Madras High Court
T.Murugan vs The Commissioner on 27 March, 2018
Bench: T.S.Sivagnanam, R.Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.03.2018 Orders reserved on: 22.03.2018 Orders pronounced on: 27.03.2018 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MRS.JUSTICE R.THARANI W.P(MD)Nos.106 of 2018, 189, 190, 288, 455, 514, 524, 530 to 540, 646, 647, 653, 679, 661, 602, 656, 595 to 599 of 2018 and W.M.P(MD)Nos.118, 119, 204 to 207, 311, 312, 456, 457, 509, 510, 518, 519, 534 to 566, 671 to 674, 684, 702, 703, 688, 689, 622, 623, 686, 687, 603 to 617 of 2018 W.P(MD)No.106 of 2018: T.Murugan .. Petitioner Vs. The Commissioner, Nagercoil Municipality, Nagercoil ? 629 001. .. Respondent PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the notice in Na.Ka.No.7841/2017/A13, published by the respondent in one issue of Dhina Malar News Paper, Nagercoil Edition, dated 28.12.2017 and to quash the same, in so far as the Shop Nos.1, 2, 3, 7 and 10, Anna Bus Stand, Nagercoil, Kanyakumari District is concerned and directing the respondent to renew the lease in respect of Shop Nos.1, 2, 3, 7 and 10, Anna Bus Stand, Nagercoil, Kanyakumari District, in terms of G.O.No.92, Municipal Administration and Drinking Water Supply (N.N.4) Department, dated 03.07.2007, with effect from 01.04.2018, in favour of the petitioner, by considering his representation, dated 27.12.2017, and upon such usual terms and conditions within a time frame as may be fixed by this Court. !For Petitioner : Mr.S.Subbiah Senior counsel for Mrs.P.Jessi Jeeva Priya For Respondent : Mr.P.Aathimoolapandian, Standing counsel. :COMMON ORDER
[Common Order of the Court was made by T.S.SIVAGNANAM, J.] All the writ petitions pertain to auction of the shops owned by the Nagercoil Municipality, granting licence to the successful bidders for a period of 3 years. Since the issue involved in all these writ petitions were identical, they were heard together and are disposed of by this common order.
2.W.P(MD)No.653 of 2018 has been filed by a licensee of Shop No.1, Anna Bus Stand, Nagercoil and the prayer sought is to declare Section 375(1) of the Tamil Nadu District Municipalities Act, 1920 and the Tamil Nadu Municipal Laws (Amendment) Act No.4 of 2017 and all other enactments extending the period of the Special Officer from time to time as ultra vires, unconstitutional and liable to be struck off. The other writ petitions filed by the petitioner in W.P(MD)No.653 of 2018 and others are challenging the auction notification issued by the respondent municipality dated 28.12.2017, bringing for auction of the shops owned by the municipality. Though, there may be a slight variation in the prayer sought for in the batch of cases, essentially, the challenge is to the auction notification issued by the respondent municipality. In the light of the nature of the relief sought for by the petitioners, W.P(MD)No.653 of 2018 is taken as the lead case.
3.Mr.S.Subbiah, learned senior counsel appearing for the petitioners contended that Section 375 of the Act is a transitory provision and in terms of sub-section 1 of Section 375, notwithstanding anything contained in the Act, the State Government may, by notification, if necessary, appoint Special Officers to exercise the powers and discharge the functions of the municipalities, until the date on which the first meeting of the municipal councils are held after ordinary elections to the municipalities. It is further submitted that Section 375-B was inserted by Amending Act 4 of 2017, by which, the Government of Tamil Nadu appointed Special Officers to exercise the powers and discharge the functions of the municipalities or the town panchayats, till the date on which, first meeting of the council is held after ordinary elections to the municipalities or town panchayats.
