Madras High Court
A. Mani vs The Executive Officer, Special Grade ... on 21 November, 2006
Equivalent citations: AIR 2007 (NOC) 799 (MAD.)
Author: R. Sudhakar
Bench: R. Sudhakar
ORDER R. Sudhakar, J.
1. The Writ Petition is filed challenging the impugned tender-cum-auction notice in Na.Ka. No. 208/2006/A1 dated 31.10.2006 issued by the respondent panchayat executive officer.
2. The impugned tender-cum-auction notice was issued to enable small traders to put up temporary shops without roof at Sannathi Street and Beach Road in Kanyakumari. The Southern tip of the country, Kanyakumari, the meeting point of the Three Great Oceans, known for the Swami Vivekanandha Memorial and the newly installed Saint Thiruvalluvar Statute Memorial, attracts lot of tourists in the months of November, December and January every year. During this season there is a heavy flow of tourists and therefore, all the local people cash in by engaging in various types of trade and business during this time. The respondent panchayat permits temporary shops to be set up by individuals in the street and the road margins adjacent to the sea shore during the tourist season. Such temporary shops are in vogue for the past one decade. In this year also as in the previous year, the respondent panchayat floated the tender-cum-auction notice for permitting road side temporary shops without roof, which is the subject matter of the present writ petition.
3. Petitioner claims to be running a fancy store by name, "Kumari Fancy Store" for the past two decades. According to him, the impugned tender-cum-auction notice will affect his business and therefore, he claims that he has locus standi to challenge the impugned proceedings. It is the case of the petitioner that after Tsunami, there is reduced inflow of tourist and the business in Kanyakumari has fallen in great measure. Petitioner claims that his business has also suffered. According to him, the road and the other infrastructure are very vital for catering to the needs of tourists. If the respondent permits the road side temporary shops without roof, as per the tender notification, it will narrow the road and will affect the free flow of all traffic. Parking space will be affected and will cause harm to the public, besides it will also create health problems. The further contention of the petitioner is that the respondent panchayat did not follow the statutory provisions of the District Municipalities Act while issuing the tender-cum-auction notice. In short, the following three grounds have been raised in the writ petition:
(1) That the impugned notice is violation of the statutory provision of Section 183 of the District Municipalities Act since no resolution of the Council was obtained and road margin cannot be licensed to traders.
(2) That the division bench as well as full bench of this Hon'ble Court was pleased to hold that the power under Section 183 is subject to the provisions of Section 183(4) of the Act.
(3) That the impugned tender-cum-auction notice affects the freedom of the trade and profession of the petitioner.
4. Petitioner states that he sent a telegramme to the respondent to drop the tender-cum-auction process which according to the petitioner is detrimental to the public pathway and also on the grounds that no resolution of the council was obtained and that road side margins cannot be licensed.
5. A counter-affidavit has been filed stating that the respondent panchayat have been conducting the public auction for roadside temporary shops without roof every year. The temporary shops without roof are to be permitted for a period of 60 days at Sannathi Street and Beach Road at Kanyakumari which is virtually the shore. It is specifically stated that both the Sannathi Street and the Beach Road are adjacent to the Beach and will be closed for public thoroughfare during this period. During the tourist season the said area will be controlled by the police department and the public health maintained by the town panchayat. The above practice has been followed by the Panchayat for the last ten years without any problem. Respondent had conducted the tender as per the District Municipalities Rules and Regulations. The temporary shops auction is one of the source of income to the town panchayat. In view of the tourist season and in view of the just concluded local body election, the respondent had to conduct the public auction within stipulated time in order to avoid revenue loss to the town panchayat. Before conducting public action the President's prior sanction was obtained on 30.10.2006 and the subject matter was placed before the council meeting held on 9.11.2006 and a resolution No. 7 was passed by the council on that day itself. It is stated that due to election process and change of councils, the respondent took the prior sanction of the president in anticipation before obtaining sanction from the Panchayat council. After complying the necessary procedure the public auction was conducted to grant permission to run temporary shops without roof during season periods from 20.11.2006 to 19.1.2007. The total auction amount comes to a sum of Rs. 24,14,095/- and the entire auction process were completed but not yet confirmed because of the pendency of the writ petition. The entire amount for a tune of Rs. 24,14,095/- also collected from the highest bidders in whose names the auction is to be confirmed subject to the orders of this Court. It is further stated that during the specific period the traffic will be under the control of the police and public will not be affected. With regard to health and sanitation, it is stated, that the respondent intends to spend Rs. 10 lakhs and take measures to provide all necessary sanitary arrangements. Respondent Panchayat will provide temporary toilets and will appoint additional 40 sweepers and 4 maistries and extra two tractors for keeping the area clean 24 hours a day and public health will be safeguarded and as far as possible no difficulty will be caused to the tourists and public during the specific period. Such auction has been conducted by the panchayat once in every year during season period.
