Madras High Court
P.V.Subramanian vs The Secretary To Government on 17 March, 2015
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.03.2015
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
W.P.Nos.7486 and 7487 of 2015 and
M.P.Nos.1 and 2 of 2015
P.V.Subramanian ...Petitioner in W.P.No.7486 of 2015
M.Kandasamy ...Petitioner in W.P.No.7487 of 2015
Vs
1. The Secretary to Government,
The State of Tamilnadu,
Municipal Administration
and Water Supply Department,
Secretariat, Fort St.George,
Chennai 600 009
2. The Director of Town Panchayat,
Kuralagam, Chennai 600 108
3. The Executive Officer,
Karamadai Town Panchayat,
Karamadai 641 1043
Coimbatore District. ... Respondents in W.P.Nos.7486
and 7487 of 2015
Prayer :- Writ Petitions filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings issued by the 3rd respondent in Na.Ka.No.Nil/2015/A3 dated 02.02.2015 and the subsequent auction cum tender notification in Na.Ka.No.190/2015/A3 dated Nil issued on 12.03.2015, and to quash the same in so far as the Shop No.4, Kamarajar Salai, Karamadai Town Panchayat is concerned and consequently direct the 3rd respondent to renew the lease of Shop No.4, Kamarajar Salai, Karamadai Town Panchayat in favour of the petitioners respectively in terms of G.O.Ms.No.92 Municipal Administration and Water Supply Department dated 03.07.2007 for further period of three years from 01.04.2015 to 31.03.2018.
For Petitioners : Mr.G.Sankaran
For Respondents : Mr.R.A.S. Senthilvel Additional Government Pleader
C O M M O N O R D E R
Heard Mr.G.Sankaran, learned counsel appearing for the petitioners and Mr.R.A.S.Senthilvel, learned Additional Government Pleader appearing for the Respondents. With the consent on either side, the Writ Petitions themselves are taken up for final disposal at the admission stage itself.
2.The petitioners seek for issuance of Writ of Certiorarified Mandamus to quash the order dated 02.02.2015, by which the petitioners' request for extension of lease beyond the period of nine years was rejected by the Respondent/Town Panchayat stating that they are not entitled to continue as lessee beyond a period of nine years. Thereafter, the tender notification was issued by the respondent on 12.03.2015 and tenders have been called for in respect of various Lease and Licenses to be granted by the Respondent/Town Panchayat.
3.The Government issued G.O.Ms.No.92, dated 03.07.2007, framing guidelines for granting leases in respect of the shops and properties owned by local bodies. Clause 4 of the Government Order deals with the manner in which the lease of the properties owned by the local body could be granted.
4. The learned counsel appearing for the petitioner by relying upon clause 4(ii) and (iii) of the Government Order, submitted that even after the expiry of a period of three years, the existing lessee is entitled to a further renewal of nine years and the said benefit has not been extended to the petitioner and therefore, the petitioner seeks for setting aside the impugned order and to renew the petitioner's lease for a further period of nine years. In order to appreciate the contention raised by the petitioner, it would be necessary to refer to the relevant sub-clauses in clause 4(i) to (iii) of G.O.Ms.No.92, dated 03.07.2007, which reads as follows:-
4/nkw;brhd;d fUj;JUf;fis muR ed;F Muha;e;jgpd;. ,uz;lhtjhf gof;fg;gl;l murhizapy; tiuaWf;fg;gl;Ls;s Fj;jif epge;jidfisr; bray;gLj;Jifapy; vGk; eilKiwg; gpur;ridfs; gw;wpa kjpg;gPl;od; mog;gilapYk;. efuhl;rpr; brhj;Jf;fisf; Fj;jiff;F tpLtjw;fhd eilKiwia vspikg;gLj;Jk; nehf;fpYk; gpd;tUk; eilKiwfs; gpd;gw;wg;glyhk; vd;W fUjp mt;thnw MizapLfpwJ/
(i) Kjy; jlitahf Fj;jiff;F tplg;gLk;nghJ efuhl;rpapd; mirah brhj;Jf;fs; midj;Jk; bghJ Vyj;jpd; K:ykhf Fj;jiff;F tplg;gl ntz;Lk;/
(ii) efuhl;rpf; filfs;. xnu neuj;jpy; K:d;whz;L fhyj;jpw;Ff; Fj;jiff;F tplg;glyhk;/ K:d;W Mz;Lfisf; bfhz;l xU bjhFg;g[f; fhy mst[ Kotiltjd; nghpy;. mf;Fj;jif jd;dpay;ghfnt (automatically) g[Jg;gpf;fg;gLk;/ ,t;thwhf xd;gJ Mz;Lfs; tiuapy; g[Jg;gpf;fg;gLk;/ K:d;whz;LfSf;F xU Kiw (,e;epge;jid jw;nghJ Fj;jifia mDgtpj;JtUk; Fj;jifjhuh;fSf;Fk; bghUe;Jk;)
(iii) xd;gJ Mz;LfSf;Fg; gpd;dh;. Fj;jif thlif kWkjpg;gPL bra;ag;gl ntz;Lk;/ jw;nghija Fj;jifjhuUf;F mg;nghija m';fho kjpg;gpd; mog;gilapyhd jpUj;jpaikf;fg;gl;l Fj;jif tPjj;jpy;. nkw;bfhz;L 9 Mz;LfSf;F Fj;jiff; fhy msit ePl;oj;Jf; bfhs;s Kd;Dhpik mspf;fyhk; mth; xg;g[f; bfhs;stpy;iyahdhy;. mr;brhj;J bghJ Vyj;jpd; K:yk; Fj;jiff;F tpl ntz;Lk;/
5. There is no dispute that the petitioners were granted the benefit of renewal of lease for a period of three years in terms of clause 4 (ii). By virtue of the said benefit, the lease granted to the petitioners were extended for nine years, i.e., renewal after completion of every three years with an increase of 15% of the lease amount than the previous year.
