Judgement pronounced by E. Padmanabhan, J.
1. The above batch of writ Appeals are directed against the common order passed by the Hon’ble single Judge in W.P.Nos. 2475, 3673, 4073, 4074, 6809 of 1997 etc. on 4.8.97. Pending the Writ Appeals, the above writ petitions have been filed and being identical, hence on the orders of the Court, the writ appeals as well as the writ petitions were consolidated and taken up together for final disposal. The appellants/writ petitioners, allottees of shop in the Corporation Fruit Market, Chennai, challenge the impugned action taken by the Corporation of Chennai terminating their licence and calling upon the licencees to vacate and surrender possession of the respective shops in their occupation. As common questions have been raised in all the above matters, it will be sufficient to refer to the facts in one of the writ petitions. It is also to be pointed out that either the petitioner is an individual or an association representing the individual licencee in the same Corporation fruit market and their pleas are identical in all respects. Common arguments were addressed on behalf of the appellants/writ petitioners. So also on behalf of the contesting respondents. Writ Appeal Nos. 1150 and 1151 of 1997 were respectively preferred against the order passed by the Hon’ble single Judge in Writ Petition Nos. 3673 and 6890 of 1997 respectively. In the said writ petitions, the writ petitioners prayed for the issue of a writ of mandamus forbearing the respondent Corporation of Chennai, its men, officers, servants etc. from interfering with the possession and enjoyment of the shops at the fruit market, N.S.C. Bose Road, Chennai-1 allotted to the individual allottees. Some of the writ petitions have been filed challenging the notification of the respondent Corporation whereby licence granted in favour of the allottees have been cancelled. For convenience, the appellants as well as the petitioners in the writ petitions will be referred as arrayed in the writ petition/Appeal.
2. It is the case of the writ petitioner that the shops in the fruit market and Narayanappa Street at N.S.C. Bose Road were leased out to the respective occupants/stall were leased out by the respondent Corporation to the respective allottees, that the allottees are lawfully inducted lessees and continued to be the lawful lessees and carry on their business in the said shops, that the Corporation fruit market is a public market as defined under Section 300 of the Madras City Municipal Corporation Act, 1919, that the occupants are tenants under the respondent Corporation in respect of the stalls in their occupation, that the occupants were granted lease of the respective stalls on an agreed rate of rent, and the same has been revised from time to time, that by mutual agreement and consent the rates of rent have been revised periodically, that the respondent Corporation cannot unilaterally enhance the rent, that the occupant who is a petitioner, either individually or member of the association which is a petitioner in the writ petition are carrying on their business right from the day when the fruit market had been constructed and let out, that the occupant allottee is ready and willing to pay the revised rate of rent, that the lease in favour of the petitioner allottee is governed by the provisions of the
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Tamil Nadu Act of 1973 and Act 1 of 1990 or the provisions of Transfer of Property Act, that as late as 15.7.96, the respondent Corporation threatened the lessees with action for non-payment of rental arrears with summary eviction, that the powers under Section 302(2) or any regulation framed under Section 308 or any bye-law framed under Section 349 cannot be invoked by the lessee of the shop to forcefully evict the petitioner, that the lessees have not been informed any conditions of licence or any regulation or bye-law, that the lessees have been carrying on business continuously and they have got a right to carry on their business as laid down by the Supreme Court, that on the earlier occasion, this Court quashed the revision of rent in respect of the fruit market stalls and Narayanappa Street stalls, that subsequent revision was also challenged and the writ petitions are pending, that the respondent Corporation had removed encroachments of hawkers in N.S.C. Bose Road and provided them with alternate accommodation, that some accommodation has been provided with in the front of the fruit market, that after the opening of Koyambedu Wholesale Vegetable Market the fruit and flower shops are directed to be removed and shifted to Koyambedu, that the respondent is threatening the lessees of the stalls to vacate and hand over vacant possession, that the respondent is using force to remove the petitioners with the aid of Police, that the threatened action is illegal, that the petitioners cannot be asked to vacate or move out of Madras city to Koyambedu, that the petitioner in each of the writ petitions or the members of the association cannot be evicted except by due process of law, that on 1.3.1997 the respondent received a warning that if the occupants of the stall did not give a letter of undertaking assuring that they would voluntarily surrender their lease on or before 31.3.1997, they would themselves remove everything by the use of bulldozers on a Friday so that the occupants will not be in a position to approach the Court and secure order of stay, that the respondent has neither the authority, nor they have the right to interfere with the possession and enjoyment of the shops/stalls, that the respondent has to either approach the Civil Court seeking a decree for ejectment after terminating the tenancy in terms for Section 106 and 111 of the Transfer of Property Act, that the course available to the respondent is only to get a decree for ejectment from a competent civil court and not in any other manner, that what was granted to the petitioner or the members of the petitioner association is a lease, that a lawful tenant cannot be evicted forcefully, that even an encroacher and unauthorised occupant is entitled to be given a statutory notice with a right of hearing and that without resorting to due process the writ petitioner or its members cannot be evicted. It is also the grievance of the petitioner that the respondent had not chosen to collect the rents for the past few months. The petitioner is being terrorised and hence they have approached this Court for the issue of writ of mandamus.
3. A common counter affidavit was filed by the respondent Corporation in W.P.Nos. 1443, 2475, 2577, 2955, 3673, 3950, 4073 and 4074 of 1997 denying the averments set out in the affidavits filed in support of the respective writ petitions. It has been stated in the counter affidavit that the petitioner or the members of the petitioner association in occupation of various shops in the public market known as Pookadai/Fruit Market are only licensees
and they are not lessees. The reliance placed by the writ petition with respect to certain Lease Card had been denied and the genuineness of the same has been challenged by the respondent Corporation, besides pointing out that there is no such licence inspector in the market and the licence inspector is said to have signed the so called lease card has no authority and the documents are suspicious so also the rubber stamp, as there is no such official rubber stamp which is being used by the Corporation. It is further alleged that the lease cards have been created for the purpose of the writ petition and the matter is being investigated.
4. According to the respondents, the market in question is in existence from 1930 onwards. There is no name in the records of the Corporation showing L. Raju Chettiar as the licensee who is the petitioner in W.P.No. 2475 of 1997. It is the specific case of the Corporation that the allottees of the shops are in occupation and are carrying on business as licensees only and the relationship is not that of a lessor and lessee nor the writ petitioner could claim tenancy. The shops/stalls are located inside the Corporation market which is a notified market and all the petitioners carrying on their business in the shops/stalls only as licensees and the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act will have no application. Besides, the buildings owned by the respondent Corporation is outside the scope of the said Act. It is not in dispute that the respective petitioner is carrying on business in the respective shops as claimed by them.
5. The State Government has located the wholesale market in perishable commodity at Koyambedu and had taken a policy decision to shift all the wholesale trade in perishable to Koyambedu from George Town area in public interest and with a view to ease the traffic congestion. According to the respondent, the occupant is not a tenant and the claim of tenancy is false. The occupant is only a licensee of the shops/stalls and the entire market is under the control and domain of the Corporation, as the entry into the market is completely controlled and regulated by the Corporation. It is further pointed out that under the guise of using the word ‘retailer’, wholesale business is being carried out by the petitioners and to circumvent the policy of the Government not to have any wholesale trade in perishable commodity in any part of the city the petitioner in each of the petitions had come out with a false case and with writ petitions had come out with a false case and with untrue allegations for the purpose of the writ petition. The members of the writ petitioner association are only licensees and their claim of tenancy is false. The market itself is called flower and fruit market. There is no necessity to have a separate flower market since the wholesale market has already been established in Koyambedu market complex. As per the policy of the Government and the local authority, the flower and fruit market has to be closed lest the policy could not be implemented and the traffic congestion in George Town area and in particular the Broadway, N.S.C. Bose Road and the areas surrounding the High Court cannot be decongested, that the traffic congestion, bottlenecks in the area was taken into consideration and in the interest of the public, the wholesale perishable commodity market has been notified and located at Koyambedu and therefore, no wholesale business in
perishable commodity is permitted to be carried out in the city of Chennai except in Koyambedu. After filing of writ petitions and getting orders of status quo, the writ petitioners in each of the writ petitions is carrying on wholesale business in perishables and there is no machinery by which the same could be monitored to find out whether a person is carrying on business in wholesale in perishables or not. The respondent Corporation has decided to close down the flower and fruit market and the respondent requires the area for the expansion of the Broadway Mofussil Bus Stand after demolishing the existing structure in the said flower and fruit market.
6. According to the respondent, the writ petitions filed by the association are not maintainable as what is sought to be enforced is the right of occupancy as a licence which is independent to each one of the licensees and the association cannot maintain a writ petition collectively for and on behalf of its members. Further, there is no common grievance nor common rights are sought to be enforced to maintain single writ petition on behalf of the members of the respective petitioner association. In the meeting convened on 18.1.1997 by the Dy. Commissioner (R & F) in Ward III, the traders assured to vacate the shops from the fruit and flower market and the Chief Administrative Officer of Chennai Metropolitan Development Authority assured to provide space in the Koyambedu market. In many cases, traders have already occupied shops in the Koyambedu market complex. However, they continue the flower market shops/stalls as hitherto.
7. The licence granted in favour of the individual had been revoked and no licence is in force. The respondent Corporation has decided not to continue the flower and fruit market as a wholesale market has already been established in Koyambedu with all modern facilities and the fruit market area is required for the expansion of the bus stand to ease the traffic congestion in the area. It was also pointed out that the market complex building is very old and in a dilapidated condition and the Corporation has already decided to demolish the market and provide for the expansion of the mofussil bus stand, as there is a demand for the expansion of the existing bus stand and as traffic congestion in the area has to be cased. According to the respondent, the writ petitioners have no legal right and no interests have been created in their favour in the respective shops. As already pointed out, the licence of the licencee had been revoked and no fee is being received. It is the further case of the respondent that the respondent Corporation could always invoke the powers conferred under Sections 301, 302, 308 of the Madras City Municipal Corporation Act as well as Section 52, 60, 63 and 64 of the Easements Act to remove the unauthorised occupants after the expiry/termination of the licence. The market in question is a public market owned by the respondent Corporation and it is the Commissioner of the Corporation who alone is competent to levy the licence fees. The Commissioner has got the authority and control over the public market. As the licence had been revoked, Section 302 of the M.C.M.C. Act could be invoked and unauthorised occupants could be removed as their continuance is in contravention of the statutory provisions, after giving three days’ notice.
