Madras High Court
Pattu vs The Velur Selection Grade Town ... on 26 August, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:26.08.2010 Coram The Honourable Mr. JUSTICE K.VENKATARAMAN Writ Petition Nos.16349 to 16371, 17225, 17271, 16902 to 16908, 16993 to 16997, 17875, 17876, 17018, 17090 to 17093 of 2010 & All Connected M.P's W.P.No.16349 of 2010 Pattu W/o.Nagappan ... Petitioner -Vs.- 1.The Velur Selection Grade Town Panchayat By its Executive Officer Paramathi Velur Paramathi Velur Taluk Namakkal District 2.The Velur Selection Grade Town Panchayat By its President Selection Grade Town Panchayat Paramathi Velur Paramathi Velur Taluk Namakkal District 3.Mani @ Marappan S/o.Pappanna Gounder President Velur Selection Grade Town Panchayat Paramathi Velur Paramathi Velur Taluk Namakkal District ... Respondents Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus directing the respondents 1 and 2 to forbear from evicting the petitioner from the Fruit shop No.6 situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. For Petitioners : Ms.B.Vaigai, for Mr.Vasudevan in W.P.Nos.16349 to 16371, 17225 & 17271 of 2010 Mr.S.M.Loganathan, in W.P.Nos.16902 to 16908, 16993 to 16997, 17090 to 17093, 17018, 17875 & 17876 of 2010 For Respondents : Mr.G.Sankaran, Spl.G.P., for R1 & R2 in all WP's Mrs.Dakshayani Reddy, G.A., for R3 C O M M O N O R D E R
The petitioners have come up with the present writ petitions for a mandamus directing the respondents 1 & 2 to forbear from evicting them from their Shops situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District.
2. In view of the fact that common issue arises in all these writ petitions, a common order is passed in these writ petitions. That apart, since the facts in all these writ petitions are similar, the facts set out in W.P.No.16349 of 2010 is set out here under:
(a) The petitioner is a successful bidder in respect of shop No.6 situated in the bus stand of the Velur Selection Grade Town Panchayat for a period from 01.04.2008 to 31.03.2011, subject to the terms and conditions set out therein. In pursuant to the same, the petitioner was carrying on business. The third respondent on assuming office wanted to demolish the bus stand where the shop of the petitioner is situated for erecting a new bus stand although the present bus stand is in good condition and there is no necessity to demolish the same even as per the technical report of the Executive Engineer of the PWD, Namakkal.
(b) The first respondent Panchayat in the year 2007 requested the Executive Engineer of the PWD Namakkal Division to give opinion regarding the structure stability of the bus stand. The Executive Engineer adviced by his letter dated 17.04.2007, that it is enough if the respondents carry out repairs to maintain the stability of the structure. However, not satisfied with the same, the first respondent under the instigation of the third respondent again on 16.05.2007 passed a resolution requesting the PWD to give no objection for the demolition and reconstruction of new building. Once again the Executive Engineer, Namakkal reiterated his position by his letter dated 30.05.2007 that there was no need to demolish the bus stand.
(c) The Superintending Engineer, PWD directed the respondents to approach the Commissioner, Department of Rural Development as the latter was the appropriate authority. On 27.08.2007, once again the respondents passed a resolution requesting the Department to grant special permission for the demolition and reconstruction of the bus stand as the Panchayat had been allotted Rs.1 Crore for the construction of the said building. Again the first respondent made representation to the Executive Engineer, PWD, Salem seeking permission for the demolition of the bus stand.
(d) The first respondent approached the Commissioner of Town Panchayat, Chennai through Assistant Director of Town Planning for permission to demolish the said bus stand. The Commissioner by his proceedings dated 30.07.2008 has clearly stated that the proposal for demolition must be recommended by the Namakkal District Collector. But, however the Superintending Engineer PWD who was asked to give report on the stability of the building, by the Chief Engineer (Building), PWD, gave a report totally irrelevant to the task assigned. The Superintending Engineer appears to have given a tangent report stating that the building should be demolished.
(e) The petitioner was issued with a show cause notice dated 29.06.2010 directing to show cause why he should not vacate the shop before 31.07.2010 as the panchayat has passed a resolution on 02.07.2008 for building a new bus stand after demolishing the old one. The petitioner's lease continue till March, 2011 and the bus stand was structurally not weak. The action to demolish the existing structure and to build a new construction was done due to malafide reason.