6. Heard Mr. T. Lajapathi Roy, learned Counsel appearing for the petitioner and Mrs. V. Chellammal, learned Special Government Pleader appearing for the respondent.
7. The contention of the petitioner is that the auction-cum-tender notice dated 31.10.2006 issued by the respondent is violation of the statutory provision of Section 183(3) of the District Municipalities Act since the resolution of the Council was not obtained and further road margin cannot be licensed to traders. Further, it also affects the freedom of the trade and profession of the petitioner. Before we proceed to consider the rival claims, the impugned tender-cum-auction notice has to be considered with regard to the provisions of the Act.
8. The respondent Executive Officer issued auction-cum-tender notice on 31.10.2006. The translated version as provided by the respondent is as follows:
AUCTION COM TENDER NOTICE FOR CARRYING ON BUSINESS TEMPORARILY IN VACANT SITE (WITHOUT ROOF) Tender cum Auction will be conducted as per schedule for carrying on business temporarily in vacant site (without roof) measuring 6' x 4' = 24 square feet in Kanyakumari Special Grade Town Panchayat for 60 days from the date of licence. Further, it is informed that anybody who is willing to participate in the auction, may submit the application containing shop number to the Executive Officer along with demand draft towards deposit and auction amount within prescribed time. Further information can be obtained from the office of the Town Panchayat Office.
SCHEDULE OF TENDER CUM AUCTION
S. Particulars & Deposit Last date Date of Last
No. Tender CUM (for any for Auction date for
one submitting deposit
shop) Tender
Rs.
1 Licence for Upto 5.00 From Upto
temporary shop p.m. on 11.00 11.00
Nos. 1 to 36 at 5,400/- 09.11.06 a.m. on a.m. on
Sannathi Street. (Thursday) 10.11.06 10.11.06
Licence for
temporary shop
Nos. 1 to 244 at
KadarkaraiSalai
2 Salai
Conditions
1. Auction shall be conducted separately for every shop.
2. Tender form should be submitted separately for every shop.
Tender application can be obtained free of cost and should be furnished along with auction amount by way of demand draft after signing the application in the sealed cover. In that tender form the sender should forward the same to the Executive Officer, Kanyakumari Town Panchayat A/So and the shop number in respect of which tender is applied should be clearly stated on the cover.
3. Demand draft should be drawn in favour of The Executive Officer, Kanyakumari Town Panchayat and also be payable in Kanyakumari.
4. It is informed that Rs. 90/- is fixed for every shop per day. Any demand draft less than the amount, i.e., Rs. 5,400/- for 60 days shall not be accepted and summarily rejected.
5. Permission order for participating in the auction should be obtained after paying Rs. 5,400/- (Rupees Five Thousand and Four Hundred Only) towards deposit within the time, after the stipulated time deposit shall not be accepted.
6. A person can apply for less than five shops. If it is found that anybody has applied more than five shops, such person shall be permitted according to seniority i.e., first five shops. Nobody shall be permitted to participate in the auction for more than five shops.
7. When auction is made tender shall be opened in the presence of highest bidder. As soon as highest bidder is declared he should pay the balance amount apart from Deposit and auction amount. In default the auction will be cancelled and the earnest money deposit will be forfeited.
8. A person who has applied for tender can apply for participation in the auction and also participate in the auction.
9. Management shall not be responsible for any loss occurred due to natural calamities and any other reasons.
10. Licensee shall be permitted to sell the licensed goods only authorised by the Government on the land.
11. Tender form should be in prescribed form and also Xerox can be taken.
12. Applicant will be called on the date of auction. At that time, he can participate along with permission order.
13. Any plastic item to be used only one time should not be used. In default the thing will be seized and penalty will be imposed.
