K.M.Meeran Mohideen vs The Secretary To The Government on 8 April, 2010

[Cites 7, Cited by 1]

Madras High Court

K.M.Meeran Mohideen vs The Secretary To The Government on 8 April, 2010

2.The petitioner was a successful bidder in the auction held for the year 2009-2010 in respect of collection of toll fee in the daily vegetable market and cattle market situate at Nethaji Road at Melapayalam and he was granted licence from 12.05.2009 to 31.03.2010. According to the petitioner, the auction was called for two items and he was the successful bidder for both the items and he was granted licence for collection of fee from the vegetable sellers on the road side and shop keepers in the vegetable market. Originally, for local bodies tender was called for one year and the authorities found it difficult to conduct tender-cum-auction every year and therefore, after much deliberation, G.O.Ms.No.181, dated 19.09.2008 was issued, directing all local bodies to conduct tender and auction for a block period of three years from 2009-2010 subject to certain conditions stated therein. The said G.O. was specifically made applicable only to the Municipalities and Panchayats and it was not made applicable to the Corporations. Though, the said G.O. was not made applicable to Corporations, some of the Corporations have granted licence and lease for three years from 2009-2010 onwards and some of the prospective bidders also approached this Court and this Court has also directed the local bodies and Corporations to grant lease or licence for three years as stated in the G.O.Ms.No.181, dated 19.09.2008.

3.According to the petitioner, all the Corporations accepted the G.O.Ms.No.181, but the 2nd respondent Corporation called for tender only for a period of one year namely for the year 2009-2010. A doubt arose among the Corporation administration, whether G.O.Ms.No.181 is applicable to Municipal Corporation or not and to clarify the same, the Government issued G.O.Ms.No.78, dated 25.05.2009 extending the benefits of G.O.Ms.No.181 to all Municipal Corporations and in that G.O, it has been specifically stated that as per the request of the Director of Municipal Administration, the Corporations are also permitted to grant licence or lease for a period of three years from existing one year period to three years. It is further stated that the said G.O. namely G.O.Ms.No.78 shall apply only to the lease or licence taken for the year 2009- 2010 and it shall not apply to the existing licensee. It is further stated that in respect of existing licensee or lessee, they are governed by the terms and conditions mentioned in the lease or licence deed and only after the expiry of the date mentioned in those documents, the conditions mentioned in the G.O.Ms.No.78 shall be made applicable to those lessee or licensee.

4.The petitioner on the basis of the aforesaid G.O.Ms.No.78, applied to the 2nd respondent seeking extension of his licence period for two more years and without responding to the representation made by the petitioner, the 2nd respondent called for tender-cum-auction in respect of two items, which were given to the petitioner for the year 2009-2010 and called for fresh tender for those two items also along with other items for the period 2010 to 2013. As the petitioner claims that he is entitled to claim the benefits of G.O.Ms.No.78 and entitled to have the licence period extended for three years, the petitioner challenged the auction notice in this writ petition.

5.The 2nd respondent filed a counter and contended that the licence granted to the petitioner is only for a period of one year and it expires on 31.03.2010 and G.O.Ms.No.181, dated 19.09.2008 is not applicable to the Corporations and therefore, the 2nd respondent called for tender for granting licence only for a period one year and the petitioner knowing fully well that the licence is for a period of one year, participated in the auction and he was declared as a successful bidder and he also executed an agreement for taking the licence for a period of one year and therefore, he is estopped from going beyond the terms and conditions of the licence.

6.It is further stated that the 2nd respondent Corporation also passed a resolution, dated 31.12.2008 to the effect that G.O.Ms.No.181, dated 19.09.2008 is not applicable to the Corporations and the tenders are called for only for a period one year. It is further stated that after the issuance of G.O.Ms.No.78, dated 25.05.2009, the Corporation conducted auction for license to collect fees in Integrated Modern Slaughter House for a period of three years and in respect of the two items for which the licence was granted to the petitioner, the auction had taken place prior to the issuance of G.O.Ms.No.78 and therefore, he is bound by the terms and conditions of the agreement, which provides for one year period and he is not entitled to claim extension for two more years.

7.It is further stated that when a doubt arose whether the license granted for the year 2009-2010 can be extended for two more years, a clarification was issued by the Director of Municipal Administration, by his letter, dated 28.01.2010 and in that letter, it has been specially stated that only a fresh tender for three years from 2010 onwards can be called for and G.O.Ms.No.78 is not applicable to the existing licensee.

8.It is further stated that except the petitioner all other successful bidders in the auction held for the year 2009-2010 accepted the terms and conditions and they have not asked for extension of the licence and only the petitioner, who is the successful bidder for two items challenged the same and by reason of enhancing the period for three more years, more people will participate and there will be a competition among the participants and the Corporation will get more revenue and in the event of one year licence, limited people will participate and taking into consideration of all these aspects, the period was extended to three years and it was also made clear in the G.O.Ms.No.78 that it is not applicable to the existing licensees and existing licensees are governed by the terms and conditions and therefore, the petitioner having taken the auction prior to 22.05.2009, the date of issuance of G.O.Ms.No.78 he is not entitled to the benefits of that G.O.