(f) Though, show cause notice was issued to the petitioner, it clearly establishes that the respondents had already decided to demolish the bus stand. Hence, the petitioner has approached this Court by filing the present writ petition for the relief set out earlier.
3. Counter affidavit was filed in W.P.Nos.16349 to 16371 by the first and the second respondents, setting out the following facts:
(a) The bus stand is in existence for several decades but however it was sought to be regularised and regular bus stand was constructed in the year 1984 by availing loan under IUDP Scheme through the Public Works Department. The construction of the bus stand was completed in the year 1986 and it was put into use. The bus stand consists of Bus Bays and 22 concrete shops in the ground floor which is located in the middle of the bus stand. Apart from that, there are vacant sites for vending fruits on the northern side of the bus stand located at the left side entry of the bus stand. That apart, another 13 vacant shops have been allotted for selling betel nuts on the right side of the left entry opposite to fruit shops.
(b) The lease period for all the vacant shops came to an end on 31.03.2008 and thereafter, the Town Panchayat Council passed a resolution dated 28.02.2008 resolving to extend the lease period for a further period of three years from 01.04.2008 by accepting 15% enhanced rent. The order of allotment was subjected to conditions of lease and there is a specific condition that the lessees should hand over the vacant possession of the shop without any protest as and when the land is required for usage of Town Panchayat.
(c) The present construction of the bus stand was made 27 years ago and the building has got more damaged and dilapidated. The ceiling plastering has been completely damaged and it is posing hazard and danger to the safety of the general public using the bus stand. On 30.08.2005, the Executive Officer of the Velur Town Panchayat requested the office of the Public Works Department to inspect the building and ascertain the structural stability of the building. But, however no action was taken. The Local Body election was conducted in the year 2006 and the newly elected body assumed charge on 25.10.2006. Thereafter, further communications have been sent to the Public Works Department to verify the stability of the building and to take remedial measures.
(d) The Executive Officer, Velur Town Panchayat sent a communication dated 03.01.2007 and another communication dated 20.02.2007 to the Executive Engineer, Public Works Department, Namakkal stating the hazardous nature of the building and to provide the remedial measures in the interest of the public. The Executive Engineer, Public Works Department, Namakkal conducted a inspection and sent a letter dated 17.04.2007 stating that the building has been damaged due to the fact that it was not maintained properly from the date of completion of construction and further there are cracks in the concrete pillars and damage in the building and the same has to be repaired in order to ensure the structural stability of the building.
(e) The letter received from the Executive Engineer, Public Works Department, Namakkal dated 17.04.2007 was placed before the council meeting held on 16.05.2007 and the council passed a resolution resolving to construct a new bus stand by demolishing the existing bus stand. On 27.05.2007, one Alagiri from Pilikalpalayam Village got seriously injured when the concrete part of the ceiling fell on him and he was hospitalised.
(f) On the basis of the report of the Executive Engineer, P.W.D, Namakkal, the Chief Engineer, P.W.D, Chennai forwarded a report dated 08.08.2007 leaving the decision to the Town Panchayat for taking further action by obtaining special permission from the Department of Town Panchayat. Hence a resolution was passed in the council on 27.08.2007 for obtaining special permission from the Director of Town Panchayat, Chennai for demolition and construction of new bus stand.
(g) In pursuant to the same, the Assistant Executive Engineer of Town Panchayat, Namakkal District inspected the building on 25.04.2008 and reported that the building is highly dilapidated . He has suggested to demolish the existing building and construct a new bus stand. He has forwarded a proposal to the Commissioner of Town Panchayat on 13.05.2008 along with his suggestions. Thereafter, the Commissioner of Town Panchayat, Chennai issued a proceedings dated 30.07.2008 calling for the proposal for the construction of the new bus stand under TUFIDCO Infrastructure Financing Scheme in full shape with council resolution etc., duly recommended by the District Collector.
