Madras High Court
M.Periya Samy vs )The Assistant Director Of Town ... on 14 July, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.07.2015
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Writ Appeal(MD)No.604 of 2015
and
M.P(MD)No.1 of 2015
M.Periya Samy ... Appellant
Vs.
1)The Assistant Director of Town Panchayats,
Madurai,
Madurai District.
2)The Executive Officer,
T.Kallupatti Town Panchayat,
T.Kallupatti,
Madurai. ... Respondents
Appeal filed under Clause 15 of Letters Patent, against the order made
in W.P(MD)No.3694 of 2015, dated 17.03.2015.
!For Appellant : Mr.T.Lajapathi Roy
^For Respondents : Mr.A.K.Baskara Pandian,
:ORDER
(Order of the Court was made by S.MANIKUMAR, J.) M.Periya Samy, one of the petitioners in W.P(MD)No.3694 of 2015, and being aggrieved by a common order, made in W.P(MD)Nos.3641/15 etc., dated 17.03.2015, has filed the present appeal. There were six other petitioners in the writ petition.
2.Before the Writ Court, all of them have challenged a auction cum tender notice, dated 05.03.2015, in Roc.No.26/2015, issued by the Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai District, the 2nd respondent herein, in respect of shops situated in T.Kallupatti Town Panchayat Bus Stand Commercial Complex and consequently, sought for a prayer, forbearing the respondents, therein from evicting the appellant/petitioner and others, from the shops in their occupation.
2.Before the Writ Court, common contentions of all the writ petitioners were that vide proceedings in Roc.No.26/2015, dated 05.03.2015, a tender notification was issued in respect of shops in T.Kallupatti Town Panchayat Bus Stand Commercial Complex. Being aggrieved, the petitioners and others have filed W.P(MD)No.3426 of 2012 etc. The petitioner has submitted that the local body, has taken a decision, to give the shops to the petitioner and others, subject to payment of Rs.1,00,000/- as deposit, with a further condition that a sum of Rs.2,500/- has to be paid as monthly rent. Since the Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai District, 2nd respondent herein, had agreed to lease the shops, to the petitioner and others, till 31.03.2016, as per the auction notification, in Roc.No.26/2012, dated 05.03.2012, the petitioner was directed to pay the said amount of Rs.1,00,000/-, less the amount already lying with the 2nd respondent, on or before 11 A.M., on 28.03.2012, and in the event of making such payment, the Executive Officer was directed to grant lease.
3.When the matter stood thus, the Executive Officer has issued a fresh notification in Roc.No.26/2015, dated 05.06.2015, stating that there would be a public auction for the shops in T.Kallupatti Town Panchayat Bus Stand Commercial Complex.
4.Before the Writ Court in W.P(MD)No.3694/2015, the petitioner/appellant has assailed the auction notice, on the ground that he has already paid a sum of Rs.80,000/- within the prescribed period and that the lease period would expire on 31.03.2016 and that he has also been paying rent of Rs.2,500/- every month, without fail. It was also contended that as per Section 11(4) of the Tamil Nadu Transparency in Tenders Rules, 2000 (hereinafter referred to as, rules), due publicity was not given and that tender documents were also not made available.
5.Similar contentions were raised by others. Perusal of the impugned order made in W.P(MD)No.3694 of 2015, dated 17.03.2015, shows that before the Writ Court, the petitioner has also contended that as per the Tamil Nadu Transparency in Tenders Act, 1998, if the value of the tender, is more than 25 lakhs, then paper publication has to be effected. Recording that the admitted value of the tender was worth about Rs.50 lakhs and that no paper publication was effected by the authorities, and further observing that the publication effected was only in the notice board of the respondents and having regard to the submission of the learned counsel for the petitioners that if a notification is issued in newspapers, as per the Act, then the writ petitioners would participate in the auction, the Writ Court, vide common order, made in W.P(MD)Nos.3641/15 etc dated 17.03.2015, set aside the auction notice, dated 05.03.2015, on the ground that it is not in conformity with the provisions of the Act. The Writ Court further directed the authorities, to effect paper publication, as per the statutory provisions and conduct the auction, without any delay. The Writ Court has also stated that the writ petitioners shall participate in the auction, once the tender is called for. Though there were seven writ petitioners, present appellant/petitioner, who was in occupation of Shop No.13 in T.Kallupatti Town Panchayat Bus Stand Commercial Complex, Madurai District, alone has preferred the present appeal.