9.Mr.H.Arumugam, the learned counsel appearing for the petitioner reiterated the averments made in the affidavit and contended that G.O.Ms.No.78 is also applicable to the petitioner as the petitioner was a successful bidder in the auction held for the year 2009-2010 and it is also stated that in the G.O.Ms.No.78 that it applies to auction held for the year 2009-2010 and therefore, having regard to the objects of the G.O.Ms.No.78, it is applicable to the existing licensees also and hence, the petitioner is entitled to extension of period for two more years.

10.On the other hand, the learned Standing counsel appearing for the 2nd respondent, Mr.M.Vallinayagam, vehemently opposed and submitted that the G.O.Ms.No.181 is not applicable to the Corporations and that is also made clear in G.O.Ms.No.78 that prior to the issuance of the G.O.Ms.No.78, the 2nd respondent has called for tender for the period of one year and therefore, the question of granting licence for three years or granting extension to licensee or lessee, who are the successful bidders prior to the issuance of the G.O.Ms.No.78 will not arise and the G.O.Ms.No.78 is applicable only to those licensee or lessee after 22.05.2009 and it is also made clear in that G.O.Ms.No.78 itself by stating that it is not applicable to the existing licensee.

11.He, therefore, submitted that the petitioner is a existing licensee having taken the licence prior to the issuance of G.O.Ms.No.78 and therefore, G.O.Ms.No.78 cannot be applied to the petitioner. He further submitted that the Secretary to the Government, by his letter No.47, dated 05.03.2010 informed that addendum was issued to G.O.Ms.No.78, which is to be added at the end of para 3 and as per the said addendum, it has been made clear that extension of period is applicable only to those licenses or leases issued for the year 2009-2010 which stipulated the period as three years. Therefore, he contended that G.O.Ms.No.78 is applicable to those licensees or lessees, which were issued for a period of three years and so far as the petitioner is concerned, licence is for a period one year and hence, the petitioner is not entitled to the extension and the writ is also liable to be dismissed. He further submitted that when a licence or lease is granted for one year, there may not be much participants and there will be less competitors as people may not like to invest for one year. Per contra, if the licence is issued for three years, there will be more participants and it would result in good competition and the 2nd respondent will get more revenue and only for that purpose, the Government thought it fit to direct the local bodies to have the licence or lease for a period of three years and the petitioner having participated in the auction for one year, cannot claim extension as the Municipality or Corporation will be deprived of the higher amount, if extension is granted to people like the petitioner.

12.Mr.H.Arumugam, the learned counsel appearing for the petitioner in all fairness brought to my notice, the judgment rendered in the Principal Seat in a batch of writ petitions, in respect of similar matter in W.P.Nos.1336, 1337 of 2010 etc. and Honourable Mr.Justice R.Sudhakar interpreted the G.O.Ms.No.78 and held that it is applicable only to licence or lease issued after the issuance of G.O.Ms.No.78 and it cannot be made applicable to licence or lease held before 25.05.2009 and refused to grant extension to those licensees. The above judgment was delivered on 15.03.2010 and I had the benefit of going through the judgment of the learned Judge. The learned Judge after considering the rival contention of both parties, held that the petitioners are not entitled to the relief of extension of licence period under G.O.Ms.No.78 and also enumerated the reasons as follows:

"(i)Though the G.O.Ms.No.78, dated 25.05.2009 specifically states that it will apply to all licence for the period 2009-2010, it specifically excludes the subsisting licence. Therefore, the petitioners stand excluded. It will apply to licence that will be granted after issuance of the Government Order.

(ii)Para 3(iii) of the G.O.Ms.No.78, dated 25.05.2009 states that the auction should be conducted for three years period meaning thereby that it will operate in the future. The auction, therefore, will be for a three year period and not one year as in the case earlier. There is no question of auction if extension is contemplated. Since it is a three year licence auction, extension does not arise.

(iii)The policy decision of the Government was a change from the previous position inasmuch as the licence which has been granted for a period of one year was modified to three years as in the case of town panchayat and municipality in G.O.Ms.No.181, dated 19.09.2008. In view of the specific wording in para 3 of the G.O.Ms.No.78, dated 25.05.2009 which excludes all subsisting licence holders, the question of subsisting licence holders seeking extension does not arise. Para 3 of the G.O.Ms.No.78, dated 25.05.2009 is emphatic that the existing licence holders are bound by the terms and conditions on which the licence was granted, which in effect means that the petitioners whose licence ends by 31.03.2010 are not entitled to seek extension. At the time of auction, and confirmation earlier, there is no condition that the licence will be extended for a further period. Their licence terms is fixed (i.e.) from 01.04.2009 to 31.03.2010.