(h) Based on the report of the Superintending Engineer, P.W.D, Chennai, the Chief Engineer, P.W.D, Chennai sent a report, recommending the demolition of the old bus stand and putting up a new bus stand. The Town Panchayat also passed a resolution in this regard on 02.07.2008. The Executive Officer of the Town Panchayat forwarded a proposal to the Town Planning Department seeking approval of planning permission by his letter dated 23.01.2009. After availing planning permission from the competent authority, the District Collector, Namakkal forwarded the proposal to the Director of Town Panchayat in his letter dated 01.03.2010 seeking permission for construction of new bus stand by demolishing the old bus stand. The Director of Town Panchayat, chennai forwarded the proposal to the TUFIDCO on 12.06.2010 requesting for sanction of loan and the loan was also sanctioned by proceedings dated 07.07.2010. Finally, the Director of Town Panchayat, Chennai by his proceedings dated 23.07.2010 accorded administrative sanction for construction of the bus stand at the estimated cost of Rs.97 Lakhs.
(i) At this stage, the Town Panchayat Council held its meeting on 22.06.2010 and passed a resolution resolving to terminate the lease of shops beyond 31.07.2010 in respect of the shops for which the lease period was renewed up to 31.03.2011. In pursuant to the same, show cause notice was issued calling upon the petitioner's to explain why they shall not be vacated from the shops. Out of 36 lessees, 11 persons have received the notice and consented in writing to the Town Panchayat stating that they are vacating the premises on 31.07.2010. However, the 25 lessees including the petitioner herein have refused to receive the notice.
(j) The petitioner has no semblance of right to be in occupation of the shops when the Town Panchayat has taken steps to construct a new bus stand in public interest. There is no motive or malafide against anybody much less on the third respondent when all the decisions has been taken by the Town Panchayat Council by passing a resolution.
4. Counter affidavit was filed on behalf of the third respondent wherein the following facts have been set out:
(a) It is alleged that the construction of the new bus stand is being pursued at his instance against the report submitted by the authorities of Public Works Department. However, the real fact is that, he being the President of the Town Panchayat cannot take any unilateral decision and the decision is being taken only by the Town Panchayat Council following the rules and regulations. Further, it is the long felt need of the general public to construct new bus stand with all amenities and to accommodate more number of buses owing to the dilapidated condition of the existing bus stand building which is posing serious threat to the human lives.
(b) Even prior to his assumption of charge to the post of President of Town Panchayat, communications have been sent to the P.W.D regarding the seriously damaged bus stand building for taking remedial measures. Hence, it is highly far fetching to attribute motive against him as if he is personally interested and the same is not sustainable. Thus, the counter affidavit seek for the dismissal of the writ petition.
5. I have heard Ms.Vaigai,assisted by the Mr.Vasudevan and Mr.S.M.Loganathan, the learned counsels appearing for the petitioners, Mr.G.Sankaran, the learned Special Government Pleader appearing for the respondents 1 and 2 and Mrs.Dakshayani Reddy, the learned Government Advocate appearing for the third respondent.
6. Ms.Vaigai, the learned counsel appearing for some of the petitioners contended that,
(i) the lease was renewed from 01.04.2008 upto 31.03.2011. But prior to the expiry of the lease period, the respondents are contemplating to take possession of the shops from them.
(ii) As per Clause 7 of the terms and conditions of the lease, only if the place is required for the Panchayat, it should be handed over. The resolution passed in the council meeting was not for demolition of the existing bus stand but the resolution was for re-construction of the bus stand only. Hence the respondents cannot ask the petitioners to vacate from the shop allotted to them.
(iii) The lease was renewed on 31.03.2008, from 01.04.2008 upto 31.03.2011. While so, within four months, the council wanted to re-construct the building. If there was such intention, the renewal of lease would not have been made on 31.03.2008.
(iv) The Commissioner of Town Panchayat in his letter dated 30.07.2008 to the Assistant Director of Town and Country Planning, Salem Zone indicated that the proposal for the demolition of the bus stand should be recommended by the District Collector and permission should be obtained from the P.W.D authorities. The proceedings of the District Collector, Namakkal dated 01.03.2010 addressed to the Director of Town Panchayat does not indicate that any proposal was made by him for demolishing the existing bus stand.
(v) Relevant conditions were not taken into account and the failure to consider the relevant materials could only be abuse of the process of law.
(vi) The show cause notice dated 29.06.2010 do not state that the Government has sanctioned the demolition of the existing bus stand.
(vii) The explanation that has been offered by the petitioners was not at all considered while causing final notice dated 21.07.2010. Hence, the show cause notice issued to the petitioners was an empty formality with a pre-determined mind to vacate the petitioners.
