JUDGMENT
P.R. Raman, J.
1. The above Writ Petitions raises common question of law and fact and hence they are disposed of by this common judgment.
2. Petitioners in W.P.(C) Nos. 4354, 6582, 8413, 6562, 6731 and 9026/2005 are all licensees of shop rooms in the shopping complex owned by Pandalam Grama Panchayat – the second respondent in W.P.(C) No. 4354/2005. Since the petitioners are all similarly situated persons and the facts being common, it will be sufficient to refer to the facts stated in W.P.(C) No. 4354/2005.
3. Petitioners as stated earlier, are licensees in occupation of the stalls belonging to the second respondent Pandalam Grama Panchayat. The first petitioner in O.P.No. 4354/2005 was thus in occupation of stall No. 1 since 1967, doing textile business and the 2nd petitioner was in occupation of stall Nos. 2 and 9 for the past 34 years and he was doing bakery business in the said stall. Third petitioner who was occupying stall No. 14, was doing business in ladies shopping centre. The third respondent filed a petition before the Grama Panchayat, on 12.2.2004 requesting to allot the shop rooms by public auction after the expiry of the period of licence in favour of the existing licensees. The Panchayat, by its resolution dated 28.2.2004 rejected the request against which the third respondent preferred an appeal Ext.P1 dated 3.3.2004 before the Government. Thereafter, he filed O.P. No. 10832/2004 before this Court which was disposed of by Ext.P2 judgment dated 29th March, 2004. This Court, by the aforesaid judgment directed the Secretary, Local Self Government Department, to consider and dispose of Ext.P3 with notice to the petitioner therein and also the Grama Panchay at and other affected parties. A time limit of four months was fixed for disposal of the representation. In the nature of the order passed without deciding the merits of the contentions raised, this Court thought fit not to issue notice to the second respondent Grama Panchayat in the said Writ Petition. Thereafter, after notice to the parties, the Deputy Secretary for Local Self Government Department heard the appeal on 18.8.2004 and by Ext.P4 order dated 27.10.2004 disposed of the same in the following lines:
“Government examined the matter in detail. It is seen that the Panchayat on 3.2.2004 has decided to allot the rooms to the same tenants after enhancing the rent for the period 2004-05. The representatives of the shop owners have opined that they have no objection to put the shops in auction after expiry of the present lease period. Petitioners also did not raise any serious objection on this.
In the above circumstances, Government are pleased to order that the Pandalam Grama Panchayat will put the entire shop rooms in the shopping complex for public auction from 2005-06 onwards. Ext.P3 representation is disposed of accordingly.”
4. Pursuant thereto, the second respondent Grama Panchayat published a notice of auction for the present year 2005-06 in respect of the shop rooms in the shopping complex. The auction notice so published is produced as Ext.P6 in W.P.(C) No. 6582/2005. The prayer in W.P.(C) No. 4354/2005 is to quash Ext.P4 Government Order dated 27.10.2004 and for a direction to the Pandalam Grama Panchayat to renew the licence for 2005-06, in favour of the petitioners regarding the shop rooms held by them as licensees and to restrain the Panchayat from auctioning the shop rooms in their possession and for a declaration that they are entitled to get the shop rooms occupied by them under the Pandalam Grama Panchayat. In W.P.(C) No. 6582/2005 there is an additional prayer to quash Ext.P6 produced therein which is an auction notice published by the Grama Panchayat.
5. The petitioner in W.P.(C) No. 8413/2005 is the Regional Manager of the Kerala State Handloom Weavers Society who seeks to issue appropriate writ or direction to quash Ext.P5 produced therein. Petitioner had entered into an arrangement with the third respondent in 1998 based on which he was allotted the shop room. But Ext.P5 dated 23.2.2005 is a representation submitted by the petitioner dated 23.2.2005 and as such, why the petitioner has sought for a direction to quash his own representation is not known. At any rate, the prayer to quash the representation that too made by the petitioner himself cannot be granted.