14. Licensee should vacate on the date of expiry of the licence itself.
15. Licence will be issued only for 60 days for carrying on trade 60 days from the date of issuing order. The officer has right to cancel the licence on administrative ground even before the expiry of licence period. For cancellation of licence, no compensation can be claimed. Licensee should execute a deed in a Rs. 20/-stamp paper accepting the condition of licence, in favour of the Executive Officer.
16. Officer has right of cancel the Tender notice if conditions are violated and also to postpone and to stop the auction proceedings.
17. A person who wants to participate in the auction may see the shop which he proposes.
18. Officer's decision is final in respect of any problem.
19. Any further information can be obtained from the office of the town panchayat.
(emphasis supplied)
9. Section 183 of the District Municipalities Act reads as follows:
183. Power to allow certain projections and restrictions. - (1) The council may grant a licence, subject to such conditions restrictions as it may think fit, to the owner or occupier of any premises to put up verandas, balconies, sunshades, weather-frames and the like, to project over a street, or in street in which the construction of arcades has been sanctioned by the council, to put up an arcade; or to construct any step or drain-covering necessary for access to the premises.
(2) The executive authority may grant a licence, subject to such conditions and restrictions as he may think fit, for the temporary erection of pandals and other structures in a public street vested in the council or in any other public place the control of which is vested in the council.
(emphasis supplied) (3) the council shall have power to lease road sides and street margins vested in it for occupation on such terms and conditions and for such period as the council may fix.
(4) But neither a licence under Sub-section (1) nor a lease under Sub-section (3) shall be granted if the projection, construction or occupation is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such.
(5) The State Government may, by notification, restrict and place under such control as they may think fit, the exercise by municipal councils in general or by any municipal council in particular, of the powers under Sub-sections (1) and (3).
(6) On the expiry of any period for which a licence has been granted under this section, the executive authority may, without notice, cause any projection or construction put up under Sub-section (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner provided in Section 344 from the person to whom the licence was granted.
The contention of the petitioner is that the roadsides and street margins can be given on lease under Section 183(3) of the aforesaid Act subject to conditions laid down under Section 183(4) of the aforesaid Act. In this case, the auction has been conducted by the Executive authority in respect of roadsides and street margins. Therefore, the tender-cum-auction notice that has been issued by the Executive Authority is relatable to Section 183(3) of the aforesaid Act. The power given under the aforesaid provision cannot be exercised by the Executive Officer, with regard to leasing of roadside and street margins, as such the power vest with the council. In this case, the Executive Officer has usurped the power of the council and arbitrarily issued the tender-cum-auction notice.
10. On going through the tender-cum-auction notice, it is apparent and clear that the tender-cum-auction notice is for grant of a "licence" for temporary shops without roof at two places, viz., Sannathi Street and Beach Road. Considering the various terms and conditions set out in the tender-cum-auction notice, it is clear that the executive authority in his proceedings dated 31.10.2006 has called for tender-cum-auction notice only in respect of grant of "licence" for temporary shops without roof for a period of 60 days. Section 183(2) of the Act speaks about the grant of licence for temporary erection of pandals and other structures in public street vested in the council or in any other public place, the control of which is vested in the council. Section 183(3) of the Act speaks about the lease of roadsides and street margins vested in the council on such terms and conditions for such period as the council may fix. Section 183(2) gives power to the executive authority with regard to grant of "licence" for temporary erection of structures and the like, whereas Section 183(3) gives the power to council to "lease" roadside and street margins. Therefore, the contention of the petitioner that Section 183(3) of the aforesaid Act will be attracted to this case, will have to be considered by the nature and intent of the tender-cum-auction notice. In this regard, we may usefully refer to several judicial pronouncements which deal with the issues relating to "lease" or "licence".