(viii) Sanction for constructing a new bus stand was made only on 23.07.2010, after the impugned order directing the petitioners to vacate and hand over the vacant possession of the shops which was let out to them. Thus, the Director of Town Panchayat gave administrative sanction only on 23.07.2010 for construction of new bus stand, but however the show cause notice was issued even prior to that and the order directing the petitioners to vacate the premises was made prior to that sanction.
(ix) Clause 6 and 7 of Rule 9 of The Tamil Nadu Panchayats (Opening and Maintenance of Market) Rules, 2000 contemplates that failure to comply with the terms of a notice under the Rule or contravenes the provisions of any of the other Rules shall be punishable. Conditions enumerated under the lease agreement namely, that the lessees shall vacate the shop as and when it is required by the Town Panchayat is a contractual term subject to Rule 9. Hence, the petitioners could be vacated from the shops in question which was leased out to them only by exercising powers under Rule 9 and nothing more.
(x) If the action of the third respondent was not in good faith, the whole action is a malice.
7. Mr.Loganathan, the learned counsel appearing for some of the petitioners in addition contended that ,
(i) The third respondent has no power to ask the petitioners to vacate the shops which have been leased out to them.
(ii) Section 154 of the Tamil Nadu Panchayat Act and The Tamil Nadu Panchayats (Public landing places, halting places, cart-stands) Rules, 1999 have been cited for the plea that since grant of lease of the shops at the bus stand emanates from Government, the power vest with the Government to cancel the lease. Thus, the third respondent has no power to direct the petitioners to vacate from shops which was let out to them.
(iii) Clause 15 of Section 242 empowers the Government in addition to the Rule making power under the Panchayats Act, power to make Rules generally to carry out the purpose of the said Act. Clause 15 of the Section 242 speaks about the preparation of plans and estimates for works and the power of panchayat and of servants of the Central or State Government to accord professional or administrative sanctions to estimates.
(iv) Table 1 of the Tamil Nadu Panchayats (Preparation of Plans and Estimates for Works and Mode and Conditions of Contracts) Rules, 1998 contemplates that if more than one lakh is the estimated cost of work at a Village Panchayat, there shall be administrative sanction by the District Collector. However, the same was not followed in the case on hand.
8. On the other hand, Mr.G.Sankaran, the learned counsel appearing for the respondents 1 and 2 submitted,
(i) Even before the third respondent assumed the office there was a proposal to demolish and re-construct the existing bus stand on 30.08.2005 and 28.03.2006. Hence, it cannot be contended on the side of the petitioners that with a malice, the third respondent has directed the petitioners to vacate the shops which was let out to them. The report of the Executive Engineer does not state that the building is in good condition but only states that the stability could be protected, if repairs are carried out. Hence, it cannot be urged on the side of the petitioners that the Executive Engineer did not recommend for demolition of old bus stand and did not state that the building was in good condition.
(ii) The terms and conditions enumerated under the lease deed executed in favour of the petitioners clearly indicates that the petitioners shall vacate the shops as and when it is required for the Town Panchayat.
(iii) The report of the Assistant Executive Engineer of the Town Panchayat addressed to the Assistant Director of Town Panchayat dated 25.04.2008 clearly reveals the position of the existing bus stand and the requirement of construction of a new bus stand.
(iv) The new construction is for a public purpose and it cannot be heard from the mouth of the petitioners to state that the existing bus stand should not be demolished and a new bus stand shall not be constructed.
9. The learned counsel appearing for the third respondent, Mrs.Dakshayani Reddy contended that
(i) All actions that have been taken for demolishing the existing bus stand and for re-construction of new bus stand, prior to the election of third respondent as President of the Town Panchayat.
(ii) It is not only the decision of the third respondent to demolish the existing bus stand and to put up a new bus stand but it is a collective opinion of the council which has passed a resolution for the same.
(iii) Bald allegations regarding malafide was made against the third respondent. No specific allegation of malafide was made.
10. With the above contentions raised on the side of the petitioners and the respondents, it has to be seen whether the proposed action taken against the petitioners is valid and justified in accordance with the provisions of the Tamil Nadu Panchayats Act.
