Andhra Pradesh High Court - Amravati
P.Prasad, vs Tirumala Tirupati Devasthanams, on 10 July, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT APPEAL Nos.100 AND 101 OF 2019
COMMON JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) These intra Court appeals are filed under Clause 15 of Letters Patent challenging the common order dated 15.04.2019 passed in W.P.Nos.1095 and 3441 of 2019 by the learned Single Judge of High Court of Andhra Pradesh, whereby the learned Single Judge dismissed both the writ petitions.
Writ petition Nos.1095 and 3441 of 2019 were filed to declare the action of the respondent No.3 in issuing the proceedings Roc.No.Rev4/15452/AEO (Rev)/Tpt/2017 dated 04.12.2018 directing to close the canteen at Vishnunivasam Complex, Tirupati, run by the petitioner and proceedings in Roc.No.Rev4/15452/AEO (Rev)/Tpt/2017 dated 08.03.2019 rejecting to renew the license of the petitioner to run canteen at Vishnunivasam Complex, Tirupati, as illegal and arbitrary.
As the allegations in both the appeals are almost identical and both appeals were preferred against the common order, it is expedient to decide both the appeals by common judgment.
The parties, hereinafter, will be referred to as arrayed before the learned single Judge, for convenience sake.
The petitioner obtained license on 18.01.2018 to run the canteen for a period of one year from 02.02.2018, as the brother of the petitioner fell ill during the months of August and September 2018, the petitioner could not pay license fees for some of the months, due to which the respondent No.3 has issued a show cause 2 HACJ & MSMJ WAs_100 and 101_2019 notice in October 2018, the petitioner in his explanation dated 22.10.2018 and sought additional time of 20 days to pay license fee for the months of August and September 2018, but the respondents, without considering the representation of the petitioner, issued the impugned proceedings dated 04.12.2018 directing to close the canteen and cancelling remaining period of license. Immediately, the petitioner submitted a representation dated 05.12.2018 enclosing two Demand Drafts for an amount of Rs.9,00,000/- and Rs.5,00,000/- respectively and requested the respondents to allow him to run the business in the licensed premises. The respondents have received the said Demand Drafts and allowed the petitioner to run the business; again vide representation dated 31.12.2018 the petitioner sent Demand Draft for a sum of Rs.10,00,000/- and requested to receive the license fee due i.e. an amount of Rs.7,38,600/- and on 01.02.2019 the petitioner paid another sum of Rs.15,00,000/- through Demand Draft and that only the license fee for the month of February 2019 is due to be paid, and made a representation on 31.01.2019 requesting respondents to extend the license period for a further period of two years.
When the Writ Petition No.1095 of 2019 came up for hearing on 06.02.2019, this Court directed the respondent No.1 to consider the representation dated 31.01.2019 made by the petitioner and pass appropriate orders within a period of three weeks from the date of receipt of a copy of the order and in the said period of three weeks no coercive steps shall be taken to evict the petitioner in terms of the order dated 04.12.2018. In pursuance of the direction dated 06.02.2019, the representation of the petitioner dated 31.01.2019 was considered and vide proceedings dated 08.03.2019 the request of the petitioner for renewal of license for the second year was 3 HACJ & MSMJ WAs_100 and 101_2019 rejected as the license was already cancelled well before filing of the said representation dated 31.01.2019 while reiterating that the orders dated 04.12.2018 holds good and the petitioner was directed to hand over possession of the canteen. Challenging the said proceedings dated 08.03.2019 of the Executive Officer, Tirumala Tirupati Devasthanams, Writ Petition No.3441 of 2019 was filed before the learned Single Judge while reiterating the allegations made in the Writ Petition No.1095 of 2019 and further stated that the petitioner has been regular in paying monthly license fees and that the respondents have imposed penalties abnormally in violation of the license agreement. It is further stated that since March 2018 the petitioner has paid an amount of Rs.62,50,000/- towards license fee and not Rs.46,50,000/- as alleged by the respondents in the impugned proceedings dated 08.03.2019.