(iv)The direction issued in the G.O.Ms.No.78, dated 25.05.2009 clearly states that all terms and conditions should be suitably amended to be incorporated in the licence conditions to be applied to the licence to be granted in terms of G.O.Ms.No.78, dated 25.05.2009. Hence, it is clear that the three year period is a change in the policy and there is no specific clause for extension of the subsisting licence.

(v)The plea of the petitioners that the terms and conditions will apply to all the licence of the year 2009-2010 cannot be accepted on the well stated principle that the Government Orders and Rules have to be read prospectively and not retrospectively unless there is a specific indication in the said G.O., that it will operate retrospectively. In the present case, there is a specific clause in para 3 of the G.O.Ms.No.78, dated 25.05.2009 that it will not apply to the subsisting licence, and hence it is prospective in nature. This view stands fortified by the decisions of Courts and a few are cited hereunder:-

(i)N.T.Devin Katti vs. Karnataka Public Services Commission and others reported in (1990)3 SCC 157 and

(ii)M/s.Kusuman Hotels (P)Ltd., vs. Kerala State Electricity Board reported in A.I.LR. 2008 Supreme Court 2796. Para 17 of the decision reads as follows:-

"It is a well settled principle of laws that the doctrine of promissory estoppel applies to the State. It is also not in dispute that all administrative orders ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. The authority issuing such direction must have power to do so. The Board, having acted pursuant to the decision of the State, could not have taken a decision which would be violative of such statutory directions, 15.05.1999 was fixed as the cut-off date by the Board. It, by itself, could not have done so. But the State for issuing G.O. dated 26.09.2000 could have fixed the said cut-off date on its own. We although do not agree that by granting retrospectivity to the said order, the entirety of the Government Order should be set aside the same or per se would be held to be unreasonable, but what we mean to say is that it could be given effect to only from the date of the order, i.e., prospectively and not from an anterior date, i.e. retrospectively".

(vi)Evening assuming that the wording in G.O.Ms.No.78, dated 25.05.2009 indicates that it applies to the licence of the year 2009-2010, in view of the exclusion clause in respect of subsisting licence, the petitioners cannot claim any benefit under the G.O.Ms.No.78, dated 25.05.2009. They bound by the terms and conditions on which their licence was granted and they have acted upon it.

13.The learned Judge also held that decision rendered by the Division Bench of this Honourable Court in the matter of A.Srinivasan and 25 others vs. The District Collector, Kancheepuram District, Kancheepuram and 9 others reported in 2008(3) CTC 800 is not applicable to the facts of the case for the reasons stated therein, which is given as follows:-

"(i)The said case relates to the mines and minerals and the lease was granted in respect of virgin areas where quarrying operation was not done previously. On going through the facts of the said case, it appears that the petitioners were successful bidders in respect of stone quarry and the lease deed was executed on 05.06.1997 and registered and it was extended for a period of five years from June 1996 to June 2002. The lessee had to develop the area before putting it into commercial production. As it was a virgin quarry, they could not utilise the lease for the full lease period and therefore, they sought for extension of lease period by way of a representation stating that the rules were amended extending the period to ten years as against five years. The Government rejected the application for extension of the lease period after five years stating that the amended sub rule will apply only to virgin areas and since the petitioners have already started the quarrying operation they cannot claim benefits stating that it is a virgin quarry. In the said decision, the Court came to conclusion that the amended rule should apply to all virgin quarries. In the present case, it is a case of licence issued for one year by public auction. There is difference between grant of lease and licence. The licence is given the right to collect too, fee etc. It is different from quarrying lease.

(ii)Factually the petitioners herein are licensees to collect fee from various users of public premises or property. The town panchayat, municipality, corporation get revenue out of the auction conducted in the above said manner.

Therefore, as and when the period is over, they are entitled to fix a new period consistent with the Government policy. There is no part played by the licensee in developing the infrastructure as in the case of the mining quarrying operation. On facts there is no similarity between a licensee in the present case and the quarrying lease holders in the Division Bench Judgment. Lease relates to property right over a period whereas in the case of licence, the right is given only to collect fee or toll as the case may be. Even on this differentiation, the decision of the Division Bench will not apply to the facts of the present case."

14.Mr.H.Arumugam, the learned counsel appearing for the petitioner submitted that though this Court has given a finding that G.O.Ms.No.78 cannot be made applicable to the existing licensee granted for the year 2009-2010, he respectively submitted that the judgment requires reconsideration and the learned Judge has not considered the various other G.Os. issued earlier to G.O.Ms.No.181 and licence or lease granted by the second respondent Corporation dehors the auction held for the year 2009-2010.

15.He further submitted that a clear reading of G.O.Ms.No.78 would make it clear that it applies to all leases and licences granted for the year 2009-2010 and the exclusion clause is not applicable to subsisting licensee refers only to other licences, who are holding the licence not on the basis of the auction held of 2009-2010, but due to various other reasons viz., on the basis of the orders of this Court. He, therefore, submitted that the judgment requires reconsideration.