11. The first and foremost submission that requires consideration is whether the proposed action taken against the petitioners namely directing them to vacate from the shops which were allotted to them is tainted with malafide on the part of the third respondent. In deciding the said issue, the one and only conclusion that could be arrived at is that there exists no malafide on the part of the third respondent in directing the petitioners to vacate from the shops which were allotted to them. The reason being,
(i) Even before the third respondent could occupy the post of the President of the Velur Selection Grade Town Panchayat in the year 2006, there was a proposal for demolition of the existing bus stand and re-construction of a new bus stand on 30.08.2005 and 28.03.2006. This could be seen from the proceedings of the Executive Officer of the Velur Selection Grade Town Panchayat dated 03.01.2007 to the Executive Engineer, P.W.D, Namakkal. Again the said reference find place in the letter of the then Executive Officer of the Velur Selection Grade Town Panchayat dated 28.05.2007 to the Executive Engineer. Hence, it cannot be said that the demolition of the existing bus stand and re-construction of a new bus stand emanated only from the third respondent, the President of the Velur Selection Grade Town Panchayat.
(ii) It is not the decision taken by the third respondent alone but a collective decision taken in the panchayat council meeting. Resolutions have been passed in the council meeting for such an action. Hence, the third respondents alone cannot be said to have taken the decision in this regard.
(iii) When malafide is attributed for an action of a person, the same shall be pleaded and established. In the affidavit in support of the writ petition, it is stated as follows:
"The respondent were only keen to demolish and build new construction at any cost only due to the malafide reason and not for any bonafide reason."
Thus the allegations made regarding the malafide is vague. It was also not substantiated by any acceptable reasons. In the judgement reported in (2005) 8 SCC 760, Union of India and Others v. Ashok Kumar and Others, the Hon'ble Apex Court has held that the Courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are grave and they are made against the holder of an office having high responsibility. The burden of establishing malafides is very heavy on the person who alleges it. Para 21 of the said judgement is usefully extracted here under:
"21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S.Pratap Singh v. State of Punjab). It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P.Royappa v. State of T.N. Courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Rly. Construction Co. Ltd. v. Ajay Kumar)"
12. In view of the reasons set out and also in view of the decision referred to above, I am of the considered view that, the petitioner has not established that the action of the third respondent in asking them to vacate from the shops which were allotted to them is tainted with mala fide.
13. The next contention that has to be considered is whether the existing bus stand has to be demolished and a new bus stand has to be put up. Several contentions have been raised in this regard. It was contended on behalf of the petitioners that the existing bus stand was constructed in the year 1986 and there was no necessity to put up a new bus stand now, when the old bus stand itself is in good condition. That apart, it was contended that the first respondent requested the Executive Engineer, P.W.D, Namakkal in the year 2007 to give opinion about the structural stability of the existing bus stand. He has opined that it is enough to carry out the repair works to maintain the stability of the structure. However, again at the instigation of the third respondent, the first respondent had passed a resolution requesting the P.W.D to give NOC for demolition and re-construction of the bus stand. Once again the Executive Engineer, Namakkal re-iterated his position by his letter dated 30.05.2007 that there need be no demolition of the existing bus stand. It was further contended that the proceedings of the Executive Engineer dated 17.04.2007 was perused by the respondents 1 and 2 themselves which will reveal that since there was no maintenance, the building was damaged extensively and if repairs are carried out the stability of the building could be safeguarded. It would be useful to reproduce the translated version of the said proceedings dated 17.04.2007.
"In reference to the letter above cited, the Velur bus stand was inspected on 10.04.2007. It seems that no maintenance work had been carried out from the date it was built and put in use. Hence, certain portions of the bus stand are badly damaged. It has been informed herewith, that if special repair works are carried out in the concrete beams, ceiling, weathering course and pressed tiles, the structural stability of the bus stand could be maintained."
14. In view of the above stated proceeding, it cannot be urged on the side of the petitioners that the Executive Engineer, P.W.D, Namakkal had stated that the building is in good condition and it does not require any demolition and re-construction of the same. The proceedings of the Executive Engineer can only mean that the stability of the building can be protected if the repairs are carried out.
15. The proceedings addressed by the Assistant Executive Engineer of Town Panchayat to the Assistant Director of Town Panchayat speaks about the position of the existing bus stand. The translated version of the relevant passage of the report is extracted here under:
"The parapet wall of the existing bus stand is in very damaged condition. The ceiling is damaged in certain places and the iron rods in the ceiling are completely rusted. Further, in certain columns, there are cracks in the T-beams. Since, the ceiling and the T-beams have common concrete structure, it would not be possible to remove the ceiling alone and put up a new ceiling. Further, there is no possibility to maintain the structural stability of the bus stand, even though special repair works are carried out."