6.Inviting the attention of this Court to the tender notification in Roc.No.26/2012 dated 05.03.2012, issued by the Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai District, 2nd respondent herein, Mr.T.Lajapathi Roy, learned counsel for the appellant, submitted that the abovesaid local body, while issuing the notification for Shop Nos.1 to 25, in T.Kallupatti Town Panchayat Bus Stand Commercial Complex, had fixed a sum of Rs.1,00,000/- as deposit, for each shop. Rent for each shop was fixed at Rs.2,500/- per month and that the validity of the lease period or the date for re-delivery was from the date of handing over possession by the local body, to the successful bidders was till 31.03.2016. When the said tender notice dated 05.03.3012 was challenged in W.P(MD)Nos.3426, 3427 and 3626 of 2012, Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai District/respondent therein, agreed to give lease of shops, to those in occupation, for the period indicated in the auction notice dated 05.03.2012 i.e., till 31.03.2016 and accordingly, this court directed the shop owners to pay a sum of Rs.1,00,000/-, less the amount already lying in the deposit with the 2nd respondent on or before 11 A.M., of 28.03.2012 and in the event of making such payment, the respondent therein, was directed to grant lease, in respect of the abovesaid shops.
7.Mr.T.Lajapathiroy, learned counsel for the appellant/writ petitioner further submitted that in respect of Shop No.13, deposit of Rs.80,000/- has been made by the appellant/petitioner, on 20.04.2012. In sum and substance, he submitted that when the respondents have already collected the amount of Rs.80,000/-, less the amount lying in deposit with the 2nd respondent, the learned Single Judge, ought to have set aside the auction notice, dated 05.03.2015, in respect of the shops proposed to be auctioned in T.Kallupatti Town Panchayat Bus stand Commercial Complex. He also submitted that as per the decision of this Court in M.K.M.Geeyavudeen and others vs. Commissioner, Pudukottai Municipality, Pudukottai, reported in 2008 (1) MLJ 682, the petitioner is entitled to lease for a period of nine years.
8.On 10.06.2015, when the matter came up for hearing, we directed Mr.A.K.Baskara Pandian, learned Special Government Pleader appearing for the respondents to get instructions. In response to the same, learned Special Government Pleader, submitted that in the meeting held on 16.12.2011, at T.Kallupatti Town Panchayat Union, it was found that the lease amount for the shops was lower than the market rate and even if 15% enhancement was made on the lease amount, it would result in loss of revenue to the Town Panchayat, Therefore, it was resolved that for a period of three years from 01.04.2012, all the shops should be brought for public auction and accordingly, a resolution No.35/11 was passed. Thereafter, proceedings in Roc.No.26/2012 dated 05.03.2012, were issued.
9.Learned Special Government Pleader also submitted that when paper publication was effected on 15.03.2012 in ?Thina Thanthi? newspaper, by inadvertent mistake, the date on which, the lease period would normally expire, i.e., at the end of three years, was wrongly mentioned as 31.03.2016. Realising the abovesaid mistake, on the next day itself i.e., 16.03.2012, a Corrigendum was issued by the Executive Officer, T.Kallupatti Town Panchayat, Madurai District, to the effect that the date 31.03.2016 should be read as 31.03.2015. However, the learned Special Government Pleader, fairly admitted that Corrigendum, dated 16.03.2012, was not brought to the notice of this Court, when W.P(MD)No.3426, 3427 and 3626 of 2012 filed by three petitioners Viz., Mr.M.Muthukrishnan, Mr.R.Rajendran, Ms.B.Mahalakshmi were disposed of on 27.03.2012, in which, the Writ Court observed that since the respondent had agreed to give lease of the shops in question, to the petitioners therein, for the period indicated in the auction notice, and thus the petitioners therein, were directed to pay a sum of Rs.1,00,000/- less the amount already lying with the respondent therein/Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai District, on or before 11 A.M., on 28.03.2012. He submitted that the date mentioned in the Corrigendum notice, alone, can be taken into consideration by the Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai District, and that therefore, auction notice, dated 05.03.2015, has been issued, for leasing the shops, after the expiry of the lease period, i.e. upto 2015 only.