16.Mr.M.Vallinayagam, the learned counsel appearing for the 2nd respondent submitted that the views of the Government has been accepted by this Court in the aforesaid judgment and G.O.Ms.No.78 cannot be given retrospective operation and every Government Order shall have only prospective operation and in the absence of any specific provision that it has got retrospective operation, the G.O. will have only prospective operation and in that case, it can be made applicable to the licences and leases granted after the issuance of the G.O. and it cannot be made applicable to the licence or lease granted prior to even though those licences and leases were given for the year 2009-2010. Though, he was very vehement in arguing that prior to 2009-2010, leases and licences were issued only for the period of one year and therefore, reference to subsisting licence in the G.O.Ms.No.78 would only mean licence issued for the year 2009- 2010 prior to the issuance of G.O.Ms.No.78 and hence, they are not entitled to claim extension. He also admitted that some persons are continuing by virtue of Government order without participating in the auction held for the year 2009- 2010. Therefore, in this case, we will have to see;-

(i)whether the licence or lease granted for the year 2009-2010, which restrict the period one year can be extended to another two years by virtue of G.O.Ms.No.78, dated 22.05.2009.

(ii)Whether the exclusion clause stated in the G.O.Ms.No.78 that it shall not apply to the subsisting licence or lease will include licence, which was granted for the year 2009-2010 before the issuance of G.O.Ms.No.78, which is also clarified by the addendum in the G.O.Ms.No.78 issued by the Government letter of the Secretary, dated 05.03.2009.

17.Before going into the question whether the G.O.Ms.No.78 can be given retrospective operation or it is only prospective and cannot be made applicable to the licence granted prior to the issuance of that G.O., I want to analyse the scope of G.O.Ms.No.78 whether it is in the nature of Declaratory or not. To appreciate the same, we will have to see the necessity of passing the G.O.Ms.No.78.

18.As stated supra, originally G.O.Ms.No.92, dated 03.07.2007 was passed by which local bodies were permitted to grant licence for a period of three years which can be renewed for nine more years on payment of 15% enhanced fee for every three years and that G.O. was applicable to all local bodies. Thereafter, G.O.Ms.No.181 was issued on 19.09.2008 after taking into consideration the difficulties faced by the Municipalities and Panchayats in conducting auction for every year and the law and order problem that may arise by reason of conducting auction every year and after taking into consideration of all these aspects, the Government has decided to permit the Panchayats and Municipalities to have the period of licence or lease for three years instead of one year, by directing them to collect 5% increase for 2nd and 3rd year. It is also admitted that the aforesaid G.O.Ms.No.181 was not made applicable to Corporations. Therefore, the Corporations also requested the Government to have the benefits of that G.O.Ms.No.181, so that they can also conduct auction for three years and the request of the Corporation was taken into consideration and the Director of Municipal Administration also requested the Government to issue a G.O. extending the benefits given to the Municipalities and Panchayats as given in G.O.Ms.No.181 and that was accepted by the Government and with the intention of applying the benefits of G.O.Ms.No.181 to the Corporations, the G.O.Ms.No.78 was issued by extending the period from one year to three years under that G.O. In para 3 of the aforesaid G.O., it is stated as follows;

"efuhl;rp eph;thf naf;Fehp;d; fUj;JUit muR ed;F ftdKld; ghprPyid bra;J mf;fUj;JUit Vw;fyhk; vd Kot[ bra;J, Vw;fdBt efuhl;rpfSf;Fk; BgUuhl;rpfSf;Fk; bghUe;Jk; tifapy; murhiz (epiy) vz;. 181, ehs; 19.09.2008-y; btspaplg;gl;Ls;s Mizfspd; mog;gilap;y; khefuhl;rpfspYs;s mA;fhofs;, BgUe;J epiyaA;fs;, re;ijfs;, kpjptz;o epWj;jA;fs;, fl;lz fHpg;gplA;fs; kw;Wk; jA;Fk; tpLjpfs; Bghd;w midj;J ndA;fspYk; fl;lzA;fs; tR{ypf;Fk; chpikf;fhd Fj;jif fhy msit fPBH Fwpg;gplg;gl;Ls;s epge;jidf;Fl;gl;L, Vw;fdBt eilKiwapYs;s Xuhz;oypUe;J Kd;whz;Lfshf khw;wpaikj;J muR MziapLfpwJ. nt;thiz 2009-2010 Mk; Mz;L Kjyhd Fj;jif ndA;fSf;F kl;LBk bghUe;Jk; vdt[k;, eilKiwapYs;s Fj;jif ndA;fSf;F bghUe;jhJ.

19.The learned Judge while interpreting the said G.O. was mainly carried away by the exclusion clause and was under the impression that the G.O. specifically excluded the applicability of the G.O. to the subsisting licence or lease. Therefore, we will have to see the effect and meaning of the G.O.Ms.No.78.