4.It is submitted that municipal council has been defined under Section 3(12-C) to mean the counsel or the municipality as the case may be. The municipality has been defined under Section 3(12-D) to mean an institution of self-government constituted for a smaller urban area as defined in clause (2) of Article 243-Q of the Constitution. Referring to Articles 243-Q, 243-R, 243-S, 243-T and 243-W, it is submitted that the municipality shall be a self-government and the State has a duty to implement the constitutional provisions and a Special Officer cannot discharge the functions of a municipal counsel, as a municipality has to function as institution as self- government in terms of Article 243-W of the Constitution. Therefore, it is submitted that the power of the municipal council cannot be usurped by a Special Officer, who is a paid officer of the Government and at any stretch of imagination, such a paid officer cannot be a self-government to fulfil the Constitutional mandate. Thus, it is submitted that the Special Officer has no jurisdiction to bring for auction the shops owned by the municipality and it is only the municipal counsil, which is a democratically elected body, can discharge the said function.
5.In this regard, the learned senior counsel referred to Section 19, 25 of the Act and Schedule III, which deals with rules regarding proceedings of the municipal council. It is therefore submitted that when transactions can be done only by the municipal council, which is a self-government merely by insertion of Section 375-B, the powers of the council cannot be interfered with. Therefore, the impugned provisions are liable to be struck down.
6.It is further submitted that Section 21 deals with council's power to call for records and Section 22 mandates that the executive authority to carry out council's resolutions. Therefore, the Special Officer cannot adorn dual roles and he cannot be a superior to himself, while he occupies the post of Special Officer and inferior to himself, when he occupies the post of Executive Officer of the municipality. Thus, the Special Officer cannot be a judge of his own cause and this is precisely what has been done by the respondent municipality, while bringing the shops for public auction. It is further reiterated that the management of the immovable properties of the municipality vests with the municipal council and the Special Officer cannot function as a self-government and at best he can carry on his day-to-day activities for administration purposes and has no power to take policy decisions, which can be done only by the municipal council.
7.Further, it is submitted that on a reading of the objects and reason of the Amending Act, while inserting Section 375-B, shows that elections ought to have been conducted, but for some reason, it is being postponed and Special Officer have been appointed and in such circumstances they can carry on the day-to-day activities of the municipality and nothing more.
8.The learned senior counsel while arguing the writ petition filed challenging the auction notification in W.P(MD)No.106 of 2018, etc. submitted that the impugned auction notification has referred to a resolution, dated 14.12.2017, which has not been produced and prior to issuance of the impugned notification, the Special Officer has taken a policy decision in bringing the shops for public auction, which power he lacked and therefore, the impugned notification is illegal and without jurisdiction.
9.Further, it is submitted that though the respondent states that the right granted to the petitioner is a licence, in effect, it is a lease and this again is a grave error committed by the respondent. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in Pradeep Oil Corporation v. Municipal Corporation of Delhi and Another reported in AIR 2011 SC 1869.
10.On the above grounds, the learned senior counsel submitted that the impugned auction notification may be set aside and the lease granted in favour of the petitioners may be extended by accepting 15% of the previous lease amount, by applying G.O.(Ms)No.92.
11.Mr.V.Meenakshisundaram, learned counsel appearing for Mr.R.Murugan, learned counsel for the petitioners in W.P(MD)Nos.455, 514, 524, 602 and 455 of 2018, etc., while supplementing the arguments of Mr.S.Subbiah, learned senior counsel, referred to Section 3(12-C), 3(12-D), 13, 13-A and 18-A and contended that the powers of the Executive Officer of the municipality has been clearly circumscribed and he cannot function as the municipal council and his right is only to attend the meetings of the council or any committee and take part in the discussion, but has no right to move any resolution or to vote at the meeting. Therefore, it is submitted that the Special Officer has no jurisdiction to issue the impugned auction notification.
12.Referring to the language in Section 375 of the Act, it is submitted that the transitory provision empowers the Government to appoint Special Officers to exercise the powers and to discharge the functions of the municipalities until first meeting of the municipal councils. The said provision does not use the expression municipality, but specifically states municipal council. Comparing Section 375 with Section 368 of the Act, it is submitted that the said provision specifically deals with the power of the Special Officer empowering him to discharge the duties and perform the functions of the municipal council. Therefore, it is submitted that the impugned auction notification cannot be issued by the Special Officer of the municipality.
