IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.06.2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NOs.19152 and 19755 of 2009
and
M.P.Nos.1,2,1,2 and 3 of 2009
Cuddalore Bus Stand and
Lawrence Road Shop Traders Welfare Sangam
rep by its President No.3, Lawrence Road,
Cuddalore-602 002.
(Regd.No.2 of 2009) .. Petitioner in
W.P.No.19152 of 2009
1.D.Radhakrishnan
2.R.Uma, Shop No.8, Lawrence Road,Cuddalore-2.
3.R.Uma, Shop No.9, Lawrence Road,Cuddalore-2.
4.G.M.Vinoth Kumar,
Shop No.10, Lawrence Road,Cuddalore-2.
5.G.M.Vinoth Kumar,
Shop No.11, Lawrence Road,Cuddalore-2.
6.R.Subramaniyam
7.M.S.Thippusulthan
8.P.Krishna Sami
9.R.Ramanujam
10.G.Jambukeswaran
11.S.Suseela
12.K.Balachand
13.A.M.Ayub
Shop No.19, Lawrence Road,Cuddalore-2.
14.A.M.Ayub,
Shop No.20, Lawrence Road,Cuddalore-2.
15.S.Vaithiyanathan
16.R.Balamurugan
17.R.Velmurugan
18.A.Mallikammal
19.R.Jeevaratchagan
20.A.Arumugam
21.R.Babu Naidu
22.S.Ramasami
23.C.Mohanraj
24.A.Sivakumar
25.J.KRishnamurthi
26.K.Shanmugam
Shop No.8, Rear Side Bus Stand,Cuddalore-2.
27.K.Shanmugam,
Shop No.9, Rear Side Bus Stand,Cuddalore-2.
28.A.Sivakumar
29.A.Palani
30.K.Govindarajan
31.G.Jambukeswaran
32.S.Venkatachalam
33.N.Ezhil Arasan
34.D.Shanmugam
35.P.Dhatchinamurthi
36.R.KAsthuri
37.K.K.Varadan
38.H.Elias
39.K.Ravichandran
40.S.Parivendhan .. Petitioners in
W.P.No.19755 of 2009
Vs.
1.The Secretary to Government of Tamil Nadu,
Municipal Administration & Water Supply Department,
Fort St. George,
Chennai-600 009.
2.The Commissioner of Municipal Administration,
Office of Municipal Administration,
Ezhilagam,
Chennai-600 005.
3.The Commissioner,
Cuddalore Municipality,
Cuddalore Post and District. .. Respondents in
both writ petitions
Both writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the letter of the second respondent bearing Na.Ka.No.18563/2008/FB3, dated 01.09.2008 culminated with the notice cum intimation order of the third respondent dated 04.08.2009 and quash the same and to direct the respondents to reallot the shops as per the third respondent’s resolution No.192, dated 30.03.2007 in pursuance of relevant Government orders i.e. G.O.(2D) No.147, MA&WS Department, dated 30.12.2000, G.O.Ms.No.92, MA&WA Department, dated 03.07.2007 and G.O.Ms.No.150 MA&WA Department, dated 06.09.2007.
For Petitioners : Mr.V.Raghupathi in both W.Ps.
For Respondents : Ms.C.Devi, GA for RR1 and 2 in both W.Ps.
Mr.M.Dhandapani, Spl.G.P. for R-3 in both W.Ps.
– – – –
COMMON ORDER
The first writ petition was filed by Cuddalore Bus Stand and Lawrence Road Shop Traders Welfare Sangam, represented by its President. It is claimed that it was a registered association with Registration No.2 of 2009. The original prayer in the first writ petition is to challenge the notice cum intimation order of the third respondent Cuddalore Municipality, dated 4.8.2009 and after setting aside the same, seeks for a direction to the respondents to reallot the shops to the petitioners as per the resolution of the Municipality No.192, dated 30.3.2007 as well as the Government Orders in G.O.(2D)No.147, MA&WS Department, dated 30.12.2000 and G.O.Ms.No.92, MA&WS Department, dated 3.7.2007. Subsequently, the petitioner had moved an application in M.P.No.3 of 2009 seeking for amendment of the prayer which was also ordered by this court on 18.11.2009.
2.By the amended prayer, the petitioner seeks to set aside the order, dated 1.9.2008 which culminated into a notice dated 4.8.2009 and after setting aside the same, seeks for a direction to reallot the shops as per the resolution No.192, dated 30.03.2007 as well as two Government Orders as referred to above and also G.O.Ms.No.150, MA&WS Department, dated 06.09.2007.