Later, petitioner filed additional affidavit alleging that the calculations furnished by the respondents are wrong and the petitioner requested the respondents to shift the Annadanam canteen to some other place as they started locking all the gates leading to the canteen of the petitioner. It is also contended that "unless and until the respondents put an end to all the foul play like locking approach gates, either remove Annadanam Satram or shift the same to far of place and reduce the license/rental amount and make good the loss suffered by the petitioner, they cannot run the canteen smoothly" and requested to pass appropriate order taking into consideration of the allegations made in the additional affidavit.
Upon hearing argument of both counsel at the stage of admission, learned Single Judge dismissed both the writ petitions holding that the petitioner has no right to continue as he committed default in terms of Clause (iv) of terms and conditions of license and 4 HACJ & MSMJ WAs_100 and 101_2019 it is the discretion of respondents to extend license for a period of two (2) years subject to satisfaction of the respondents and apart from that the petitioner failed to pay the license fee regularly, strictly adhering to the terms and conditions of the license, thereby the petitioner is disentitled to claim the relief.
Aggrieved by the common order passed in two writ petitions, the present appeals are preferred raising several contentions mainly contending that the establishment of Annaprasadam/Annadhanam centre in front of the canteen of the petitioner, serving beverages and Annaprasadams to 5,000 pilgrims approximately per day and it may go up to 20,000 pilgrims per day on auspicious days like 1st January, Vaikunta Ekadasi, Rathasapthami and T.T.Gardu seva, which causes loss in running the canteen by the petitioner, despite representation made by the petitioner, the respondents did not respond to the representations, thereby it is difficult for him to run the canteen on account of high amount of license fee. It is also contended that the charges/license fee is exorbitant on Tirumala hills and when they were directed to maintain normal rates for the food supplied in the hotel, it is difficult to maintain such rates and that to establishment of Annaprasadam/Annadhanam centre caused huge loss to the petitioner, but the said fact was not considered by the learned Single Judge. It is specifically contended that the petitioner has paid substantial amount towards license fee and no amount is due as on the date of filing of writ petition and that apart the representation dated 31.01.2019 was kept in cold storage till passing of the impugned order by the learned single Judge and due to the inaction on the part of the respondents, the petitioner incurred heavy loss and consequently, there are no latches on the part of the petitioner in payment of license fee as agreed, thereby cancellation 5 HACJ & MSMJ WAs_100 and 101_2019 of license in terms of Clause (vii) of licence and failure to extend the period of another two years as per Clause (ii) of the proceedings is erroneous and requested to allow the appeals setting aside the orders passed in both the writ petitions.
During hearing, learned Senior counsel for the appellants Sri C.Nageswara Rao, reiterated the grounds urged in the writ petitions while highlighting how the petitioner suffered substantial loss on account of alleged establishment of Annaprasadam/Annadhanam centre and serving food to minimum of 5,000 pilgrims and maximum of 20,000 pilgrims depending upon auspicious days and also contended that if for any reason, the canteen is closed, the petitioner will be put to serious loss, which cannot be compensated. It is also contended that the petitioner will be deprived of his livelihood if the canteen is closed and as a matter of right, the petitioner is entitled for extension of license for another period of two (2) years and discretion vested on the respondent has to be exercised judiciously, if the respondents did not exercise its discretion judiciously, the Court can exercise power under Clause 15 of Letters Patent and pass appropriate order allowing these two appeals setting aside the common order passed in W.P.Nos.1095 and 3441 of 2019.
Per contra, Smt.K.Lalitha, learned counsel for the respondent No.4, filed affidavit of respondent No.4 stating that an amount of Rs.53,76,068/- is due as on 06.06.2019 towards license fee by the petitioner and the license period cannot be extended when the petitioner failed to pay the license fee, though the Clause (ii) of the license permits the respondents to extend the license for another period of two (2) years, it is always subject to satisfaction of the authorities and the petitioner cannot ask for such extension as usual, more, particularly when he is a defaulter and never paid 6 HACJ & MSMJ WAs_100 and 101_2019 amount within the time stipulated, thereby he is disentitled to claim extension of license and the respondents issued impugned proceedings strictly adhering to terms and conditions of the license. Therefore, the proceedings cannot be quashed as there is no merit in the writ appeals and prayed to confirm the order passed by the learned Single Judge.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
(1) Whether the act of the respondents in cancellation of license under the proceedings dated 04.12.2018 is in accordance with law and terms and conditions of license. If not, the alleged cancellation of license for the remaining period in the initial period of one year is illegal and liable to be set aside?
