ORDER
S. Jagadeesan, J.
1. The petitioners are the lessees under the respondent in respect of the shops that has been leased out in the year 1989 by way of public auction. The petitioners having participated in the public auction and being successful bidders in the same. The shops have been let out to them for a period of three years. In the year 1992, the respondent renewed the lease in favour of the petitioners by accepting the rent at the enhanced rate of 15% of the previous year. In the year 1995, the respondent proposed to auction the shop numbers 1, 3 and 6 to 8 in public auction. The petitioners are entitled for the renewal of the lease by paying the enhanced rate of rent at 15% as per the order of the Supreme Court of India in Civil Appeal No. 1994 of 1991. The petitioners filed writ petition in W.P. No. 11564 of 1995 before this Court against the impugned auction notice. Thereafter, the lease has been renewed till 31.8.1998, Before the expiry of the current lease period, the respondent/Town Panchayat resolved by a Resolution dated 21.4.1997 to renew the lease in respect of shop Nos. 2, 13 and 14. The respondents have decided to auction the shops in the Annivaniga Maiyam on 1.9.1998, and hence the present writ petition to quash the resolution of the Respondent/Town Panchayat dated 5.6.1998 and direct the respondent to renew the lease to the petitioners.
2. Mr. V.T. Gopalan, learned senior counsel oh behalf of the petitioners contended that the petitioners are entitled for the renewal of the lease as per G.O. Ms. No. 283, Municipal Administration and Water Supply Department, dated 29.4.1985 by paying the enhanced rate of rent at 15% once in three years, since the Supreme Court of India in Civil Appeal No. 1994 of 1991 also held that the leases under the Municipalities are entitled for the renewal of the lease by paying 15% of the enhanced rate of rent.
3. In fact, the same issue has been considered by this Court in several other writ petitions. In the judgment reported in Kannan and nine others v. Panruti Municipality 1998 Writ L.R. 69 the learned Judge has discussed the issue as follows:
Learned counsel for petitioners submits that on the basis of G.O.Ms. No. 285, dated 29.4.1985, they are entitled to the benefit of extension of the lease on payment of 15% more than what they have offered earlier. Learned counsel further submitted that these instructions, even though issued in 1983, are still valid, and the Municipal Authorities are bounded by the same. How far the said contention could be accepted is the only question to be answered in these writ petition petitions. As I said already, petitioners want the issuance of a writ of certiorarified mandamus i.e., certiorari to quash the notice dated 11.7.1997 and mandamus in the nature of a direction to the respondent-Municipality to allow them to continue on the basis of G.O.Ms. No. 286, dated 29.4.1985.
I do not think that a writ of mandamus could be issued in these cases, for G.O.Ms. No. 285 has not been issued on the basis of any statute of any Rule. The Government has issued instructions to the Municipality regarding the lease of lands belonging to the Municipality. There are no rules even under the District Municipality Act, governing the same. Learned counsel for petitioners was also not in a position to substantiate his case that G.O.Ms. No. 285 was issued on the basis of any statutory rule. Clause (3) (a) of Article 13 of the Constitution of India defines ‘Law’ as including any ordinance, order, by law, rule, regulation, custom or usage, having the force of law. On the basis of various decisions of the Supreme Court and also the High Courts, only those orders could be law, i.e., law made by legislature or intra vires statutory orders and orders made in exercise of power conferred by Statutory Rules, but not administrative orders having no statutory sanction. Unless learned Counsel for the petitioners satisfies that the impugned Government order has the force of law, a writ of mandamus cannot be issued.
Ultimately, the learned Judge held as follows:
The question of certiorari will never arise in these cases. The Municipality, the owner of the bunks, is justified in issuing the notice for reasons, which it feels to be justified in terminating the arrangement. The Resolution of the Municipality is not challenged in any of the writ petitions. The challenge is only in respect of the notice as against which no relief could be granted for. These notices are issued only as a consequence of the Resolution passed by the respondent Municipality.
