Madras High Court
The Madurai City Municipal Corporation vs Boominathan And Anr. on 31 October, 1996
Equivalent citations: 1996(2)CTC727
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. The Madurai City Municipal Corporation aggrieved by the Order passed in LA.No. 82 of 1993 in O.S. No. 149 of 1992 on the file of Sub-Court, Madurai, dated 8.2.1993 has approached this Court by way of the present revision in C.R.P.No. 691 of 1993 under Article 227 of the Constitution of India. Likewise, against the order in I.A.No. 55 of 1993 in O.S. No. 182 of 1993, on the file of the I Additional Sub-Judge, Madurai dated 10.2.1993 C.R.P.No. 692 of 1993 has been filed under Article 227 of the Constitution of India. Since identical orders have been passed both the revisions can be disposed of by a common judgment.
2. Even at the outset, in view of the fact that the interim injunction granted by the courts below had already expired (granted up to 1.3.1993 and 8.3.1993 respectively), Mr. V. Raghavachari, learned counsel for the respondents submits that nothing survives in the present revisions for adjudication. The abovesaid statement has not been disputed by Mr. E. Padmanaban, learned Senior Counsel appearing for the petitioner. However, in view of the fact that the petitioner-defendant is a Municipal Corporation, is facing is same problem year after year, he wants this Court to go into the merits and legal aspects and render a categorical pronouncement. Though I am in entire agreement with the statement of the learned counsel for the respondents, in the interest of civic body, I want to discuss some of the features of the case in the following manner.
3. The subject matter in C.R.P.No. 691 of 1993 is to auction the right to collect fees for the market in K.Pudur, Madurai South. The details furnished by the learned Senior Counsel for the petitioner are hereby extracted in order to understand the case of the parties. In the year 1990-91, the respondent was the successful bidder for the purpose of collecting the fees from the vendors in the road margin, Madurai Alagarkoil Road, near K.Pudur. In October, 1990 due to traffic congestion the road margin was shifted to the southern side of the Divisional Office of Madurai Corporation on Alagarkoil Road. Later it was converted to market, and brought for public auction on 30.1.1991 for the year 1991-92. The respondent herein filed the suit O.S.No. 125 of 1991 on the file of the District Munsif, Madurai and obtained interim order. The petitioner permitted the respondent to collect fees for the period till 31.3.1992. For 1992-93 permission to collect fee was notified for public auction. The respondent filed O.S.No. 149 of 1992 on the file of the Principal Sub-Court, Madurai for declaration and permanent injunction regarding the removal of lease for 1992-93. He filed an application in I.A.No. 117 of 1992 seeking for temporary injunction. The interim order was made absolute on 17.8.1992. The respondent is permitted to collect fees for the year 1992-93, till 31.3.1993. Again on 13.1.1993 the petitioner notified auction for the year 1993-94. Pursuant to auction notification, the respondent filed another application l.A.No. 100 of 1993 on the file of the District Munsif Court, Madurai. On 2.2.1993 along with the suit, the respondent filed an application in I.A.No. 100 of 1993 in O.S. No. 173 of 1993 seeking an order of temporary injunction restraining the petitioner herein from proceeding with the auction. In the said application, the Madurai Corporation has filed counter affidavit, opposing any grant of injunction. On 8.2.1993, the Principal District Munsif dismissed the application for injunction on merits, stating that the respondent cannot have any right after the period for which the licence was granted. Further, the respondent herein filed I.A.No. 82 of 1993 in O.S.No. 149 of 1992 for the same relief suppressing the feet that I.A.No. 100 of 1993 in O.S.No. 173 of 1993 was dismissed, on the file of the Principal District Munsif, Maudrai. The petitioner-Corporation has filed counter-affidavit pointing out the dismissal of the application filed for an injunction by the same petitioner with respect to auction. On 8.2.1993 by the impugned order the learned Subordinate Judge, Madurai having found that the licence period is for one year and the injunction obtained against the Corporation is only with reference to the earlier licence period, directed the petitioner to consider the renewal of licence in favour of the respondent at the enhanced rate of 12% and extended the interim injunction till 1.3.1993. Aggrieved against the said order, the Corporation, the civil body has filed the present revision before this Court.