(2) Whether the respondents exercised discretion judiciously in not extending the license period for another two (2) years in terms of Clause (ii) of the terms and conditions of license agreement or proceedings, if so, the proceedings dated 08.03.2019 are liable to be set aside and quashed?
P O I N T No.1:
Before deciding the points formulated by this Court, it is appropriate to advert to Clause 15 of Letters Patent; its scope and jurisdiction of the appellate Court under Clause 15 of the Letters Patent and scope of jurisdiction of this Court under Article 226 of Constitution of India.7
HACJ & MSMJ WAs_100 and 101_2019 The scope of Clause 15 of Letters Patent in intra Court appeal is limited and the Apex Court in "Roma Sonkar v. Madhya Pradesh State Public Service Commission1" considered the scope of jurisdiction of appellate Court in Intra Court Appeal, held in paragraph No.3, as follows:
"Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge."
In its writ jurisdiction the Court exercises discretion, taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of the grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. (Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.2). The discretionary jurisdiction of the High Court, under Article 226 of the Constitution of India, is not to be exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will, ordinarily, be exercised subject to certain self- imposed limitations, (Thansingh Nathmal v. Supdt. of Taxes3), and not as a matter of course. Discretion must be exercised by the Court on grounds of public policy, public interest and public good. The writ is equitable in nature and, thus, its issuance is governed by equitable principles. The prime consideration for the issuance of the 1 2018 (10) SCALE 222 2 (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153 3 AIR 1964 SC 1419 8 HACJ & MSMJ WAs_100 and 101_2019 said writ is, whether or not substantial justice will be promoted. (Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. (referred supra)). The power conferred, under Articles 226 of the Constitution, is to advance justice and not to thwart it. The High Court should, therefore, not merely examine errors of law academically, but should ascertain whether injustice has ensued as a result of an erroneous interpretation of the law. If justice became the by-product of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting such an error. ("Roshan Deen v. Preeti Lal 4" and "State of U.P. v. District Judge, Unnao5"). The High Court exercises its discretion, under Article 226 of the Constitution of India, with great caution and only in furtherance of public interest, and not merely on the making out of a legal point. This Court is required to keep larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interest requires interference, would it intervene in the matter. ("Master Marine Services Pvt. Ltd v. Metcalfe and Hodgkinson Pvt. Ltd.6" and "Air India Ltd v. Cochin International Airport Ltd.7").
In "Sarvepalli Ramaiah (Died) through L.Rs. v. District Collector, Chittoor District8" the Apex Court held that administrative decisions are subject to judicial review Under Article 226 of the Constitution, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative 4 (2002) 1 SCC 100 5 AIR 1984 SC 1401 6 (2005) 6 SCC 138 7 (2000) 2 SCC 617 8 AIR 2019 SC 1706 9 HACJ & MSMJ WAs_100 and 101_2019 decisions are not interfered with, in exercise of the extra ordinary power of judicial review. The Apex Court further held as follows:
"A decision may sometimes be set aside and quashed Under Article 226 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise.
Judicial review Under Article 226 is directed, not against the decision, but the decision making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In this case there is no such patent illegality or apparent error. In exercise of power Under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact."
In a recent judgment in "Vasavi Engineering College Parents Association v. State of Telangana (Civil Appeal No(s).5133 of 2019) the Apex Court considered the scope of judicial review and held that Judicial review, as is well known, lies against the decision-making process and not the merits of the decision itself. If the decision- making process is flawed inter alia by violation of the basic principles of natural justice, is ultravires the powers of the decision maker, takes into consideration irrelevant materials or excludes relevant materials, admits materials behind the person to be affected or is such that no reasonable person would have taken such a decision in the circumstances, the Court may step into correct the error by setting aside such decision and requiring the decision maker to take a fresh decision in accordance with the law. The Court, in the grab of judicial review, cannot usurp the jurisdiction of the decision maker and make the decision itself.