20.According to me, the said Government Order only declares the applicability of G.O.Ms.No.181 to the lease or licence granted by the Corporations and in effect, it is an extension of the G.O.Ms.No.181. In this context, we will have to see the effect of declaratory legislation.

21.In the judgment reported in 2004 (8)SCC 1, in the case of Zile Singh vs. State of Haryana and others it has been held as follows:

"It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only- "nova consitutio futuris formam imponere debet non praeteritis"- a new law ought to regulate what is to follow, not the past.

The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have retrospective effect and if the court can unhesitatingly conclude in favour of restrospectivity, the court would not hesitate in giving the Act that operation unless prevented from doing so by any mandate contained in law or an established principle of interpretation of statutes. Four factors are suggested as relevant'- (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated.

The presumption against retrospective operation is not applicable to declaratory statutes. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is "to explain" an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect." (Italics supplied)

22.It is further held in the judgment reported in 1995(2) SCC 630, in the case of R.Rajagopal Reddy (Dead) by LRs and others vs. Padmini Chandrasekharan (Dead) by LRS as follows:

"Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. If a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language "shall' be deemed always to have meant, is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicate. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."

23.In the judgement reported in 2001(8) SCC 24, in the matter of Shyam Sunder and others vs. Ram Kumar and another, it has been held as follows:

"Generally rules of interpretation are meant to assist the court in advancing the ends of justice. It is, therefore, true in the case of application of rule of benevolent construction also. If on application of the rule of benevolent construction, the court finds that it would be doing justice within the parameters of law there appears to be no reason why such rule of construction be not applied in the present case. But there are limitations on the powers of the court, in the sense that courts in certain situations often refrain themselves from applying the rule of benevolent or liberal construction. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied. One of the situations is, when the court finds that by application of the rule of benevolent construction it would be relegislating a provision of statute either by substituting, adding or altering the words used in the provision of the Act. The second situation is when the words used in a statute are capable of only one meaning. In such a situation, the courts have been hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the courts are not precluded from applying such rule of construction. The third situation is when there is no ambiguity in a provision of a statute so construed. If the provision of a statute is plain, unambiguous and does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application. However, if it is found that there is a doubt in regard to the meaning of a provision or word used in the provisions of an enactment, it is permissible for the court to apply the rule of benevolent construction to advance the object of the Act. Ordinarily, the rule of benevolent construction has been applied while construing welfare legislations or provisions relating to the relationship between weaker and stronger contracting parties."

Therefore, bearing in mind the aforesaid principles laid down by the Honourable Supreme Court, the present G.O. has to be interpreted. As stated supra, prior to the issuance of G.O.Ms.78, the G.O.Ms.No.181 was issued, permitting the Municipalities and Panchaytas to have the period of licence or lease for a period of three years subject to certain conditions and the G.O.Ms.No.78 was issued to extend that benefits to those Corporations also.

24.Further, it is made clear in the G.O.Ms.No.78 that the concession or benefit given to the Municipalities or Panchayats is also to be extended to Corporations also and for that purpose G.O. is issued. Therefore, as laid down by the Honourable Supreme Court in the aforesaid judgments, the G.O.Ms.No.78 only declares that lease or licence issued from the year 2009-2010 shall be for a period of three years and it must be suitably amended from one year to three years and the benefit given to the Municipalities and Panchayats is extended to Corporations also. Therefore, when a benefit is extended to another statutory body, as laid down by the Honourable Supreme Court, it must be given retrospective effect and it cannot be considered as prospective. Therefore, in my opinion, the G.O can be given retrospective operation and the exclusion clause will not stand in the way of interpreting the G.O. to give only prospective operation. Further in the following paragraphs, I am going to discuss about the meaning to be given to the existing licensees or lessees and therefore, in my opinion, the exclusion clause will not refer to those persons, who participated in the auction held for the year 2009-2010 and it applies to only those persons, who continued the licence or lease without participating in the auction held for the year 2009-2010 on the basis of Court orders or orders issued by the Government or Corporation.

25.A reading of G.O.Ms.No.78, in my opinion, only declares that the said G.O. is applicable to all licensees or lessees issued for the year 2009-2010. Therefore, when the Government is very specific it applies to lease or licence granted for the year 2009-2010, it is applicable to all licences or leases granted for the year 2009-2010 and the question of retrospective or prospective operation does not arise.

26.Further, the Honourable Division Bench of this Court, while interpreting the Tamil Nadu Minor Minerals Concessions Rules, in the judgment reported in 2008(3) CTC, in the case of Srinivasan v. The District Collector, Kancheepuram District held as follows: "A decision to grant lease for quarrying operation provided in the Act is substantive in nature and as to how the applications should be dealt with and lease should be granted are procedural. Fixation of period of lease is also procedural. the only restriction would be that the District Collector is bound by the procedures and cannot grant the lease beyond the period provided under the rule.