13.It is further submitted that a Circular has been issued by the Director of Municipal Administration on 29.11.2016, i.e., after the insertion of Section 375-B of the Act, which came into force in October, 2016 and in the said Circular, it has been mentioned that the lease of municipal properties should be granted by following G.O.(Ms)No.92. The respondent/Special Officer is bound by the said communication and this aspect of the matter was not considered by the earlier Division Benches and therefore, the impugned notification has to be set aside and there is a direction from the Director of Municipal Administration to renew the lease by applying G.O.(Ms)No.92, which binds the respondent/Special Officer.
14.It is further submitted that the reason for bringing the shops for auction was on account of a Public Interest Litigation in W.P(MD)No.20001 of 2017 filed by one Arumugam and in the said writ petition, none of the lessees were party respondents. The Division Bench by order, dated 31.10.2017, while directing disposal of the representation of the said writ petitioner within a time frame on merits, directed opportunity to be provided to the petitioner therein and others connected in the subject matter. The order passed in the said Public Interest Litigation has been referred to in the impugned auction notification. However, the procedure directed to be adhered to, has not been followed. On the above grounds, the learned counsels seek for setting aside the impugned notification.
15.Mr.M.Shankar, learned counsel appearing for the petitioner in W.P(MD)No.503 of 2018 submitted that the extended period of lease will expire only on 31.03.2024 and the petitioner has agreed to pay the enhanced lease amount and without considering the same, the impugned auction notification has been issued and the same is illegal.
16.Mr.H.Arumugam, learned counsel appearing for the petitioner in W.P(MD)No.661 of 2018 submitted that even after the expiry of 9 years of the original lease period in terms of G.O.(Ms)No.92, the petitioner is entitled to continue in occupation and the only thing to be done by the respondent municipality is to ascertain the value of the property and what would be the fair lease amount.
17.Mr.VR.Shanmuganathan, learned Special Government Pleader appearing for the respondents 1 and 3 in W.P(MD)No.653 of 2018, submitted that the petitioner has not challenged the impugned provision as being violative of the fundamental rights guaranteed under the Constitution of India. The arguments putforth by the learned senior counsel appearing for the petitioners is by referring to Article 243-Q and 243-W of the Constitution to state that Section 375 is liable to be struck down. It is submitted that the petitioners have failed to note Article 243-U of the Constitution, which deals with duration of municipality in terms of sub-article 1 of Article 243- U, a municipal council can continue for 5 years from the date of appointment and no longer. Thus, to deal with contingency which would occur upon expiry of the term of the municipality, Section 375 was brought into the District Municipalities Act. The said provision will also apply in cases where the municipality is dissolved before the expiry of 5 year period. Therefore, the doctrine of necessity has to be applied and Section 375 has been enacted to achieve the Constitutional mandate and there is nothing unconstitutional about the said provision.
18.It is further submitted that the Special Officer though a paid officer of the Government, he replaces the municipal council upon expiry of the 5 year period or on dissolution before the expiry of the 5 year period and the entire administration of the municipality is vested with the Special Officer. In this regard, the learned Special Government Pleader has drawn the attention of this court to Section 5, Section 8 and Section 375 of the Act. It is therefore submitted that the Special Officer replaces the entire municipality and municipality is to be considered as a genus and municipal council is its species. Therefore, it is immaterial if both the Executive Officer of the municipality and Special Officer of the municipality are one and the same person. In other words, it is submitted that the Special Officer replaces the entire municipality, discharges all the functions and takes a decision, which has to be implemented by the Executive Officer in terms of Section 15 and 16 of the Act. Therefore, the Special Officer is not judging his own cause, as in the capacity of Executive Officer, he is bound to comply with the decision taken by the municipality.
19.It is further submitted that in the present batch of cases, the petitioners have not challenged Section 375-B of the Act, which has already been upheld by the Division Bench. Further, with regard to non-conduct of the election is concerned, since the matter is before the Hon'ble Supreme Court, the petitioners cannot raise any contention in that regard. On the above grounds, the learned Special Government Pleader submits that the challenge to the validity of Section 375 of the Amending Act, may be rejected and the writ petitions may be dismissed.