Of course, in the above case, the learned Judge has dismissed the writ petition on the ground that petitioners have not challenged the Resolution of the Municipality. Here, in this case, the petitioners are challenging the Resolution of the Municipality. But the petitioners did not challenge the authority of the Municipality in passing such Resolution or have they alleged any mala fides. When neither the authority of the Municipality is questioned nor any mala fide has been alleged, I do not find any reason to entertain this writ petition to quash the Resolution of the respondent-Municipality dated 5.6.1998.
Yet another batch of cases, in W.P. Nos. 5175 to 5189 of 1998, S.S. Subramani, J. has held as follows:
All these petitioners want this Court to interfere and compel or direct second respondent to enter into a lease arrangement with the petitioners for a further period of three years. I do not think that by invoking the powers of Article 226 of the Constitution this Court can give any such direction. Second respondent is the owner of the building and it is for the panchayat to decide whether the petitioner should be allowed to continue there or not and even if they are allowed to continue, it is for the second respondent alone to decide the terms for such occupation. It is true that the second respondent is a public authority and it has to act in fairness. But to act in fairness’ does not mean that it should act to its own detriment, nor does it mean that it can allow the occupants to continue despite their refusal to pay reasonable enhancement of rent.
All these petitioners rely on G.O.Ms. No. 285, M.A. and W.S. Department, dated 29.4.1985. I do not think that the said Government Order has any relevance to this case, when the building in question absolutely belongs to the Panchayat (2nd respondent). In various decisions of this Court, it has been held that G.O.Ms. No. 285 is not a bar for the Local Authority to bring the leased premises for auction. This Court has also taken the view that there is always a presumption of fairness and openness in bringing the leased premises for public auction. This Court has also further held that the occupants are also entitled to participate in me auction, and if there is a bid for an equivalent amount, the occupants will be given preference. Except for that limited right, petitioners cannot compel this Court for the issuance of writ of mandamus.
5. In another batch of cases in W.P. Nos. 2428 to 2431 and 3872 of 1997 Shivappa, J. has held as follows:
While exercising the jurisdiction, this Court has to keep in view the conduct and nature of the right which the petitioners are seeking to enforce and the relevant circumstances under which they are seeking for a direction to decide whether the jurisdiction under Article 226 of the Constitution should be exercised or not. It would be travesty of justice to permit jurisdiction under Article 226 of the Constitution to be involved to perpetuate their occupation of public property at the cost of public revenue. In such circumstances, the Apex Court in Sale Tax Officer and Anr. v. Shree Durga Oil Mills and Anr. (1997) 1 Supreme Today 418 has held that the court will not interfere with any action taken by the Government in public interest – public interest must override any consideration of private loss or pain. This jurisdiction is meant to preserve the right and not to create a right where the petitioners have no semblance of any right to seek renewal. Where the properties were put to agument more income for the benefit of the public, I do not think that the petitioners are entitled to any relief from this Court. Auction of plots is a policy decision of the authority to enable the new persons to enter into the business and to discourage the monopoly of the old and established method of earning more income, resorting to sub-lease of public property. In such a situation, where the local authority, after due publication, adopted the fairest means of disposal of its property by way of lease through public auction and gives an opportunity to everyone to make a bid, cannot be found fault with and if at all, the petitioners thought that they are likely to be affected or affected by auction and causing dislocation of their business, nothing prevented them to participate in the auction and claim the shops, instead, they cannot cling on to a non-existing right and resort to litigation, prevent the local authority from augmenting more income from its property, earning better revenue for the public good.
6. The Division Bench of this Court in W.A. Nos. 902 and 1032 of 1983 regarding rights conferred under G.O.Ms. 285 dated 29.4.1985, has held as follows:
Even otherwise, the aforesaid Government Order cannot be construed as applicable to long term lease such as the one in question with a further provision for renewal under certain circumstances. When the parties agree and enter into a written lease containing the terms and conditions for renewal, they are bound by it. The Government Order in question cannot have the effect of altering the bilateral contracts. Point No. 1 is answered in the negative.
7. In view of the above judgments, I am of the view that the relief sought for by the petitioners in this writ petition cannot be granted, since the rights of the parties are governed by the lease agreement entered into between them.
8. Accordingly, this writ petition is dismissed. No costs. Consequently, W.M.P. No. 18174 of 1998 is also dismissed.