11. In General Merchant Association v. Corporation of Chennai , the first Bench of this Court relying on the following decisions of the Apex Court and other Courts analysed the legal position with regard to lease and licence under the heading "III Statutory Provisions" as hereunder:
I. 12. In Associate Hotels of India Ltd. v. R.N. Kapoor , their Lordships of the Apex Court pointed out the marked distinction between a lease and a licence and the emphasis being transfer of an interest in the land in the case of lease. While in the case of a licence, it is a mere right to use the property in a particular way, or under certain terms while it remains in possession and control of the owner thereof. It has also been pointed out that in respect of a licence, the legal possession continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose and it does not create any estate or interest in the property in favour of the licensee. The Apex Court analysed the case law and laid down as hereunder:
The following propositions may, therefore, be taken as well established:
(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to form;
(2) the real test is the intention of the parties - whether they intended to create a lease or a licence;
(3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. Judged by the said tests, it is not possible to hold that the document is one of licence. Certainly it does not 'confer only' a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellants. The covenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants is destructive of any theory of licence. The solitary circumstances that the rooms let out in the present case or situated in a building wherein a hotel la run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document writer hardly conceals the real Intent. I, therefore, hold that under the document there was transfer of a right to enjoy the two rooms, and, therefore, it created a tenancy in favour of the respondent.
The learned Counsel for the contesting respondent was right in placing reliance on the above pronouncement of the Apex Court.
II. 13. In Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala , it has been held thus:
To put precisely if an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use the land without exclusive possession was alone granted, a licence was the legal result.
We are of the opinion that this was a licence and not a lease as we discover the intent. For this purpose reference may be made to the language used and the restrictions put upon the use of the premises in question by the appellants. In the document in question the expression "licence" was introduced and Clause (2) said that it was only for the business purposes. The licence fee was fixed. It permitted user only for 20 hours. Restriction in the hours of work negates the case for a lease. Clause (12) is significant which gave to the licensor the right to enter upon the premises and inspect the same at any time. In our opinion the background of the facts of this case and the background of the entire document negate the contention of the appellant that it was lease and not a licence.
III. 14. A Full Bench of the Delhi High Court in Chadu Lal v. Municipal Corporation of Delhi had occasion to consider an identical situation where the Delhi Municipal Corporation allotted KIOSKS and whether such allotment is a mere licence and held that what was granted is only a licence. In this respect, it has been held thus:
It is beyond challenge that if a document gives only a right to use the property in a particular way but its possession and control remains with the owner thereof, it will toe a licence. In such a case the legal possession remains with the owner of the property, the licensee being permitted to make use of the property for a particular purpose. It would, therefore, be seen that but for the permission the licensee's possession would be unlawful. Exclusive possession does not militate against the concept of a license, if the circumstances negative any intention to create a tenancy in Associated Hotels of India v. R.N. Kapoor .
It is also beyond the pale of controversy that if the circumstances and the conduct of the parties show that what was intended was that the occupier should be granted a personal privilege with no interest in the land, he would be held to be a licensee.
IV. 20. In Rajbir Kaur v. S. Chokosiri and Co. , it has been held by the Apex Court that exclusive possession itself is not decisive to hold that the occupant is a lessee and even grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In this respect, Venkatachelliah, J., analysed the case and held thus:
Thus exclusive possession Itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative Intention of the parties" and that there is no single, simple litmus-test to distinguish one from the other. The solution that would seem to have been found is, as one would expect, that it must depend on the Intention of the parties" see Cobb v. Lane 1952 (1) All. ER 1199.
In Associated Hotels of India v. R.N. Kapoor this Court referring to the classic distinction between a lease and a licence said:
There is a marked distinction between a lease and licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore, a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease and it follows from it that the lessee gets that right to the exclusion of the lessor.
In B.M. Lall v. Dunlop Rubber Co. the distinction between the two concepts was brought out:
A lease...is a transfer of a right to enjoy the premises; whereas a licence is privilege to do something on the premises which otherwise would unlawful....The transaction is a lease, if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest at the land....
In Quadrat Ullah v. Municipal Board, Bareilly it was stated:
... If an interest in immovable property, entitling the transferors to enjoyment is created, it is a lease, if permission to use land without right to exclusive possession is alone granted a licence....
V. 22. The classic definition of licence was well profounded during Seventeenth century by Vaughan C.J. in Thomas v. Sorrell 1673(124) BR 1098 and it is as follows:
A dispensation or licence properly passeth no interest, no alters or transfers property in anything but only makes an action, lawful, which without it had been unlawful.
VI. 23. As already pointed out the subtle distinction between a lease and licence was authoritatively laid down by the Apex Court in Associated Hotels of India v. R.N. Kapoor and the test could be summarised as below:
(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties--whether they intended to create a lease or a licence;
(3) if the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is licence; and (4) if under the document a party gets exclusive possession of the property, 'prima facie' he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.