20.Mr.P.Athimoolapandian, learned standing counsel appearing for the respondent municipality, while adopting the arguments of the learned Special Government Pleader, submitted that the licence granted to all the writ petitioners would come to an end on 31.03.2018 on completion of 9 years and there is not a single case where the licence is sought to be terminated before its expiry.
21.The learned standing counsel submitted that one of the writ petitioners in the present batch of cases, by name, C.K.Sunitha had filed another writ petition in W.P(MD)No.11280 of 2017 in respect of a shop, which has taken on lease in Anna Bus Stand, Nagercoil and sub-let to other persons, filed writ petitions challenging the auction notification, dated 01.06.2017, and the writ petition was dismissed by order dated 26.07.2017. It is further submitted that identical contentions were raised in the writ petition filed by several other licensees in respect of other shops owned by the respondent municipality and all the writ petitions were dismissed. The learned standing counsel has filed a compilation of orders and Judgments to support his stand.
22.It is further submitted that when the attempts of the licensees to challenge the auction notification failed, they set up a person by name, M.Devaraj, calling himself as representative of Human Welfare Watch, filed a Public Interest Litigation in W.P(MD)No.1677 of 2018 to transfer the Municipal Commissioner of the respondent municipality. The said writ petition was dismissed by the Division Bench, by order, dated 31.01.2018, holding that the said petitioner was guilty of abusing the process of Court and he has approached the Court with a mala fide and oblique motive and he is merely espousing and supporting the cause of the occupants of the shops. The Division Bench imposed a cost of Rs.25,000/- on the said M.Devaraj.
23.Further, it is submitted that the impugned auction notification, dated 28.12.2017 was challenged by one Anto Jose in W.P(MD)No.1846 of 2018, which was dismissed on 31.01.2018 and two other writ petitions filed by M.Paramathi and J.Thomas in W.P(MD)Nos.1847 and 1848 of 2018 were dismissed, by order, dated 31.01.2018 and the writ petition filed by A.Jeyamalar in W.P(MD)No.2369 of 2018 was dismissed, by order, dated 16.02.2018 and in the said writ petition the Circular, dated 29.11.2016 issued by the Director of Municipal Administration was considered and it was held that it cannot be considered as an executive order, by which, the petitioners cannot claim right to continue in possession of the public property.
24.It is further submitted that all the orders dismissing the writ petitions have attained finality, as no appeals were preferred. Further, it is pointed out that the erstwhile municipal council had acted in an arbitrary manner by increasing the licence fee only by 30% for private parties, but by 100% for the transport corporation, which clearly shows that there is a cartel involved in respect of the shops occupied by the existing licensees. Further, it is submitted that after public auction was conducted in respect of the shops, the municipality has received a total revenue of Rs.4,60,00,000/- as compared to the amount collected for the Financial Year 2016-17, which was only Rs.1,00,00,000/-. In support of his contention, the learned standing counsel relied on the following decisions:
(i)P.Muthusamy v. State of Tamil Nadu, rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Chennai and Another reported in (2014)5 MLJ 129.
(ii)C.Vinoba and 34 Others v. The Commissioner, Palladam Municipality, Palladam, Tirupur District and Others reported in 2015(3) CTC 170.
(iii)P.V.Subramanian and Another v. Secretary to Government, State of Tamil Nadu, Municipal Administration and Water Supply Department, Chennai ? 600 009 and Others reported in (2015)4 MLJ 164.
(iv)Punjai Puliyampatti Municipality v. The Commissioner of Municipalities Administration, Chennai and Another [W.P.No.39436 of 2015, dated 18.02.2016].
(v)Punjai Puliyampatti Municipality Shopping Complex Lessee Welfare Association rep. by its President Mr.V.R.Thirumoorthy, having Office at No.313, Main Road, Punjai Puliyampatti, Erode District ? 638 459 v. Commissioner of Municipalities Administration, Ezhigam Annex Building, 6th Floor, Chepauk, Chennai ? 600 005 and Another reported in (2016)3 MLJ 698.
(vi)The Commissioner, Nagercoil Municipality, Nagercoil ? 629 001 v. D.Chellam and Others [W.A(MD)Nos.1498, etc. batch, dated 08.03.2018].