6. In the back ground of these facts, it has to be seen as to whether the petitioner is entitled to continue for further three years. On a plain reading of clause 4(iii) of the aforesaid Government order, the Government has given a discretion to the local body to redetermine the lease amount of the shop or land after the expiry of nine years period and an option has been given to the local body to offer the same to the existing lessee at the re-determined rate and if he consents for accepting the re-determined lease amount, the benefit of extension of lease could be granted by giving preference to the existing lessees. The language employed in clause 4(iii) makes it evidently clear that it is a discretion vested with the local body and the said clause cannot be read to mean as a compulsion nor it could be said that the existing lessee, who has been continuing for nine years, has a vested right to continue for another nine years. This obviously cannot be the intention of the Government Order nor would it be in the interest of the concerned local body.
7. It is a settled legal principle that whenever the Government grants allotment of public property by way of lease or grant, it cannot act arbitrarily, but must act in accordance with law and the decision should satisfy the test of fairness and reasonableness. The local bodies are enjoined with the duty to take care of the interest of the public, effect developmental activities in the locality maintained public facilities etc., for which funds are required. By way of grant of lease/licenses, the local bodies collect revenue and in order to augment revenue, the best highest price that could be obtained, while leasing out properties has to be ensured, so that the interest of the local body is sufficiently protected.
8. Bearing this principle in mind, G.O.Ms.No.92, gives a discretion to the local body in the matter of extension/renewal of lease beyond the period of nine years. If the interpretation given by the petitioner is to be accepted and if it is to be held that the existing lessee can endlessly continue, as a lessee of Government property, the object behind grant of lease by way of public tender to fetch the highest price would stand defeated. No person has a vested right to insist that he shall continue to remain as a lessee for 18 years merely on the ground that he was declared as a successful bidder about one decade ago. The Government Order provides for re-determination of the lease rent payable. Therefore, such re-determination can at best be the upset price that could be fixed so as to invite offers higher than such upset price. This procedure alone would ensure fairness transparency and satisfy the requirements of the provisions of the Tamil Nadu Transparency in Tenders Act. After coming into force of the said Act, it is incumbent for the Government or a limb of the Government to dispose of public property by inviting tender, the local body is accountable to the public, they are bound to augment the revenue to better enable them to serve the public. Therefore, the interpretation given by the petitioner to G.O.Ms.No.92, is thoroughly misconceived. Competitive bidding ensures high possibility of fetching a better price. Rule of law requires publicity to be given before giving away public property, no matter which mode is adopted. Therefore, the petitioner has not made out any case for interference with the impugned order.
9. In the result, the Writ Petition fails and the same is dismissed. However, this will not prevent the petitioner from participating in the tender called for by the respondents. No costs. Consequently, connected miscellaneous petitions are closed.
17.03.2015 Index : Yes/No Internet: Yes/No ssd/pbn To
1. The Secretary to Government, The State of Tamilnadu, Municipal Administration and Water Supply Department, Secretariat, Fort St.George, Chennai 600 009
2. The Director of Town Panchayat, Kuralagam, Chennai 600 108
3. The Executive Officer, Karamadai Town Panchayat, Karamadai 641 1043 Coimbatore District.
T.S.SIVAGNANAM,J., ssd/pbn W.P.Nos.7486 and 7487 of 2015 and M.P.Nos.1 and 2 of 2015 17.03.2015