6. However, there is a further prayer to quash Exts.P4 and P6 produced therein. Ext.P4 is dated 9.2.2005 a letter addressed by the Pandalam Grama Panchayat to the petitioner informing him that the Government Order dated 27.10.2004 directing to auction the shop rooms owned by the Grama Panchayat for the year 2005-06 is being implemented and hence the petitioner who is in occupation of stall No. 7 was required to vacate the same by 31.3.2005. Ext.P6 is the notice of auction published by the Grama Panchayat notifying that the auction will be held on 17th and 18th of March, 2005 in the Panchayat Conference Hall and all those who are interested to participate in the auction could apply after making the deposit as per the auction conditions. Ext.P3 produced in the Writ Petition is the order of the Government G.O.(Rt) No. 3763/2004/LSGD dated 27.10.2004 which is the same as Ext.P4 in W.P.(C) No. 4354/2005. However, petitioner did not include any specific prayer for quashing Ext.P3 in the said Writ Petition.
7. Petitioner in W.P.(C) No. 6562/2005 is the occupier of stall No. 23 and he also seeks for a similar direction to the Grama Panchayat not to terminate the lease in respect of stall No. 23.
8. Petitioners in W.P.(C) No. 6731/2005 are also licensees/lessees of the respective shop rooms allotted to them by the Panchayat. The first petitioner is in possession of Shop No. 3 and running ‘Aswathy Bakery’, second petitioner doing Provisional Store in room No. 16 and the other petitioners are also allotees of the shop rooms and doing different type of business. Exts.P7 and P8 produced are only notices of auction of shop rooms and they seek to quash the same on similar grounds. Incidentally, they also seek for appropriate direction restraining the Grama Panchayat from proceeding with the auction as per Exts.P7 and P8 since according to them, the stipulation of fixing earnest money of Rs. 2 lakhs for participating in the auction is exhaustive and discriminatory. It may, however, be pointed out that during the pendency of this Writ Petition, there was an earlier order permitting the petitioners to participate in the auction on making a deposit of Rs. One lakh instead of 2 lakhs. However, the Panchayat itself reduced the amount to Rs. 50,000/- which was recorded while passing the interim order on 25.2.2005. As such, the contention that pre-deposit of Rs. 2 lakhs for participating in the auction is arbitrary on the changed facts and circumstance, does not exist for consideration as the amount is already stands reduced to Rs. 50,000/- and there is no case for the petitioners that they did not participate in the auction subsequently held on 17th and 18th by the Grama Panchayat as scheduled.
9. Petitioner in Writ Petition No. 9026/2005 is also a similarly situated person occupying shop room No. 10 belonging to the same Grama Panchayat. Exts.P2, P3 and P5 are sought to be quashed. Ext.P2 is the Government Order dated 27.10.2004 and Exts.P3 and P5 are auction notices issued by the Grama Panchayat.
10. W.P.(C) No. 7564/2005 is filed by a person who is not a licensee or a lessee. He was the petitioner in W.P.(C) No. 10832/2004 and the third respondent in W.P.(C) No. 4354/2005 who had earlier requested the Panchayat to auction the shop rooms, which was rejected by the Panchayat and ultimately in the appeal preferred, Government Order — Ext.P4 in W.P.(C) No. 4354/2005 was passed. Subsequent to the auction notice published by the Grama Panchayat, the Additional Secretary, Local Self Government Department issued an order dated 26.2.2005 restraining the operation of further proceedings to auction the shop rooms till 13th March, 2005 since the Government is considering framing of rules for allotment of shop rooms by the Panchayat. Since the stay was only for a limited period and since the Panchayat has already conducted the auction as scheduled on 17th and 18th March, 2005, and the Government have also framed statutory rules, the prayer made in this Writ Petition seeking to challenge Ext.P5 order as such has become infructuous. However, he supported the action of the Panchayat in auctioning the shop rooms and the stand taken by the Panchayat in the other Writ Petitions.