In view of the law declared by the Apex Court in the judgments referred supra, judicial review can be exercised against the decision making process and not merits of the decision and only palpably 10 HACJ & MSMJ WAs_100 and 101_2019 arbitrary decisions of executive in economic matters can be interfered with.
Therefore, keeping in view of the above judgments, we would like to decide the dispute in the present appeals.
As discussed above, jurisdiction of the Courts in intra Court appeal is limited and similarly, jurisdiction of learned single Judge is also limited to the extent of examining the legality of the procedure in decision making process. Therefore, it is for the Court to examine whether the learned single Judge is justified in denying the relief to the petitioner - appellant.
It is an undisputed fact that the petitioner was granted license by the respondents and issued proceedings dated 18.01.2018 granted license in favour of the petitioner - appellant. License fee quoted by the petitioner per month is Rs.6,77,000/- and G.S.T. thereon at the rate of 18% is Rs.1,21,860/- and his tender was accepted subject to certain conditions. The relevant clauses in the proceedings are extracted hereunder.
Clause (ii) The licence period is extendable for further period of 02 (two) years subject to discretion and satisfaction of the Executive Officer, TTD. Clause (iv) If the licensee is failed to deposit 06 months advance licence fee within the stipulated date, the EMD paid by the licensee will be forfeited and the licence will be cancelled without any notice. Clause (vii) The licensee should pay the licence fee promptly before 5th of every succeeding month and non-payment of the licence fee shall cause cancellation of the licence apart from levy of late fee @ Rs.2/- per hundred 11 HACJ & MSMJ WAs_100 and 101_2019 per month i.e. @ 24% per annum on outstanding due amount will be imposed.
Clause (viii) The licensee should pay the electrical and water charges as per the demands issued by the concerned Engineering Department of TTD and Electricity Department (APSEB) every month. Clause (ix) The licensee should also pay the statutory taxes in addition to the licence fee if any.
Clause (x) The licensee should sell the menu items at the rates fixed by the TTD only which are herewith enclosed.
There is no dispute with regard to grant of license subject to terms and conditions mentioned in the proceedings dated 18.01.2018. But, in the facts of the case, the petitioner could not pay license fee for the canteen in Vishnunivasam Comlex, Tirupati for various months. Thereupon, a show-cause notice dated .10.2018 in Roc.No.Rev4/15452/AEO (Rev)/Tpt/2017, calling upon the petitioner to clear the pending dues and submit his reply within (7) days from the date of receipt of the notice while complaining that the petitioner failed to pay licence fee with GST regularly and hence notice dated 28.04.2018 was issued to the petitioner/appellant requesting him to pay the same within seven days from the date of receipt of the notice with a threat to take suitable action. But, the petitioner - appellant did not clear the dues. Therefore, a final notice was issued demanding him to clear the dues within seven (7) days. Thereupon, the petitioner submitted explanation dated 22.10.2018 addressed to the Estate Officer, T.T.Devasthanams, Tirupati admitting grant of licence while highlighting Clause (ii) of the proceedings dated 18.01.2018 for 12 HACJ & MSMJ WAs_100 and 101_2019 extension of license period for another two years on payment of Rs.6,77,000/- and GST at the rate of 18%, which comes to Rs.1,21,660/- and brought to the notice of Estate Officer that for the last two months his brother was hospitalized, therefore, the petitioner alone took care of him, as a result he has not concentrated on the business and the business was completely collapsed, his brother is regaining his health and he has to take care of his business. It is also contended that the Revenue Section staff are insisting to pay two months arrear licence fee immediately though he has paid six months licence fee as security deposit and requested to grant 20 days time to pay the licence fee for August 2018 and September 2018. After considering representation dated 22.10.2018, the respondents issued proceedings dated 04.12.2018 complaining that the licensee violated the Clause (iv) of the proceedings dated 18.01.2018 and ordered to close the canteen and cancelled licence for the remaining period of licence, duly recovering outstanding dues from the earnest money deposit and security deposit available with TTD while forfeiting the balance deposit amount available with TTD into TTD account and also directed the Assistant Executive Officer (Revenue) to take necessary action to take possession of the canteen at Vishnunivasam complex, TTD, Tirupati with immediate effect along with Revenue Inspector, O/o AEO (Revenue), TTD, Tirupati and to recover the outstanding dues from the earnest money deposit and Security Deposit available with TTD duly forfeiting the balance deposit amount available with TTD into TTD account and also directed the Deputy Executive Engineer (Electrical-I)/Deputy Electrical Engineer (CBS), TTD, Tirupati is required to verify the records as to whether any electrical dues pending recovery from the licensee during the licence period. 13
