Madras High Court
R.Chandrasekaran vs The Commissioner on 16 September, 2015
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATUARE AT MADRAS DATED:16-9-2015 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.Nos.29101 and 29346 of 2015 W.P.No.29101 of 2015 R.Chandrasekaran ... Petitioner Vs. 1.The Commissioner, Erode Municipal Corporation, Erode 638 001. 2.P.Ragunathan ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the Writ of Mandamus directing the Ist respondent to forebear the 2rd respondent to change or alter the usage of his lease hold shop from computer center to hotel business, in the first floor of A Block at the new bus-stand, Erode by taking action on my representation dated 12.09.2015 pursuant to the proceedings made in Na.Ka.No.A1/1690/2015 dated 24.07.2015 issued by the Ist respondent. W.P.No.29346 of 2015 B.Ragunandhan ... Petitioner Vs. 1.The Commissioner Erode Corporation, Panner Selvam Park, Erode-1. 2.M/s.Hotel Gowri Shankar Erode Bus Stand Complex Chindamani Market Black Side Erode Bus Stand Erode-3. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the Writ of Mandamus forbearing the respondents from cancelling the petitioner's lease agreement which was granted to the petitioner in Na.Ka.No.A2/22112/200 dated 07.11.2005 except by due process of law. For Petitioners :Mr.N.Manokaran in W.P.No.29101/2015 Mr.M.Guruprasad in W.P.No.29346/2015 For Respondents :Mr.K.Raja Mathivanan for R1 in both Mr.V.Lakshminaraylanan for R2 ORDERW.P.No.29101 of 2015
The petitioner submitted that pursuant to the renewal of the lease he is running a hotel business in the name and style of Viji in the New Bus-stand, Erode and he has been running the said business for the past 22 years.
2. According to the petitioner, the first respondent objected the second respondent to run hotel in the new bus-stand, Erode and that is the reason why, clause-16 has been introduced in the notice dated 10.2.1986. In the past also there were attempts by the third parties to open new hotels and in that process, the petitioner was compelled to file O.S.No.216 of 2005 on the file of the learned II Additional District Munsif Court, Erode and obtained a decree dated 31.08.2006, restraining the first respondent from allowing anybody to conduct tea or coffee or new milk bar any where in the new bus stand, Erode. Inspite of that, the second respondent who has been allotted a shop for the purpose of running a Computer Centre, is trying to alter the physical feature of the premises and is trying to open a hotel in the first floor of A Block at the new bus-stand, Erode.
3. At the request of the petitioner, the first respondent sent a notice dated 24.7.2015 to the second respondent, pointing out the violation of the lease condition and directed not to alter shop premises. Inspite of that the second respondent attempted to open the shop on 17.09.2015. Aggrieved over the same, the petitioner has come before this Court.
4. Heard Mr. N.Manokaran, learned counsel appearing for the petitioner and Mr.Rajamathivanan, learned counsel appearing for the first respondent and Mr.V.Lakshminarayanan, learned counsel appearing for the second respondent.
5. The second respondent has come before this Court by filing W.P.No.29346 of 2015 against the first respondent as well as the writ petitioner in W.P.No.29101 of 21015, who is running a hotel in the name and style of Gowri Shangar, now in the name of Viji .
6. The petitioner in W.P.29346 of 2015 has sought for writ of mandamus forbearing the respondents from cancelling the lease agreement dated 7.11.2005 except by due process of law. Since the issue involved in both the cases are one and the same, both the writ petitions are disposed of by this common order.
7. The petitioner in W.P.No.29101 of 2015 hereinafter called as petitioner and the Commissioner, Erode Corporation will be termed as first respondent. The petitioner in W.P.No.29346 of 2015 is hereinafter called as second respondent as arrayed in W.P.No.29101 of 2015.
8. Mr.N.Manokaran, learned counsel appearing for the petitioner very strenuously relying upon clause-16 of the auction notification dated 10.02.1986 would submit that:
1) There is a prohibition for opening Tea or Coffee Bar as prescribed by the first respondent and contrary to that, the second respondent cannot open any hotel ;
2) A promise has been made by the first respondent to the petitioner that there will not be opening of any new hotel in the New bus stand, Erode and therefore, the first respondent should prohibit the second respondent from opening any new shop;
3)When the second respondent has been running the computer centre he should not be allowed to change his business as hotel by altering the structure of the shop;
4) A suit O.S.No.521 of 1987 was filed on the file of the learned District Munsif, Erode and a decree of permanent injunction was also obtained restraining the first respondent from allowing anybody to open and conduct any Tea or Coffee or new Milk bar or any new hotel business any where in the new bus stand, Erode.
5) The petitioner also obtained a decree of permanent injunction in O.S.No.216 of 2005 on the file of the II Additional District Munsif Court, Erode, restraining the first respondent from in any manner to conduct any tea or coffee or a new milk bar anywhere in the new bus stand, Erode.
Therefore, he seeks a writ of mandamus directing the first respondent to forbear the second respondent from changing or altering the usage of shop from computer centre into hotel business.
10. However, Mr.V.Lakshminarayanan, learned counsel appearing for the second respondent opposed the contention of the petitioner. Similarly, learned Standing counsel appearing for the first respondent would submit that the first respondent has got every right to permit anybody including the second respondent, to open a new shop.