11. Heard the Senior Counsel Sri. T.P. Kelu Nambiar, appearing on behalf of the petitioners in W.P.(C) Nos. 4354 and 6582/2005, Sri. M.K. Chandramohan Das, learned counsel appearing on behalf of the writ petitioners in W.P.(C) No. 8413/2005, Sri. M. Narendrakumar, learned counsel appearing in W.P.(C)No. 6731/2005, Sri.K. Jaju Babu, learned counsel appearing in W.P.(C) No. 9026/2005 and Dr. K.P. Satheesan, appearing in W.P.(C) No. 7564/2005. Also heard the learned Advocate General appearing on behalf of the State of Kerala and the learned Advocate Siby Mathew appearing for the Pandalam Grama Panchayat.
12. Sri. T.P. Kelu Nambiar, Senior counsel appearing in W.P.(C) Nos. 4354 & 6582/2005 contended that Ext.P4 order in W.P.(C) No. 4354/2005 passed by the Government is vitiated for the following reasons:
1. That the appeal itself preferred before the Government is not maintainable and that the Government is not the Appellate Authority.
2. Assuming that the appeal is maintainable since the impugned order Ext.P4 was passed by the Government on 27.10.2004, after the constitution of the One Man Tribunal for Local Bodies on 21.8.2004, according to him, once the Tribunal is constituted, Government has no power to pass an order in a pending appeal and can only transfer the appeal to the Tribunal for disposal, according to law. He placed reliance on Section 276 of the Kerala Panchayat Raj Act in this behalf.
3. The order passed by the Government interfering with the discretion of the Panchayat in the matter of allotment of its shop rooms is contrary to law and in the absence of any fetter on the power of the Panchayat to deal with its property and the shopping rooms either by the provisions of the Panchayat Raj Act or by any other law, the Government cannot control the powers of the Panchayat and issue directions prescribing the manner in which the shop rooms should be allotted and the procedure thereon.
13. It is also his contention that the Panchayat having unfettered discretion in the matter of allotment of its shop rooms, could renew the licences in favour of the existing licensees or conduct the auction as the case may be. But it is for the Panchayat to take a decision independently uninfluenced by the decision of the Government in this regard since the decision of the Panchayat earlier to allot the shop rooms or to renew the licence in favour of the existing licensees was interfered with the Government and directed the Panchayat to conduct fresh auction, the subsequent decision of the Panchayat to conduct public auction is not based on any independent decision and as such the Panchayat should be directed to form an opinion independently de hors Ext.P4.
14. Learned Advocate General, appearing on behalf of the State contended that the Government Order Ext.P4 was passed at a time when the statutory rules were not framed or in existence and as such the Government could not take in to consideration the statutory rules while passing Ext.P4. He also submitted that Ext.P4 order passed by the Government did not take in to consideration the preparedness of the tenants or licensees to pay licence fee at enhanced rate, that the Tribunal was in existence at the time of passing the order and as such the Government should have transferred the case to the Tribunal. Thus, he was not supporting the order Ext.P4 rather he supported the contention of the petitioner that Ext.P4 order is not in accordance with law.
15. During the pendency of the Writ Petition, Government issued rules in exercise of the powers under Section 178 read with Section 254(2)(xxxvii) of the Panchayat Raj Act which is produced as Annexure A-1 along with the counter affidavit of the Government.