Therefore, following the said judgments, it can be easily stated that the decision to grant licence is only substantive and for what period it has to be granted is only procedural and retrospective operation can be given to procedural laws, even though it is not stated therein and it cannot be given to substantial law unless it is specifically stated therein.

27.The Honourable Division Bench of this Court refers to the judgment of the Honourable Supreme Court in the judgment reported in 1967 AIR 964, in the matter of Gujarat Pottery Works Pvt. Ltd., vs. B.P.Sood and others wherein the Honourable Supreme Court has held that the rule being procedural, it could be given retrospective effect. Only in the event of the statute prohibits or imposes a restriction for giving effect to retrospective operation, the rule must be read in the same manner by giving effect to the real meaning and the Court cannot import something new. Therefore, grant of licence for a period of of one year or three years is only procedural in nature and therefore, it can be given retrospective effect, having regard to the intention of the Government.

28. In the judgment rendered in the batch of writ petitions, by the Principal Bench referred to above in clause (iii) the learned Judge has quoted that the policy decision of the Government underwent a change from the provision of granting licence for one year and modified the same into three years as in the case of Town Panchayat and Municipality as per G.O.Ms.No.181, dated 19.09.2008. Nevertheless, The learned Judge came to the conclusion that G.O.Ms.No.78 cannot be applied to the licence granted for the year 2009-2010 prior to the issuance of the G.O.Ms.No.181 on the ground that it excludes the subsisting licence and the said G.O. shall operate only in future and the existing licence holders are bound by the terms and conditions on which the licence was granted and therefore, they are not entitled to seek extension. The learned Judge further observed that at the time of auction and confirmation earlier, there is no condition that the licence will be extended for a further period.

29.The learned Judge also held in clause (v) that the contention of the petitioner that the terms and conditions will apply to all the licensee of the year 2009-2010 cannot be accepted on the well stated principle that the Government Orders and Rules have to be read prospectively and not retrospectively, unless there is a specific indication in the said G.O. that it will not operative respectively. According to him, the exclusion clause in para 3 of the G.O.Ms.No.78 will make it clear that is only prospective in nature and it cannot be given retrospective operation.

30.The learned Judge also relied upon the Judgment of the Honourable Supreme Court in the case of M/s. Kusuman Hotels (P) Ltd vs. Kerala State Electricity Board reported in A.I.LR.2008 SC 2796 = 2008(13) SCC 213 wherein the Honourable Supreme Court has held that when a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication and all administrative orders are to be considered prospective in nature.

31.As per the judgment of the Honourable Supreme Court referred to in the earlier paragraphs about the scope of declaratory legislatures, G.O.Ms.No.78 only declares that the said G.O applies to all licensee or lessee for the year 2009-2010 and hence, it can be given retrospective effect and can be made applicable to the licence or lease granted for the year 2009-2010.

32.To appreciate these facts, we will have to see the earlier G.O.s and the licence granted by the Corporation on earlier occasions and who are continuing without participating in the auction held in the year 2009-2010. Originally G.O.Ms.No.92, Municipal Administration and Water Supply Department, dated 03.07.2007 was issued and it applies to all the local bodies including the Municipal Corporation, Municipality and Panchayats and it is seen from the said Order that the copy of the G.O. was communicated to the Commissioner of Corporation also. As per the said G.O., Government introduced the procedure for auctioning the properties belonging to the local bodies. It is stated there that initial lease or licence shall be for a period of three years and it will be automatically renewed for a period of 9 years and the amount will be enhanced by 15% for every three years.

33.It is also stated specifically in that G.O. it applies to all persons, who are having licence at that time and after the expiry of nine years, the existing licensee or lessee shall be given preference on payment of enhanced amount as claimed by the local bodies and if the existing licensee do not agree for that, that can be let out in public auction. Though, the said G.O. was applicable to all Corporations, it is contended by Mr.M.Valliyanayagam, the learned Standing counsel appearing for the 2nd respondent that the 2nd respondent is granting licence or lease only for a period of one year, prior to the year 2009-2010 and only by virtue of G.O.Ms.No.78, the Corporation started granting of licence or lease for a period of three years, after the issuance of the said G.O. and all other persons, who are having licence prior to the issuance of G.O.Ms.No.78 shall be considered as subsisting licences and they are excluded in that G.O. and they cannot claim the benefit of that G.O.Ms.No.78. Though, Mr.M.Vallinayagam, the learned Standing Counsel appearing for the 2nd respondent vehemently contended that earlier to 2009-2010, licences or leases were issued only for one year, he also admitted that some licensees are continuing their licence without participating in the auction held for the year 2009-2010. Though, he has not specifically referred to those licensees, it is made clear from the proceedings of the 3rd respondent, dated 11.05.2009, by which the licence was granted to the petitioner wherein it is stated in that proceedings that the benefit of the judgment of the Honourable High Court wherein licence would be extended beyond the period of three years by collecting 15% enhanced tax will not be applicable to the licence granted to the petitioner. Therefore, it is seen from the said condition that in pursuance of the said G.O.Ms.No.92 dated, 03.07.2007, some of the licensees or lessees have applied to this Court for extension of the period by paying enhanced amount of 15% as per the G.O.Ms.No.92 and this Court has also granted such extension to those persons and they continued to have the licence without participating in the auction held for the year 2009-2010. Therefore, having regard to the intention of the Government in issuing the G.O.Ms.No.78 whereby the Government wanted to extend the period of licence or lease, which was given to the Municipality and Panchayats, to the Corporations and having regard to the words used in the G.O. that in consonance with G.O.Ms.No.181, dated 19.09.2008, the same benefit is also given to all licensees and lessees from the existing one year to three year, the G.O.Ms.No.78 is applicable to all the licences or leases granted for the year 2009-2010. Therefore, in para 3, the Government has made it clear that the one year period granted to Municipalities and Panchayats shall be extended to Corporations also and therefore, ordered that the existing one year period shall be changed into three year period.