10.Inviting the attention of this Court, to the abovesaid common order, dated 27.03.2012 made in W.P(MD)No.3426, 3427 and 3626 of 2012, learned Special Government Pleader, also submitted that the present appellant/petitioner was not a party in the earlier order and in such circumstances, he cannot seek to get any benefit of the said order.
11.At this juncture, Mr.Lajapathy Roy, learned counsel for the appellant submitted that the order made in W.P(MD)No.3426, 3427 and 3626 of 2012, dated 27.03.2012, was made applicable to others also. He reiterated that the auction notice, dated 05.03.2015, has not been issued, as per the provisions of the Tamil Nadu Transparency in Tenders Act and the rules framed thereunder.
12.Heard the learned counsel for the parties and perused the materials available on record.
13.Files pertaining to this case, produced by the learned Special Government Pleader is perused. Resolution, dated 16.11.2011, passed by T.Kallupatti Panchayat Union, shows that a decision has been taken, to lease the shops for three years from 01.04.2012. Approved Auction cum Tender Notice in Roc.No.26 of 2012, dated 05.03.2012, is also found in the file, wherein for Shop Nos.1 to 25, in T.Kallupatti Town Panchayat Bus Stand Commercial Complex, a sum of Rs.1,00,000/- has been fixed as deposit, for each shop. The upset price for the lease has been fixed at Rs.2,500/- per month. The period of lease is from the date of handing over possession to the successful bidders, till 31.03.2015. For brevity, the relevant portion of the proceedings of the auction cum tender notification, is extracted hereunder:-
e/f/vz;/26-2012 nj/fy;Yg;gl;o ngU:uhl;rp
ehs;/05/03/2012
bghJ Vyk; kw;Wk; xg;ge;jg;g[s;sp mwptpg;g[
kJiu khtl;lk;. nj/fy;Yg;gl;o ngU:uhl;rpf;F brhe;jkhd ngUe;J epiyaj;jpy; cs;s tzpftshf filfis khj thlif mog;gilapy; fil elj;Jk; chpikf;fhd bghJ Vyk; 28/03/2012 md;W g[jd;fpHik fhiy 11/00 kzpastpy; bray; mYtyh; my;yJ mtuJ m';fPfhuk; bgw;wtuhy; ngU:uhl;rp mYtyfj;jpy; bghJ Vyk; elj;jg;gLk;/ Vyk; nfhUtjw;F Kd;dnu xg;ge;jg;gs[;sp bfhLf;f tpUg;gk; cs;sth;fs; md;iwa jpdj;jpnyna bray; mYtyhplk; K:o Kj;jpiuapl;l xg;ge;jg;g[s;spfs; bfhLf;fyhk;/ Vyk; nfl;f tpUg;gk; cs;sth;fs; fPH;fhQqk; ml;ltizapy; Fwpg;gplg;gl;Ls;s itg;g[j; bjhifapid jdpj;jdpahf t';fp nfl;g[ tiunthiyapid (demand draft) bray; mYtyh;. nj/fy;Yg;gl;o ngU:uhl;rp (Executive Officer, T.Kallupatti Town Panchayat) vd;w bgahpy; nj/fy;Yg;gl;oapy; cs;s t';fpfspy; khw;wj;jf;fjhd t';fp tiunthiyia brYj;jp bghJ Vyj;jpy; fye;J bfhs;syhk;/ K:o Kj;jpiuapl;l xg;ge;jg;g[s;spfs; bfhLf;f tpUg;gKs;sth;fs; Vyk; Jt';Fk; 30epkplk; Kd;djhf Vynltzpia nj/fy;Yg;gl;o ngU:uhl;rpapy; cs;s