3.While the first writ petition was pending, individual shop keepers numbering 40 persons have filed the second writ petition in W.P.No.19755 of 2009 with same prayer as well as by a similar amendment made subsequently.
4.In both writ petitions, notice was taken for the Municipality by Mr.M.Dhandapani, learned Special Government Pleader and for first and second respondents, Ms.C.Devi, learned Government Advocate took notice.
5.Heard the arguments of Mr.V.Raghupathi, learned counsel appearing for petitioners and also the respective counsels for respondents.
6.By the impugned order, dated 4.8.2009, a reference was made to the order of the Commissioner of Municipal Administration, dated 1.9.2008. By the aforesaid order, the second respondent had directed the third respondent that the Government Order made in G.O.Ms.No.916, Rural Development cum Local Authority Department, dated 15.6.1984 was cancelled by the Government by G.O.(2D)No.85, MA&WS Department, dated 19.7.2000. In view of the same, shops newly built by the Municipality need not be given to old lessees without public auction and by fixing rent. Therefore the Municipality was informed that as and when the Municipality demolishes the old shops in the bus stand and built new shops, there was no question of avoiding a public auction for allotting the shops. It is pursuant to the said order, the impugned order of the Municipality came to be issued on 4.8.2009. The Municipality after referring to the Government Order, had stated that the newly built shops will be given on public auction and will be given to the highest bidders and after getting approval with the Municipality they will be allotted. Therefore, the deposited amounts made by the petitioners through bank drafts were directed to be refunded to the petitioners.
7.Mr.V.Raghupathi, learned counsel for the petitioners submitted that shops in the bus stand were allotted by the Municipality on payment of monthly lease rent 35 years ago. On 25.01.2007, the Municipality had informed the shop keepers about the proposed demolition. On 8.3.2007, a joint meting between the members of the association and the Municipal Commissioner was held. Thereafter, the Municipality had passed a resolution No.192, dated 30.3.2007. By the resolution, the Municipality had decided to demolish the shops and building, but while building new shops, they will be allotted to the old shop keepers provided the old shop keepers will deposit whatever the amount of cost to build the shop. After construction of the shops, they will be allotted to same persons who are now paying rent and they must pay the rent fixed by the P.W.D. The lease will be renewed once in three years fixing revised rent. In case the shop keeper is no more, the same will be allotted to a person who is taking the shop in auction. It is pursuant to the said resolution, notices were issued to shop keepers to vacate the places and also to pay the deposits for construction of new building. The estimates for each one of them are intimated. The petitioners have also paid the amount pursuant to the final notices issued to them. The rates fixed for the shops were Rs.1,74,435/-, Rs,1,29,630/- and Rs.69,315/- respectively.
8.It was stated that the Commissioner of the third respondent had also agreed to issue letter of assurance. But, however on 30.12.2008, the Municipality had issued notices to the members to vacate the shops. A writ petition in W.P.No.694 of 2009 was filed by the Sangam to quash the notices. On 22.01.2009, an order of interim injunction was granted restraining the respondents from allotting the shops to non members. The court while granting injunction had noted that since each of members have paid around Rs.1 lakh for the construction of new shops, the interim order will continue. As per the order of this Court, the members have vacated the shops. But, since the new construction had not started, an application in M.P.No.3 of 2009 was filed in that writ petition seeking for a direction to the third respondent to complete the reconstruction of the building. On 7.8.2009, a counter affidavit was filed by the Municipality stating that as per G.O.(2D)No.85, MA&WS Department, dated 19.7.2000, the deposit amount was sought to be returned. Therefore, by the impugned order, the direct allotment was dispensed with. The action of the respondents cancelling the earlier order and refunding the amount is illegal.
9.In the counter affidavit filed by the third respondent, while these facts were clearly admitted, but with reference to cancellation, the Municipality took the following stand in paragraphs 7 and 8 of the counter, which reads as follows:
“7.This respondent submits that apart from that as per G.O.Ms.No.2D No.85 dated 19.07.2000 it was specifically stated that the earlier occupants of the shop cannot be permitted to continue after new construction without bringing the constructed building in public auction. So as per the G.O., it is not possible for this respondent to allot the proposed newly constructed shops to the 40 vendors without conducting public auction as detailed above. The earlier occupants have got right to participate in the public auction and if they are highest bidder they can occupy the premises as per the Provision of Law.
