Madras High Court
C.Raja vs The Commissioner on 30 June, 2008
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/06/2008 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition (MD)No.5443 of 2008 C.Raja ... Petitioner Vs. 1.The Commissioner, Hindu Religious and Charitable Endowment Board, Chennai - 600 034. 2.The Joint Commissioner, Hindu Religious and Charitable Endowment Board, Madurai - 625 001 3.The Deputy Commissioner of HR & CE, Executive Officer of Thirupparangundram Temple, Thirupparangundram, Madurai District. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus, to direct the 3rd respondent to conduct the tender for the vehicle stand in property in Survey No.14/1, Villapuram, Madurai District for the year 2008. !For Petitioner ...Mr.D.Muruganantham ^For Respondents 1&2 ...Mr.K.M.Vijayakumar, Additional Government Pleader. For 3rd Respondent ...Mr.S.Manohar :ORDER
The writ petitioner was a highest bidder in respect of having a vehicle stand in the property belonging to the third respondent temple in S.No.14/1, Villapuram, Madurai District for the year 2007-2008. It is not in dispute that in the tender which was held on 03.05.2007 in respect of 20 items including the vehicle stand, the petitioner was given contract which expires on 30.06.2008. As submitted by the learned counsel appearing for the third respondent, the said tender itself was given with many conditions which includes condition 19 which makes it clear that the right to conduct the vehicle stand is for the period from 01.07.2007 to 30.06.2008 and after expiry of that on 01.07.2008 the entire right in respect of the right to conduct the vehicle stand shall vest with the temple since the property belongs to the temple and it is also stated that under no circumstances any extension of period shall be granted to the licensee. It is accepting the said condition, the petitioner has become the licensee under the third respondent and conducted the business for the said period upto 30.06.2008.
2.The grievance of the petitioner is that for the year 2008-2009, the third respondent has issued tender notification in respect of all other items on 07.05.2008 except regarding the vehicle stand situated in S.No.14/1, Villapuram, Madurai District. According to him, the conduct of the third respondent in leaving out the said portion of the tender alone is arbitrary in the sense that as a person who has been already running the vehicle stand as a licensee under the third respondent he has the right of participation in the tender for the next year namely 2008-2009.
3.Learned counsel appearing for the third respondent on instructions would submit that it is true that the third respondent has issued tender notice in respect of all other items except running the vehicle stand in S.No.14/1, Villapuram, Madurai District. The case of the third respondent is that the said property was originally agricultural field and there were large number of encroachments and it was in those circumstances, the encroachments were removed and after removal of encroachments for the year 2007-2008, it was decided for the purpose of running a vehicle stand only so as to augment income to the third respondent temple. However, it is based on that policy of the third respondent temple, the tender was called for in respect of it in S.No.14/1, Villapuram, Madurai District and petitioner was also the highest bidder in the tender for the year 2007-2008 and after paying necessary charges he was permitted to run it upto 30.06.2008. But as per the terms and conditions of the said contract, the petitioner is bound to return the property on 30.06.2008 and he is not entitled for continuation of lease beyond the said period. It is also further stated that for the subsequent period namely 2008-2009, the third respondent has taken a policy decision that not to have a vehicle stand in S.No.14/1, Villapuram, Madurai District and therefore, the petitioner's right to continue to be in possession comes to an end.
4.Learned counsel appearing for the third respondent would also submit that the writ petition is not maintainable inasmuch as the Writ of Mandamus cannot be issued against the Governmental agency which has no statutory obligation to perform something. In the present case, in fact, the petitioner seeks a direction to be given to the third respondent to issue tender notice in respect of a property which the third respondent has decided not to issue tender. Therefore, there is no legal obligation on the part of the third respondent to issue the tender for vehicle stand in the land in S.No.14/1, Villapuram, Madurai District.
5.He would rely upon a judgment of the Supreme Court in Union of India and another Vs. S.B.Vohra and others reported in 2004 (1) CTC 217 and the decision of the First Bench of this Court in L.Boomiraja Vs. The District Collector, Dindigul District reported in 2005(3) L.W.91.
6.On the other hand, it is the contention of the learned counsel appearing for the petitioner that inasmuch as for the removal of the encroachments, the petitioner has spent huge amount for enabling the property to conduct the vehicle stand and therefore, the temple is bound to give concession to the petitioner.