34.It is further clarified that the said G.O. applies only to the licences or leases granted for the year 2009-2010. If the intention of the Government is that the G.O.Ms.No.78 is applicable only to future lease or licence to be issued by Corporation after the issuance of that G.O., there is no need to mention that G.O. applies only to those licensees and lessees granted for the year 2009-2010. It is settled position of law that while interpreting the G.O. or document, the intention of the parties must be ascertained and documents must be read as a whole and each clause in that must be given effect to the extent possible. If the arguments of the learned Standing counsel appearing for the 2nd respondent and the reasons stated in the aforesaid judgments are to be accepted that by reason of the exclusion clause the Government Order will not apply to the subsisting licensees or lessees issued prior to the issuance of the G.O.Ms.No.78 the previous sentence in G.O.Ms.No.78 that the existing period is to be changed from one year to three years and G.O applies to licence granted for the year 2009-2010 would become meaningless. If the intention of the Government is that the licence or lease granted by the Corporation prior to the issuance of the G.O. will not get the benefit of that G.O, they would have specifically stated that the G.O. applies to those licensees to be granted after the issuance of the G.O.

35.On the other hand, it is stated that it applies to all licences and leases granted for the year 2009-2010 and taking into consideration of the period of lease and licence granted to Municipalities and Panchayats for the period three years, the existing period of one year licence or lease is to be changed into three years. Therefore, the intention of the Government is made clear that the Government wanted to extend the period lease or licence for a period of three years from 2009-2010 and already the Panchayats and Municipalities were given liberty to issue licence or lease for three years and at the request of the Corporations, the same benefit can be given to the Corporations also and therefore, it was stated that the existing period of one year is to be changed into three years and it is applicable to all licensees and lessees granted for the year 2009-2010.

36.As stated supra, apart from the licence or lease granted for the year 2009-2010, some people are having licence in respect of certain items and those persons have not participated in the auction held for the year 2009-2010 and their licences are extended on the basis of the orders of this Court and by virtue of G.O.Ms.No. 92, dated 03.07.2007. This is also specifically mentioned in the proceedings of the 3rd respondent, while granting the licence to the petitioner for the period of one year that the licensee is not entitled to take the benefits of those licences for a further period of three years by paying 15% enhanced amount on the basis of the judgment of this Court. Therefore, the exclusion clause viz., G.O is not applicable to the subsisting license or lease and it only applies to those licensees or lessees, who are continuing the lease or licence without reference to the auction held in the year 2009-2010, but on the basis of the order of this Court. Therefore, the contention of the learned Standing counsel appearing for the 2nd respondent, Mr.M.Vallinayagam, that the subsisting licence only refers to the licence granted for the year 2009-2010 and they are excluded cannot be accepted.

37.Similarly, the learned Judge also was not informed about the presence of certain licensee or lessee on the basis of the Court order and therefore, the learned Judge was carried away by the above submissions of the Municipalities that prior to 2009-2010, all licensees or lessees were granted only for a period of one year and therefore, nobody is allowed to continue the licence or lease beyond the period one year. Therefore, the the learned Judge held that the exclusion clause viz., it is not applicable to subsisting licence only refers to licence granted prior to the issuance of G.O.s and therefore, they are not entitled for extension.

38.As a matter of fact, in clause (iv), the learned Judge has stated that G.O.Ms.No.78 clearly states that all terms and conditions should be suitably amended to be incorporated in the condition to be applied to the licence to be granted in terms of G.O.Ms.No. 78, dated 28.05.2009 and it is clear that the three years period is a change in the policy and there is no specific clause for extension of subsisting licence. Having correctly laid down that all terms and conditions should be suitably amended to be incorporated in the condition to be applied, in my respectful opinion, it applies to existing licensee also, otherwise, there is no need to amend or incorporate the terms for a period of three years after the issuance of G.O as it will be obvious that licence or lease shall be issued only for a period of three years after the issuance of G.O.Ms.No.78. If the said G.O is applicable only from that date and it applies only to those license to be issued after that date, there is no need for carrying out the amendment in the licence condition. Therefore, according to me, the exclusion clause, will not prevent the application of G.O.Ms.No.78 to those licence granted for the year 2009-2010 and as stated supra, having regard to the intention of the Government and the meaning to be attributed to all the clauses in the said G.O., the benefit of that G.O. is also available to those licensees, who were granted licence for the year 2009-2010.