16. The resolution passed in the council meeting dated 02.07.2008 can be usefully extracted and the translated version is extracted here under:
"The 'C' Class bus stand of the Velur Selection Grade Town Panchayat was built in the year 1986 by the Public Works Department and is functioning since then. On those days, only 30 buses used to visit the said bus stand and hence it was built in a small size. Now, since 326 buses are using the said bus stand and since there is shops and hotels in the centre portion of the bus stand and the people keep standing in the front of the shops, the buses could not enter the bus stand and hence they are parked in the roadside. This causes much inconvenience to the public and the general traffic. Further, since the ceiling of the bus stand in badly damaged, it would cost more to carry on the repair works.
Hence, it is decided to demolish the present damaged bus stand and reconstruct the new modern bus stand."
17. The report submitted by the Cheif Engineer (Buildings), P.W.D, Chennai to the Executive Officer, Velur Town Panchayat dated 11.09.2008 is usefully extracted here under:
"With reference to the letter first cited, the Bus Stand at Velur Selection Grade Town Panchayat, Paramathivelur Taluk, Namakkal District was inspected by the Superintending Engineer, PWD., Planning & Design Circle, Chennai on 10.08.2008.
After inspection, the Superintending Engineer, PWD., Planning & Design Circle, Chennai has reported that, by considering the huge investment on rehabilitation and future expansion, it is recommended that the existing building for bus stand in velur town panchayat may be dismantled for paving way to a new building around the periphery of the boundary with larger moving space for buses which may fetch more revenue to the Government as reported by the town panchayat officials and representatives.
A copy of the technical report furnished by the Superintending Engineer, PWD., Planning & Design Circle, Chennai is enclosed herewith for information."
18. The status report of the Bus Stand given by the Superintending Engineer, P.W.D, Planning and Design Circle, Chennai is usefully extracted here under:
"Observation : Foundation was not exposed during inspection. Most of the columns in Ground floor are intact.
But it appears that periodical maintenance is not being done for a long period since 1986 Ceiling plastering pealed off and reinforcement in many slab panels of bus bays and shops are exposed to atmosphere and heavily corroded and posing serious threat to the passengers. Slab panels in bus bays get deflected badly and also beyond the limit.
Pressed tiles laid over rood slab as worn out and flashing tiles in the south side get separated from the RCC parapet.
Severe crack are there in many dummy columns and column reinforcements get exposed to atmosphere and corroded.
Longitudinal cracks have developed in parapet walls.
Heavy dampness is present in the toiled room walls."
19. The recommendations made by him is also usefully extracted here under:
"Recommendation:
By considering the huge investment on rehabilitation and future expansion, it is recommended that the existing building for bus stand in velur town panchayat may be dismantled for paving way to a new building around the periphery of the boundary with larger moving space for buses which may fetch more revenue to the Government as reported by the town panchayat officials and representatives."
20. Later, a resolution was passed in the council meeting held on 22nd June 2010 not to extend the lease and also to cancel the lease executed.
21. The above facts will disclose that the old bus stand requires demolition and re-construction. All the officials have taken a decision in this regard. The officials are the best experts to decide the same and this Court which has no expertise in such matters cannot sit over their decision. When a decision was taken to demolish the existing bus stand and put up a new bus stand with a larger moving space for buses to fetch more revenue, the same cannot be faulted at all. If new bus stand could be constructed with larger moving space for buses, one cannot raise a plea that the same is not needed at all. The public purpose for which such an action was taken cannot be stopped on the desire of the persons who are lessees of the existing shops. The same cannot be heard from the mouth of the petitioners.