16. Sri. Chandramohan Das, learned counsel appearing on behalf of the petitioner in W.P.(C) No. 8413/2005 has adopted the arguments put forth by the Senior Counsel Sri. T.P. Kelu Nambiar. He has also added to contend that by virtue of Rule 11 of the statutory rules now framed by the Government, the existing licensees or lessees are entitled to continue and their licences are liable to be renewed without being put to auction in public. He also relied on the counter affidavit filed by the Government in this behalf. The learned Advocate General also supports the said contention and according to him, Rule 11 has to be interpreted in such a manner to advance social justice especially when two views are possible. The learned counsel appearing for the Panchayat Sri. Siby Mathew contended that the appeal preferred before the Government is maintainable, that the matter relating to the grant of licence and fixation of licence fee do not come within the purview of the Tribunal constituted under the Panchayat Raj Act and as such even after the constitution of the Tribunal, the Government continued to have the power to dispose of the appeal preferred before them. He also contended that Rule 11 of the statutory rules framed have two parts. In respect of the new shop rooms alone, the rules direct that the same shall be allotted based on a public auction and that in the case of the existing licences or lease it is open to the Panchayat, on the expiry of the term, either to renew or to re-auction the same by public notice. He also referred to the relevant provisions in the Municipalities Act and contended that Rule 11 is now framed by the Government produced as Annexure-A1 with the counter affidavit filed by the Government is in part materia the same and will carry the same meaning, In the absence of any express provision contained in the rule enabling any automatic renewal of the lease or licence period, the intention of the Legislature is clear that the discretion vested with the Panchayat in the matter of existing licence or lease to renew or not is not taken away and as such the decision of the Panchayat for re-auctioning the shop rooms in the shopping complex is perfectly justified as the Panchayat thought fit not to extend the term. He has also contended that the existing licensees having agreed as evidenced by Ext.P4 order passed by the Government to re-auction the shop rooms after the expiry of the period 2004-05, they are estopped from raising any contention against the re-auction by public notice. It is also his submission that the petitioners were all given notices before passing Ext.P4 order by the Government and that the petitioner did not raise any jurisdictional question and that being so, it is not open to them now to contend that the Government has no jurisdiction by filing this Writ Petition. He however, contended that the decision taken by the Panchayat even if persuaded by Ext.P4 Government Order cannot be said to be in any way wrong and the Panchayat having an unfettered discretion to re-auction the premises after expiry of the existing licence period, no good grounds are made out for interference by this Court. Counsel appearing in the other Writ Petition did not raise any separate contention but reiterated the contentions already raised as aforesaid.
17. Ext.P4 the order passed by the Government is contended to be without jurisdiction as according to the senior counsel Sri. T.P. Kelu Nambiar, the Government is not the Appellate Authority and Ext.P4 was passed after the constitution of the Tribunal and hence if at all the appeal was maintainable initially, the same should have been transferred to the Tribunal, after its constitution.
18. Section 276 of the Panchayat Raj Act is a provision dealing with the appeal. Section 276(4) provides that an appeal on the notice, order or action of the Secretary under Sections 235 I, 235 J, 235 N, 235 W and 235 X shall be filed before the Tribunal Constituted for Local Self Government Institutions under Section 271 S. Sub-section 5 of Section 276 provides that an appeal on any notice issued, order passed, or action taken by the Panchayat or a revision on a decision taken by the Panchayat or Standing Committee on any appeal shall lie to the Tribunal constituted under Section 271 S, provided that such appeal or revision shall be confined only on the following subjects and relating to other subjects as may be prescribed for the purpose, namely, (a) Assessment, demand and collection of taxes or fees or cess; (b) Grant of permission and licences for trades, factories, markets and other establishments.
19. The present case relates to grant of lease or licence of the premises belonging to the Panchayat and as such it does not fall under Clause (a) or (b) of Sub-section 5 of Section 276. Section 235 (I) read with Section 235 F relates to the application for construction or reconstruction of the building, Section 235 J, N, W, X are all connected with construction of building, its demolition or alteration etc., as the case may be and as such this does not fall within the purview of Sub-section 4 of Section 276 either. In the circumstances, the contention that the Government ought to have referred the matter to the Tribunal for its decision in view of Section 276(8) of the Panchayat Raj Act is without any merit.
20. The next question is whether the representation or appeal filed before the Government and disposed of by Ext.P4 is otherwise maintainable?