t';fpfspy; khw;wj;jf;f t';fp tiunthiyia ,izj;J khj thlifj; bjhifia xg;ge;jg;g[s;spapy; Fwpg;gpl;L. bray; mYtyhplk; rkh;g;gpf;fyhk;. gfpu';f Vyk; Koe;jt[ld; Vyjhuh;fs; Kd;dpiyapy; xg;ge;jg;g[s;spfs; jpwe;J mwptpf;fg;gLk;/ gfpu';f Vyk;(m) blz;lh; ,tw;wpy; vJ TLjyhf cs;snjh. mJ nj/fy;Yg;gl;o ngU:uhl;rp kd;w m';fPfhuj;jpw;Fl;gl;L ,Wjp bra;ag;gLk;/ ,ju tpgu';fis mYtyf ehl;fspy; mYtyf neu';fspy; nehpy; nfl;Lj; bjhpe;J bfhs;syhk;/ t/ vz;/ Vy ,d';fs; tpguk;
itg;g[j;
bjhif U:/ khj thlif Muk;g Vyf;
nfs;tp chpkf;fhyk;
1nj/fy;Yg;gl;o ngU:uhl;rp ngUe;J epiyaj;jpy; cs;s Lgpl;nfh tzpf tshf filfs; vz;/1 Kjy; 16 tiu U:/1.00.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/2.500-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/3/2015 Koa 2 nj/fy;Yg;gl;o ngU:uhl;rp ngUe;J epiyaj;jpy; cs;s tzpf tshf filfs; vz;/1 Kjy; 25 tiu U:/1.00.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/2.500-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/3/2015 Koa 3 nj/fy;Yg;gl;o ngU:uhl;rpf;F brhe;jkhd kJiu? ,uh$ghisak; bkapd;nuhl;oy; mike;Js;s tzpf tshf filfs; vz;/ 1 Kjy; 4 tiu U:/1.00.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/2.000-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/3/2015 Koa 4 kJiu?bjd;fhrp rhiyapd; nky;g[wj;jpy; ngUe;J epiyaj;jpd; tzpf tshf filfspd; Kjy; jsj;jpy; mike;js;s vz;/1 Kjy; 10tiu U:/50.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/1.500-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/3/2015 Koa 5 nj/fy;Yg;gl;o ngU:uhl;rp ngUe;J epiyaj;jpd; tlf;F gFjpapy; cs;s fil vz;/26y; cs;s cztfk;
U:/2.00.000-?
U:/5.000-?
fil xg;gilf;Fk; ehs; Kjy; 31/3/2015 Koa
14.Auction notice dated 15.03.2012 published in ''Thina Thanthi'', in respect of the shops in T.Kallupatti Town Panchayat Commercial Complex and at other places, is extracted hereunder:-
nj/fy;Yg;gl;o ngU:uhl;rp e/f/vz;/26-2012 ehs;/05/03/2012 bghJ Vyk; kw;Wk; xg;ge;jg;g[s;sp mwptpg;g[ kJiu khtl;lk;. nj/fy;Yg;gl;o ngU:uhl;rpf;F brhe;jkhd ngUe;J epiyaj;jpy; cs;s tzpftshf filfis khj thlif mog;gilapy; fil elj;Jk; chpikf;fhd bghJ Vyk; 28/03/2012 md;W g[jd;fpHik fhiy 11/00 kzpastpy; bray; mYtyh; my;yJ mtuJ m';fPfhuk; bgw;wtuhy; ngU:uhl;rp mYtyfj;jpy; bghJ Vyk; elj;jg;gLk;/ Vyk; nfhUtjw;F Kd;dnu xg;ge;jg;gs[;sp bfhLf;f tpUg;gk; cs;sth;fs; md;iwa jpdj;jpnyna bray; mYtyhplk; K:o Kj;jpiuapl;l xg;ge;jg;g[s;spfs; bfhLf;fyhk;/ Vyk; nfl;f tpUg;gk; cs;sth;fs; fPH;fhQqk; ml;ltizapy; Fwpg;gplg;gl;Ls;s itg;g[j; bjhifapid jdpj;jdpahf t';fp nfl;g[ tiunthiyapid (demand draft) bray; mYtyh;. nj/fy;Yg;gl;o ngU:uhl;rp (Executive Officer, T.Kallupatti Town Panchayat) vd;w bgahpy; nj/fy;Yg;gl;oapy; cs;s t';fpfspy; khw;wj;jf;fjhd t';fp tiunthiyia