The test of exclusive possession has already been held to be not a clinching test and the viable test is whether the grant conveys an interest in the property to the grantee. The Supreme Court in Sohan Lal Narain Das v. Laxmidas held thus:
The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property, the subject-matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or a licence, the test of exclusive possession, though not decisive, is of significance." In the above case the Supreme Court followed its own previous decision in M.N. Clubwala v. Fida Hussain Saheb . In our opinion M.N. Clubwala's Case AIR 2965 SC 610 lays down the final law on the subject and is of a piece with the rule in Erington's Case 1952 (1) All.ER 149. It sums up the law on the subject in the following words:
Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties.
This intention has to be ascertained on a consideration of all the relevant provisions in the agreement, if they are not clear, from the surrounding circumstances and the contention of the parties. Mudholkar. J., adverted to Erington's Case 1952 (1) All ER 149 and some earlier decisions also of the English courts and remarked at page 614 of the Reports as under:
We must, therefore, look at the surrounding circumstances. One of those circumstances is whether actual possession of the stalls can be said to have continued with the landlords or whether it had passed on the stall-holders. Even if it had passed to a person, has right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. That is what was held in 1952(1) KB 290 and 1952(1) All ER 1199. These decisions reiterate the view which was taken in two earlier decisions Clore v. Theatrical Properties Ltd. and Westby & Co., Ltd. 1936(3) All ER 483 and Smith & Son v. Assessment Committee for the Parish of Lambeth 1882 (10) QBD 327 at page 330. Mr. S.T. Desai appearing for the appellants also relied on the decision of the High Court of Andhra Pradesh in Vurun Suhba Rao v. Eluru Municipal Council ILR (1956) Andhra 515 at page 520-4 as laying down the same proposition. That was a case in which the High Court held that stall-holders in the Municipal market were liable to pay what was called rent to the municipality, were not lessees but merely licensees. The fact, therefore, that a stall-holder has exclusive possession of the stall is not conclusive evidence of his being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease (see (1960) 2 SCR 368 : AIR 1959 SC 1262.
Further, the Full Bench of this Court in the decision (Ramaraju, T. v. The State of Tamil Nadu), in paragraph 20 clearly observed as follows:
However, that does not mean that the municipal authorities have no discretion to permit erection of temporary structure or leasing out of the roadside or street margins. As already noticed, Section 183(1), (2) and (3) specifically enable the Council or the Executive Authority to do so, of course, subject to the paramount consideration as reflected in Section 183(4). No general and inexorable principle can be laid down by a Courts of Law prohibiting the municipal authorities from exercising their statutory power. All that can be said that the municipal authorities are required to act in a reasonable manner while exercising their authorities under Section 183. As observed by the Supreme Court in the decision in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan , even the Municipal Authorities in their discretion can permit holding of temporary shops or markets for a limited period or on certain, days in certain roads or places. It is neither desirable nor appropriate for a Courts of law to lay down any general principle in such matters. The jurisdiction of the Courts is confined to consideration of the question, if raised in a given case, whether such power has been exercised arbitrarily or for collateral purpose. The Courts is not expected to arrogate to itself the discretionary power of the concerned authorities, nor the Courts can be expected to remain as a silent spectator if it is found that the concerned authorities have abdicated their function. However, as already pointed out, no general rule can be laid down in such matters.