21. Section 191 of the Panchayat Raj Act empowers the Government either to suo motu or on a reference by the President, Secretary or a member or on a petition received from a citizen, cancel or vary a resolution passed or decision taken by the Panchayat if in their opinion such decision or resolution is not legally passed or taken or is in excess of the powers conferred by this Act or any other law or its abuse or is likely to endanger human life, health, public safety, communal harmony or may lead to riot or quarrel or is in violation of the directions or provisions of grant issued by Government in the matter of implementing the plans, schemes or programmes.
22. Thus, the Government, under Section 191 is empowered to cancel a decision taken by the Panchayat which is not legally passed or taken in exercise of the powers conferred by the Act or any other law or its abuse, as the case may be. Further, Ext.P4 order was passed pursuant to the direction issued in W.P.(C) No. 4354/2005. Thus, it cannot be said that the appeal or petition preferred before the Government is not maintainable or for that reason Ext.P4 could be said to be without jurisdiction. It is also to be noticed that the petitioner did not raise any objection regarding the jurisdiction of the Government while passing Ext.P4 order and having thus submitted to the jurisdiction, they cannot turn round and say that the Government have no jurisdiction.
23. However, the learned counsel has a further contention that the Government has no power to interfere with the discretion of the Panchayat in the matter of allotment of its shop rooms. The learned Advocate General also contended that Ext.P4 order, in so far as it has not taken into account the offer made by the existing licensees to pay enhanced rate of licence fee or lease rent, is bad in law as it was passed without taking into consideration the relevant factors.
24. Admittedly, the building is owned by the Panchayat. As per “Salmond on Jurisprudence” 12th Edn. Ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. Though in certain situations some of these rights may be absent, the normal case of ownership can be expected to exhibit the following incidents: (i) the owner will have a right to possess the thing which he owns, (ii) secondly, the owner normally has the right to use and enjoy the thing owned: the right to manage it, i.e., the right to decide how it shall be used; and the right to the income from it, (iii) the owner has the right to consume, destroy or alienate the thing. The rights to consume and destroy are straight forward liberties. The right to alienate, i.e., the right to transfer his rights over the object to another, involves the existence of a power, (iv) Ownership has the characteristic of being indeterminate in duration and (v) Ownership has a residuary character.
25. The Panchayat, a body constituted as per the Panchayat Raj Act, is a legal person capable of owning properties. After the 74th amendment to the Constitution, Local Bodies are also conferred a constitutional status. Thus, the grant of lease or licence being an incidence of ownership and the Panchayat is entitled to grant lease or licence of its shop rooms and the rights of parties shall be governed by the terms and conditions contained in the grant and subject to any other restrictions that may be imposed by law. It is true that being a Public Authority, its dealings should be fair, transparent and in granting the lease/licence of its property, it cannot have the same freedom as of a private individual and the procedure is to pass the test of Article 14 of the Constitution. Petitioners have no case that the existing terms and conditions of the grant in their favour, by virtue of which they continued till 31.3.2005 confers any right on them for an automatic renewal of the licence or lease, as the case may be. If that be so, the decision of the Panchayat taken earlier, during the year 2004-05 rejecting the request of the petitioner in O.P. No. 4354/2005 to conduct any public auction, for the purpose of grant of lease or licence of its shop rooms so long as it is not shown to be unfair cannot be interfered with. As a matter of fact, even in Ext.P4, the Government was only considering the action of the Panchayat to renew the grant of lease or licence in favour of the existing licensees for the year 2004-05 and was not called upon to decide as to what should be done for the succeeding year namely, 2005-06. As I have already noticed, as per Section 191, Government can cancel or vary a decision taken by the Panchayat if in their opinion it was not legally passed or taken in excess of the powers conferred by the Act or by any other law. The order does not say that the decision taken by the Panchayat for the year 2004-05 was not legally passed or taken or that the same was in excess of the powers conferred by the Act or any other law or its abuse. In such circumstances, the Government could not have given any direction to the Panchayat to auction the shop rooms in the shopping complex for the subsequent year 2005-06 which was not an issue arising for consideration in the appeal preferred by the Government. Thus, the direction in Ext.P4 is not legally sustainable.