8. The respondents further point out that the licence had been validly revoked and the erstwhile licensees has got the permission to remove the
occupants of the Corporation market within three days which would be a reasonable time.
9. The respondent Corporation has to implement the provisions of the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 and it is required not to allow any wholesale flower or other perishable business in George Town area. It is the fundamental duty of the flower traders to move to the Koyambedu market complex where shops have been allotted to all the right allottees in the Corporation market in the George Town area. In fact, the petitioner association have given an undertaking to the respondent Corporation and the Metropolitan Development Authority to move to Koyambedu market on or before 14.12.1996 to decongest the George Town area and also to keep the area free from pollution, all the wholesale traders in perishables are required to be shifted to the Koyambedu market complex. The respondent Corporation has also resolved and decided to expand the mofussil bus stand after demolishing the fruit market structure and the connected shops in the complex. It has also been decided to accommodate all city buses which are now being parked in the roadside margin on N.S.C. Bose Road abutting the High Court compound, as it causes a lot of inconvenience to the public and with a view to ease the traffic congestion, as such a traffic congestion leads to innumerable fatal accidents.
10. Admittedly, the Corporation had issued a notice on 5.8.1997 terminating the licence of all the licence in the fruit market numbering 111, flower stalls numbering 105 on T.N. Row, Narayanappa Street numbering 28, fruit market (damaged stall-eastern and western gates) numbering 4.
11. Identical averments have been set out in the other writ petitions claiming that the writ petitioners or the members of the writ petitioner association are lessees, their status is that of a lessee and not licencee, and that they cannot be evicted, as according to them, they are retailers and not wholesalers. It has been reiterated by the petitioners that each petitioner is not a licencee, but a lessee of the shop. After the orders in earlier batch or writ petitions which are the subject matter of challenge in the writ appeals, the respondent Corporation had terminated the licence and resolved to evict the unauthorised occupants. Hence the batch of writ petitions have been filed. It is claimed that the members of the petitioner association have been in uninterrupted possession of the premises for over 60 years and if they are to be thrown out without offering alternate accommodation, their right to trade as enshrined in Article 19(1)(g) of the Constitution will be violated. It was the further claim of the writ petitioner that a statutory authority like the respondent Corporation, while dealing with the citizens’ right, is bound to act reasonably and fairly and its every action should satisfy the test of reasonableness. According to the petitioner, the respondent Corporation cannot, like private landlords, adopt unfair procedures. The petitioners further contend that it is incumbent upon the respondents to follow the procedure which is reasonable and fair, and to afford adequate opportunity to the members of the petitioner association before they are being thrown out. The individual petitioner and the members of the petitioner association have been
threatened to be summarily evicted by 11.8.1997. Had individual notice been served, the petitioner/individual occupant would have the opportunity of raising objections and they cannot be thrown out overnight by giving 2 or 3 days notice as their occupation of the premises commenced 60 years before. The action of the respondent is unreasonable, arbitrary and violative of principles of natural justice and it also offends Article 21 of the Constitution. The members of the petitioner association have stocked goods worth several lakhs of rupees in their respective shops and all of a sudden if they are to be thrown out without even providing alternate accommodation, their rights will be in serious jeopardy. The members have alone been singled out inasmuch as no alternate accommodation had been provided to them, while even the hawkers in the street had been provided with alternate accommodation by the respondent by constructing small shops along the pavements. The batch of writ petitions has been filed challenging the notice terminating the licence published in the English daily “The Hindu” dated 10.8.1997 and writ of certiorarified mandamus has been prayed for to call upon and quash the said termination notice and to forbear the respondents from evicting the members of the petitioner association from their respective shops/premises at the fruit market, T.N. Row, Narayanappa Road, N.S.C. Bose Road, Chennai-1 without following a reasonable procedure by issuing individual notices to the members of the petitioner association. Identical common affidavit has been filed by the first respondent Corporation in the writ petitions. Among other reasons, it was pointed out that many of the petitioners have moved the Civil Court and the suits are pending for identical relief. Without withdrawing the suits, writ petitions have been filed and some of the writ petitions are liable to be quashed as the writ petitions are not entitled to prosecute two parallel remedies at the same time. Some of the petitioners are also guilty of suppression of facts and on that count, certain writ petitions are liable to be dismissed. According to the respondent, the individuals in occupation of the shops/stalls in the Corporation market are only licencees and they are not lessees as legal possession of the market is always with the Corporation. The licence granted in favour of the individual licencee has been revoked by serving notice on the individual licencees which was sought to be served through messenger or by Certificate of Posting and also by publication in local dailies. The licencees have either refused or evaded to receive the individual notices served on them and hence the publication in the dailies namely “Malai Murasu” on 8.8.1997 and “The Hindu” on 10.8.1997. The respondent has further reiterated that no lease was granted to the petitioners at any point of time and the petitioner or the members of the writ petitioner association are only licencees. An inadvertent error in the publication of notice has been taken note of and an Errata has also been published on 11.8.1997.
12. It is further case of the respondent that no interest has been created in favour of the individual licencees in respect of the Corporation fruit market shops as they are only licencees of the stalls and they are not allowed to remain in the stalls beyond the closing hours and the entry and occupation of the market and shops is being regulated by the Corporation which has established the market and is running and maintaining the market. The writ petitioners are estopped from disputing their status as licencees and they are
also estopped from claiming the tenancy or the lessees in occupation. The respondent has further stated that the licencee of the shop/stall has to carry on the business during the hours fixed by the Corporation, the licencee has no right to use the shop during night or to enter the shop in the night at his pleasure and the occupier has to use the shop only during the stated period of time everyday and subject to usual conditions prescribed in this respect. It is the Corporation of Chennai which has established the fruit market and is in exclusive control of the market, which also undertakes routine cleaning. The legal possession of the market always remain with the Corporation. It is well open to the Corporation to control the entry into the market and it is also entitled to regulate the control and entry in the market. It was further pointed out that the writ petitioner and the members of the writ petitioner association are only licencees. Identical counters have been filed in the other writ petitions also.
13. In the counter affidavit filed in W.P.No. 12207 of 1997, it has been further pointed out that many of the petitioners are doing business both in Koyambedu as well as in the fruit market and if the wholesale business in perishables is permitted in George Town area, the purpose of Koyambedu wholesale market complex will be defeated. The George Town area is heavily congested and trade in perishables is also causing pollution. Further, the mofussil bus stand located adjacent to the fruit market is heavily congested due to increasing traffic and all the buses from the mofussil convulge in the George Town area, which necessitates the extension of the bus stand, not only for the mofussil buses, but also city buses.
14. The Corporation is willing to provide alternate accommodation. The Koyambedu market complex has been constructed with all modern facilities by utilising the World Bank loan. It is stated that the respondent is adopting a fair procedure in evicting the unauthorised occupants namely the licencees whose licence has already been terminated. The claims of the petitioners are false and they have no right to persist or to continue in occupation of the stalls in the Corporation fruit market and carry on the wholesale business in perishables.
15. The Metropolitan Development Authority has also filed a counter affidavit on the same lines and also stated that alternate accommodation was provided to all the traders in wholesale excepting six of the traders of Corporation fruit and flower market. It was also further stated that it has been decided to shift the wholesale market with the intention to decongest the George Town area. It was further reiterated that the respondent had decided to demolish the existing market and to extend the Broadway bus stand which is housed adjacent to the Corporation flower and fruit market.
16. After hearing the writ petitioners and the respondents for a considerable period, suggestion was made to find out alternate accommodation. On that, the first respondent Corporation was recalled to submit a report. A report dated 15.1.1998 was filed by the respondent Corporation. It is seen from the report, a meeting was convened by the Corporation on 23.12.1997 at 11 a.m in the chamber of the first respondent, in which the Chief Planner, C.M.D.A, was also present. The representatives of
the traders association and their counsels were also present. It was pointed out that as far as the flower bazaar is concerned, the Metropolitan Development Authority had provided accommodation at Koyambedu market and all the wholesalers have been accommodated excepting six persons left over and if an application is made, they will be provided with necessary accommodation at Koyambedu market complex. In the said meeting, the merchants expressed their views claiming that they are retailers dealing in perishable goods and they insisted for the continuance of their shops in the existing place or at the site near the Government Dental Hospital or at the Pachayappas Play ground. In fact, some of the traders represented that they may be accommodated in the new bus stand to be constructed in the existing place or at Lone Square or at the M.U.C. Ground. As per the report, the Corporation has constructed shopping complexes throughout the city and they are available in 11 places as detailed in the report to accommodate 136 shops, and the traders were informed during the meeting that if they are so interested, they may occupy the shops after making necessary application to the Corporation Commissioner. In fact, during the meeting, on behalf of Jayaraman and Sivagami, who were carrying on business on Narayanappa Road, a request was made to provide alternate accommodation in Koyambedu market complex which was agreed to be given by the C.M.D.A. The members of the trade or the vendors in the flower bazaar were unwilling to accept the alternate site given by the Corporation and it was recorded accordingly.