HACJ & MSMJ WAs_100 and 101_2019 Again the petitioner submitted another representation dated 05.12.2018 to the Joint Executive Officer, TTD, Tirupati reiterating the illness of his brother, who was hospitalised and contended that he is ready to pay two months license fee immediately and balance will be cleared before the end of December 2018 and enclosed demand draft bearing No.154012 dated 05.12.2018 for Rs.9,00,000/- drawn on Bank of India, Tirupati and another demand draft bearing No.154011 dated 05.12.2018 for Rs.5,00,000/- and requested to acknowledge the receipt of licence fee for two months i.e. August and September 2018 with a request to permit him to pay two months license fee immediately and allow him to run the business in the licensed premises. Copies of the demand drafts are also placed on record.
Again, the petitioner addressed a letter dated 31.12.2018 to the Joint Executive Officer, TTD, disclosing the details of licence fee to be paid from March 2018 to December 2018 and the total amount to be paid as licence fee from March 2018 including G.S.T. is Rs.79,88,600/-, against which the petitioner paid Rs.62,50,000/- and the balance amount due is Rs.17,38,600/- and the petitioner enclosed demand draft bearing No.008620 (Axis Bank) dated 31.12.2018 to the letter dated 31.12.2018 and requested to grant some time to pay the balance amount of Rs.7,38,600/- till the end of January 2019 and to continue his business in the premises.
Thus, the entire material clearly establish that the petitioner was not regular in payment of licence fee and G.S.T. thereon in terms of the proceedings dated 18.01.2018 issued by the respondents granting license in favour of the petitioner - appellant. Even according to the admission made by the petitioner in the 14 HACJ & MSMJ WAs_100 and 101_2019 correspondence referred above including the letter dated 05.12.2018, he has not paid the licence fee for some period. The petitioner became due an amount of Rs.7,38,600/- as admitted by him in the last letter dated 31.12.2018. But as per the proceedings, licensee should pay license fee promptly before 5th of every succeeding month and non-payment of the same shall cause cancellation of the licence, apart from levy of late fee at the rate of Rs.2/- per hundred per month i.e. at the rate of 24% per annum on outstanding due amount will be imposed. The petitioner - appellant failed to pay license fee at regular intervals, but still the respondents did not levy penalty at the rate of Rs.2/- per hundred per month on the delayed payment. Even as per the letter dated 31.12.2018 the petitioner became due an amount of Rs.7,38,600/- despite issue of show-cause notice and final notice demanding the petitioner to pay due amount and issued proceedings dated 04.12.2018 cancelling the licence while forfeiting the balance of security deposit after appropriating the part of security deposit towards the amount due. Even thereafter, the petitioner did not pay the arrears of licence fee as admitted in the letter dated 31.12.2018. Non-payment of license fee strictly adhering to Clause (vii) of proceedings dated 18.01.2018 entails cancellation of licence and appropriation of Earnest Money Deposit and Security deposit towards arrears, if any, and forfeiture of the same. Therefore, the learned Single Judge rightly dismissed both the writ petitions on account of violation of Clause (vii) of the proceedings dated 18.01.2018, but in the proceedings dated 04.12.2018, the respondents mentioned violation of item - IV of licence agreement, which is equivalent to Clause (vii) of the proceedings dated 18.01.2018. The original licence deed incorporating the terms and conditions of licence is not written on 15 HACJ & MSMJ WAs_100 and 101_2019 Non-Judicial Stamp paper worth Rs.100/- and the original licence agreement is not placed on record for perusal of the Court. Therefore, for violation of Item - IV of licence agreement as mentioned in the proceedings dated 04.12.2018, the licence granted in favour of the petitioner is liable to be cancelled besides taking other course of action for recovery of amount and forfeiture of Earnest Money Deposit and Security Deposit.