11. It is an admitted fact that the petitioner has been running a hotel originally in the name and style of Gowri Shankar and subsequently in the name and style of Viji. Much reliance has been placed in Clause-16 of the auction notice dated 10.2.1986 and it has been rightly pointed out by Mr.V.Lakshminarayanan that it is a general condition and that too, it is for the year 1986. Whereas, the proceedings dated 7.11.2005 and 18.8.2014 and the permission granted on 16.3.2006, do not reveal such a condition at all.
12. Even it is stated as a general condition, which is also binding upon the parties. A perusal of clause-16 would reveal that there is no prohibition for opening hotel or from changing the usage. Clause-16 is extracted as follows:
chpkk; bgw;W th';fp tpw;fntz;oa bghUs;fis rk;ge;jg;gl;l mYtyf';fspy; chpikahiz bgw;Wj;jhd; mg;bghUis tpw;fntz;Lk;/ kPwpdhy; mit efuhl;rpahy; mfw;wg;gLk;/ ,e;epge;jidia kPwp mjdhy; Vw;gLk; tpgj;JfSf;F chpikjhunu KGg;bghWg;g[ Mthh;/ kPwp elg;gth;fs; kPJ filiaf; fhyp bra;tJld; rptpy; kwwWk; Fw;wtpay; rl;l';fspd;go nky; eltof;ifa[k; bjhlug;gLk;.
12. From the above, it is clear that there is no prohibition for opening hotel. It is only the first respondent who frames such a condition. When the first respondent framed the rule, it has got every power to amend the rule or delete the rule or permit anybody to do any business. In any event, such a clause-16 cannot be imported prohibiting the second respondent from doing another business. As already stated, there is no prohibition in the permission granted to the second respondent for altering the usage or opening hotel.
13. As admitted by the petitioner, he has been running the hotel for the past 22 years and his past conduct would reveal that he does not like any competitor to his business. He has successfully prevented anybody from doing so by filing the suits in O.S.No.521 of 1987 and O.S.No.216 of 2005 before the Civil Court.
14. This Court unequivocally comes to the conclusion that the intention of the petitioner is not to see that the conditions are violated and it is only to prevent others from doing similar business as evident from his own letter dated 16.5.2015, which is extracted as follows:
tzf;fk;/ ,g;gt[k; ehd; <nuhL kj;jpa ngUe;J epiyaj;jpy; mirt czt[ tpLjp elj;jp tUfpnwd;/ vdJ cztfj;jpw;F mUfpy; giHa RTO MgP!; ,a';fp te;j ,lj;jpy; czt[ tpLjp tUtjhf mwpe;njd;/ vdf;F Vw;fdnt tpahghuk; kpft[k; nkhrkhf cs;sJ/ nkw;bfhz;L ,;e;j czt[ tpLjp te;jhy; ehd; fil elj;j kpft[k; rpukkhf ,Uf;Fk;/ nkw;bfhz;L ngUe;J epiyaj;jpw;Fs; czt[ tpLjp kw;Wk; O. fhgp nghd;w tpahghu';fs; bra;af;TlhJ vd khefuhl;rp Vy f$l;oy; cs;sJ/ Mfnt jh';fs; ,e;j czt[ tpLjpf;F mDkjp tH';fhJ ,Uf;FkhW gzpt[ld; nfl;Lf; bfhs;fpnwd;/@ From the above, the petitioner has categorically admitted that he is not running his business profitably and if any body enters in the field, it will be very difficult for him to continue his business.
15. Merely because, the competitor is entering into the field, it will not give any cause of action for the petitioner to file a writ petition to prevent the objector. As rightly relied upon by Mr.Lakshminarayanan in Jasbai Motibhai desai vs. Roshan Kumar, Haji Bashir Ahmed & Ors reported in AIR 1976 578 and in Natarja, Rep. by its vs. The Secretary, Ministry of Petroleum and others reported in 2005 (1) CTC 394, a rival owner of existing business, has no locustandi to complaint against setting up of rival business, on the ground that it would affect his business. Another judgement in Nagar Rice & Flower Mills & Bros. & Ors. vs. N.Teekappa Gowda & Bros. & Ors. reported in 1971 AIR 246 has also been cited.
16. When the law is settled that the rival business owner has got no locustandi to complaint against setting up of rival business, the W.P.No.29101 of 2015 is not maintainable. It is admitted by the petitioner himself as stated in his letter dated 16.5.2015, that he does not like any rival business.
17. Moreover, our country is a democratic country. We are all the citizen of our Nation having equal opportunity, including doing business, which is safeguarded under the Article 91 of the Constitution of India. The second respondent only to eke out his livelihood starts the business. The said right is guaranteed under Article 21 of the Constitution of India. There should not be any monopoly of business by anybody excepting the State Government that too by a due process of law. When such is the position, the petitioner has not raised any cause of action for filing the writ petition. Therefore, W.P.No.29101 of 2015 is dismissed. The interim order already granted therein stands vacated. M.P.No.1 of 2015 is also dismissed.W.P.No.29346 of 2015
As there is no condition in the proceedings dated 7.11.2005 and 18.8.2014 and in the permission dated 16.3.2006 regarding the change of business, the first respondent should not have prohibited the second respondent to change the business. The writ petition is allowed. No costs. Consequently the connected M.P.No.1 of 2015 is closed. Consequently the connected M.P.Nos.1 and 2 of 2015 are closed.
16.9.2015 Index : Yes/No Internet: Yes/No vk To:
The Commissioner Erode Corporation, Panner Selvam Park, Erode-1.
N.KIRUBAKARAN,J.
vk W.P.Nos.29101 and 29346 of 2015 16.9.2015