17. According to the Tamil Nadu Act 24 of 1996, wholesale in the notified commodities should be carried out in the Koyambedu market place alone and nowhere within the city. All the vendors of the flower bazaar have been accommodated in the Koyambedu market place by the C.M.D.A. and the said authority even agreed to allot accommodation for the left over persons doing business at the flower market at Koyambedu complex. The Corporation offered to provide alternate accommodation which were not acceptable to the traders. The Corporation also proposed to construct a multi-storeyed shopping complex at Sriramulu Naidu Park and Lone Square and other places and the request of the traders in the said complexes will be considered for allotment on priority basis. However, the traders declined to accept the same. The Corporation has reiterated that it is not feasible to accept the request of the traders for allotment near the M.U.C. Playground or the Dental Hospital, as no space is available in the places pointed out by the traders. It has been further reiterated that the Commissioner, Corporation offered alternate accommodation for the trade at Koyambedu market complex and the traders have rejected the said offer. The traders on their part have also filed objections. The traders insisted that they should be allowed to continue in the shops till proper and agreeable proposal is given to them by the Corporation and the Government after putting up construction and allotting shops in Lone Square, Broadway and other places pointed out by them. The traders also claimed that they have remitted the licence fee to the Corporation and that no action can be taken against them as they have got a right to carry on the business. The above is the summary of various case and counter case of both the parties and it is not necessary to refer to the averments filed in support of each writ petitions, as the above is the summary of the cases of either side.
18. It is the claim of the writ petitioner or the members of the petitioner association that they are only retailers and therefore, they are not bound to shift themselves to Koyambedu market and their shops cannot be closed or directed to be closed since they are also only retailers. It is also fairly admitted by either side that the stalls/shops in fruit and flower market were allotted for the particular trade, but in course of time, there has been a change in the trade or business carried on by the individual licencee who continue to occupy the stalls/shops. In many cases, other trades like general merchants, provisions or stationery are being carried on even though the market is called as fruit and flower market. However, most of them do dealings in flowers and fruits and some of them have changed their line of business and even carry on bakery or general merchandise or provisions or fancy goods shops.
19. Mr.R. Gandhi, Mr. Subramaniam, senior counsels, Mr.G. Rajagopalan, Mr. Prakash and others appeared for the writ petitioners/appellants while Mr.A.L. Somayaji, senior counsel assisted by Mr. R. Ramanlaal appeared for the first respondent Corporation. Mr.M.S. Govindarajan appeared for the C.M.D.A. in all the matters and advanced common arguments in all the writ petitions as well as the writ appeals. The question that arise for consideration in all these matter are:
(1) Whether the petitioners/appellants are mere licencees as contended by the Corporation or lessees as claimed by the individuals?
(2) Whether the place where the individual is carrying on business is part of the Corporation market?
(3) Whether the fruit and flower market is a public market.
(4) Whether the petitioner/appellant has got a right to continue the trade without interference?
(5) Whether the licencees could be evicted without instituting a suit?
(6) Whether it is incumbent upon the petitioner/appellant to move to the Koyambedu market?
(7) Whether the traders could be evicted without instituting a suit or initiating action under the Tamil Nadu Public Premises Act?
(8) Whether the decision of the Corporation to scrap the fruit and flower market and extend the Broadway bus stand is arbitrary?
(9) Whether the reasons which prevailed with the Corporation to scrap the market is valid or non-existent reasons?
(10) When the bus terminal has already been resolved to be shifted to Koyambedu, whether the requirement of the Corporation to extend the Broadway bus stand to the mofussil and city buses is a bonafide requirement?
(11) Whether the Corporation is in need of space for the improvement of the bus stand and to ease the congestion? and
(12) Whether the provisions of Tamil Nadu Act 24 of 1996 applies to the writ petitions who claim to be retailers?
II. While considering the writ petition, the Hon’ble Judge held that the market in question is a public market which is under the control of the respondent Corporation and the entry into the market is only at the pleasure of the Corporation. The Hon’ble Judge has further held that the Corporation is entitled to close the entry into the market or regulate the entry. The writ petitioners are only licencees and they cannot claim the status of lessees/tenants nor they have established their claim of tenancy while producing materials. The learned Judge also held that all writ petitioners have been allotted shops in the newly constructed Koyambedu market and that the respondent Corporation is not only at liberty to revoke the licence, but also has the authority to evict the writ petitioners. The writ petitions were ordered accordingly with the observation that it is open to the Corporation to revoke the licence and proceed further with the eviction. Thereafter, it is admitted that the Corporation had revoked the licence granted in favour of each of the individual licencees either by separate notice or by notice served or affixed or by the termination notice published in two dailies.
III Statutory Provisions:
It is relevant to refer to the provisions of the Madras City Municipal Corporation Act, 1919, Section 300 provides that all markets which are acquired, constructed, repaired or maintained out of the municipal funds shall be deemed to be public markets. Section 301 prescribes the powers of the municipal authorities in respect of public markets. Section 301 enables the Commissioners to charge and levy one or more of the fee enumerated in the Section at such rates as the Standing Committee may determine and may place the collection of such fees under the management of such person or may farm out such fees on such terms. The fees that could be levied and charged being fees for the use of or for the rights to expose for sale in such markets or for the use of shops, stalls, pens or stands in such markets besides other charges on vehicles, animals or for sale or fees for brokers, commission agents. The fees so levied is recoverable in the same manner as the property tax.
2. Section 302 provides for the control over public market. In terms of Section 302, no person shall, without the permission of the Commissioner or if the fees have been farmed out of the farmer sale or expose for sale, any animal or article within the public market. Section 310-A provides that in case of any dispute as to whether any place is a market or not, shall be decided by the State Government on a reference made by the Commissioners, and the decision of the State Government on the question shall be final. Sub-section (4) of the Section 301 provides that the council may, with the sanction of the State Government, close any public market or part thereof. Section 347 enables the State Government to frame rules. Section 349 enables the Corporation council to frame bye-laws not inconsistent with the Act. Sub-section (18) of Section 349 enables the council to frame bye-laws for the inspection of public and private market and shops, for the regulation of their use and control of their sanitary condition and for licensing and controlling brokers, commission agents etc., Section 379-A provides the power to enforce licensing provisions. Section 380 confers powers on the Commissioner to execute any default and Section 381 enables the Commissioner to recover expenses.
3. Apart from the above provisions of the City Municipal Corporation Act, 1919, the provisions of the Tamil Nadu Specific Commodities Markets (Regulation of Location) Act, 1996, which is an act which seeks to regulate the location of market areas and wholesale markets in respect of specified commodities in the Madras Metropolitan Planning Area. Section 2(6) of the Act defines the expression ‘Market’. Section 2(14) defines the expression ‘Wholesale Trade’. The expression ‘Wholesale Trade” has been defined thus :-
“Wholesale trade” means sale or purchase of any specified commodity for
purposes other than direct consumption or use by the purchaser, and shall
include holding of stocks or warehousing of such specified commodity at any
place in the market area (but does not include any sale or purchase by any
primary producer or retail trader, as the case may be, of such specified
commodity); and any such seller, buyer, holder of slock or warehouse-keeper
shall be deemed to be a “Wholesale trader”.
4. The provisions of this Act will be referred at the appropriate place. It would be sufficient to state that if a market is specified by a notification for wholesale, then the wholesale trade is not permissible to be carried on in any other portion of the metropolitan area and the provision to this extent is mandatory. In fact, it is also not in dispute that the State Government has notified a wholesale market at Koyambedu and with respect to the notified commodities, wholesale trade is not permissible in any other portion of the Madras Metropolitan Development Area. These provisions apart from Sections 52 to 64 of the Eastments Act, 1882 are relevant.
IV. Whether the fruit and flower market is a public market? Whether the place where the petitioner/appellants are carrying on business is part of the public market?
It is fairly stated by the counsel for the appellants and petitioners as well as the Corporation that the fruit and flower market located on N.S.C. Bose Road is a notified public market under Section 300 of the Madras City Municipal Corporation Act, 1919. It is also admitted that all the writ petitioners as well as the appellants and the members of the petitioner association are using the shops/stalls in the said Corporation fruit and flower market, a public market. As there is no controversy in this respect, it would be suffice to hold that the shop/stalls are located in the public market and for the use of shops/stalls, a fee is being remitted by the petitioners/appellants and it is collected by the respondent Corporation directly. The only controversy is whether such remittance is fees or rent, which question could be decided as an incidental question as to whether the occupants are licencees or lesees.
V. Whether the petitioners/appellants are mere licencees carrying on business in shops/stalls in the public market as contended by the Corporation or lessees as claimed by the individual petitioners/appellants or members of the petitioner association?
The main and substantial claim of the petitioners/appellants being that the occupants of the shops/stalls are as lessees and the lessor being the Corporation, and the individuals are not licencees. In other words, the main claim is that the status of the occupants of the shops/stalls is that of a lessee
and the relationship between the two is that of lessor and lessee. It is further contended that what is being paid is rent and not fees.
2. Except making tall claims, no document has been placed before the Court by the petitioners/appellants in support of their claim that they are in possession as lessees. No document or instrument of lease has been placed before the Court, nor it is the case of the petitioners that they have executed any instrument of lease. The Corporation, it is admitted, has initially, after construction of the market, auctioned the right to carry on business in these shops/stalls and the successful bidder or allottees were permitted to occupy and carry on business in terms of Section 300 of the Madras City Municipal Corporation Act, hereinafter referred to as the Corporation Act for brevity. Such an occupancy, according to the respondent Corporation, is only in terms of Section 301 of the Act and the occupants are mere licencees paying licence fee to the Corporation. It may be that the occupants are in occupation for quite some time and the Corporation had revised the rate of fees from time to time which was also the subject matter of challenge in earlier writ petitions, with which we are not concerned.
3. The shops/stalls in question are located in the public market which is controlled by the Corporation. The entry into the Corporation public market is regulated by the Corporation. The public market which has been established by the Corporation is being maintained by the Corporation including cleaning, scavenging, repairing and all amenities there of, as is normally provided in a public market. It is the case of the Corporation that they are regulating the period of entry and hours during which the licencees are permitted to carry on business. According to the respondent Corporation, no one is permitted to stay during night hours and beyond the market hours. It is the case of the Corporation that no interest in the land or building has been created in favour of the petitioners/appellants and the occupants are mere licencees who are permitted to carry on business on payment of fees and subject to other stipulations. As no interest in the land or building has been created at any point of time, the Corporation, on its part, vehemently contends that the status of the petitioners/appellants is only licencees and their claim that their status is that of a lessee(s) is imaginary and totally unfounded.