As discussed above, the petitioner though pleaded lame excuses for non-payment of licence fee for the months of August and September 2018 continued to violate Item - IV of licence agreement or Clause (vii) of proceedings dated 18.01.2018. Even after the proceedings dated 04.12.2018, the petitioner committed default in payment of licence fee and G.S.T. thereon as admitted in the letter dated 31.12.2018. When the petitioner is so negligent and wilfully violated the terms and conditions of licence agreement disentitles him to claim any discretionary relief from Court invoking the power of judicial review of this Court.
In any view of the matter, since the scope of judicial review, under Article 226 of the Constitution of India, is limited, as discussed above in the earlier paragraphs, and such discretion cannot be exercised in favour of a wrong doer i.e. the persons in wrongful possession.
When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (vide: "The Ramjas Foundation v. Union of India9"; "K.R. Srinivas v. R.M. 9 AIR 1993 SC 852 16 HACJ & MSMJ WAs_100 and 101_2019 Premchand10"). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.
In "Nooruddin v. (Dr.) K.L. Anand11", the Apex Court observed as under:
"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."
Similarly, in "Ramniklal N. Bhutta v. State of Maharashtra12", the Apex Court observed as under:-
"The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226...... indeed any of their discretionary powers."
In "Dr. Buddhi Kota Subbarao v. K Parasaran13", the Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in "K.K. Modi V. K.N. Modi & Others14".
In view of the law declared by this Court and the Apex Court in the judgments referred above, when the person approaches the Court with clean hands, the Court can exercise its discretionary power under Article 226 of the Constitution of India. 10 (1994) 6 SCC 620 11 (1995) 1 SCC 242 12 AIR 1997 SC 1236 13 AIR 1996 SC 2687 14 (1998) 3 SCC 573 17 HACJ & MSMJ WAs_100 and 101_2019 An identical issue came up before the Division Bench of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in "V. Praveen v. Telangana State Road Transport Corporation and Ors.15". In the said case, a licence agreement was entered into between TSRTC and individual for establishing fruit stall to sell fruit juice made on the spot, cool drinks and other drinks or juices in packed condition; and, under Clause 45, the Corporation reserved the right to modify any condition/conditions of the agreement. The petitioner therein has to pay licence fee strictly adhering to the terms and conditions of the agreement, but failed to pay the licence fee and the R.T.C. i.e. respondent therein issued proceedings cancelling the licence and the same was challenged before the High Court and the Court declined to issue Writ of Mandamus on the ground that the petitioner having violated the terms and conditions of licence is disentitled to claim such relief of Writ of Mandamus and held as follows:
"The primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justitiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. (Rajasthan State Industrial Development & Investment Corporation. (2013) 5 SCC 470)). In order to maintain a writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. (Rajasthan State Industrial Development & Investment Corporation. (2013) 5 SCC 470).
The appellant-writ petitioner has not been able to show any legal right of his having been violated. Instead of rejecting his tender, the respondent- Corporation is only seeking to restrict his operation of the stalls, in both the bus stations, only to one category of business stipulated in Annexure-I of the original tender, and to ensure that he sells only those items in his stalls as are specified, under that nature of business in Annexure-I of the original 15 2018(5)ALT369 18 HACJ & MSMJ WAs_100 and 101_2019 tender notification, based on which he was required to submit his tender. No legal right of the appellant-writ petitioner has been affected thereby, nor can he claim, as of right, that he should be permitted to continue to enjoy the illegal benefit which was extended to him by over-sight if the respondent- corporation were to be believed, or in collusion with its officials who deliberately turned a blind eye to the fact that the appellant's tender for both the stalls was contrary to the terms and conditions and Annexure I of the original tender. No mandamus, as sought for by the appellant-writ petitioner, can therefore be issued."