brYj;jp bghJ Vyj;jpy; fye;J bfhs;syhk;/ K:o Kj;jpiuapl;l xg;ge;jg;g[s;spfs; bfhLf;f tpUg;gKs;sth;fs; Vyk; Jt';Fk; 30epkplk; Kd;djhf Vynltzpia nj/fy;Yg;gl;o ngU:uhl;rpapy; cs;s t';fpfspy; khw;wj;jf;f t';fp tiunthiyia ,izj;J khj thlifj; bjhifia xg;ge;jg;g[s;spapy; Fwpg;gpl;L. bray; mYtyhplk; rkh;g;gpf;fyhk;. gfpu';f Vyk; Koe;jt[ld; Vyjhuh;fs; Kd;dpiyapy; xg;ge;jg;g[s;spfs; jpwe;J mwptpf;fg;gLk;/ gfpu';f Vyk;(m) blz;lh; ,tw;wpy; vJ TLjyhf cs;snjh. mJ nj/fy;Yg;gl;o ngU:uhl;rp kd;w m';fPfhuj;jpw;Fl;gl;L ,Wjp bra;ag;gLk;/ ,ju tpgu';fis mYtyf ehl;fspy; mYtyf neu';fspy; nehpy; nfl;Lj; bjhpe;J bfhs;syhk;/ t/ vz;/ Vy ,d';fs; tpguk;
itg;g[j;
bjhif U:/ khj thlif Muk;g Vyf;
nfs;tp chpkf;fhyk;1
nj/fy;Yg;gl;o ngU:uhl;rp ngUe;J epiyaj;jpy; cs;s Lgpl;nfh tzpf tshf filfs; vz;/1 Kjy; 16 tiu U:/1.00.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/2.500-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/03/2015 Koa 2 nj/fy;Yg;gl;o ngU:uhl;rp ngUe;J epiyaj;jpy; cs;s tzpf tshf filfs; vz;/1 Kjy; 25 tiu U:/1.00.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/2.500-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/03/2016 Koa 3 nj/fy;Yg;gl;o ngU:uhl;rpf;F brhe;jkhd kJiu? ,uh$ghisak; bkapd;nuhl;oy; mike;Js;s tzpf tshf filfs; vz;/ 1 Kjy; 4 tiu U:/1.00.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/2.000-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/03/2016 Koa 4 kJiu?bjd;fhrp rhiyapd; nky;g[wj;jpy; ngUe;J epiyaj;jpd; tzpf tshf filfspd; Kjy; jsj;jpy; mike;js;s vz;/1 Kjy; 10tiu U:/50.000-? (xt;bthU filf;Fk; jdpj;jdpahf) U:/1.500-? xt;bthU filf;Fk;
fil xg;gilf;Fk; ehs; Kjy; 31/03/2016 Koa 5 nj/fy;Yg;gl;o ngU:uhl;rp ngUe;J epiyaj;jpd; tlf;F gFjpapy; cs;s fil vz;/26y; cs;s cztfk;
U:/2.00.000-?
U:/5.000-?
fil xg;gilf;Fk; ehs; Kjy; 31/03/2016 Koa jpU/K/khzpf;fk;.gp/V/ jpU/fh/fz;zd; jiyth;. nj/fy;Yg;gl;o bray;mYtyh;.nj/fy;Yg;gl;o ngU:uhl;rp ngU:uhl;rp
bt/M/vz;/50-2012-brkbjhm-kJiu/ehs;/14/3/2012
15.Subsequently, realising the mistake committed, in fixing the last date of the lease period as ''31.03.2016'' instead of ''31.03.2015'', a Corrigendum has been issued by the Executive Officer T.Kallupatti Town Panchayat Union, Madurai District, wherein he has notified that instead of ''31.03.2016'' the date of expiry of lease period should be read as ''31.03.2015''. Corrigendum dated 16.03.2015 is extracted hereunder:-
jpUj;j mwptpg;g[ ,nj ehspjHpy; new;W(15/3/2012) tpahHf;fpHik md;W nj/fy;Yg;gl;o ngU:uhl;rp bghJ Vyk; kw;Wk;
xg;ge;jg;g[s;sp mwptpg;g[ tpsk;guk; 13?k; gf;fj;jpy; btsp te;jJ/ mjpy; Vy chpkf;fhyk; fil xg;gilf;Fk; njjp Kjy; 31/03/2016 vd;W ,Ug;gij 31/03/2015 vd;W jpUj;jp thrpf;ft[k;/ bray; mYtyh;.