4. As already pointed out, the petitioners have not produced any document or instrument of lease nor they have produced any material to show that they have been let into possession as lessees or any interest in the shops/stalls has been created in their favour by the Corporation.
5. Chapter IV of the Act provides the general powers of the Municipal authorities as to property, contracts, and establishment. Section 75 of the Act provides that the Commissioner may dispose, for sale or exchange or grant for any term not exceeding 12 months, a lease of any Corporation immovable property or a lease or concession of any other right subject to Section 80 of the Act. Sub-section (2) of Section 75 further provides that with the sanction of Standing Committee on taxation and finance, the Commissioner may lease immovable property, the value of which does not exceed Rs.25,000, or grant
for a term nor exceeding 3 years, a lease of any Corporation immovable property or a lease or concession of any such right as provided therein.
6. Sub-section (3) of Section 75 provides that the Commissioner may lease immovable property, the value of which exceeds Rs.25,000 with the sanction of the council. Section 80 provides for the general provisions regarding contracts. On a reading of Section 75, it is not only essential, but also fundamental for the Commissioner of the Corporation to lease out any immovable property, to follow the procedure prescribed and he has no powers independent of Section 75. No resolution has been placed before the Court to show that the Corporation has resolved to lease out the shops/stalls at any point of time nor the standing Committee on taxation and finance had sanctioned such a lease at any point of time. The Commissioner of the Corporation has no authority to grant a lease of immovable property except in accordance with Section 75 of the Act. Even taking for granted that no instrument or document of lease has been entered, at least the petitioners/appellants should have produced a copy of the resolution or sanction proceedings for a lease of the shops/stalls in their favour.
7. It has to be stated that no such resolution or sanction has been placed before the Court. Had there been a lease on the basis of certain resolution of the Corporation under sanction, nothing prevents the petitioners/appellants from producing the same. It is obvious that the petitioners/appellants could not trace their claims to any resolution of the Corporation. The Corporation being a local authority, has to act by way of resolutions and any act which is not supported by a resolution of the council or for that matter the sanction of the Standing Committee would be ultra vires and which would be void ab initio.
8. A lease of the Corporation land/property compliance of Section 75 which is mandatory and it requires a document in writing and such lease could not be granted unless it is approved by a resolution of the Corporation council or the Committee, as the case may be. Any contract without compliance of the formalities prescribed will not bind the Corporation. An action which is ultra vires is without jurisdiction, null and void and of no legal effect whatsoever. It has no legal legs to stand on. The respondent Corporation is established by the statute and it can do only those acts which are authorised by the statute either expressly or by necessary implication.
9. The requirement laid down in the Act or the rules must be complied with. If there is non-compliance of such requirement as prescribed in the statutory provisions, no right arises form such contract not it is enforceable. A contract which does not conform to the requirements and statutory formalities or the Act is not enforceable as such either by the respondent Corporation or by any other contracting party as well. Obviously, no instrument of lease could be produced nor could be relied upon.
10. Section 81 of the Corporation Act, which is mandatory, provides that every contract entered on behalf of the Corporation by the Commissioner in such manner and form prescribed under the Act. Sub-section (3) of Section 81 provides that no contract executed as otherwise provided in Section 81 shall be binding on the Corporation. As neither a copy of the resolution has
been produced nor a copy of the sanction of the Standing Committee had been produced nor a deed of lease has been placed before the Court by anyone of the petitioners/appellants, this Court has to conclude that the petitioners/appellants have failed to discharge the initial onus and the claim of the petitioners that they are lessees had not been substantiated.
11. It has also to be pointed out that no notice has been served by the petitioners/appellants on the Corporation requiring it to produce any copy of resolution or document in this respect, as obviously no resolution has been passed nor any instrument has been executed by the Corporation leasing out the shops/stalls in favour of the petitioners/appellants or creating any interest in the land or building. The essential ingredient of a lease is that the property must be given for enjoyment and it should have been a transfer as defined under the Transfer of Property Act. An interest should have been created in the property. To claim that the petitioners/appellants are lessees, in terms of the definition of lease as defined in the Transfer of Property Act, the property must be in the possession and without possession, there cannot be any enjoyment of the same. In the case of a licence, it is only a permissive occupation or privilege. Without permission, the occupation becomes unlawful and illegal. Such a permission is not a transfer.
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 licencee 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 licencee. 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 circumstance that the rooms let out in the present case or situated in a building wherein a hotel is 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 documentwriter 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.
13. In Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpunwala, , 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 Cl.(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 a lease and not a licence.”
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 be a licence. In such a case the legal possession remains with the owner of the property, the licencee being permitted to make use of the property for a particular purpose. It would, therefore, be seen that but for the permission the licencee’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.”
15. In Madurai City Municipal Corporation v. Boominathan and another, , the issue that was raised was whether the right to collect fees in the Municipal market is a licence or a lease. It was contended on behalf of the local authority that the right to collect fees in the market is only a licence. After analysing the case law, the learned Judge held that what was granted was only a licence and the licencee had no right after the expiry of the licence period besides holding that the Court has no power to extend even one day after the expiry of the licence period.
16. In Pandara Pandia v. Commissioner, Tirunelveli Municipality, 1990 WLR 105, it has been laid down that if a person bids certain auction, is not only bound by the conditions of auction and he has no right beyond the licence period and such a person is only a licencee. In this case, the privilege granted was to collect fees with respect to the user of public convenience by the public who enter the said pubic convenience.
17. In V.S. Balakrishan v. Pudukottai Municipality, 1994 WLR 430, Srinivasan, J., as he then was had occasion to consider whether the right to collect fees in the weekly market auctioned by the municipality is a mere licence or it is a lease of immovable property.
18. In T. Sekaran v. The Managing Director, Thiruvalluvar Transport Corporation, 1994 (1) LW 463, a Division Bench of this Court had occasion to consider the distinction between licence from lease. After referring to Associate Hotels of India Ltd., v. R.N. Kapoor, , Chandu Lal v. Municipal Corporation of Delhi, and other catina of decisions, held thus:-
” It is well settled that whether an agreement has created a lease or licence is not left only to the language employed in the document to describe the parties as lessor and lessee or licensor and licensee. The distinction pointed out by Subba Rao, J. in his minority judgment in the case of Associated Hotels of India v. R.M. Kapoor, has been accepted as correct and full distinction between a lease and a licence in the subsequent judgments of the Supreme Court and the Courts in India are no longer left to work for themselves as to what they may call a lease or what they may call a licence. Section 105 of the Transfer of Property Act has defined a lease of immovable property as a transfer of a right to enjoy such property made for 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. Thus, any 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 just gets that right to the exclusion of the lessor.”
19. In Chinnapillai v. Govindaswamy Naidu and another, ILR 1968 (III) Mad. 335, Ramaprasada Rao, J. had occasion to consider the status of a person in occupation of a municipal stall situated in the Central Bus Stand,
Madurai. It was held that the permission or the authorisation to carry on business in the bus stand stall is only a licence, after considering the entire case law. But, on the facts of that case, the learned Judge held that it is a lease as seen from the documents drawn up and signed. This is not the case here.
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 a 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 for 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 the 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 in 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…”
In Board of Revenue v. A.M.Ansarit it was again observed:
“…it is the creation of an interest in immovable property or right to possess it that distinguishes a. lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease…”
“But in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent.”
However, in regard to the second requirement of consideration for the transfer of the right to enjoy the property, it was in that case held that though Section 105 of the Transfer of Property Act envisaged even ‘services’ rendered by the lessee as a consideration for grant, however, under the Rent Acts, the position would be different. The proposition was noticed thus:
“The question is, whether in the context of the provisions of Rent Act, services can be consideration for sub-tenancy. In other words whether in view of the provisions of the Rent Act services can be a good or any consideration for sub-lease is the question.”
Answering, it was held:
“We are of the opinion that it cannot be.”
“It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub-tenancy. This frustates and defeats the purpose of the Rent Act.”
“Again, in Khalil Ahmed Bashir Ahmed V. Tufethussein Sambasbhai Sarangpunwala, Sabyasachi Mukharji J. observed:
“To put precisely if an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use 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
21. In Qudrat Ullah v. Bareilly Municipality, , the Apex Court had occasion to consider the case of an individual who was allowed to collect the rents and bazaar dues from sheds and shops and the internal roads within the market and in that case, a deed was drawn. On the question of status, it has been held thus:-
“There is no simple litmus test to distinguish a lease as defined in S.105, Transfer of Property Act from a licence as defined in S.52 Easements Act, but the character of the transaction runs on the operative intent of the parties. To put it rightly if an interest in immovable property, entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted a licence is the legal result. Marginal variations to this broad statement are possible and Exs. ‘1’ and ‘4’ fall in the
grey are of unclear recitals. The law on the point has been stated by this Court in the Associated Hotels’ case, . In Halsbury’s Laws of England, Volume 23, the distinctive flavour, the deceptive labels and the crucial considerations in a lease versus licence situation have been stated and excerpts therefrom may serve as guidelines.
(see pages 427, 428 and 429).”
22. The classic definition of licence was well profounded during Seventeenth century by Vaughan C.J. in Thomas v. Sorrell 1673 (124) ER 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.”
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 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.”
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, 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 Gore 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 p.330. Mr.S.T.Desai appearing for the appellants also relied on the decision of the High Court of Andhra Pradesh in Vunum Subba Rao v. Eluru Municipal Council, ILR (1956) Andhra 515 at p.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 stallholder 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 .”