7.I have heard the rival submissions on either side and perused the records.
8.On the face of it relief claimed by the petitioner in this writ petition cannot be granted. Law is well settled that Article 226 of the Constitution of India can be invoked for the purpose of issuance of a Writ of Mandamus only against the authorities as defined under Article 12 of the Constitution of India. Therefore, when there is a statutory or legal obligation on the part of the authority and that obligation was sought to be enforced, then only the question of issuance of a Writ of Mandamus will arise. In the present case, it is no doubt true that the third respondent is 'State' within the meaning of Article 12 of the Constitution of India but there is no legal obligation on the part of the third respondent. It is also seen that the leased out property belonging to the temple. The decision to lease out to run the vehicle stand is for the third respondent to decide and this Court cannot direct them by issuing a Writ of Mandamus. Since these are all policy decision of the third respondent, this Court has no jurisdiction to interfere with the same under Article 226 of the Constitution of India.
9.In Union of India and another Vs. S.B.Vohra and others reported in 2004 (1) CTC 217, the three Judges Bench of the Apex Court has held that the Writ of Mandamus can be issued in favour of a person who establishes a legal right in himself and against a person who has a legal duty to perform but has failed and/or neglected to do so. The relevant passages of the judgment of the Apex Court are as follows:
"12.Mandamus literally means a command. The essence of Mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.
13.A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is a most extensive remedial nature. The object of mandamus is of to prevent disorder from a failure of justice and is required to be granted in all cases where law has established to specific remedy and whether justice despite demandud has not been Granted."
10.The Supreme Court has in fact referred to various judgments rendered by it earlier to come to the conclusion to decide about the scope of the Writ of Mandamus under Article 226 of the Constitution of India. In a recent judgment of the First Bench of the Principal Seat of this Court presided over by Markandey Katju, C.J., (as he then was) in L.Boomiraja Vs. The District Collector, Dindigul District reported in 2005(3) L.W.91, it was held that when a statute makes it clear that extension of lease is not permissible as it is seen under the Tamil Nadu Minor Mineral Concession Rules (1959), Rule 8(ii), it is mandatory and peremptory in nature and no direction can be issued by the High Court under Article 226 of the Constitution of India, directing the authorities to act against the statutory provisions. The First Bench of this Court has also held that it is well settled that the principle of equity can supplement to but cannot supplant the statutory provisions and it is not safe to bend the arms of law only for adjusting equity and the humanitarian consideration cannot be for the purpose of supplanting the statutory provisions. The relevant passages of the above judgment of this Court are as follows:
"24.Hence while dealing with statutory provisions, the Courts should not be guided by 'humanitarian consideration' and emotional appeal, for the reason that if Courts proceed on these basics, it would amount to altering or amending the statutory provisions or requirements of law. Instead, the Court should be guided by the maxim "dura les sed lex", which means "the law is hard, but it is the law".
25.Thus equity considerations are not applicable in a case of clear statutory provisions nor are the Courts empowered to pass an order contrary to law on the basis of 'humanitarian considerations'. It is only when there is a gap in the law or there is ambiguity in it, that equity can be applied." 24 &
25.
11.In view of the said legal position, the writ petition as such is not maintainable. The writ petition fails and the same is dismissed. However, it is made clear that in the event of the third respondent taking a decision to bring the property comprised in S.No.14/1, Villapuram, Madurai District for the purpose of leasing out to run the vehicle stand, it is always open to the petitioner to participate in such tender and this order would not prevent the petitioner to participate in such tender.
12.Learned counsel appearing for the petitioner would submit that since the petitioner is running the vehicle stand by installing certain structures, he may be given time to remove the same. Accordingly, the petitioner is granted two weeks time to remove such structures and give delivery of the property without any encumbrance to the third respondent, failing which it is always open to the third respondent to take possession. No costs. Consequently, M.P.(MD)No.1 of 2008 is closed.
sms To
1.The Commissioner, Hindu Religious and Charitable Endowment Board, Chennai - 600 034.
2.The Joint Commissioner, Hindu Religious and Charitable Endowment Board, Madurai - 625 001
3.The Deputy Commissioner of HR & CE, Executive Officer of Thirupparangundram Temple, Thirupparangundram, Madurai District.