nj/fy;Yg;gl;o ngU:uhl;rp.
kJiu khtl;lk;/
16.Thus, as rightly contended by the learned Special Government Pleader, had the Corrigendum, dated 16.03.2012, issued in Thina Thanthi newspaper, been brought to the notice of this Court, on 27.03.2012, when W.P(MD)Nos.3426, 3427 and 3626 of 2012, were disposed of, the writ court would have certainly made it clear that lease of the shops in question, namely, Shop Nos.7, 8 and 12 in T.Kallupatti Town Panchayat Bus Stand Shopping Complex, would be extended only upto 31.03.2015. Needless to state that as per the Government Order in G.O.Ms.No.92, Municipal Administration and Water Supply Department dated 03.07.2007, lease period is only for three years and after expiry of the same, it is for the local body, to decide, as to whether extension of the lease has to be made, by upward revision of lease amount, as per the terms and conditions of the Government Order or to go for public auction, to augment more revenue.
17.As stated supra, T.Kallupatti Town Panchayat Union, has passed a resolution on 16.12.2011, to grant lease of the shops situated in T.Kallupatti Town Panchayat Bus Stand, from 01.04.2012, for three years, by public auction. As per G.O.Ms.No.92, Municipal Administration and Water Supply Department dated 03.7.2007, a local body has no power to grant lease, for four years at a stretch. Therefore, rightly, a Corrigendum dated 16.03.2012, has been issued, fixing the validity of the lease period upto 31.12.2015, which is in conformity with the Government order and the resolution dated 16.11.2011. Though the petitioner has contended that lease period, should be upto 31.12.2016, as per the notification dated 05.03.2012 and consequently, the Executive Officer ought not to have issued a fresh auction notice on 05.03.2015, this Court is not inclined to accept the said contention, for the abovesaid reasons. Further, if the validity of the lease period has to be extended upto 31.12.2016, then it would be contrary to the resolution passed by T.Kallupatti Town Panchayat Union and also the abovesaid Government Order.
18.As stated supra, the intention of T.Kallupatti Panchayat Union is to augment more revenue and therefore, the action of the Panchayat Union in issuing a paper notification, cannot be said to be contrary to the Government order. However, if the total value of the tender exceeds Rs.25 lakhs, due publication in newspapers, has to be effected, as per the provisions of the Tamil Nadu Transparency in Tenders Act and the rules framed thereunder, which the learned single Judge has taken note of, while setting aside the auction notice dated 05.03.2015.
19.In a recent decision, C.Vinoba vs The Commissioner Commissioner, Palladam Municipality, Palladam, Tirupur District, (Writ Petition Nos.19035 and 19915 of 2014, decided on 24.9.2014), the Hon'ble Mr.Justice V.RAMASUBRAMANIAN, while considering the purpose of G.O.Ms.No.92, Municipal Administration and Water Supply Department dated 03.07.2007, has held as follows:-
?17. Chapter XVI deals with miscellaneous provisions, one of which is a general provision regarding licence and permissions under Section 321. But, Section 321 also does not deal with the manner in which the public markets are to be licensed or leased out. It is in the above background of the statutory scheme that the Government started issuing executive instructions, after finding that every licence of every municipal property led to a series of litigation. Government originally passed G.O.Ms.No.285 dated 29.4.1985. Thereafter, the Government passed G.O.(2D)No.147, Municipal Administration and water Supply Department dated 30.12.2000, providing guidelines as to how the shops in the municipal markets are to be let out. But, experience showed that about 2200 cases came to be filed in various Courts, while implementing the guidelines issued in various Government Orders. This Court also issued certain directions in Tamil Nadu Municipal Shop Merchants Association v. State of Tamil Nadu [AIR 2000 Madras 393] indicating that leases/licences of municipal properties cannot become a heritable right and that the licensees cannot be permitted to continue in possession of the shops under the guise of right of renewal. The Court indicated that the properties of local bodies cannot be allowed to be fettered by perpetuity.