24. The entire case law on the subject revolves around the cardinal touch stone at which the relationship between the parties who claim to be licensors or licensees or lessors or lessees has to be decided is whether the grant creates an interest or estate in the property within the subject matter of the agreement. Delivery of exclusive possession, as has been held would not be conclusive to hold that the grant is a lease. The surrounding circumstances and the conduct of the parties as in the present case show that no interest in the property have not been created at any point of time in favour of the writ petitioners/licensees of the Municipal Corporation stalls and the claims of the petitioners that they are lessees is far fetched and cannot be sustained.
25. In Chandu Lal v. Delhi Municipality, AIR 1978 Del. 171 (F.B) the Full Bench of the Delhi High Court had occasion to consider an identical issue, where the Delhi Municipal Corporation published that auction for grant of licence of Kiosk is to be held and invited bids therefor. The successful bidder was granted licence for 11 months at the first instance and thereafter for such term of renewal as may be mutually agreed from time to time. Such a grant was held to be a licence as legal possession always remained with the licensor as a bare licensee has no interest in the property and cannot maintain an action for its possession. In this respect the said Full Bench held thus:-
“Although a person who is let into exclusive possession is prima facie to be considered a tenant, nevertheless if the circumstances negative such a conclusion and show that no tenancy was created, the person in possession would not be held to be a tenant. It is trite saying that the intention of the parties is the real test for ascertaining the character of a document. 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 be a license. 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.”
“There is a catena of authorities in support of the proposition that in the case of license there is something less than a right to enjoy the property in the licensee; it cannot be exercised by servants and agents and is terminable while on the other hand, in the case of a lease, there is a transfer of a right to enjoy the property or in other words the lessee is entitled to enjoy the property. A bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his properly. He need not secure a decree of the court to obtain this right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser.” (Italics supplied)
26. It is also equally well settled the position of a licensee after termination becomes unlawful and the licensee is not entitled to any injunction restraining the licensor from evicting him as unlike a tenant a licensee does not have judicial possession and the possession always remains with the licensor and what was granted is a privilege in terms of the licence, which in the absence of such a grant becomes unlawful.
27. The occupation of the writ petitioners with respect to the stalls/shops in public market is referable to the licence originally granted as their status is that of a licensee. Once such a licence is terminated, the possession of the stalls become unlawful as they have no right and the possession of such possession after termination is not protected by any statutory provision. In terms of Section 63 of the Easements Act 1982, where licence is revoked the licensee is entitled to reasonable time to leave the property for removing all his goods which he has been allowed to place. A person continuing in the premises after the termination of licence, his status is as already pointed out is unlawful and he has no semblance of any right to continue in the premises.
28. In the present case as already detailed above being a public market, there is nothing to show that what was granted is not a licence but a lease and no authority including the Commissioner of the Corporation is conferred with the power to lease out a stall in the public market, as such a grant is opposed to the statutory provisions of the Chennai City Municipal Corporation Act and it would be ultra vires the powers on the authorities. In fact in Khaja Moinuddin Hassan v. Special Officer, Municipal Corporation of Hyderabad, 1977 (1) AWR 229, (D.B) the stall allotted in a municipal market has been held to be a licence only. The Andhra Pradesh High Court in that case held thus:-
“What is manifestly clear from a reading of Sections 525, 527,528 and 534 is that all markets which belong or are maintained by the Corporation are ‘municipal markets’ and no person can without licence from the Commissioner shall expose for sale any animal or article in any Municipal Market. The Commissioner is empowered under Section 534 to charge for the occupation or use of any stall, shop, standing shed, or open in a municipal market such stallages, rents and fees as shall, from time to time be fixed by him. This privilege of occupying or using any stall, shop standing or shed in a municipal market may be granted by the Commissioner by private sale or by public auction it is thus clear from a scrutiny of the provisions that what is granted to an occupier of a stall or shop in a municipal market is only a privilege for the occupation of the stall and exposure of the goods for sale. The question of granting any lease of stall or shop in a municipal market is not contemplated under the provisions of the Hyderabad Municipal Corporations Act. The payment made by the traders were only fees and it is only a privilege granted to them for use of the shop or stall and exposing of the goods for sale.”
We are in respectful agreement with the view taken by the Division Bench of the Andhra Pradesh High Court. The provisions of the Hyderabad Municipal Corporation Act, 1955 are in essence bcepari materia with he provisions of the Madras City Municipal Corporation Act with respect to the public markets established by the Municipal Corporation. Therefore we have no hesitation to hold that the petitioners/appellants are mere licensees which licence had been validly terminated by the respondent/Corporation.
30. It has been rightly asserted by Mr.A.L.Somayaji, learned counsel appearing for the respondent Corporation and asserted in the counter affidavit on the facts of the case what was granted in favour of the petitioners/appellants was only a licence and not a lease. It is only a licence in a public market in terms of Section 301 for a fees to be paid for the use of shops/stalls in the public market, as the entire market is always in the legal possession and control of the Corporation and a permission has been granted in favour of the petitioners/appellants to sell and for use of such shops/stalls, a fee is being collected by the Corporation. It is too much on the part of the petitioners/appellants to claim that they are lessees of the stalls in public market on the materials.
31. In fact, Mr.V.Prakash, learned counsel appearing for few of the petitioners was fair enough to accept that the status of the petitioners/appellants is only licensees and on that basis sought to contend that the licensees are not to be dispossessed as there are no bonafides in the action of the respondents and at any rate, without providing alternate accommodation, the petitioners/appellants should be required to leave the shops/stalls. On a consideration of the facts set out in the counter, there being no document of lease or any other resolution supporting the petitioners/appellants’ claim of lease and accepting the averments set out in the counter affidavit, this court holds that the status of the petitioners/appellants are mere licensees. We are unable to accept the contention of Mr.R.Gandhi, senior counsel in this respect and other counsel appearing in this batch. The view of the Learned Single Judge has to be confirmed.
32. We hold that the petitioners/appellants are mere licensees who were conferred with the privilege in respect of stalls in the Corporation public market and they are not lessees as claimed by them in respect of the stalls in the public market. We also hold that the place where the individuals were granted licences is part of the public market established by the respondent/Corporation. The Fruit and Flower market is a notified public market and no dispute could at all be raised in this respect.
VI – Whether the petitioners/appellants have a right to continue the trade without interference?
Whether the licensees could be evicted without instituting a suit or initiating action under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975?
33. We have already held after considering the claims of either side and after analysing the case law that the petitioners/appellants are licensees and their continuance in the stalls after termination of such licence is unauthorised. The occupation or the privilege conferred on the petitioners/appellants would be unauthorised or unlawful but for the licence granted in their favour. The moment the licence is terminated as in the present case, their occupation is unlawful. They do not have any right nor they are protected by any statutory provision or by any other enactment to continue vending in the stalls after termination of licence.
34. In Chandu Lal vs. Delhi Municipality, AIR 1978 Del. 171 (F.B.), the entire case law on the subject has been analysed and it has been held that after the termination of the licence, the licensor is entitled to deal with the property as he likes or chooses. The licensor has got all the rights as a owner in possession of his property and he need not secure a decree of the Court to obtain that right and the licensor is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser. When the licensor after termination exercise its rights and to a certain extent also could use reasonable force, it could be held that the licensor is not infringing the right of the licensee, erstwhile as his authorisation comes to an end or get extinguished. After the termination, the licnesee has no semblance of right and his occupation becomes unauthorised and the erstwhile licensee has no right to continue the business carried on by it and he is not entitled to an order of injunction as his occupation ceased to be an authorised one.
35. As already pointed out it is required that the licensee on termination be given a reasonable time to remove his goods and nothing further. This is also the statutory provisions of the Indian Easement Act. We hold that the petitioners/appellants have no right to continue the trade after termination of the license and the licensor could evict the unauthorised occupants and it is not necessary to institute a suit as contended by the senior counsel Mr.R.Gandhi and other learned counsel.
36. Once it is held that the license is terminated and the occupation is held to be unauthorised, he has no right to continue in occupation and such a person is deemed to be an encroacher and the respondent/Corporation has the
authority to remove the encroachments. It should not be forgotten that legal possession always remain with the City Municipal Corporation. At the risk of repetition it has to be pointed out that the entire area with respect to which the licence was granted and terminated is a public market in terms of Section 300 of the city Municipal Corporation Act and the Corporation authorities could act and have acted only in terms of Section 301 of the Act. Being a public market and legal possession always remain with the Corporation as the licensor, the Corporation has got the authority to remove the unauthorised occupants as provided in Section 302 of the Act.
37. It has been pointed out by the learned counsel appearing for the respondent\corporation that sufficient power is vested with the Corporation in terms of Section 379(a) and 380 and consequently, the Respondent/Corporation which is in legal possession can evict the unauthorised vendors and they need not institute a suit as legal possession always remain with the Corporation and the licensees were only authorised to carry on the business during the currency of the business and no further right has accrued to them or created.
38. Repeatedly arguments were addressed that either the Corporation has to institute a suit or initiate action under the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants), Act. Such a contention was repeated by all the learned Counsel appearing on behalf of the petitioners/appellants on the assumption that the vendors are in possession or a right has been created in the stalls/shops in the market which is a clear misconception both legal and factual. In any view instituting a suit or Initiating proceedings under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act would arise only if it is a lease and the petitioner/appellants were granted a lease, and/or respect of the stalls or the lands or any portion of the market. Here the Corporation was legally and factually denuded possession. Initiating such action would arise only when the petitioners were in legal possession and they become unauthorised occupants after termination of lease. This is not the case here.
39. The possession always remain with the licensor viz., the Corporation and therefore the question of institution of suit or initiation of proceeding under the Tamil Nadu Public Premises Eviction of Unauthorised Occupants) Act will not arise and such a contention is a misconception besides born out of frustration.
