Madras High Court
K.M.Meeran Mohideen vs The Tirunelveli Municipal Council on 22 September, 2014
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.09.2014 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.(MD) No.15385 of 2014 and M.P.(MD) Nos.1 & 2 of 2014 K.M.Meeran Mohideen ... Petitioner -vs- 1.The Tirunelveli Municipal Council rep.by thru it's Mayor Tirunelveli Municipal Corporation Tirunelveli 2.The Commissioner Tirunelveli Municipal Corporation Tirunelveli 3.The Assistant Commissioner Melapalayam Ward Office Tirunelveli 4.The Deputy Mayor Tirunelveli Municipal Corporation Tirunelveli ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the records of the second respondent, dated 10.09.2014, in his proceedings in Na.Ka.No.A1-415- 2012 and quash the same and consequently direct the first respondent to grant lease for collection of fee in the Cattle Market situated in Nethaji Road, Melapalayam, in the light of Resolution No.228, dated 29.07.2013 in favour of the petitioner. !For Petitioner : Mr.Veerakathiravan for Mr.K.Esakki For Respondents : Mr.Aayiram K.Selvakumar Government Advocate :ORDER
Reserved on : 16.09.2014 Pronounced on : 22.09.2014
Mr.Aayiram K.Selvakumar, learned Government Advocate, accepted notice for the respondents. With the consent of both parties, this writ petition is taken up for final disposal.
2. The petitioner seeks for issuance of a writ of certiorarified mandamus to quash the order, dated 10.09.2014, passed by the second respondent and for a consequential direction upon the first respondent to grant lease for collection of fee in the cattle market, situated at Nethaji Road, Melapalayam, by taking note of the resolution No.228, dated 29.07.2013.
3. This is the third writ petition filed by the petitioner pertaining to the same issue. The first writ petition being W.P.(MD) No.10349 of 2014, wherein the petitioner sought for a direction to consider his representation, dated 18.02.2014, seeking to convert the licence granted to him in respect of the right to collect fee from the daily vegetable market and cattle shandy into a lease transaction. The petitioner relied upon a resolution passed by the respondent Municipal Corporation, dated 29.07.2013, in respect of a slaughterhouse established by the respondent Municipal Corporation, wherein the Municipal Corporation Council took a decision to convert the licence to collect fee into a leasehold right. Taking inspiration from the said resolution, the petitioner sought for similar treatment by converting his licence into a lease. This Court, by Order, dated 26.06.2014, directed the first respondent to consider the petitioner's representation in the light of the resolution, dated 29.07.2013, within a time frame and directed status quo to be maintained in the meantime.
4. The first respondent passed an Order, dated 18.08.2014, rejecting the petitioner's request. This was challenged by the petitioner by filing W.P.(MD) No.13632 of 2014 contending that the Order, dated 14.08.2014, is contrary to the directions issued by this Court in the earlier writ petition. When the said writ petition was heard, the petitioner restricted the relief sought for only in respect of the cattle shandy and giving up his right in respect of the daily vegetable market. This Court, by Order dated 19.08.2014, allowed the writ petition and set aside the order, dated 14.08.2014 and remitted the matter for fresh consideration to the first respondent to comply with the direction issued by this Court in W.P.(MD) No.10349 of 2014, within a time frame. Pursuant to the said direction, the second respondent passed an order, dated 10.09.2014, which is impugned herein.
5. Mr.Veera Kathiravan, learned counsel for the petitioner submitted that in the impugned order it has been stated that the Commissioner has cancelled the resolution, dated 29.07.2013 (in respect of the slaughterhouse) and such order is vitiated on the ground that the Commissioner lacks jurisdiction to pass such an order and it is only the Corporation Council, which has to pass such an order cancelling the resolution or the Government by exercising power under Section 49 of the Coimbatore City Municipal Corporation Act, 1981, (hereinafter, referred to as 'the Act') which has been made applicable to the respondent Municipal Corporation. Further, it is submitted that the satisfaction of the Government is primordial before action is taken under Section 49 of the Act and such power could be exercised only if there is a likelihood of danger to human life, health or safety or likely to lead to riot or affray. Therefore, it is submitted that the impugned proceedings is illegal and without jurisdiction.
6. Further, it is submitted that in terms of Section 23 of the Act, the second respondent is bound to implement the resolution passed by the Council. Therefore, it is submitted that the impugned order calls for interference. In support of his contention, the learned counsel placed reliance on the decision in the case of M.K.Stalin v. The Secretary of Municipal Administration and Water Supply Dept., reported in 2012 (3) CTC 116.
7. Mr.Aayiram K.Selvakumar, learned Government Advocate, submitted that the petitioner has no locus standi to challenge the cancellation of resolution, dated 29.07.2013 and based on that decision taken by the Mayor in-charge the impugned proceedings cannot be challenged. Further, it is submitted that very serious issues have arisen for consideration and decision had to be taken in order to ensure law and order and in such circumstances, the Commissioner has sufficient power to sustain or cancel the resolution by exercising power under Section 49(2) of the Act and this is always subject to ratification of the Council. Therefore, it is submitted that the impugned proceedings are valid in law and there is no error committed by the respondent Municipal Corporation.