18. Therefore, taking into account all the above and after holding consultations with various stakeholders, the Government came up with G.O.Ms.No.92, Municipal Administration and Water Supply Department dated 03.7.2007. In paragraph 4 of the said order, the Government directed certain instructions to be followed. Paragraph 4(iii) of the said Government Order indicated that after the initial period of 9 years of licence, the local bodies should re-assess the rental value. After such re-assessment, the Municipalities may give a preferential treatment to the existing licensee to have the licence renewed at the re-assessed market rate.
19. In other words, the Government attempted to strike a balance in G.O.Ms.No.92, Municipal Administration and Water Supply Department dated 03.7.2007, between the rights of the existing licensees to have continuity and the right of the local bodies to get a fair rent.
20. In P.Muthusamy v. State of Tamil Nadu [(2014) 5 MLJ 129], a Division Bench of this Court was concerned with a batch of cases, one of which was a public interest litigation, seeking a direction to the respondent-Municipality to bring the shops belonging to a Municipality for fresh auction. The other writ petitions were by the licensees for renewal of licenses.
21. After considering the rival contentions, the Division Bench found in that case that the licensees of the shops have been paying a very meagre amount and that when the rents were re-fixed as per the Government Order in G.O.(2D)No.147 dated 30.12.2000, writ petitions were filed challenging the fixation of rent. The writ petitions were allowed directing the Municipality to give an opportunity of hearing to the licensees. But, in the interregnum, some petitioners agreed to pay the enhanced rent. Thereafter, the Municipality passed fresh orders and those orders came to be challenged. In the meantime, G.O.Ms.No.92 came to be passed. But, since the licensees did not pay the enhanced rent, the extension of licenses granted during the pendency of the writ petitions were cancelled and an auction was notified. It was at that stage that the batch of writ petitions came to be filed, one as a public interest litigation for fresh auction and some challenging the fresh auction and refusal to renew.
22. In their decision, relied upon by the respondent-Municipality, the Division Bench did not hold that G.O.Ms.No.92 dated 03.7.2007 was not to be followed. As a matter of fact, the Division Bench interpreted G.O.Ms.No.92 to mean that the intention behind the Government Order was the augmentation of their financial revenue. Nowhere it is stated in the judgment of the Division Bench that the Government Order need not be followed. On the other hand, the Division Bench pointed out in paragraph 21 that the intention behind the Government Orders was to improve the revenues of the Municipality. In paragraph 22, the Division Bench pointed out that every local body needs money for its welfare measures and that the best way to get maximum revenue is by way of public auction.
23. The petitioners have no quarrel with the proposition that the financial resources of the Municipality can be improved and that they are obliged to pay the fair market rent for the shops in question. As a matter of fact, the petitioners are agreeable for the fixation of fair market rent, by adopting any method. The very purpose of my permitting the auction to go on, as scheduled on 31.7.2014, was to find out the fair market rent that could be fetched in the shops, if they are let out in open auction.
20. Reading of the order impugned in the present appeal also indicates that the writ petitioner/appellant and others, have agreed to participate in the auction, after due publication of the auction notice in the newspapers, as per the provisions of the Act. Though the learned Special Government Pleader submitted that the appellant/writ petitioner was not a party to the common order made in W.P(MD)Nos.3426, 3427 and 3626 of 2012, dated 27.03.2012, today, placing reliance on the order dated 27.03.2012, learned counsel for the appellant submitted that similar orders were passed in W.P(MD)No.3474 of 3012. Though the learned counsel for the petitioner, prayed for a direction to the respondents, for production of lease, this Court is not inclined to accept the said contention, for the reason that if there was any such extension for others and lease was granted up to 2016, it is for the petitioner/appellant to produce the same, before this Court. No materials have been placed before this Court, supporting the abovesaid contention.
21.In the light of the above discussion and decision stated supra, this Court is not inclined to interfere with the impugned order made in W.P(MD)No.3694 of 2015, dated 17.03.2015. Accordingly, writ appeal is dismissed. As the intention of the respondents Town Panchayat, is to augment more revenue, by way of public auction, the same shall be conducted immediately, as per the provisions of the Tamil Nadu Transparency in Tenders Act and the rules framed thereunder. No costs. Consequently, M.P(MD)No.1 of 2015 is closed.
To
1)The Assistant Director of Town Panchayats, Madurai, Madurai District.
2)The Executive Officer, T.Kallupatti Town Panchayat, T.Kallupatti, Madurai..