8.It is submitted that this respondent has filed the counter by stating that the amount deposited by the petitioner to a tune of Rs.50,43,439/- were returned back to the concerned parties by giving proper information that after completion of construction of shops in the bus stand the said shops will not be handed over to the old occupiers as per the direction of Municipal Administration, Chennai and fresh auction will alone conduct as per usual process and shops will be handed over to the highest bidder in the public auction and all the public including the petitioner can participate in the public auction. Now in order to stop the proposed public auction, the petitioner have come forward with the above writ without any basis with malafide motive, since the petitioner has filed vexatious writ in W.P.No.694/2009 was dismissed as infructuous on 17.08.2009 having obtained an order of dismissal by raising the very same with slight change of pleading is not maintainable in law and the petitioners are estopped from disputing the same at this stage and the claims caused by recidivate also.”
10.With reference to the alleged promise by the Municipality, in paragraph 9, the following averments were made, which reads as follows:
“9….The resolution was passed in favour of the petitioner and the same was forwarded to the controlling authority for approval. The controlling authority has rejected the request and informed that there is no rule to collect the deposit without any public auction.
…The respondent never promised the members of the petitioner for allocation of shops. Every resolution has to be approved by the controlling authority, whenever the resolution passed by the council violating the G.O./Rules/Guidelines. Accordingly, the executive authority has rejected the request in accordance with the G.O.”
11.Mr.V.Raghupathi, learned counsel for the petitioners submitted that the Municipality is clearly estopped from resiling from the earlier promise made. This was especially when each of the shop keepers were directed to pay approximately the costs of the construction and they were made to vacate the shops. He also submitted that it is not as if the Municipality abide by the Government directions. In several cases, they were allotted shops in Lawrence Road on the basis that they have been running shops for number of years and those shops were never brought to public auction. Even in case of transfer, they were also allowed to be in favour of new persons. Copies of such documents were also enclosed in the form of additional typed set filed on 25.11.2009.
12.The learned counsel for the petitioners referred to an order of the State Government in G.O.No.150, MA&WS Department, dated 06.09.2007, wherein they have allotted shops for the old lessees. The State Government has no right to cancel the Municipal resolution. Under the provisions of the District Municipalities Act, there is no power vested with the Municipality. But this argument overlooks Section 36 of the District Municipalities Act.
13.The learned counsel referred to a judgment of this Court in P.Arunodhayam and another Vs. Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort St. George, Chennai and others reported in 2008 (3) CTC 563 to state that public authorities’ auction should be based upon reasons and it should not be unreasonable, irrational and violative of fairness in action. In such circumstances, promissory estoppal will apply.
14.The learned counsel further referred to a judgment of the Supreme Court in State of Bihar and others Vs. Kalyanpur Cement Limited reported in (2010) 3 SCC 274 and stated that the respondents are bound to honour the earlier resolution. He referred to the following passages found in paragraphs 35,36 and 79 of the said judgment which reads as follows:
“35.In our opinion, the aforesaid statement of law covers the submissions of Dr. Dhavan and Mr Dwivedi that in order to invoke the aforesaid doctrine, it must be established that:
(a) a party must make an unequivocal promise or representation by word or conduct to the other party;
(b) the representation was intended to create legal relations or affect the legal relationship, to arise in the future;
(c) a clear foundation has to be laid in the petition, with supporting documents;
(d) it has to be shown that the party invoking the doctrine has altered its position relying on the promise;
(e) it is possible for the Government to resile from its promise when public interest would be prejudiced if the Government were required to carry out the promise;
(f) the Court will not apply the doctrine in abstract.
However, since the judgments have been cited, we may notice the law laid down therein.
36.In STO v. Shree Durga Oil Mills4 it was held that: (SCC p.580, para 25)
25. Moreover, as it has been noted earlier that the IPR itself had not granted any exemption but had indicated that orders will be issued by various departments for granting the exemptions. The exemption order under sales tax could only be issued under Section 6 which could be amended or withdrawn altogether. This is expressly provided by Section 6. If the respondent acted on the basis of a notification issued under Section 6 it should have known that such notification was liable to be amended or rescinded at any point of time, if the Government felt that it was necessary to do so in public interest.