In view of the law declared by various Courts (referred above) the petitioner, who violated the item - IV of agreement or clause (vii) of proceedings dated 18.01.2018, disentitled to claim Writ of Mandamus, which is purely discretionary in nature and the Court cannot exercise such discretionary power in favour of wrong doer and that the property belongs to TTD. It is the duty of its officials to protect the interest of deity a perpetual minor. Therefore, respondents rightly issued the impugned proceedings. Learned Single Judge having found no illegality, dismissed the writ petition Nos.1095 and 3441 of 2019.
During pendency of these appeals, respondent No.4 - Estate Officer, Tirumala Tirupathi Devasthanams, Tirumala filed affidavit informing that the petitioner committed default in payment of licence fee including G.S.T. to a tune of Rs.53,76,068/- enclosing calculation sheet. Even after filing affidavit by the respondent No.4, the petitioner did not choose to pay the arrears and no material is placed in proof of payment, if any. On this ground also, the petitioner is not entitled to claim Writ of Mandamus.
In view of foregoing discussion, we found no illegality in the order passed by the learned Single Judge warranting interference while exercising power under Clause 15 of Letter Patent. 19
HACJ & MSMJ WAs_100 and 101_2019 Accordingly, the point No.1 is answered in favour of the respondents and against the petitioner - appellant.
P O I N T No.2:
One of the contentions raised before this Court is that respondents refused to extend the lease for another period of two (2) years as agreed in the licence agreement and Clause (ii) of proceedings dated 18.01.2018 despite request made by the petitioner in the letters referred above, more particularly letter dated 31.12.2018.
According to Clause (ii) of proceedings dated 18.01.2018 the licence period is extendable for further period of 02 (two) years subject to discretion and satisfaction of the Executive Officer, TTD. Taking advantage of this clause, the petitioner/appellant contended that he is entitled to extension of license period for another period of two (2) years. Since such extension is depending upon the discretion and satisfaction of Executive Officer and the Executive Officer has to exercise his discretion taking into consideration of facts and circumstances including the conduct of the petitioner in payment of license fee.
As discussed above, the conduct of the petitioner - appellant is blameworthy and made brazen attempts to delay payment of licence fee, despite notices, but the respondents passed order dated 04.12.2018 and even in the last letter dated 31.12.2018 the petitioner admitted that an amount of Rs.7,38,600/- is due and sought time for another month for payment of arrears. Thus, he clearly violated clause (vii) of proceedings dated 18.01.2018 and Item
- IV of agreement of licence, which is not placed on record. When the petitioner committed default in payment of licence fee together with G.S.T. thereon, the respondents are justified in declining to extend 20 HACJ & MSMJ WAs_100 and 101_2019 the licence as the conduct of the petitioner - appellant is totally dissatisfactory in payment of licence fee and G.S.T. thereon. In such case, the petitioner is disentitled to claim relief in the writ petitions. Consequently, the learned Single Judge passed the impugned order declining to exercise discretionary power of judicial review in favour of the petitioner - appellant and such order cannot be set aside by this Court in view of the limited jurisdiction of this Court as held by the Apex Court in "Roma Sonkar v. Madhya Pradesh State Public Service Commission (Civil Appeal No(s).7400-7401/2018 dated 31.07.2018)" (referred supra) In view of our foregoing discussion, we find no illegality or perversity in the order passed by the learned Single Judge in W.P.Nos.1095 and 3441 of 2019. Therefore, point is answered in favour of the respondents and against the petitioner - appellant. Consequently, the present appeals are liable to be dismissed.
In the result, the writ appeal Nos.100 and 101 of 2019 are dismissed affirming the order dated 15.04.2019 passed in Writ Petition Nos.1095 and 3441 of 2019 by the learned Single Judge. No costs.
Consequently, miscellaneous applications pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 10.07.2019 Ksp