Madras High Court
V. Chellappa And Another vs Commissioner, Tirunelveli Municipal ... on 30 March, 1998
Equivalent citations: 1998(1)CTC465, (1998)IIMLJ450
ORDER
1. In these four writ petitions, the grievance being almost similar and a common counter has been filed by the respondents, they are heard together and disposed of by this common order.
2. The petitioner in W.P.Nos.3021 & 3022 of 1998 being same, in one petition, he is seeking for declaring the auction notice published in Daily Thanthi, dated.15.2.1998, insofar as it relates to the licence to display advertisements, through television sets in Tirunelveli Municipal Corporation Central Bus Stand, as illegal and in another petition he is seeking for renewal of the licence, on accepting the enhanced rent of 15% for a block period of three years.
3. The petitioner in W.P.Nos.3023 & 3024 of 1998 being same, has, in one petition, sought for declaring the auction notice published in Daily Thanthi on 15.2.1998 insofar as it relates to the licence to instal weighing machines in platforms 1 to 3 of the Central bus stand, Thirunelveli and in another petition he has sought for renewal of the said licence after accepting the enhanced rent of 15%.
4. The petitioner in W.P.Nos.3021 and 3022 of 1998 was a successful bidder in the auction conducted by the Thirunelveli Municipal Corporation for the year 1993-94 and he was allotted a space measuring an extent of 16x16 sq.ft. for the purpose of putting up a "room" from which the petitioner can operate the 'television sets' installed by him in the three platforms. He has been displaying advertisements through medium of television in accordance with the terms and conditions of the auction notice. During the year 1994-95, auction for the above said right was conducted by the respondent Corporation for the period upto March, 1995 in which the petitioner was the highest bidder by paying Rs.2160 per month (Rs.26,000 per year). According to the petitioner, during February, 1995, he requested the Respondent No.1 for extension of his right for a further period of three years on payment of 15% enchanced rent. The Commissioner of respondent Corporation renewed the right of the petitioner, and, it is his case that he has been conducting the said business by paying the rental without fail and he made a representation during the end of January, for further renewal of licence for a period of three more years and agreed to pay 15% enhanced rent and no orders were passed on the said representation and on the other hand, Respondent No.l has notified the auction for the right of advertisement through media of television and therefore the petitioner is seeking for renewal of the licence.
5. In W.P.No.3023 of 1998, it is the case of the petitioner that the respondent Municipality had been auctioning the right to instal weighing machines in the open space in the platforms of Central bus stand, Thirunelveli and collecting fees. The petitioner was the successful bidder in the auction conducted for the period from 1.4.1991 to 31.3.1992 and since the bid was confirmed, the petitioner was carrying on the business and before the expiry of the said period, he approached the Municipality for extension of the licence for a further period of three years on the payment of 15% enhanced rental fee. However, the Municipality issued a notice for an auction to be conducted on 26.2.1992.
6. In the counter affidavit, the respondents have stated that so far as the petitioner in W.P.Nos.3021 and 3022 of 1998 is concerned, he was given licence for a period from 15.2.93 to 14.2.94 as he had happened to be the highest bidder in the auction held for the same, and he was also the successful tenderer for the period from 1.4.94 to 31.3.95. He was given an extension for period 1995-1998. Thus, he was given the said licence to advertise on the television in the busstand till 31.3.1998, and he was given a space of 8x6 ft. for locating his office and he had put up an enclosure. Later he wanted a larger space viz. 15 x11 ft. and that was also given. But, instead of running the office he is running a business viz. Xerox and STD both in violation of the terms of licence. In so far as petitioner in W.P.No.3023 and 3024 of 1998 is concerned, it is stated that the petitioner was granted licence to keep weighing machines in the platforms of the busstand so that the passengers and public can use the machines on payment of specified charges. This petitioner got the said licence for the year 1991-92 as the highest bidder in the auction held for the same. Later he was granted an extension for 1992-95. He was again an extension for 1995-98. It is specifically contended that G.O.Ms.No.285 shall not apply to the cases on hand for more than one reason viz. the Government order applies only to shops and stalls. The respondent being a Corporation the said Government Order does not apply to the cases on hand. Similarly, the said G.O. applies only to leases granted to shops and stalls and it does not apply to licences. It is the specific case of the respondent that the petitioners were granted a right to collect charges for advertisement on the television from the advertisers and the right to collect charges for weighment from the public and passengers and it was only a licence and there was no lease. Moreover the petitioners had enjoyed these rights continuously for 8 years and five years respectively. The auction was held on 9.3.1998. One Thiru Subramanian has offered a sum of Rs.24,550 as the highest bid and Rs.24,600 is the highest offer for the said rights to weigh and collect charges therefor. In respect of the right to advertise on the television sets in the busstand there were no bidders on account of the pendency of the writ petition and the interim order not to confirm the highest bid was sufficiently publicised. Thus, for the items, no bidders were there the Corporation has decided to go in for a re-auction.
