Madras High Court
V.S. Balakrishnan vs Pudukottai Municipality Represented ... on 25 June, 1993
Equivalent citations: (1993)2MLJ632
ORDER Srinivasan, J.
1. The petition is for issue of mandamus calling for the records pertaining to the Notification issued by the first respondent in Na.Ka.A.4/15423/89, dated 29.1.1990 and to quash the same insofar as the item 1 is concerned. Item 1 of the Notification relates to a right to collect fees in the weekly market for the period from 1.4.1990 to 31.3.1991. According to the petitioner, when the auction was held in the pervious year, he was a successful bidder for a sum of Rs. 7,00,150. He was directed to pay a sum of Rs. 51,300 every month. A document was executed on 5.4.1989 on a stamp paper of Rs. 5. Under that document the right of collecting the fees in the weekly market, Pudukottai during the period from 1.4.1989 to 31.3.1990 was given to the petitioner herein.
2. It is contended by the petitioner that the document is really one of lease and the petitioner has become a tenant under the Municipality by virtue of the said document and it is not open to the Municipality to hold a fresh auction for the period 1990-91 and dislodge the petitioner. The second contention is that the petitioner is entitled to the benefit of G.O.Ms. No. 285, Municipal Administration and Water Supply Department, dated 29.4.1985, under the terms of which the petitioner is entitled to continue on paying an increased lease amount of 15% every year.
3. The contention of the Municipality is that what was given to the petitioner was not a lease and it was only a licence to collect fees from the persons who vend their goods in the weekly market at Pudukottai. It is also argued that the Government Order referred to by the petitioner is applicable only to lease of building, stalls, lands, shops, banks, etc. and not to a right to collect market fees.
4. The second respondent got himself impleaded as a party to this writ petition and the contention is that he is regularly taking in auction such rights of collection of fees in the Weekly market and he has preferred to offer a sum of Rs. 12,00,000 per year in the weekly market in question. He adopts the arguments of the counsel for the Municipality.
5. In one sense, the writ petition has become infructuous in view of the framing of the prayer. As pointed out already, the prayer is only to quash the notification of auction dated 29.1.1990. insofar as the Item 1 is concerned. That Notification was for the period from 1.4.1990 to 31.3.1991 and it has already been worked out. That Notification does not survive. Admittedly, no subsequent Notification for any auction has been issued by the Municipality in view of the order of stay granted by this Court in this writ petition in favour of the writ petitioner. Hence nothing survives in this writ petition insofar as the challenge to the notification is concerned.
6. However, the petitioner is making a claim which would affect the rights of the Municipality and if the claim is accepted the Municipality will not be in a position to auction the right of collection of fees in the weekly market unless and until the petitioner is dislodged in accordances with law. Hence it is necessary to consider the contentions put forward by the petitioner. Counsel on both sides argued the matter in detail.
7. Reliance is placed by learned Counsel for the petitioner on two clauses in the document dated 5.4.1989. In Clause I it is stated that the Municipal Council has granted to the licensee the sole and exclusive licence and authority to only collecting the fees in the weekly market by leasing to vendors situated at the registration sub-district. It is submitted that the expression used in "leasing to vendors". According to the petitioner, a right to lease out the property has been conferred on the petitioner by the Municipality under the document. Secondly, reliance is placed on the last clause of the document which reads thus:
He shall maintain the market shops and stalls and be in possession with the right of leasing the shops and the stalls. The licensee shall hand over possession of the buildings and vacant lands on the expiry of term in the same condition in which he is now put in possession.