40. In Arignar Anna Bus Stand Etc., Association v. The Commissioner, Madurai Corporation, 1987 W.L.R. 138 a Division Bench of this Court after referring to the pronouncement of the Apex Court held thus:-
“The above observations will therefore how that in a matter like the present one when admittedly the members of the petitioner association have no manner of right to be on public property, they are clearly trespassers and the only notice which is necessary on the facts of the present case is a notice to remove themselves from public property.”
The Supreme Court dealt with the rights of trespasser under the Law of Torts in the following observations made in the Pavement Dwellers Case. The Supreme Court observed-
“But, even the law of Torts requires that though a trespassers may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and what is even more important the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him’ (see Ramaswami Iyer’s Law of Torts, 7th Edn. by Justice and Mrs. S.K.Desai page 98 para 41) Besides, plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself. Here as elsewhere, in the Law of Torts, a balance has to be struck between competing sets of rules…'(see Salmond and Houston’s Law of Torts 18th Edn. Chapter 21, page 463, Art. 185—Necessity’.”
The above observation of the Supreme Court in our view clearly recognise the fact that the trespassers can be evicted by the use of force but only limit the force to what is reasonable and appropriate to the occasion. It does not appear to us that it was ever intended by this decision to provide a handle to rank trespassers to continue to encroach on the public property on which they have trespassed. All that was intended was that they must be given an opportunity to remove themselves which is altogether a different thing from making a quasi judicial enquiry into a right to continue and not to be evicted when admittedly every one of the encroachers or trespassers knows that he had no right whatsoever to continue on those premises. It is a futile plea to take when any action by a public authority to evict rank trespassers is taken under the provisions of the statute under which the public authorities are entitled to exercise their powers that there has to be a quasi judicial enquiry before a person can be evicted. Such a plea must be rejected outright.
Neither the above decision of the Supreme Court nor Act 1 of 1978 sets at naught the powers of the Municipal Corporation vested in it by statutory provisions to evict trespassers from its property. S.314 of the Bombay Municipal Corporation Act, under which action was sought to be taken in the Pavement Dwellers Case is analogous to S.471 of the Madurai City Municipal Corporation Act. S.471 read as follows: (S.471 is omitted)
“A bare reading of this provision will show that what is contemplated by the notice under S.471 is exactly what is contemplated in the case of trespassers by law of torts, namely a notice directing the encroachers to remove themselves from the premises encroached upon. It is only this notice which can be insisted upon the case of land belonging to the Corporation where there is a provision like the one under S.471 of the Madurai City Municipal Corporation Act. If on such notice being given, the person does not remove himself, then the Corporation will have power under S.471 (b) to take such steps as are necessary to prevent the continuance of trespass. We have, therefore, no manner of doubt that the entire claim for a notice to show cause against removal from the place and for a quasi-judicial enquiry under the provisions of Act 1 of 1976 is wholly frivolous and unwarranted. We are therefore, unable to see how the members of the petitioner-association can insist on an injunction from being removed from the premises by the bus stand for the remaining on which they have no manner of right. The Corporation will therefore be at liberty to take necessary steps under S.471 of the Act for their removal if they continue there in spite of a notice to remove themselves under S.471.”
We are in respectful agreement with the view taken by the earlier Division Bench of this Court. In fact the Division Bench had occasion to consider the case of identical licensees whose licence have been terminated in respect of the Corporation Bus stand, moved the High Court for the issue of writ forbearing the Corporation from removing them after termination of licence and issuance of notice to move the unauthorised occupants. The earlier Division Bench made it clear that the writ petitioners are not entitled to any writ as prayed for by them.
41. The legal position in the present case is in no way different in respect of the provisions of the Corporation, which provides for removal of unauthorised occupants or the encroachers being a Special enactment will enable the Corporation authorities to remove the writ petitioners/appellants as they are unauthorised occupants and they are not entitled to any protection either under the statutory enactment nor they are entitled to an order of injunction as they have no right to carry on business after revocation of the licence in a public market. The relief prayed for in most of the writ petitions is to forbear the respondent/Corporation from interfering with the right of the petitioners/appellants to carry on their trade in the respective stalls. As already pointed out consequent to the termination of the licence, the petitioners/appellants have no right to carry on their trade in the market and in the absence of any legal right the petitioners/appellants will not be entitled for the issuance of a writ of mandamus and this Court sitting in writ jurisdiction will decline to issue such a relief.
42. Mere renewal of trading licence and remittance of licence fee under Section 365 of the Act will not confer a right on the petitioners/appellants to carry on the business as the licence had been validly terminated. The licence and permission to carry on the trade is distinct and separate from the trade licence granted by the Corporation in respect of the stalls. Where an individual is permitted to exhibit or offer or vend commodities which licence has been terminated, the renewal of trading licence, if any will not confer a right on the petitioners/appellants nor it could be stated that the petitioners/appellants have got the right or authorisation to continue the privilege of vending the stalls. Further stray incidents of certain alteration or putting up of shutters or getting separate phone connection or continuance as licensees for number of years will not change the situation or status as the licensee once inducted shall continue to be a licensee unless the licensor and licensee by an overt act or by certain instruments or document change their position or status to that of an lessor and lessee or confer an irrevocable right or interest on the immovable property. This is not the case here and no such case has been put forward by any of the petitioners/appellants.
43. It is also to be pointed out that the petitioners cannot claim perpetual or irrevocable licence in their favour on the facts of the case and no such plea was or could have been put forward by the petitioners/appellants.
44. It is not necessary to repeat but it is sufficient to state that the occupation of licensees is only permissive and once the licence is terminated validly, the occupation thereafter is unauthorised and the licensor has got a
right to dispossess the unauthorised occupants by virtue of powers conferred on it. It may also be made clear that normally it is not necessary for a licensor to assign reasons before termination.
45. Incidentally, it was brought to the notice of this court that in Sengali and 20 Others v. The Executive Officer, Mettur Town Committees, J.Kanakaraj, J., as he then was, held that the Municipal Authority has got the power to remove illegal or unauthorised occupants by virtue of the power conferred under the Tamil Nadu District Municipalities Act, 1920 and it is not required to take action under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupant) Act, 1976. J.Kanakaraj, J., held thus:
“Keeping in mind these principles and caution administered by Crawford and Maxwell in the passages quoted earlier, let me examine the object and purpose of both the Acts. The Municipalities Act passed in the year 1920 was for the purpose of providing a good Government for a town or village constituted as a Municipality. It has its own elected Council, it shall have perpetual succession and a common seal and can acquire and hold property. Section 61 of the Tamil Nadu District Municipalities Act provides for vesting of all public streets and appurtenances in the Municipal Council. It has power to levy and collect taxes. It has duties of providing water supply, lighting, drainages, public conveniences and scavenging. It has duty to maintain and repair streets. It is under this chapter that there is a provision for removal of encroachments, namely, Section 182. There are provisions for granting licences to sell in private or public markets. The Public Premises Act is an Act which provides for the eviction of unauthorised occupants from public premises. The definition of public premises lakes, premises vested with a local authority. The power of passing orders of eviction is vested only in certain estate officers. The power and control of a Municipality with reference to street is coupled with a power to permit sale in stalls and bunks in road margins. In my opinion the two enactments operate in different fields and there is no scope for misuse or discrimination. I hold that the Public Premises Act does not impliedly repeal the Municipalities Act.”
46. In Neltai Friends Volley Ball Club Rep. by P. John v. The Government of Tamil Nadu and others, 1987 WLR 377 (D.B.), the status of the Volley Ball Club though no permission to use the Municipal Corporation property was considered and it was held that the said Club is a trespasser and has no right to invoke Article 226 of the Constitution. M.N.Chandurkar, C.J., speaking for the Division Bench held thus:-
“It is obvious, therefore, that in the absence of any specific permission granting the right to use the structure for any period, the appellant is nothing short of a rank trespasser. What is now argued before us is that the appellant may not have a right to the premises of which he is in occupation but he has a right to be evicted in accordance with law and that is according to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act.
It has to be realised that the person who is invoking the provisions of the Constitution under Art 226 is a rank trespasser who has encroached on public property which is utilised for the benefit of the public. It is difficult to see how the Corporation is not entitled to take proceedings for eviction. The appellant has come here against merely a notice asking him to vacate the premises. It would be travesty of justice to permit jurisdiction under Art 226 of the
Constitution to be invoked by rank trespassers to perpetuate their illegal occupation of public property. In such circumstances, it is clearly permissible for this Court to refuse to exercise any jurisdiction under Art. 226 of the Constitution in favour of such a person. It is not as if whenever a litigant comes to the Court under Art.226 irrespective of his conduct he must be granted relief. His conduct and nature of the right which he is seeking to enforce are all relevant circumstances for deciding whether jurisdiction under Art 226 should be exercised or not.”
Having found that the appellant has no semblance of any right to be in the public premises which are for the benefit of the public of Madras as the Stadium is utilised for the purpose of different sports, we do not think that the appellant is entitled to any relief from this Court. We therefore find no reason to interfere with the order of the Learned Judge. The appeal is therefore dismissed.
We are in respectful agreement and the said pronouncement squarely applies with respect to the right of the petitioners to seek the relief of mandamus in the present case as well.
47. It was vehemently contended by the learned counsel for the petitioners/appellants that the petitioners/appellants can be evicted only by exercise of power conferred under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1976. This we have already pointed out is a misconception. As already pointed out, legal possession always vested with the Corporation as the petitioners/appellants are mere licensees and they had only the privilege to carry on the business and they have licence to continue their business so long as the authorisation exists. The petitioners/appellants are not in possession of a public premises as defined in the Act. Exercise of power under the said enactment would arise only if possession has been handed over to the petitioners/appellants, which is not the case here.
48. Section 2(d) of the Act defines the expression ‘premises’:
“Premises” means any land or any building or hut or part of a building or hut and includes (i) gardens, grounds and outhouses, if any appertaining to such building or but or part of a building or hut; and
(ii) any fittings affixed to such buildings or hut or part of a building or hut for the more beneficial enjoyment thereof.
