Madras High Court
M. Arumugam vs The Commissioner, Paramakudi ... on 10 April, 1990
Equivalent citations: (1990)2MLJ340
ORDER Srinivasan, J.
1. The prayer in the' writ petition is for issue of a writ of mandamus directing the respondents to implement the Resolution of the Council of the Paramakudi Municipality, Ramnad District in Resolution No.2466, dated 7-3-1990 and consequently for directing the Commissioner of the Municipality-1st respondent to issue proceedings extending the lease in respect of right to collect fee from the weekly shandy (Public Market) Paramakudi, under the control of the 1st respondent beyond the period 30-3-1990 i.e. for the period 1990-91.
2. The petitioner was the licensee with regard to collection of fees from the Municipal shandy. According to him, he had been the licensee for over a period of fifteen years. For the period 1989-90, he was the highest bidder for a sum of Rs.1,25,002. His bid was accepted by the Municipal Council and he was granted licence for the period from 1-4-1989 to 30-3-1990. For the subsequent period i.e. 1990-91, he offered to pay an increased fee at Rs. 1,43,757. That was considered by the Municipal Council and by resolution dated 7-3-1990, they accepted the offer and they gave reasons for accepting his offer as follows:
(i) If the fees are collected through Municipal employees, it will lead to heavy loss of revenue to the Municipality;
(ii) The petitioner has agreed to pay a sum of Rs. 18,750 over and above the amount paid for the previous year; and
(iii) The petitioner has been licensee for several years in the past and he had been regular in payment of licence fees.
Consequently the Municipal Council directed the Commissioner of Municipality to carry out this resolution.
3. Inspite of the said resolution, the Commissioner of the Municipality did not take any steps to grant the licence in favour of the petitioner, but on the other hand would appear to have reported the matter to the Director of Municipal Administration alleging that the resolution passed by the Municipal Council was illegal and the right should be auctioned in public auction. It is learnt from the Additional Government Pleader that the Director of Municipal Administration has accepted the representation made by the Commissioner of the Municipality and directed the Municipal Council to reconsider the matter and not to insist upon carrying out the resolution passed on 7-3-1990. It is brought to my notice that on 2-4-1990, the Municipal Council reiterated their stand and passed another resolution again deciding to grant the licence-right in favour of the petitioner.
4. It appears that the Commissioner of the Municipality has made a complaint again to the Director of Municipal Administration, who, in turn, has apprised the Secretary to Government, Municipal Administration. A copy of the letter written by the Director of Municipal Administration to the Secretary to Government has been placed before me by the Additional Government Pleader. According to the said letter, the resolution of the Municipal Council goes against the terms of G.O. Ms. No. 194, Rural Development & Local Administration Department dated 16-2-1982 and the right of collection of fees in Markets etc., shall be auctioned only.
5. G.O. Ms. No. 194 dated 16-2-1982 was subject matter of challenge in this Court in several writ petitions and was struck down by this Court (vide this Court's order in W.P. Nos. 5412, 3349, 4012 and 4013 of 1982). In any event, the terms of the G.O. runs counter to Section 260 of the Tamil Nadu District Municipalities Act. Under that section, the Council may in any public market levy any one or more of the fees as set out in the section, at such rates and may place the collection of such fees under the management of such persons as may appear to it proper or may form out such fees for any period not exceeding three years at a time and on such terms and subject to such conditions as it may deem fit. One of the items set out is fees for use of shops, stalls, pens or stands in such markets. Thus, under this section, the Municipal Council has got power to form out the collection of fees in markets.
6. Under Section 13-A of the Tamil Nadu District Municipalities Act, the Executive Authority of the municipal council shall carry into effect the resolutions of the council. Under Section 19 of the Act, the municipal administration shall vest in the council, but the council shall not be entitled to exercise functions expressly assigned by or under the Act or any other law to the Chairman or executive authority. Hence it is the Municipal council, who has got the power to form out the collection of fees in public market and the executive authority is bound to obey the same. Under Section 22 of the Act, the executive authority shall be bound to give effect to every resolution of the council unless such resolution is modified, suspended or cancelled by a controlling authority.
7. Learned Additional Government Pleader states that the Government is now considering as to whether the resolution passed by the council should be cancelled by the exercise of powers under Section 36 of the Tamil Nadu District Municipalities Act Admittedly, no order has been passed by the Government till now cancelling the resolution. Unless and until the resolution is suspended or cancelled, by the State Government in exercise of powers under Section 36 of the Act, the resolution shall be given effect to.
8. I am not now concerned with the powers of the Government under Section 36 of the Act. If and when such powers are exercised by the Government, there will be time enough for the aggrieved parties to challenge the same and for this Court to consider whether the exercise of powers is in accordance with the provisions of the Act, as at present, the resolution of the Municipal Council stands and it has to be given effect to by the 1st respondent-Commissioner.
9. Learned Additional Government Pleader brought to my notice the decision of the Supreme Court in Haji T.M. Hassan v. Kerala Financial Corporation . He places reliance on paragraph 14 of the judgment. In the very same paragraph, it is made clear that leasing out such properties by public auction is not the only rule, and it is not an invariable rule. Hence the Additional Government Pleader cannot insist upon the right of collection being granted only by holding public auction, as Section 260 confers right on the Municipal Council to a form out collection of fees. The council is well within its power in doing so. In this case, the Municipal Council has given proper and appropriate reasons for granting the right in favour of the petitioner and there is no question of any mala fide therein or the petitioner being favoured by the Municipal council. In these circumstances, the prayer of the petitioner has to be granted and the writ petition is allowed accordingly. A mandamus will be issued to the 1st respondent to grant licence in favour of the petitioner to collect fees from the weekly shandy for the period 1990-91 i.e., from 1-4-1990 to 31-3-1991. The 1st respondent shall pay costs of this petition to the writ petitioner. Counsel's fee Rs.1,000.