25.Heard the learned counsels appearing for the parties and perused the materials placed on record.
26.W.P(MD)No.653 of 2018 is the only case, where the petitioner has sought for a declaratory relief. The petitioner prays for issuance of a writ of declaration to declare Section 375(1) of the Tamil Nadu District Municipalities Act, 1920 and the Tamil Nadu Municipal Laws (Amendment) Act No.4 of 2017 and all other enactments extending the period of the Special Officers from time to time as ultra vires, unconstitutional and liable to be struck off.
27.The challenge to the constitutional validity of a law can be only on two grounds, namely, lack of legislative competence and secondly on the ground of violation of any fundamental rights guaranteed under Part III of the Constitution. There can be no third ground to challenge the constitutional validity of a law. In this regard, it is beneficial to refer to the following decisions of the Hon'ble Supreme Court:
(i)State of A.P. and Others v. MCDowell & Co. and Others reported in (1996)3 SCC 709.
(ii)Union of India v. R.Gandhi, President, Madras Bar Association reported in (2010)11 SCC 1.
(iii)Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd. and Others reported in (2007)6 SCC 236.
(iv)Anti-Corruption Movement rep. by its General Secretary, 7, Kaveri Street, Gandhi Nagar, Saligramam, Chennai ? 600 093 v. The Chief Secretary to Government of Tamil Nadu, Cooperation, Food & Consumer Protection Department, Fort St. George, Chennai ? 600 009 and Others reported in (2015) 2 CTC 225.
28.Admittedly, the petitioner has not pointed out as to how Section 375(1) of the Act is constitutionally invalid. There is no averment that the legislature lacks competence to enact such a law. The petitioner has not pointed out as to which of the fundamental rights guaranteed under Part III of the Constitution has been infringed. Therefore, in the absence of any one of these two grounds, there can be no challenge to the constitutional validity of a statutory provision. This would be sufficient to dismiss the writ petition in limini.
29.Since the learned senior counsel appearing for the petitioners advanced arguments touching upon the validity of the said provision, we examine the correctness of the said submission.
30.The sum and substance of the contention raised by the learned senior counsel is that in terms of the constitutional mandate which can be culled out from a combined reading of Article 243-A to Article 243-W is that, a municipality shall be a self-government and in such circumstances, a paid officer of the Government cannot discharge the functions of a municipality, as he cannot be termed as a self-government. Therefore, it is contended that Section 375(1) empowers the Special Officer to usurp the powers of the self- government, which is impermissible and works against the constitutional mandate. In this regard, the definition of municipal council as defined under Sections 3(12-C) and 3(12-D) were referred to and Sections 19 and 25 of the Act and Schedule III, which prescribes the Rules regarding the proceedings of the council. Though, the above is the submission made on behalf of the petitioners, there is no challenge to the validity of Section 375-B, which has, in fact, been rejected by the Division Bench in the case of R.Suresh v. The Principal Secretary to the Government of Tamil Nadu, Municipal Administration and Water Supply (Election) Department, St. George Fort, Chennai and Others, dated 05.09.2017.
31.Section 375(1) of the Act reads as follows:
?375.Transitory provision.- (1)Notwithstanding anything contained in this Act, or in any other law for the time being in force, the State Government may, by notification, if necessary, appoint special officers to exercise the powers and discharge the functions of the municipalities or the Third Grade Municipalities, as the case may be, until the day on which the first meetings of the municipal councils are held after ordinary elections to the municipalities and the Third Grade Municipalities after the date of commencement of the Tamil Nadu District Municipalities (Amendment) Act, 1994 [Tamil Nadu Act 25 of 1994]?.
32.Section 375-B of the Act reads as follows:
?375-B. Appointment of Special Officers.- Notwithstanding anything contained in this Act, on in any other law for the time being in force, the State Government may, by notification, appoint Special Officers to exercise the powers and discharge the functions of the Municipalities or the Town Panchayats, as the case may be, until the day on which the first meetings of the councils are held after ordinary elections to the Municipalities or the Town Panchayats, as the case may be, after the date of commencement of the Tamil Nadu Municipal Laws (Amendment) Act, 207 or upto the 30th day of June 2017, whichever is earlier?.