49. Section 2(g) of the Act defines the expression unauthorised occupation:”Unauthorised occupation”, in relation to any public premises means the occupation by any person of the public premises without authority for such occupation and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
50. As already pointed out the writ petitioners/appellants were conferred with the privilege or licence to carry on vending in the stalls and the possession always remained with the Corporation. To put it otherwise it is only a licence and the petitioners/appellants cannot claim that they were occupants otherwise than as licensees. The petitioners/appellants cannot be
said to be in occupation of the stalls/shops otherwise than as licensees and it is the licence under which they were permitted to carry on their trade. The petitioners are not occupants. The question of exercising powers under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1976 would arise only if the petitioners/appellants were occupants and the legal possession had vested with them, which is not the case here. Therefore, there is no necessity to exercise the power under the Act for removing the petitioners/appellants. The petitioners/appellants also are not unauthorised occupants, as provided in the Act, but they ceased to be licensees and their case will not fall under the expression of “unauthorised occupants”, nor the stalls in the Corporation Market will fall under the category of “premises’ with respect to which possession always remained with the licensor.
51. In the circumstances, we hold that the contention that petitioners/appellants have to be evicted either by instituting a suit or by initiating action under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1976 is devoid of merits and the contentions to the contra are rejected.
52. Under this heading we hold that the petitioners/appellants have no right to continue in the stalls and the Corporation, the licensor has not only the authority, but also well justified in removing the petitioners who ceased to be licensees. As already pointed out the Corporation authorities has got the authority to evict the petitioners/appellants without instituting a suit and/or without initiating action under Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1976.
VII – Whether the petitioners/licensees whose license have been terminated by the Corporation have to move to the Koyambedu market complex?
Whether the provisions of the Tamil Nadu Act 24 of 1996 applies to the petitioners/appellants who claims to be retail traders?
53. It is not in dispute that the Koyambedu wholesale market has been notified as a wholesale market. There is no challenge to the validity of the said enactment. AH that the respondents have required under the provisions of the Act is to locate the wholesale trade in the Koyambedu market as it has been declared as the wholesale market. The expression wholesale trade has been defined in section 2(14). The definition reads thus:-
“Whole sale trade” means sale or purchase of any specified commodity for purposes other than direct consumption or use by the purchaser and shall include holding of stocks or warehousing of such specified commodity at any place in the market are (but does not include any sale or purchase by any primary producer or retail trader, as the case may be, of such specified commodity); and any such seller, buyer, holder of stock or warehouse-keeper shall be deemed to be a “wholesale trader”.
54. There is no quarrel that necessary declaration has been issued declaring the area as wholesale market and a market committee has been
established. Section 21 of the Act provides that on and after the issuance of notification by the authority no person shall carry on wholesale trade of any specified commodity in any place other than the notified market, except under, and in accordance with the conditions of a licence granted in that behalf by the market committee under the Act. Section 20 provides for registration of wholesale traders. As such in terms of the statutory provision after the issuance of notification and constitution of a whole sale market as prescribed in the Act, wholesale trade of the specified commodity outside the market is not permissible and it is punishable. However, we need not elaborate the provisions contained in the Act for the purpose of the present case.
55. It is being pointed out by the learned counsel for the petitioners/appellants that no authority has been constituted under the Act to decide as to whether a trader is a wholesale trader or retail trader. But when action is taken for violation of the statutory provision, the authorities competent to impose penalty or punishment will be competent to decide whether the trader is a wholesale trader or retail trader. Though many of the petitioners contended that they are not wholesale traders but atleast few of them admit themselves as wholesale traders.
56. It is being pointed out by the respondent that majority of the wholesale traders have already moved to the Koyambedu wholesale market but they continue to trade in the Fruit Market area. If a wholesale trader, as represented by the respondent makes an application, the respondent will allot necessary accommodation in the market. Such an allotment is on the basis that the applicant is a wholesale trader. Every wholesale trader has to move to the Koyambedu market and it is incumbent upon them to move to the said market as they have no right to carry on the wholesale trade in the specified commodities outside the market constituted and such violations are punishable.
57. During the course of prolonged hearing this Court suggested to the respondent/Corporation to find alternate accommodation and the Corporation as set out in the counter affidavit to necessary steps within its available source and offered certain places as alternate accommodation to the petitioners/appellants. We find that the said offer of the respondent is definitely bonafide which the petitioners/appellants have declined to take advantage. In fact in the counter affidavit it has been stated that all the vendors of the Flower Bazaar Market have been accommodated in the Koyambedu Market Complex by the CMDA and the CMDA has now even agreed to allot for the accommodation of the left over persons if any, doing business at Flower Market at Koyambedu Market Complex. In para 6 of the counter affidavit filed by the CMDA in W.P.No. 2475 of 1997 it has been stated that the CMDA had provided accommodation to all the traders except six of the traders in the Corporation Fruit and Flower Market.
58. There were genuine attempts on the part of the Corporation authorities to satisfy the traders by providing them alternate accommodation wherever it was possible and they suggested certain places to which for reasons best known the traders, have rejected. The Corporation, it has to be
stated is not legally bound to provide alternate space nor the traders are entitled to any preference nor do they have such a right. In Chint Ram Ram Chand 7 others v. State of Punjab, , the Apex Court held that it is neither a statutory duty nor the trader has a fundamental right to provide stalls/shops in the newly constituted market nor any other alternate provision is a must.
59. Even assuming a particular trader is not a wholesale trader but a retail trader, once the licence is cancelled he has no right to insist for continuance in the stall where he was carrying on business as a licencee. This Court need not decide the issue as to whether each one of the writ petitioners/appellants is a wholesale trader or retail trader as there is time enough for the appropriate authorities to take action in case the Tamil Nadu Act 24 of 1996 is violated by any of the wholesale trader who continue to carry on wholesale trade in any of the specified commodities outside the notified market.
60. We hold that it is incumbent on the part of each of the wholesale trader to move to the Koyambedu wholesale market and they cannot insist that they would continue to carry on the wholesale trade outside the notified market with respect to the specified commodities. The wholesale trade having already been regulated, this Court holds such a regulatory measure being in the interest of public as well as trade, the wholesale traders have to move to the notified market and they cannot continue their wholesale trade in the Corporation Fruit Market or George Town area and their continuance is per se punishable under the Tamil Nadu Act 24 of 1996. In respect of the retail traders we hold that it is open to the retail traders to select a place of their choice and continue their trade but it is always open to the respondent and other appropriate authorities to take action against any trader if they come to the conclusion that the particular shop/stall or establishment being carried on outside the notified market is a wholesale and it is left to the authorities to take appropriate action against those wholesale traders who contravene the provisions of the Tamil Nadu Act 24 of 1996.
VIII. Whether the decision of the Respondent/Corporation to scrap the Fruit and Flower market and expand the Broadway bus terminal is arbitrary?
Whether the requirement of the Corporation to expand the Broadway bus terminal to the area presently occupied by the corporation market is bonafide and whether the improvement or expansion of the bus terminal is in the interest of the public?
Whether the Action of the respondent to scrap the Fruit and Flower Market is valid? and
To what relief, if any the Petitioners/Appellants are entitled?
61. All the counsel appearing for the petitioners/appellants vehemently contended that the scrapping of the Corporation Fruit and Flower Market is not bonafide, it is an arbitrary action and therefore this Court has to quash the impugned action.
62. As seen from the counter affidavit, we find that the market which is very old and decrept was decided to be scrapped for more than one valid reason. The adjacent Bus Terminal, which is popularly known as Broadway Bus Terminal is admittedly too congested. It is bulging with busses. The regular traffic in the area is affected as the buses find it very difficult to enter into the said Bus Terminal and leave despite regulation of traffic and provision of one way. It is to decongest the area the entire area as well as the area in and around the High Court Compound, the Corporation has decided to expand the Bus Terminal so that all the city buses could have a terminal instead of the buses are being parked on all the three sides of the High Court and on the main thoroughfare which causes frequent traffic jam or bottleneck. The Broadway bus Terminal according to the counsel for the petitioners/appellants is a mofussil bus stand and that a mofussil bus terminal has been decided to be located near Koyambedu for all the mofussil buses and therefore it is not necessary to expand the Broadway Bus Terminal. This contention of the petitioners/appellants is nothing but a factual misconception. Almost all the city buses cover a long distance and they have a terminus near High Court or Broadway. The Broadway Bus Terminal not only accommodate the buses from outside or mofussil towns, but also suburban busses and substantial number of city route busses. It is rightly pointed out that city busses could not be accommodated there and they are being parked in and around the High Court Compound which causes bottleneck and total blockade despite efforts taken by the traffic regulating authorities. Merely because there is a proposal to locate a long distance Bus Terminal near Koyambedu, the necessity of expansion of Broadway Bus Terminal does not ceases. It is being pointed out by Mr. A.L. Somayaji, Senior Counsel that city buses have increased by metes and bound and the bus traffic is so much that the movement of the traffic is at snail speed and the city roads are unable to carry the heavy traffic of city busses.
63. Further, if the Broadway Bus Terminal is expanded covering the Fruit Market Area, the Bus Terminal will have one entry from NSC Bose Road or exit as the case may be which would ease traffic congestion in and around the High Court compound. It is admitted that the Bus Terminals are presently located around the High Court compound as the Broadway Bus Terminal is not sufficient to accommodate all the city buses. If the Broadway Bus Terminal is expanded, according to the learned counsel for the respondent, all the buses will terminate in the Bus Terminal where all the passengers can board at one point or one location and the said course will result in decongestion of traffic in and around the High Court compound, and Broadway and NSC Bose Road. Further it has been rightly pointed out that the Fruit Market is more than 75 years old and it also requires to be demolished as condition of market building is not sound. The proposal to expand the Bus Terminal upto the limit of NSC Bose Road and shifting of the bus-stops from High Court area to the Broadway Bus Terminal is a just requirement and the decision of the authorities cannot be said to be arbitrary or lacks bonafide. The respondents have not acted mala fidely against any of the petitioners/appellants nor it is the case of the petitioners that the respondents have any illwill or malafides or an axe to grand.