39.Further, G.O.Ms.No.78 only declared that the licence period or licence period for the year 2009-2010 for three years. As held by the Honourable Supreme Court in the judgments referred to in earlier paras, it has to be given retrospective operation. Therefore, with great respect, I am unable to agree with the interpretation of the learned Judge with regard to the exclusion clause stated in the G.O.

40.According to me, the exclusion clause refers only to the licence or licence, who are continuing the licence or lease on the basis of the Court order or on some other grounds without participating in the auction held for the year 2009-2010 and the exclusion clause will not refer to those, who were granted licence or lease in the auction held in the year 2009-2010.

41.Mr.M.Vallinayagam, the learned Standing counsel appearing for the 2nd respondent further submitted that the addendum issued in the G.O.Ms.No.78, as per the letter of the Secretary to the Government, dated 05.03.2010 also makes it clear that the G.O. applies only to those licensee or lessee, which were issued for the year 2009-2010, having regard to the condition that it is for the period of three years and submitted as per the above addendum unless three years period is mentioned in the auction 2009-2010, the G.O is not applicable to those licence and in my opinion, the addendum issued by the Secretary is unwarranted and it will not support the contention of the learned Standing counsel appearing for the 2nd respondent.

42.As stated supra, the intention of the Government, while issuing G.O.Ms.No.78 is to extend the lease or licence period of one year to three years in respect of Corporations and it will also be applicable to licensee and lessee granted for the year 2009-2010 and the period is to be altered from one year to three years. Therefore, Government is conscious of the fact that licences issued for a period of one year in the auction held for the year 2009- 2010 have to be given extension for two more years as per G.O.Ms.No.181 and the extension of period must be given to the Corporation also and therefore, it was stated that period is to be amended from one year to three years. If by reason of the addendum, the G.O. can be made applicable to only those license or lease issued for the year 2009-2010 unless the period is specifically mentioned as three years, in my opinion, there is no need for the issuance of the said G.O. When the lease or licence agreement stipulates the period as three years, the parties are bound by the agreement and there is no need to pass any G.O. that the licence should be for a period of three years from 2009-2010. Therefore, Government was conscious of the fact that G.O. must be made applicable to those, who are granted licence and lease granted for the year 2009-2010, though issued for a period of one year, the said period must be extended to three years. Therefore, having regard to the reasons stated above and I am not able to agree with the finding of the learned Judge in the aforesaid judgement and in my opinion, G.O.Ms.No.78 applies to all licences and leases granted for the year 2009-2010.

43.Further the argument of the learned counsel Mr.Vallinayagam that the purpose of granting 3 years period is to encourage more participants and that would augment the income cannot also be accepted, having regard to the purpose for which G.O.Ms.No.181 was issued. It is stated in the G.O.Ms.No.181 that due to administrative reasons and the difficulties faced by the local bodies in having auction for every year, it was decided to have the auction for a period of three years. The financial aspect now projected by the learned counsel appearing for the 2nd respondent was not at all stated in the G.O.Ms.No.181 or G.O.Ms.No.78.

44.Further, one of the parties in the batch of writ petitions which dealt with G.O.Ms.No.78 filed W.A.Nos.603 an 604 of 2010 challenging the judgment of the learned single Judge and the Honourable Division Bench of this Court explain the meaning of the G.O.Ms.No.78 as follows;

"As can be seen, G.O.Ms.No.78, dated 25.05.2009 issued by the Department of Municipal Administration and Drinking Water Corporation, makes certain suggestions to the city Municipal Corporations, in that, instead of going for fresh auctions in case of certain activities such as collection of toll fees at the bus stands, cycle stands etc., it prescribes that the corporation may go in for a slight variation in the terms of the existing contract and continue the same contractor for a further period."

Therefore, the above explanation by the Honourable Division Bench in the aforesaid writ appeal also makes it clear that the same contractor can be continued for a better period.

45.The Honourable Division Bench further held that in a given case for getting better revenue, instated of giving extension, the Corporation may go for fresh auction. Having regard to the facts of that case, the Honourable Division Bench of this Court held that the conduct of the Corporation in calling for fresh auction cannot be challenged as the petitioner also participated in the fresh auction. But in the present case on hand, the reason for going for fresh auction was only on the basis that G.O.Ms.No.78 is not applicable to existing licences and the petitioner is not entitled to extension as he is a existing licensee. That reason was not accepted by the Honourable Division Bench in the said judgment

46.In the result, the writ petition is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.

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