33.Section 375-B was inserted by Act No.4 of 2017, w.e.f. 17.10.2016. In exercise of the powers under Section 375-B, Special Officers have been appointed to exercise the powers and discharge the functions of the municipalities. The Special Officers so appointed, happened to be the Executive Officers or Commissioners of the municipalities. This is sought to be faulted and stated to be without jurisdiction by applying the principle of no man can be a judge of his own cause.
34.On a reading of Section 375 of the Act, it is clear that the Special Officers appointed by the Government, can exercise the powers and discharge the functions of the municipalities. Municipality has been defined under Section 3(12-D) to mean an institution of self-government constituted for a smaller urban area as defined under Clause (2), Article 243-Q of the Constitution. Section 3(12-C) defines municipal council to mean the council of the municipality or municipalities, as the case may be. Thus, the power conferred on the Special Officer is to discharge the functions of the municipality. Therefore, to state that the Special Officer in the capacity of Executive Officer of the municipality is a subordinate officer, a Government servant, who is bound to implement the resolution of the municipal council, cannot discharge the function of an elected council, which is a self-government is not tenable. In our considered view, the contention advanced by the petitioners is wholly misconceived. The language employed in Section 375 is vividly clear. The Special Officers appointed can exercise powers and discharge the functions of the municipality.
35.As rightly contended by the learned Special Government Pleader, the Special Officer replaces the municipality. In other words, he is a substitute for the municipality. The municipality encompasses within itself the municipal council. Thus, when the Special Officer has been statutorily empowered to discharge the functions of the municipality, it goes without saying that he discharges the function of the municipal council as well, as municipal council falls within the definition of municipality, as could be seen on a combined reading of Section 3(12-C) and Section 3(12-D) read with Article 243-A of the Constitution.
36.It was argued that the Special Officer can discharge the day-to-day functions of a municipality and nothing more. Unfortunately, we find that there is no such legal embargo in the statute, as the heading of Section 375 denotes that it is a transitory provision. Several statutes have incorporated transitory provisions, depending upon the field, in which they operate. The need to bring such a transitory provision stems from the embargo placed under Article 243-U(1) which reads as follows:
?243-U.Duration of Municipalities, etc. - (1)Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. ... ... ...
Thus, every municipality can continue for 5 years from the date appointed for its first meeting and no longer. This will also apply in cases where the municipality is dissolved prior to the expiry of 5 year period. In such contingency, necessary transitory provisions have to be provided as otherwise the interest of the public will be affected and the State will not be in a position to guarantee the fundamental rights for every citizen. Having held so, it is clear that the Special Officer is the ?Municipality?.
37.The municipality takes decision through its council, which has now been replaced by the Special Officer. The decision taken by the Special Officer, who is the municipality is required to be implemented by the Executive Officer of the municipality in terms of Section 13-A of the Act. Therefore, we find that there is no unconstitutionality in Section 375 of the Act to strike down the said provision. Therefore, the prayer sought for by the petitioners to issue a declaratory relief, is liable to be rejected.
38.Having come to such a conclusion, we are now required to see as to whether the challenge to the impugned auction notification is just and proper.
39.At the very outset, we wish to point out that though the petitioners claim that what has been granted to them is a lease and not a licence by placing reliance on the decision in Pradeep Oil Corporation (supra). This very issue was considered by the Division Bench of this Court in the case of P.Muthusamy v. State of Tamil Nadu, rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Chennai and Another reported in (2014)5 MLJ 129 and it was held that merely because the nomenclature ?lease? is used in the notification or the proceedings of the municipality, will not convert the grant, which is essentially a licence into one of lease.
40.Even assuming that the right conferred on the petitioners is one of lease, the petitioners have no vested right to continue in possession on expiry of the period of lease. In the instant cases, all the petitioners have been in occupation of the respective shops for 9 years. The reason being the Government passed an order in G.O.(Ms)No.92 and though the said Government order was stayed by this Court, yet the Government has not taken any measures to rescind the said Government Orders, as the Government Order if applied, causes great prejudice to the interest of the local body. The officials of the Government for the reasons best known are apprehensive of taking a decision, which if taken would undoubtedly earn higher revenue for the local body.