4. With regard to the other case, namely, C.R.P.No. 692 of 1993, the factual details furnished by the learned Senior Counsel for the petitioner is extracted hereunder:-
The subject matter in C.R.P.No. 692 of 1993 is to auction the right to collect fees from the slaughter house for the year 1993-1994. In the year 1991-92 the respondent was the successful bidder. Since the period expired on 31.3.1992, the respondent filed W.P.No. 2748 of 1992 seeking the renewal of licence for the year 1992 to 1994 at the increased rate of 10%. On 26.2.1992 the writ petition was dismissed on merits. Thereafter, on 28.2.1992 the respondent filed O.S.No. 173 of 1992 on the file of Sub-Court, Madurai. In I.A.No. 130 of 1992 an injunction was granted in favour of the respondent on 14.7.1992 O.S.No. 173 of 1992 was dismissed as withdrawn. There is no order of injunction against the petitioner-corporation from conducting auction will reference to the slaughter house for the year 1993-94. Now for the year 1993 -94 the petitioner notified the said right to collect the fees for the slaughter house in the Gazatte, stating that the auction was to be held on 11.2.1993, Against the said auction, the respondent filed another suit O.S.No. 182 of 1993 on the file of the I Additional Sub-Court, Madurai. Along with the said suit the respondent filed an application in I.A.No. 55 of 1993 for an order of injunction and by offering to pay the increased amount at 10%. On 10.2.1993 the learned Subordinate Judge directed the petitioner-corporation to consider the offer and granted temporary injunction till 8.3.1993. Aggrieved against the said order extending the injunction till 8.3.1993, the Corporation has filed the present revision, i.e. C.R.P.No. 692 of 1993.
5. The above factual position clearly shows that the petitioner somehow managed to stick on to the property of the petitioner with the assistance of various orders of the courts below. According to Mr. E. Padmanaban, learned Senior Counsel for the petitioner, the right to collect fees in the market and the right to collect fees from the slaughter house are only licence and after the expiry of licence period, the respondent has no right to continue the same, and permitting the respondent to continue even after the expiry of the licence period as well as extending the interim order beyond the expiry of licence period with direction to the municipal body to consider the case of the respondent were all illegal, improper and contrary to the agreed terms and conditions.
6. Mr. E. Padmanaban, learned Senior Counsel relying on Madurai City Municipal Corporation Act, 1919 read with the rules framed thereunder submits that the right to collect fees in the market as well as slaughter house is only a licence and the petitioner is entitled to conduct auction every year in order to augment revenue. He also points out that the following three decisions clearly show that the right to collect fees in market and slaughter house is only a licence and not lease.
(1) Pandara Pandian v. The Commissioner, Tirunelveli Municipality, 1990 WLR 105 (Srinivasan,J).
(2) Arumugam, M. v. The Commissioner, Paramakudi Municipality, 1990 WLR 148 (Srinivasan J).
(3) Balakrishnan, V.S. v. Pudukkottai Municipality, rep by the Commissioner, Pudukkottai Dist and Anr., 1994 WLR 430 (Srinivasan, J).
Since the abovesaid legal position is not seriously disputed by the learned counsel for the respondent, I am not extracting the various conclusion reached in the above said cases.
7. The learned Senior Counsel has also commented the order of the court below extending the interim order under the guise of giving benefit as per G.O. Ms.No. 285, Municipal Administration and Water Supply Department, dated 29.4.1985. It is well-settled that the said Government Order does not apply to the cases relating to a licence. There is no dispute that in both the cases what is entrusted to the petitioner was only a right of licence for a limited period, The said G.O. is expressly applicable only to lease of municipal buildings as well as lands, shops, bunks etc., and the same is not applicable to lease or licence a right to collect fees in the market and for slaughter house. In W.P.No. 11204 of 1991 dated 9.8.1991, S. Ramalingam, J, has taken a similar view and held "G.O. Ms. No. 285 dated 29.4.1985 deals with only lease of shops and stalls and that it has no application to the case, where a licence is granted in the matter of collecting fees in the weekly market from the stall holders"
In W.P.No. 2748 of 1992, Kanakaraj, J, by order dated 26.2.1992 has also held thus:-
"The Government Order (G.O.Ms. No. 285 dated, 29.4.1985) only provides renewal for three years from 1985. Thereafter the said Government Order itself directs an auction to be conducted..."
In Pandara Pandian v. The Commissioner, Tirunelveli Municipality, 1990 W.L.R. 105, this Court has laid down that if a person bids at an auction, he is bound by the conditions of the auction. In other words, if a person becomes a successful bidder for a particular licence-year, he cannot claim that he should be allowed to continue even after the end of the said licence-year. The auction notice was published on 8.2.1992 and the auction is to take place on 3.3.1992. Therefore, the petitioner is not justified in seeking the relief in this Court at the last moment...
