fourth respondent on instructions submit that the matter is now before the local body Council, resolution has to be made and thereafter auction date has to be announced and the auction has to be held. 11.Considering that the grievance of PIL petitioner is the same as in the earlier writ petition and the same is subjected to disputation, contestation by the respondents, to put to rest the controversy we deem it appropriate to say that auction for the remaining 26 shops will be held as per the directions issued in the earlier order dated 31.08.2017 vide W.P.(MD)No.4419 of 2017 etc., and in accordance with Urban Bodies Rules.
12.Paragraph No.18 of the earlier order gives a set of directives and we set out similar directives with requisite adaptations qua current scenario.
13.In the light of the narrative thus far, the following order is made:
i) As regards Shop Nos.1 to 43 successful bidders who have been allotted the respective shops shall pay rent in accordance with aforementioned tabulation;
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ii) The period of lease for the 43 shops ie., Shop Nos.1 to 43 shall be for 3 years and they will not be entitled to automatic renewal. This means that there should be fresh public auction on expiry of the three years period for Shop Nos.1 to 43. Though obvious such auction shall also be in accordance with said Rules; iii) Tender cum auction shall now be conducted for the 26 shops namely Shop Nos.44 to 69. This auction shall be monitored by a learned Advocate Commissioner. We appoint Thiru.C.Prithviraj, Enrl.No.1795/2016 with address of service at Chamber No.74, High Court Building, Madurai Bench of Madras High Court, Madurai as Advocate Commissioner. To be noted, same Advocate Commissioner was appointed as Advocate Commissioner vide earlier order also and both sides submit that the task was accomplished by learned Advocate Commissioner in a manner that was satisfactory to both sides;
iv) The remuneration for the Advocate Commissioner is fixed at Rs.25,000/- [Rupees Twenty Five Thousand] and the same shall be paid by third respondent;
v) The tender-cum-auction shall be conducted by two tier system. The applicants have to submit the bids. Thereafter, after 13/17
opening the bids, there should be an auction among the tenderers taking the highest amount as the upset price. The tender cum auction shall be conducted in a transparent manner by the fourth respondent under the monitoring of the Advocate Commissioner; vi) All the 69 lessees shall carry on flower business alone. There cannot be any transfer or sublease of the said right to carry on business in the said shops. If violation is noticed, the lease / license is liable to be cancelled;
vii) Along with the 26 shops auction shall also be conducted for the parking lot.
14.Before we move on to the public toilet issue and write the concluding paragraph, we deem it appropriate to say that it may be necessary to examine the Urban Bodies Act and Urban Bodies Rules to ascertain if this will be a case of lease or license. It will be open to the official respondents to do the needful in this regard in consultation with the Advocate Commissioner and legal Counsel of the local authority.
15.Learned Government Pleader submits on instructions that a proposal has been sent for construction of paid public toilets. The same will be carried to its logical end as expeditiously as the 14/17
business of the respondents would permit, in any event within eight months ie., on or before 30.06.2024.
16.Captioned Writ Petition disposed of in the aforesaid manner with the aforesaid directives. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. [M.S.,J.] & [R.S.V.,J.] 31.10.2023 Index : Yes/No Internet : Yes/No MR 15/17
To 1.The District Collector, Collectorate, Dindigul District.
2.The Assistant Director, Town Panchayats Office, District Collector Office Campus, Dindigul.
3.The Executive Officer, Nilakottai Town Panchayat, Nilakottai.
4.The President, Nilakkottai Town Panchayat, Nilakkottai, Dindigul District.
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M.SUNDAR, J.
and R.SAKTHIVEL, J.
MR ORDER MADE IN 31.10.2023 17/17