41.The Commissioner of the respondent municipality and few others working in different parts of the State of Tamil Nadu are a few exceptions. Even, this attempt was sought to be prevented under the guise of a Public Interest Litigation, which was dismissed by the Division Bench, with exemplary cost of Rs.25,000/-. There is no fundamental right vested with the petitioners to continue to be in occupation in municipal property. The challenge to the very same notification has failed before the Writ Court and those decisions were referred to by the learned standing counsel appearing for the respondent municipality and all those orders have attained finality and no writ appeals have been filed.
42.In one of such writ petitions in W.P(MD)Nos.2369 to 2375 of 2018, dated 16.02.208, the Circular issued by the Director of Municipal Administration, dated 29.11.2016, was considered and it was held that it is not a Circular, but a Region-wise Inspection Report by the Director of Municipal Administration and cannot be construed as an executive order and the petitioners cannot claim any right to continue in possession of the public property.
43.We fully endorse the view taken by the Writ Court in the said decision and the report of the Director of Municipal Administration cannot be pressed into service by the petitioners to hold on to municipal property. If any of the observations made in the Circular are to be taken to have force of law, then the authority would be acting against public interest and against the constitutional mandate. Therefore, the proceedings of the Director of Municipal Administration, dated 29.11.2016, is held to be none-est, the observations contained therein are contrary to the law laid down by this Court in several decisions and such observations have to be eschewed and there is no validity for the said report, that too, to assist the petitioners in their feeble attempt to cling on to municipal property.
44.The counter affidavit filed by the respondent municipality shows that in a short span of time, the municipality has been able to realise four times more revenue than the previous Financial Year. In respect of some of the shops owned by the municipality, the existing licencees had paid more than 300 times the existing rent and taken the licence. This clearly shows that there is a cartel operating, managed by influential people, who have retained shops themselves. We say so because, one T.Murugan was able to secure four shops in the Anna Bus Stand Shopping Complex, Nagercoil. Likewise, one J.Jesudoss has four shops in the same Bus Stand Complex. The rent payable by the transport corporation was increased by 100%, whereas in respect of the private parties, the increase was only 30%. Unfortunately, the erstwhile elected members of the respondent municipality, failed to realise that the services of the transport corporation is essential for a bus stand and without their services, the bus stand cannot be in existence. It is rather unfortunate that the erstwhile elected municipal councillors lost sight of this important aspect. Thus, for all the above reasons, we find that the challenge to Section 375(1) of the Act is devoid of merits and the challenge to the impugned auction notification is misconceived and unsustainable.
45.The learned counsel appearing for the petitioners submitted that there is a reference to municipal resolution, dated 14.12.2017 and the same has not been made known. As we have held that the petitioners have no vested right to continue in possession of the shops, they have no jurisdiction to demand for copy of the said resolution and on that ground, the impugned notification cannot be quashed.
46.It was further argued that the directions were issued in a Public Interest Litigation to consider the representation of the Public Interest Litigant before bringing the shops for public auction and the Division Bench had directed notice to be issued, which procedure was not followed. Admittedly, the petitioners are not parties to the said writ petition and they have no locus standi to question as to whether the direction issued in the said writ petition, dated 31.10.2017, was complied with or not. In any event, the Division Bench did not issue any positive direction to issue notice to the erstwhile licensees. However, if the petitioners are of the view that they should have been heard in the matter, then the remedy was elsewhere and not to raise such a contention in these writ petitions.
47.In the result, all the writ petitions are dismissed. The respondent municipality is directed to proceed with the public auction. No costs. Consequently, connected Miscellaneous Petitions are dismissed.
To
1.The Secretary to Government, Law Department, Government of Tamil Nadu, Fort St. George, Chennai ? 600 009.
2.The Secretary to Government, Department of Water Supply and Municipal Administration, Government of Tamil Nadu, Fort St. George, Chennai ? 600 009.
3.The Commissioner, Nagercoil Municipality, Nagercoil ? 629 001.