26. The Panchayat, pursuant to Ext.P4 resolved to conduct a public auction of its shop rooms for the year 2005-06 and such auction was conducted on 17th and 18th of March, 2005. It is contended by the learned Counsel Sri. Chandramohan Das that the power of the Panchayat to conduct any public auction is curtailed by the statutory rules framed during the pendency of the Writ Petition. A copy of the statutory rule is produced along with the counter affidavit, filed by the Government as Annexure-A1 in W.P.(C) No. 7564/2005. The said rules were issued in exercise of the powers conferred under Sections 178 and 254(2) (xxxvii) of the Kerala Panchayat Raj Act, which was published in the Extra ordinary Gazette dated 14th of March, 2005 and has come into force at once. According to the learned counsel, Clause 11 of the said rules confers a right on the existing licensees/lessees for renewal of their licence or lease as the case may be and only fresh licence or lease of new building could be done through public auction. Rule 11 reads as follows:
27. The above rule provides the procedure to be followed in the matter of sale, lease or licence of the Panchayat property by public auction or tender except renewal of the lease, licence or rehabilitation. Therefore, in the case of renewal of lease or licence the rule does not insist for any public auction or tender to be conducted. That does not mean that there is a vested right in the lessee or licensee conferring any automatic renewal of lease or licence, as the case may be. In the case of new building, while the rule insist for public auction or tender, in the case of existing lease or licence there is no such insistence and the exclusion of the existing lease or licence is only from the obligation to conduct public auction or tender, as the case may be, as imposed by the latter part of the rule. In other words, in the case of existing lease or licence, it is only a renewal of the grant and hence it is not compulsory to reauction the same.
28. Section 215 of the Kerala Municipality Act contain a similar provision in the following terms.
“215: Power of Municipality to acquire and dispose of property–
(1) A Municipality may in the manner prescribed, acquire any property such as land or building within or outside its Municipal area or dispose of any of its properties with the prior approval of the Government for providing any arrangement or facility for a public purpose.
(2)(a) A Municipality may construct commercial or other buildings and let them out to the public who need them on licence and may charge such fees as it may fix for the use and occupation of the same (in the manner prescribed).
Provided that after the said period, a licence may be renewed subject to such terms and conditions as may be fixed at that time.
(c) in all cases except renewal of licence or rehabilitation of a licensee, licence shall be granted only by public auction or tender.”
29. It can thus be seen that the present rule framed under the Panchayat Raj Act is consistent with the statutory provisions contained in Section 215 of the Kerala Municipalities Act and Section 215(2)(a) of the Municipality Act which provides that licence may be renewed subject to such terms and conditions fixed. Right is given to the licensor to renew the licence subject to such terms and conditions prescribed from time to time. Rule 11 of the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000 also contains a similar rule which says that transfer of a property belonging to the Municipality through sale, except renewal of licences, rehabilitation of licensees, granting of lease, letting out on rent, shall be either in public auction or by inviting tenders.