22. The learned counsel appearing for the petitioners relied on the decision reported in (1986) 1 SCC 133, Express Newspapers Pvt. Ltd., and Others v. Union of India and Others. More emphasis was placed on Para 85 and 86 which are reproduced here under:
"85. For the sake of completeness, I wish to clear the ground of a possible misconception. Learned counsel appearing for the respondent 1 the Union of India while contending that the impugned notice dated March 10, 1980 was of an exploratory nature, fairly conceded that the lessor i.e. the Union of India must enforce its right of re-entry upon forfeiture of lease under Clause 5 of the lease-deed by recourse to due process of law and wanted to assure us that there was no question of marching the army or making use of the demolition squad of the Delhi Development Authority or the Municipal Corporation of Delhi in demolishing the Express Buildings. As we felt that there was some ambiguity in the expression "due process of law", we wanted a categorical answer whether by this he meant by a properly constituted suit. Without meaning any disrespect, the learned counsel adopted an ambivalent attitude saying that the due process may not only consist in the filing of a suit by the lessor or re-entry upon forfeiture of the lease but that in the case of lease of Government lands, the authorities may also take recourse to the Public Premises (Eviction of Unauthorised Occupant) Act, 1971. I have no doubt in my mind that the learned counsel is not right in suggesting that the lessor i.e. the Union of India, Ministry of Works & Housing can in the facts and circumstances of the case, take recourse to the summary procedure under that Act. The Express Newspapers Pvt. Ltd. having acted upon the grant of permission by the lessor i.e. the Union of India, Ministry of Works & Housing to construct the new Express Building with an increased FAR of 360 together with a double basement was clearly not an unauthorised occupant within the meaning of Section 2(g) of the Act which runs as under:
2(g) "unauthorised occupation", in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer), under which he was allowed to occupy the premises has expires or has been determined for any reason whatsoever.
86. The Express Buildings constructed by Express Newpapers Pvt. Ltd with the sanction of the lessor i.e. the Union of India, Ministry of Works and Hosing on plots Nos.9 and 10, Bahadurshah Zafar Marg demised on perpetual lease by registered lease-deed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under sub-section (2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. the Union of India, Ministry of Works & Housing for the enforcement of the alleged right of re-entry, if any, upon forfeiture of lease due to breach of the terms of the lease."
23. That is the case where Express Newspapers Pvt. Ltd., and another challenged the constitutional validity of a notice of re-entry upon forfeiture of lease issued by the Engineer Officer, Land and Development Officer, New Delhi dated 10.03.1980 purporting to be on behalf of the lessor i.e., the Government of India, Ministry of Works and Housing, New Delhi. The said notice called upon the Express Newspapers Pvt. Ltd., to show cause why the Union of India should not re-enter and take possession of the premises for the alleged breach of the lease deed. It was also challenged in the said proceeding before the Apex Court on the validity of the earlier notice dated 01.03.1980 to show cause why the building which was leased out being unauthorised should not be demolished under the Delhi Municipal Corporation Act. The facts of that case has entirely different footing.
24. Here, it is not the case of the respondents that certain conditions have been violated by the petitioners which warranted action by the respondents. Here, the respondents want to demolish the existing bus stand and put up a new bus stand. Hence, I am of the considered view that the judgement cited by the learned counsel appearing for the petitioners may not have any relevance to the facts and circumstances of the present case on hand.
25. It has to be further noted that as per Clause 7 of the terms and conditions of the lease, if the land is required for the panchayat, it should be handed over by the lessees. Since, now the panchayat requires the place occupied by the petitioners for the purpose of demolishing the existing bus stand and putting up a new bus stand, the petitioners have to surrender the possession to the panchayat as per the said clause in the terms and conditions of the lease. Even though the lease period was extended upto 31.03.2011 for certain lessees, they have to surrender the shops which is in their possession for the construction of new bus stand.
26. Yet another argument that was made in this regard is that the lease was renewed on 31.03.2008 for the period from 01.04.2008 to 31.03.2011 and if the intention of the respondents was to put up new bus stand by demolishing the existing bus stand, the lease would not have been renewed on 31.03.2008 and within four months, the respondents would not be requiring the land for putting up new bus stand. This argument put forth on the side of the petitioners, though appear to be attractive, may not sound well since the authorities were processing the matter in issue and hence it would have been thought to renew the lease till the final decision is taken and the same cannot be put against the respondents.
27. Yet another submission that was made on behalf of the petitioners was that though explanation has been offered by the petitioners for the show cause notice, the same were not considered while causing the final notice dated 21.07.2010. The respondents have made known in the show cause notice why the shops in occupation of the petitioners are required and the same was considered and final notice was issued to the petitioner. Hence, it cannot be heard to say that the explanation offered by the petitioners were not considered by the respondents.