8. My attention is drawn to the judgment of the Supreme Court in Qudrat Ullan v. Baroilly Municipality . It is also a case where under an agreement with Municipality a person is allowed to collect the rents and bazar dues from sheds and shops, and the internal roads within the market the deed was held to be a lease deed and not a mere licence. It was observed that whether a deed is a lease or a licence depends on the intention of the parties. If an interest in immovable property entitling the transferor to enjoyment is created it is a lease, if permission to use land without right to exclusive possession is alone granted it is a licence. A look at the facts of the case shows that along with the document in question, plans were prepared and the property was clearly delineated which was dealt with the document. The relevant clause indicated that exclusive possession was given to the transferee and he was allowed to enjoy the immovable property which was the subject matter of the document in question. In those circumstances, the court held that it was a lease and not a mere licence. The Ruling will have no bearing on the facts and merits of the case. It is very clear from the Notification of auction that what was sought to be conferred or conveyed was only a right to collect fees in the weekly market The Notification related to about 15 items. The comparison of description of the other items shows that the Municipality intended only to confer a right to collect fees and nothing else. The document dated 5.4.1989 on which reliance is placed, does not contain any description of any immovable property. The schedule merely refers to the right to collect fees in the weekly market. It is written in Tamil as follows:
That shows very clearly that the parties did not intended to deal with any immovable property under the document. When it is a question of intention of the parties, it is clear from the document in question that there was no intention to deal with any immovable property.
9. The mere fact that in Clause 1, the expression used is "leasing to vendors" will not show that an interest in the immovable property was conferred on the transferee. In the document, in the context, the clause only means that a successful bidder in the auction will have the right to collect the fees from the persons who come to vend their goods in the weekly market by fixing appropriate prices for their respective portions. That last clause in the document which refers to "possession" would only mean that so long as the period for which the petitioner is entitled to collect the fees in the weekly market he is bound to keep the promises in good order and he is bound to be in charge of the same. The clause does not mean that the petitioner is given exclusive possession of the property with an interest therein. The possession that is given to the petitioner in the document is only for the purpose of his exercising the right to collect fees from the vendors who come to the weekly market. On construction of the document dated 5.4.1989, it is clear that what was given to the petitioner was only a licence and not a lease. If the contention of the petitioner that he is a tenant of an immovable property is to be accepted, the document dated 5.4.1989 cannot be looked into at all. It is typed on a stamp paper of Rs. 5 and as the document is not properly stamped, the petitioner cannot use the same to prove his case. A part from this, if it is a question of tenancy in favour of the petitioner, it is expressly for a specific period from 1.4.1989 to 31.3.1990. On the expiry of the period, the petitioner is bound to vacate the premises. It is not in dispute that the Municipality never collected rent or accepted the continuance of the tenancy after 31.3.1990. When the Municipality took steps to hold auction for the further period commencing from 1.4.1990, the petitioner has rushed to the court under Article 226 of the Constitution of India. This petition was filed even on 12.2.1990, before the expiry of the period. Even if the petitioner is held to be a tenant he cannot continue in possession after 31.3.1990, as the period of the lease came to an end.
10. It has been held by the Supreme Court that a right to immovable property cannot be enforced by an application under Article 226 of the Constitution of India. Vide: State of Rajasthan v. Bhavani Singh and Ors. .
11. The contention that G.O.Ms. No. 285, Municipal Administration and Water Supply Department, dated 29.4.1935 confers on the petitioner a right to continue to be in possession by paying an increased lease amount is without any substance. As I have held that the petitioner is only having a right of licence, the Government order does not apply. Apart from that, the Government Order is expressly applicable only to lease of Municipal Buildings, stalls, lands, shops, banks, etc., and that does not apply to lease or licence to a right to collect fees in the weekly market. Hence the petitioner will not claim any benefit under the Government Order.
12. Learned Counsel for the petitioner brought to my notice a judgment of the Supreme Court in Erode Perundhu Nilaya Viayaparigal, etc., Viyaberigal India Sangam v. State of Tamil Nadu and others, C.A. Nos. 1441 to 1444 of 1991, dated 23.4.1991, which arose out of a case of lease and the tenant claiming the benefit of G.O.Ms. No. 235, dated 29.4.1985. The Supreme Court upheld that claim under the Government Order and allowed their appeals. That ruling will have no application to this case, as the said Government order does not confer any right on the petitioner who obtained only licence to collect fees in the market."
13. In the circumstances, the writ petition fails and is dismissed with costs of the first respondent. Counsel fee Rs. 1,000.