8. Heard the learned counsel for the parties and perused the materials placed on record.
9. The petitioner was granted only a licence to collect fee from the daily vegetable market and cattle shandy. The petitioner accepted the terms and conditions of the licence and paid the licence fee and was enjoyed the benefits under the licence. The petitioner accepted the conditions of the licence from 2009 onwards and he had not raised any objections or made any representation at any point of earlier. For the first time, on 18.02.2014, the petitioner sent a representation to the respondents 1 and 2 stating that the licence granted to him should be converted into lease. The prayer sought for by the petitioner was thoroughly misconceived, since no licencee has any vested right to claim that his licence should be converted into lease. The petitioner having accepted the terms of licence was estopped from making any such claim. Furthermore, the licence granted to the petitioner was only to collect fee in the daily vegetable market and cattle shandy. Though initially, the petitioner wanted both the licences to be converted into lease, midway the petitioner gave up his right in respect of the daily vegetable market for reasons best known to him.
10. Be that as it may, the nature of right granted to the petitioner does not satisfy any of the conditions laid down to hold the transaction/arrangement to be a lease transaction. All that was granted to the petitioner was a licence to collect fee from the users of the cattle shandy. Therefore, this Court is at loss to understand as to how the petitioner could have sought for such a relief from the respondent Municipal Corporation to convert a licence to collect fee into a lease. Nevertheless, the petitioner was inspired by a decision taken by the respondent Municipal Corporation to convert a licence to a slaughterhouse into a lease. In any event, the resolution or decision taken by the respondent Corporation could hardly have any bearing on the petitioner's right, which is admittedly a licence. It is for the respondent Municipal Corporation to decide as to which right has to be granted as licence and which has to be granted as lease. Therefore, the petitioner cannot compel the respondent Municipal Corporation to take a decision in his case by relying upon another resolution in respect of the slaughterhouse.
11. As pointed out earlier, this is the third writ petition. The first writ petition was disposed of with a direction to the respondent Municipal Corporation to consider the petitioner's representation in the light of the resolution, dated 29.07.2013. Since this was not properly considered, the second writ petition was filed and the same was allowed by this Court and the impugned order therein was set aside and remitted back the matter to the respondents for fresh consideration. On such remand, the present impugned order has been passed. Two things are clear from the impugned order that firstly, the resolution, dated 29.07.2013 is no longer in force and the same has been suspended/cancelled by the Commissioner. As already pointed out, the petitioner has no locus standi to question the decision of the respondent Municipal Corporation as regards the resolution, dated 29.07.2013. In terms of Section 49(2) of the Act, if in the opinion of the Commissioner immediate action is necessary on any of the grounds referred to in Clause (d) of sub- section 91), he may suspend the resolution order, licence, permission or act, as the case may be, and report to the Government, who may thereupon either rescind the Commissioner's order of after giving the authority or person concerned a reasonable opportunity of explanation, direct that it shall continue in force with or without modification permanently or for such period they think fit.
12. The learned Government Advocate submitted that material has been placed before the Government that there is a serious issue pertaining to the safety, which is one of the grounds for invoking the power under sub-section (2) of Section 49 of the Act and therefore the power has been rightly invoked and the resolution has been cancelled. In the light of the statutory provision, it is held that the Commissioner has sufficient power to cancel, suspend any resolution, order, licence, permission or Act and this action is always subject to further scrutiny or ratification or modification. Therefore, the challenge to the validity of the decision taken by the Commissioner cancelling the resolution, dated 29.07.2013, on the ground of lack of jurisdiction has to necessarily fail.
13. As pointed out earlier, the entire claim of the petitioner is rested upon the resolution, dated 29.07.2013, and as on date the said resolution is not in force and in any event, this Court is of the firm view that the right, which was conferred on the petitioner does not satisfy any of the tests, which are required to be satisfied, for considering a right as a lease, since the right conferred on the petitioner is only a right to collect fee from the cattle shandy and no exclusive possession of any immovable property has been vested with the petitioner. Further, the decision in the case of M.K.Stalin (cited supra), relied on by the learned counsel for the petitioner, is clearly distinguishable on facts of the present case and hence the same does not render any support to the petitioner's case. Therefore, the relief sought for by the petitioner in his representation itself is misconceived and the impugned proceedings is valid in law and is not vitiated for lack of jurisdiction as there is sufficient power available under Section 49(2) of the Act. Hence, for all the above reasons, the writ petition is liable to be dismissed.
14. In the result, the writ petition fails and the same is dismissed. Consequently, connected miscellaneous petitions are closed. No costs.
22.09.2014
Internet : Yes / No
Index : Yes / No
krk
To:
1.The Mayor,
Tirunelveli Municipal Council,
Tirunelveli Municipal Corporation,
Tirunelveli,
2.The Commissioner,
Tirunelveli Municipal Corporation,
Tirunelveli,
3.The Assistant Commissioner,
Melapalayam Ward Office,
Tirunelveli.
4.The Deputy Mayor,
Tirunelveli Municipal Corporation,
Tirunelveli.
T.S.SIVAGNANAM, J
krk
PRE-DELIVERY ORDER
IN
W.P.(MD) No.15385 of 2014
22.09.2014