28. Mr.Loganathan, the learned counsel appearing for some of the petitioners submitted that, reading of Section 154 of the Tamil Nadu Panchayat Act and The Tamil Nadu Panchayats (Public landing places, halting places, cart-stands) Rules, 1999 will clearly disclose that the Government alone has got power to cancel the lease made in favour of the petitioners, since the grant of lease has emanated only from the Government. Before adverting to the said contention raised by the learned counsel appearing for some of the petitioners, it would be useful to extract Section 154 of the Act.
"154. Public landing places and cart-stands, etc. - Subject to such rules as may be prescribed, the village panchayat may -
(a) provide public landing places, halting places and cart-stands (which last expression includes stands for animals and vehicles of any description including motor vehicles) and levy fees for their use; and
(b) where any such place or stand has been provided, prohibit the use for the same purpose by any person, within such distance thereof of any public place or the sides of any public road as the village panchayat may, subject to the control of the Inspector, specify."
29. The said provision do not say that the Government alone is vested with power to execute the lease or cancel the lease made in favour of the petitioners. Even, the Tamil Nadu Panchayats (Public landing places, halting places, cart-stands) Rules, 1999 does not contemplate so. That apart, the shops in question were leased out to the petitioners by the third respondent which is not denied by the petitioners and hence the cancellation of the same shall also vest with the third respondent. The petitioners who have enjoyed the lease of the shops by virtue of the lease deed between them and the third respondent cannot now say that the power to cancel the lease vest with the Government and not with the third respondent. Equally, the contention of the said learned counsel that administrative sanction was not made by the District Collector, since the estimate cost of work in question is more than one lakh cannot also be accepted. As stated already, all the three authorities referred to above have considered the case and decided to demolish the existing bus stand and put up a new bus stand. Thus, the said argument of the learned counsel appearing for some of the petitioners is liable to be rejected.
30. The other contention that was raised on behalf of the petitioners is that the sanction for constructing the new bus stand was made only on 23.07.2010, after the impugned order was passed directing the petitioners to vacate from the shops which were let out to them. Though, the sanction was made later, since the proposal of demolition of the existing bus stand and construction of the new bus stand was in progress, sanction though made later cannot be put against the respondents. Expecting the sanction, the impugned show cause notice and the final notice was issued to the petitioner. At best, it could be urged only as a procedural lapse and nothing more.
31. Considering the above facts and circumstances, the irresistible conclusion that could be arrived at in these writ petitions are
(i) The petitioners have not established that the third respondent's action in demolishing the existing bus stand and putting up a new bus stand is tainted with malafide.
(ii) The third respondent is not the sole authority who has decided for the same and it has passed through various authorities who have considered the same and taken action in that regard.
(iii) Even though the lease period is extended to some of the petitioners upto 31.03.2011, in view of Clause 7 of the terms and conditions of the lease namely, that if the place is required for the Panchayat, the lessees shall hand over the vacant possession, would make it clear that before the expiry of the lease, the Panchayat is at liberty to seek the lessees of the shops to hand over possession.
(iv) When the decision was taken to demolish the existing bus stand and reconstruct a new bus stand with larger moving space for buses to fetch more revenue to the Government, the same cannot be faulted at all.
(v) The public purpose for which the action was taken cannot be stopped on the desires of the persons who are the lessees of the existing shops in order to continue to remain in the shops which were let out to them.
(vi) Even assuming that there are some procedural lapses, that will not dis-entitle the respondents in proceeding with the plan for demolition of the existing bus stand and for putting up a new bus stand with a larger moving space for buses and to fetch more revenue to the Government.
32. In fine, I am of the considered view that the petitioners are not entitled for the relief sought for by them and these writ petitions stands dismissed. Consequently, connected miscellaneous petitions are closed. No costs. However, Considering the facts that the petitioners are in occupation of the shops which were allotted to them for many number of years, it would be just and reasonable,
(i) To grant them 15 days time from the date of receipt of a copy of this order to vacate and hand over the shops which are in their occupation.
(ii) The respondents have to consider the request of the petitioners to allot the shops after reconstruction of the same and preference may be given to them, ofcourse on the new rent to be fixed.
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1.The Executive Officer The Velur Selection Grade Town Panchayat Paramathi Velur Paramathi Velur Taluk Namakkal District
2.The President The Velur Selection Grade Town Panchayat Selection Grade Town Panchayat Paramathi Velur Paramathi Velur Taluk Namakkal District