In view of the various decisions of this Court as well as the Apex Court, which has been extracted above and by the nature of the tender-cum-auction notice dated 31.10.2006, this Court is of the clear view that the executive authority has proceeded in the matter only for grant of "licence" to run shops without roof for a period of 60 days. The transfer of title of the property is not contemplated. In this case, the possession and control of the street margin and road side remain with the respondent panchayat. The legal possession continues to be with the respondent panchayat. The permission to be granted by the executive authority is a privilege to do business on the road sides and street margins which would be otherwise unlawful. Therefore, considering the tender-cum-auction notice conducted by the respondent will clearly come within the purview of the term "licence" as has been held by the Apex Court in B.M. Lall v. Dunlop Rubber Co. . The bidders are granted "licence" to put up a shop for a period of 60 days only. The intention of the executive authority in the tender-cum-auction notice dated 31.10.2006 is very clear, in that it does not contemplate a "lease". The tender-cum-auction notice is pure and simple "licence". In such view of the matter, the contention of the writ petitioner that Section 183(3) will be attracted has no force and has to be rejected accordingly. The learned Counsel for the respondent submitted that the Executive authority while issuing the tender-cum-auction notice has taken the consent of the President and subsequently the matter was placed before the council and the council approved the notice calling for tender-cum-auction. It is only thereafter the auction was conducted. The council has also approved the tender-cum-auction for grant of licence to put up shops on road side and street margin during the 60 days of tourist season. Therefore, the respondent panchayat have not violated the statutory requirement. Having held that the Executive authority has the power to issue the impugned tender-cum-auction notice for grant of licence, the above averments is of no consequence. The counsel for respondent however, reiterates that the authorities will maintain the road for pedestrian movement and ensure other safeguard as set out in the counter-affidavit, are taken.
12. As regards locus standi, the respondent objected to the filing of the writ petition on the ground that the petitioner did not have the locus standi to file this writ petition. According to the respondent, the petitioner has not suffered any prejudice or suffered a legal grievance or the action of the respondent did not deprive the petitioner of something which he is legally entitled to. According to the petitioner, his grievance is that because of the auction conduced by the respondent panchayat, the petitioner's business will be affected and that he had already suffered loss due to Tsunami. Therefore, the petitioner relying upon Section 183(3) of the Tamil Nadu District Municipalities Act has filed this writ petition on a misconception that the Executive Authority did not have the power to conduct the auction in question.
13. The Apex Court in the case of J.M. Desai v. Roshan Kumar has considered the issue of the person aggrieved and the locus standi to file the writ petition. It will be useful to refer paragraphs 36, 37, 38, 45, 46 and 47 of the above decision, which reads thus:
36. It will be seen that in the context of locus standi to apply for a writ of ceriorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody of meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past-time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
37. The distinction between the first, and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer-zone may not be "persons aggrieved.
38. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are:
Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?
(emphasis supplied)
45. In Paragraph 7 of the writ petition, he has stated his cause of action, thus:
The petitioner submits that...he owns a cinema theatre in Mehmadabad which has about a small population of 15,000 persons as stated above and there is no scope for more than one cinema theatre in the town. He has, therefore, a commercial interest in seeing to it that other persons are not granted a no-objection certificate in violation of law.
46. Thus, in substance, the appellant's stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from completion. Such harm or loss is not wrongful in the eve of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law. (Salmond on Jurisprudence 12th edn. By Fitzgerald p. 357 para 85). The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large.
(emphasis supplied)
47. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No Objection Certificate.
(emphasis supplied) In the case before the Apex Court, the statute provided for a method in which the same can be objected to by certain persons. The Supreme Court found that the petitioner therein was not a person aggrieved. In this case, the statue does not provide for such right to the petitioner and the writ petitioner has filed the writ petition stating that by the auction conducted by the respondent, the business will suffer and his constitutional right has been infringed. The averments made in writ petition are vague and without any particulars and in general terms. The ratio of the Apex Court stated above in particular in para 46 which has been extracted above will clearly negative the claim of the petitioner. Therefore the petitioner herein is not a person aggrieved and he has no locus standi to file the present writ petition. Further, the Apex Court in the very same judgment in para 48 has clearly stated as to when the Court should interfere in matters invoking the power under Article 226 of the Constitution of India. Para 48 of the Apex Court judgment reads as follows:
48. It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well-established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.
14. In the light of the findings in the foregoing paragraph that the Executive authority has the power to grant the licence in exercise of its power under Section 183(2) of the Tamil Nadu District Municipalities Act, the tender-cum-auction called for by the authority is valid in law. The writ petition therefore, has to fail.
15. The respondent panchayat have already indicated the measures taken for the purpose of maintaining the law and order, bandobust and the sanitary measures taken to safeguard public health. The provisions of Section 183 of the District Municipalities Act gives the power to authorities to act in the interest of public and take appropriate measures. Therefore, since all reasonable steps have been taken, the contention of the petitioner that it will affect the free flow of traffic and public health will suffer has no basis. The respondent will ensure that all the measures indicated in the counter-affidavit are complied with.
16. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed vacating the interim order already granted.