64. It is rightly pointed out by the learned senior counsel for the respondent that the petitioners/appellants have no right to insist that they will carry on business in the Fruit Market or in the George Town area alone and their refusal to accept the alternate accommodation has been rightly criticised by the learned counsel for the respondents.
65. Even during the hearing the petitioners despite persuasion were not willing to accept the alternate accommodation offered by the Respondent/Corporation under some excuse or other reason as if the Corporation is bound to provide alternate accommodation or space to the traders. We are unable to appreciate the stand taken by the traders in this respect. It may be a fundamental right for a person to carry on the trade, but he has no fundamental right to insist to carry on the trade in the Fruit Market. The Corporation is not at all bound to provide the place or place selected by the trader.
66. The public interest as rightly contended by the Corporation authorities, warrants expansion of the Broadway Bus Terminal from MUC Ground to NSC Bose Road as the same would ease the traffic congestion in the George Town area and in particular Broadway and in and around High Court.
67. The learned counsel for the petitioners/appellants contended that the termination of licence and the action of the respondent is arbitrary and is on nonexisting grounds. We do not find any merit in such contention. As seen from the counter affidavit filed by the public authorities, the requirement of expansion of Broadway Bus Terminal is very much essential in the larger interest of the public and it is essential to ease the traffic congestion and for better traffic management in the old city of Madras.
68. The expansion of Bus Terminal is also a public requirement and it cannot be said that the decision to scrap the Fruit Market and to expand the Bus Terminal either arbitrary or as not bonafide. Sufficient materials have been placed before the Court by the respondent to substantiate the decision taken by the public authorities, namely, the Corporation of Madras, the State of Tamil Nadu, the Chennai Metropolitan Development Authority, the Traffic Regulating of authorities and the Transport Corporations. The materials set out in the counter affidavit and as putforth by the counsel for the respondents would definitely support the stand taken by the respondents. The expansion of the bus stand is a necessity, is bonafide and it is not an arbitrary action.
69. In fact Mr.V. Prakash the learned counsel appearing for some of the writ petitioners while admitting the necessity of expansion of the bus Terminal and also admitting that the decisions of the authorities is fair and reasonable requested that directions be given to the respondent to provide alternate accommodation as has been ordered by the Apex Court in Sodan Singh v. N.D.M.C, AIR 1989 SC 1998, Sodan Singh v. N.D.M.C, and Saudan Singh v. N.D.M.C. . The learned counsel fairly stated that a balance of public interest and private interest should be struck and the respondent should find alternate place to locate shops within a
reasonable time and the Corporation has to evolve a scheme and cannot prevent a retail trader in the locality from carrying on retail trade,
70. Mr.V. Prakash appearing for petitioners in W.P.Nos. 1443, 8029, 9905 to 9908 and 9573 of 1997 also pointed out such an alternate accommodation has to be identified within the city limit and not outside the city at Koyambedu. It is true that retail trade in the George Town area has not been abolished or banned. That does not mean that each licensee of the Fruit Market should be given alternate accommodation within the city limits. In fact as seen from the counter and reports filed by the Corporation, we find that the Corporation took earnest steps and offered alternative location for the shops. But the traders, as already indicated rejected the offer. That being the position, we cannot hold that the attitude of the Corporation is arbitrary or high-handed. When an alternate accommodation is offered in the available place at the disposal of the Corporation and State Government, when within the City space is very scarce it would be in the interest of the licensees to accept the alternate space for retail vending. We cannot compel the petitioners/appellants to accept the alternate space offered by the Corporation. However, we may add that the attitude of the traders in this respect is not a healthy trend nor they would insist that the Corporation should offer a space within the city limit or as the traders like, which is an impossibility.
71. For the above reasons we hold that the contention raised by the petitioner/appellants cannot be sustained and the action taken and the decision of the respondent to scrap the old and decrept Fruit and Flower Market for expanding the Broadway Bus Terminal is neither arbitrary nor it lacks bonafides, nor it could be stated that it is not in the interest of the public. Nor it is inconsistent with the proposal to locate a Mega Bus Terminal for long distance buses outside the city near Koyambedu, which is at the proposal stage.
72. Mr.V. Prakash, learned counsel appearing for some of the petitioners requested this court to issue directions to the respondent/Corporation to formulate a scheme to rehabilitate the petitioners who will be dispossessed consequent to the scrapping of the Corporation Fruit & Flower Market. It has been already pointed out that the traders have declined the offer made by the Corporation for rehabilitation by providing alternate accommodation or space within the capacity and limits of the respondent. Therefore no useful purpose will be served, nor this Court is justified in issuing directions to the respondent to formulate or frame a scheme to rehabilitate the traders who are likely to be dispossessed by the scrapping of the market. Even at the conclusion of the hearing the learned counsel appearing for the Corporation fairly represented that all the wholesale traders have been accommodated in Koyambedu Market Complex. The traders who have not been accommodated at Koyambedu or other retail traders who are likely to be dispossessed, the Corporation will give preference in the proposed Corporation’s Shopping Complexes. This offer is very reasonable and it is for the petitioners to avail the offer.
73. Certain other contentions have been raised that particular areas is outside the notification or had not been notified under the Tamil Nadu Act 24 of 1996. But we are called upon to decide the same as it is not necessary to go into those questions, which questions could be decided at the appropriate time by appropriate authority when the authorities prosecute a trader who would continue to carry on wholesale outside the market area.
74. In some of the writ petitions which are being heard, identical reliefs were prayed for by the petitioners in the earlier Writ Petitions filed by them, but withdrawn without securing leave of the Court. Those writ petitioners have also gone before Civil Court and instituted the suit O.S.No. 429 of 1997 on the file of the City Civil Court, Chennai. But since they were unable to secure interim orders, they once again rushed to this Court and filed W.P.Nos. 11973 to 11201 and W.P.Nos. 11201, 11973 of 1997. The petitioners in those petitions have not chosen to disclose the withdrawal of the earlier writ petitions without liberty to file fresh writ petitions nor filing of suits and hence they are disentitled to move once again. Further, the petitioners in these writ petitions have already instituted a suit and they cannot be permitted to prosecute two parallel remedies. On these short ground also the said writ petitions are liable to be dismissed, apart from merits of the case which has been considered along with the batch of writ petitions.
75. It is to be pointed out that in all the writ petitions, the relief prayed for is for the issue of mandamus forbearing the respondent from interfering with the right to carry on the trade. The location of a public market or the control or regulation of the public market or the decision to close down the market was taken in the larger interest of the public. It is time enough for a notification being issued for the closure of the market and on that score the petitioners cannot delay as their licence have already been terminated. The mandamus as prayed for cannot be issued as the petitioners have no right to insist or to carry on trade at the particular location or place of shop and there is no obligation on the part of the respondents to allow the traders to continue the trade in the stalls without any time limit. No mandamus could be issued to prevent the authority from exercising the statutory power conferred on them and more so when such exercise are found to be bonafide and it is in the larger interest of the public.
76. W.P.No. 12278 of 1998 has been filed seeking the relief of mandamus directing the respondent to enforce the provisions of the Tamil Nadu Specific Commodities Markets (Regulation of Location) Act, 1996 viz., Tamil Nadu Act 24 of 1996. Mrs. Nalini Chidambaram, the Senior Counsel appearing in W.P.No. 12278 of 1998 drew the attention of the Court to the statutory provisions of the said enactment as well as the declaration issued by the CMDA under the provisions of the said enactment and constitution of the wholesale market in the area. The petitioner in W.P.No.12278 of 1998 has come before this Court after making demands on the respondents to implement the provisions of the Tamil Nadu Act 24 of 1996 for violation of the said enactment.
77. According to the petitioner, no action is being taken for violation of the said enactment. Till date, not even a prosecution has been launched by the respondent under section 47 of the Act, though many traders are carrying on business outside the wholesale market in violation of notification. The notification, it is admitted has already been issued and had come into force.
78. The learned counsel appearing for the respondent in this writ petition fairly admitted the averments set out in the affidavit filed in support of the writ petition and also represented that the provisions of the Act has to be implemented and they have no hesitation. However, it is being pointed out that in view of various pending litigation, the respondent’s have not so far taken any step to implement the provisions of the Act. This is only a lame excuse. We are satisfied that the respondents omission or failure to implement the provisions compels us to issue a writ of mandamus as prayed for. In fact the respondents in W.P.No 12278 of 1998 do welcome the issue of mandamus as prayed for.
79. Finally, we hold:
(1) W.P.No. 12278 of 1998 is allowed as prayed for, but without costs.
(2) All the contentions raised in the writ petitions/appeals are answered against the petitioner/appellants and in favour of the respondent.
(3) We do not find any reason to interfere with the order passed by the Learned Single Judge and the order of the Learned Single Judge is confirmed.
(4) All the writ petitions and writ appeals are dismissed with costs of Rs. 1,000/- each in each writ petition/each appeal, to each of the respon-dent.
(5) The interim orders passed pending the writ petitions are vacated.
(6) We are not inclined to grant any time at this stage as the petitioners/ap-pellants had been prolonging the matter under some pretext or other and they are only anxious to continue their trade and they are not conscious of the interest of the travelling public. The petitioners/appellants has sufficient time since the termination of licence on 22.3.1997 and even before that the Corporation made it abundantly clear that they have decided to scrap the old and decrept Fruit and Flower Market Complex for the purpose of expanding the Broadway Bus Terminal. Further, the writ petitioners/appellants thus had sufficient time.
(7) However, we direct the respondent to allow the petitioners/appellants to have breathing time of seven days to remove the commodities from the respective stalls or shops and after the expiry of seven days, it is open to the respondent to proceed further, remove the unauthorised occupations by use of such reasonable force as may be open to them according to law.