8. In Sekaran, T. v. The Managing Director, Thiruvalluvar Transport Corporation, Madras, 1994 (1) LW 463 (D.B.) the Division Bench of this Court after referring to various decisions of the Supreme Court and with reference to Section 105 of Transfer of Property Act as well as Section 52 of Easements Act has held that document giving right only to use the property in a particular manner (in that case to run a restaurant) would amount to a licence and not a lease. They also further held that a licensee (plaintiff in the said suit) seeking injunction against the owner of the property so that he may continue his possession until the disposal of the suit would not be entitled to relief. In Arulmighu Ammachi Ayyanar Mandu Koil v. Alagu Karuppannan Ambalam, 1995 (II) M.L.J. 209 (Srinivasan, J.), with regard to continuance even after the expiry of lease-licence, it has been observed thus:-
"The courts below have committed a fundamental error in taking the view that the respondents are entitled to continue in possession even after the expiry of the periods for which leases had been given to them. As it is a property belonging to the temple, the leases are expressly limited for a period of one year and it was only subject to that condition the respondents took part in the auction. Having taken part in the auction continuously for three years viz., 1988, 1989 and 1990, if the respondents did not choose to participate in the auction in 1991 and allow somebody else to become the highest bidder, it is not open to the respondents to contend that they arc entitled to be in possession and that they have not surrendered possession actually and on that basis pray for injunction. In fact, the successful auction bidders in the year 1991 have not been impleaded as parties to the suit When admittedly the petitioner is the owner of the property, the respondents cannot get an order of injunction unless they prove their right to be in possession. If it is not a lawful possession, they arc not entitled to get injunction as against the true owner. In this case, as per the terms of the auction, the respondents were bound to give up possession and they had been doing it in the previous faslis. The courts below ought to have drawn necessary inference therefrom that every successful auction bidder is bound and used to surrender possession after the harvest as contended by the petitioner. In such circumstances, the respondents are not entitled to have the relief of injunction, which is an equitable remedy particularly when they have no right to be in possession. Hence, the orders of the courts below granting injunction in favour of the respondents are unsustainable"
9. Collection of fee for use of platform will amount to licence as per the decision rendered in C.R.P. No. 692 of 1993. Likewise, for the use of 'Kalai Arangam' (Auditorium) fee payable by the user would amount to only a licence as per the decision rendered in Writ Appeal Nos. 261, 304 and 321 of 1996, dated 5.3.1996.
10. On the facts narrated above and in view of the principles laid down in the abovesaid cases, there is no doubt that what was entrusted to the respondents is only a right of licence, and after the expiry of the said period, the respondents have no semblance of right to continue the same.
11. What is contended by Mr. Raghavachari, learned counsel for the respondents in both the cases is the interim order granted by the court below was only for a limited period and if the petitioner-Corporation had any grievance it could have filed appeal provided under the Civil Procedure Code and not before this Court invoking Article 227 of the Constitution of India. He has very much relied on the recent decision of The Hon'ble The Chief Justice reported in Rt. Rev. R.(K.A. Swami, CJ). No doubt it is true that various methods to be adopted against the grant of interim injunction is mentioned in the abovesaid judgment. However, in this case, the petitioner has already filed counter affidavit opposing the injunction application and, as a matter of fact, the court below was aware of the expiry of the licence period, and after knowing the said period, it had extended the interim order there by prevented the municipal body to conduct auction. That is being impugned and seriously contested by the petitioner. The learned counsel for the respondents relied on Modh. Yunus v. Mohd. Mustaqim, (A.P. Sen,J.) and submitted that the power under Article 227 of the Constitution of India is very limited and if there is an alternative remedy, it is not possible for this Court even to correct the error of law. Absolutely there is no difficulty in accepting the abovesaid proposition. What is contended by the learned Senior Counsel for the petitioner is after contest, i.e., after filing counter affidavit and after holding that the petitioner has no right to continue beyond the licence period the court below committed an error in extending the injunction for some more time with a direction to the municipal body to consider the case of the respondent. The said contention is well-founded. On the facts and circumstances of the case by extending injunction ord T. Baskaran, Bishot of Vellore v. V. Aruldoss, ers beyond the period of licence more particularly at the crucial time of auction, the Civil Body could not conduct the auction in time which results in reduction of revenue.
12. Even though in view of the efflux of time both the revisions become infructuous, the following findings emerge from the discussion:-
(1) What was granted to the respondent in both the cases is only a licence;
(2) After expiry of the licence period, the respondent in both the case have no right to continue;
(3) G.O.Ms.No.285 Municipal Administration and Water Supply Department, dated 29.4.1985 is not applicable to licence to a right to collect fees in market and slaughter house;
(4) The court below has no power to extend even one day after the expiry of licence period under the guise of the above referred CO.;
(5) The Court below has no jurisdiction to extend injunction after expiry of the licence period while directing the municipal body to consider the case of the respondent.
13. I hope that the above mentioned principles would be taken note of by the court below in all appropriate cases not only relating to the petitioner herein but also in other similar cases. In view of the fact that the period has already come to an end, there is no need to set aside the orders of the Courts below. Both the civil revision petitions are closed with the above observation. However, there will be no order as to costs. Consequently, C.M.P.Nos. 3598 and 3599 of 1993 are also dismissed.