30. While Kerala Panchayat Raj Act does not contain any such provision, the rule now framed by the Government as a subordinate Legislative Authority in exercise of its rule making power has regulated the procedure for sale, lease or licence of the property by the Panchayat. According to me on a plain reading of Rule 11, it is clear that it only regulates the manner of exercise of power of the Panchayat in the matter of grant of fresh lease or licence by public auction or tender. It does not compel the Panchayat to conduct any public auction or tender in the case of existing lease or licence. But at the same time, it does not by itself create any right in favour of any existing licensees or lessees for an automatic renewal unless the existing terms and conditions otherwise provides for such renewal. The Government or Public Authority being the seller of their right will not change the legal position once its exclusive right to deal with its privilege is conceded. Citizen cannot have any fundamental right to trade or carry on business in the properties or right belonging to a State or Public Authority, nor can there be an infringement of Article 14 of the Constitution of India if the State or Public Authority tries to get the best available price for its valuable right. (See State of Orissa and Ors v. Harinarayan Jaiswal (AIR 1972 SC 1816)). However, in a contractual sphere as in all other State action the State and its instrumentalities have to conform to Article 14 of the Constitution of India of which non-arbitrariness is a significant facet. (See Food Corporation of India v. Kamadhenu Cattle Feed (AIR 1993 SC 1601)). Therefore when Public Authority like the second respondent decides to grant licence/lease of its shop rooms by public auction, the decision should be consistent with the constitutional mandate or fairness in action under Article 14 of the Constitution. But it may not be invariably said that in all cases, such right can be sold only by public auction. Even negotiation to get the maximum price which itself is in public interest is also a recognised and accepted procedure provided similarly situated persons are treated alike. Hence, if the Panchayat, in its wisdom, after taking into consideration of the various aspects of the matter, thinks it appropriate to extend or renew the licence as the case may be, it cannot be said to be an arbitrary or unreasonable decision.
31. Then the only question is whether the public auction or tender invited and conducted on 17th and 18th of March, 2005 should be confirmed or not. There is force in the contention of the learned Sr. Counsel Sri. Kelu Nambiar that the decision of the Panchayat to conduct auction is persuaded by the Government decision Ext.P4. Panchayat cannot seriously dispute this. Ext.P4 letter of the Panchayat produced in W.P. No. 8413 of 2005 addressed to the Hantex will further support the contention of the petitioner that Panchayat was implementing the decision of Government and not their own. Hence the decision taken by them to conduct public auction cannot be said to be totally an independent decision, but persuaded by Ext.P4 Government decision. It must be noticed that prior to Ext.P4 the Panchayat has decided to renew the lease or licence, as the case may be, and the request to conduct it by public auction for the year 2004-05 itself was rejected by the Panchayat which led to the passing of Ext.P4 order pursuant to the direction issued by this Court. It is in Ext.P4 that the Government directed to conduct a public auction for the year 2005-06. I have already held that the Government have no such power otherwise than by framing statutory rules, and if the Panchayat decides otherwise, it cannot be interfered with by the Government in exercise of its executive power. Therefore, the resolution passed subsequent to Ext.P4 and the decision to hold public auction of the shop rooms which are already held by the existing lessees or licensees as the case may be, cannot be said to be an independent decision taken by the Panchayat. Some of the licensees are continuing for a long number of years and doing different kind of business. While one is conducting a Bakery, the other is conducting a textile shop, third one a provisional shop and so on. If a public auction or a tender is to be held, the existing lessee or licensee who is not successful in the bid has to face the risk of vacating the premises and find out a new premises and every year if such exercise is to be made, there may not be any permanency in the business who are mostly depend upon the regular customers. Hence it will not even attract the business community to come forward to participate in such auction since the hardship that may be caused in vacating the premises every year will be a dissuading and discouraging factor. A Public Authority like the Panchayat is therefore, entitled to decide whether or not on the expiry of the lease, in the absence of any clause contained in the grant, extension should be given and if so whether it should be subject to any enhancement of rate of rent or licence fee, as the case may be, in the best interest of the Panchayat. Therefore, it is for the Panchayat which alone has to take a decision independently as the building belongs to them and what is best, in the circumstances, is not for the Court to dictate. Hence I think in the interest of justice, it is necessary and I direct that the Panchayat shall convene a meeting of its members and take a decision as to whether any renewal of the grant in favour of the existing licensee could be given with such terms and conditions, as the case may be or they should proceed to confirm the auction only after taking a decision and subject to such decision they may or may not proceed to confirm the auction already held.
Subject to the above observations, the Writ Petitions are disposed of.