79.We are also unable to accept the submission that the decisions dated 6-1-2001 and 5-3-2001 had been taken due to the change in the national policy. This was sought to be justified by Dr. Dhavan on the basis of the Conferences of Chief Ministers/Finance Ministers. It is settled law as noticed by Bhagwati, J. in Motilal Padampat9 that the Government cannot claim to be exempt from the liability to carry out the promise on some indefinite and undisclosed ground of necessity or expediency. The Government is required to place before the Court the entire material on account of which it claims to be exempt from liability. Thereafter, it would be for the Court to decide whether those facts and circumstances are such as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from liability. It is only when the Court is satisfied that the Court would decline to enforce the promise against the Government. However, the burden would be upon the Government to show that it would be inequitable to hold the Government bound by the promise. The Court would insist on a highly rigorous standard of proof in the discharge of this burden.
15.The learned counsel further referred to the fact that in some of the cases, the Municipality had given direct allotment instead of going through public auction.
16.In the present case, it must be noted that the second respondent being the Controlling Authority had directed the Municipality to adhere to the Government norms in the matter of allotment of shops. There is no escape for the Municipality from obeying the order of the Government. Further, all resolutions of the Municipality council cannot become binding on the Commissioner. Unless resolutions are in accordance with the rules and regulations and directives of the Government, the Commissioner cannot be directed to obey such resolution. For the question of allotment of shops to same shop keepers, if such an action is taken and enforced through Court, the same will be repugnant to rule of law. The Court cannot be a party to such an illegal act. If petitioners are desirous, they must also follow the same route. One illegal act will not confer any enforceable right on the petitioners. In the matter of exemption, there cannot be any equal.
17.In this context, the respondents referred to a division bench judgment of this Court in A.Sathar Vs. The District Collector, Coimbatore and another reported in AIR 1998 MADRAS 217, wherein this Court held in paragraph 2 as follows:
“2….We are of the view that the extension of the lease to the appellant is against the interest of the Panchayat. As already noticed the rental income from the properties owned by the Panchayat is one of the sources of income to the Panchayat. Therefore, the interest of the Panchayat cannot be jeopardised by permitting the appellant to continue in possession of the premises in question at the enhanced rate of 15 per cent as prayed for. There are absolutely no merits in this writ appeal and the same is dismissed.”
18.A further reference was made to a division bench judgment of this Court in DCW Ltd. Vs. The State of Tamil Nadu and others reported in AIR 2005 MADRAS 264. The following passages found in paragraphs 14 and 23 of the said judgment may be usefully extracted below:
14.It is well settled in the aforesaid decisions that property belonging to the Government or an instrumentality of the State is not private property, and hence it cannot be disposed off at the sweet will of the authorities in any manner they choose. Such property can only be given by the State or instrumentality of State ordinarily through public auction/public tender as held in Selvarani’s case cited supra (2005 (1) CTC 81). Public property is not largesse which can be given by the Government to anybody. Since the appellant was given the grant only as temporary occupation for a period of twelve years, they cannot insist that the grant be continued even after twelve years as of right. If the appellant has made any investment on the said land they should have realized that after twelve years they have to vacate the land, and it is not that they have a right to continue in possession of the land till eternity. The appellant has no monopoly over the said land which belongs to the Government. After expiry of the lease the public property should be put to public auction/public tender after advertising it in well-known newspapers having wide circulation, so that there is transparency in the matter and all eligible persons can apply. In this way, Article 14 of the Constitution of India will be complied with, otherwise it will be violated.
23.Moreover, in our opinion, the petitioner’s conduct also disentitles it for relief under the discretionary jurisdiction of Article 226 of the Constitution. When a person remains in occupation of a property, even after his grant has expired, he is not acting in a fair manner. There was no fresh grant or renewal in favour of the petitioner after 12 years period, which expired on 31.03.2003. Without a fresh grant of lease, the occupation of the land in question by the petitioner was totally illegal and unauthorized. We are not inclined to exercise our discretion under Article 226 of the Constitution in favour of such unauthorized occupants, whatever may be the merits of the case…..”
19.In the light of the same, this court is not inclined to interfere with the impugned order. Hence both the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk
To
1.The Secretary to Government of Tamil Nadu,
Municipal Administration & Water Supply Department,
Fort St. George,
Chennai-600 009.
2.The Commissioner of Municipal Administration,
Office of Municipal Administration,
Ezhilagam,
Chennai-600 005.
3.The Commissioner,
Cuddalore Municipality,
Cuddalore Post and District