7. From these pleadings, the point for consideration is whether the petitioners are entitled to seek for renewal of their licence preventing the confirmation of the highest bid and a re-auction in respect of the subject matter in W.P.No.3021 and 3022 of 1998.
8. The petitioners in these petitions were granted rights to collect the charges for the advertisement on the television from the advertisers and the right to collect charges for weighment from the public and passengers. What was auctioned was only a right to collect the charges and not that petitioners were given possession or right with an interest in the property. The possession was given as licences only for the purpose of exercising their right to collect fees from the advertisers and weighers who come to the busstand. On construction of the nature of the right it is clear that what was given to the petitioners was only a licence and not a lease. The very fact that such permission is subject to conditions that when licence is granted it shall expire at the end of a certain period and should be used only for a particular period and any non-compliance of which enables the licenser to take appropriate action shows the nature of right granted to the petitioners, which is decisive in deciding whether it is a lease or licence.
9. If a document gives only a right to use a property in a particular way under certain terms while it remains in the possession and control of the owner thereof it will be a licence. The legal possession thereof continues to be in the owner of the property but the licencee is permitted to make use of the premises for the particular period. But for the permission his occupation would be unlawful, and does not create in his favour any estate or interest in the property.
10. On this aspect what constitutes lease or licence, this Court has, in T. Sekaran v. The Managing Director, Thiruvattuvar Transport Corporation, Madras-2, 1994 (1) L.W. 463, following Associated Hotels of India v. R.N. Kapoor, , has held that where a right is only to use the property in a particular manner, it only amounts to a licence and not a lease.
11. The same view has been reiterated in V.S.Balakrishnan v. Pudukkottai Municipality, reptd. by the Commissioner, 1994 (1) L.W. 571. In addition to distinguishing the lease and licence at para 11, it is held in the said decision that G.O.Ms.No.285 dated 29.4.1985 applies only to lease of Municipal buildings, shop, lands, bunks etc. and does not apply to lease or licence to a right to collect fees.
12. The conditions of the auction under which the petitioners became the highest bidders make it clear that it was only a licence for a specified period. They have agreed to those conditions and taken up the licence right in the auction and it is not open to the petitioners now to raise a contention that they are entitled for a renewal on payment of 15% enhanced rent for a block period of three years as though it is a lease.
13. This Court, on an identical question regarding the applicability of G.O.Ms.No.285 and the power of this Court to renew the licence after the expiry of licence period has held that where the petitioners has only a right of licence and after expiry of the said period they have no right to continue.
14. These petitions are liable to be dismissed in view of the decision of the Supreme Court in A.I.R. 1989 S.C.1026 and State of Rajasthan v. Bhavani Singh and others, , wherein it has been held that non-statutory contracts and right touching an immovable property cannot be enforced under Art. 226 of the Constitution.
15. For these reasons, I hold that the petitioners are not entitled to resist the right of the respondent to auction, because, such right springs from the very right of ownership of the property so long as there is no statutory prohibition. It can hold the property and put it to better use to augment more income in public interest in the manner most advantageous to it. Any direction not to hold auction or to renew the licences is nothing but putting a limit on such right, which is impermissible in law.
16. Therefore, the petitioners being licencees, where their right to collect fees is not affected during the subsistence of the licence period, they have no right to resist the action of the respondents either to bring the property to auction or confirmation of the auction already held or to refuse to renew any such licence.
17. For reasons aforestated, the writ petitions are dismissed. Consequently, the connected W.M.P.s are also dismissed.