IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.18829 of 2009 and M.P.NOS.1 AND 2 OF 2009 M/s.Sree Krishna Sweets P. Ltd. Represented by its Managing Director, Mr.M.Krishnan having its Registered Office at No.23, Mettupalayam Road, Kavundampalayam, Coimbatore-30. .. Petitioner Vs. 1.Udumalpet Muniipality rep. By its Commissioner, Udumalpet, Tiruppur District. 2.M/s.Indian Oil Corporation Ltd. No.139, Nungambakkam High Road, Chennai-34. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to remove the lock bolted at the petitioner's sweet stall at No.120 Palani Road, Udamalpet. For Petitioner : Mr.R.Sunilkumar For Respondents : Mr.P.Srinivas for R1 Mr.R.Ravi for R2 - - - - ORDER
Heard both sides. The petitioner is a private limited company represented by its Managing Director. It is claimed that they are selling their sweets and other products in the name of “Krishna Sweets”. They have outlets in many places both in India and outside India. In the property at No.120 Palani Road, Udamalpet, which is owned by the first respondent Municipality, the petitioner is having their sweet stall. The second respondent Indian Oil Corporation Ltd. (for short IOC), had taken the said property on lease from the first respondent during the year 1980 for the purpose of running a petrol bunk. 2.The property was leased out by the first respondent to the second respondent as a vacant site. After taking lease, the second respondent had put up required construction for running a petrol bunk as well as for running the sweet stall. It is claimed that the IOC is entitled to use the premises either by themselves or through their dealers as per the lease agreement with the first respondent. The IOC Limited was modernizing its petrol bunk for the development of its business and had taken several steps to cater to the needs of consumers. They are providing various facilities like medical shop, coffee shop, STD Booth, ATM Centre, departmental stores and sweet shops etc within the premises of the petrol bunk so that persons who enter to outlet for filling petrol for their vehicles will also enjoy comprehensive facilities. Catering to the needs of the public is the wholesome service provided by IOC Limited.
3.The IOC limited is running the petrol bunk through its retail dealer by name M.S.Mani and Co. at No.120, Palani Road, Udamalpet. The petitioner approached the second respondent expressing their willingness to set up a new sweet stall at their retail outlet. Accordingly, IOC Limited, by a letter, dated 20.4.2005 sought for permission of the Commissioner of the first respondent municipality to permit them to add the said facility to their outlet. The first respondent was convinced about the said facility. Therefore, IOC Limited after conducting negotiations, entered into a Memorandum of Understanding (MOU), dated 22.4.2005. According to the MOU, the petitioner is entitled to have their sweet stall in the leasehold premises and an area of 164 sq.ft. was allotted to them.
4.The petitioner thereafter spent considerable amount in installing facilities, including interior work, illuminations, signage, security system etc. They also provided furniture, shelves for displaying the sweets and other eatables in an hygienic way. The petitioner had also obtained telephone connection in the said premises in their name and have installed refrigerator, computer, weighing scale, etc. The first respondent was fully aware of location of the said stall and the MOU signed between the petitioner and the second respondent. Even thereafter, the first respondent was accepting the remittance of license fee paid by the petitioner excepting for the period from 2006 to 2008 it was refused. But even then, they were not asked to vacate the premises.
5.It was stated that on 22.4.2005, a sum of Rs.750/- was paid towards trade licence fee in respect of the sweet stall. On the same day, the fee under the Prevention of Food Adulteration Act was also paid. They were accepted by the municipality. The petitioner also remitted the license fee for the periods 2008-2009 and 2009-2010. As per MOU, the second respondent was collecting a particular percentage of amount on the turnover of the business and it will show that it is like a joint venture business. However, on 12.9.2009, the first respondent came to the sweet stall along 20 persons with a posse of police man and started removing the stocks of the petitioner in the premises. The stock worth Rs.20000/- was indiscriminately thrown out and closed the shop and bolted the door with their own lock, despite objections by the employees of petitioner company. No notice was given to the petitioner or to the second respondent. The petitioner sent a telegraphic notice on the same day calling the first respondent to remove the lock and key. It is under these circumstances, the petitioner has come forward to file the present writ petition, seeking for a direction to remove the lock bolted at the petitioner’s sweet stall.
6.Notice was ordered on the writ petition on 14.9.2009. Pending the writ petition, an interim direction was given not to remove the articles from the shop.
7.On notice from this court, the first respondent has filed a counter affidavit, dated 03.10.2009. The stand taken by the first respondent was that the municipality has given on lease the land for a specific purpose of putting a petrol bunk and to vend their products. No sublease was permissible. Notice was issued on 19.8.2009 asking them as to why leased property should not be taken back. Time granted in the said notice came to an end on 27.8.2009. Since no reply was received, the sweet stall was closed. The letters sent by the petitioner were not available with the municipality. If the second respondent wanted to run any other business, they should have sought for permission from the municipality. Only on 19.8.2009, the said sublease was noticed.
8.It was also stated that since they were having unauthorised sweet stall, the same was removed by the Revenue Inspector. The action of the second respondent in subleasing the said property was illegal. It was further stated that the lease with the second respondent has come to an end on 31.3.2007 and no renewal was obtained by the second respondent. The Municipal Council also has passed a resolution No.706, dated 31.8.2009 to take possession of the premises. The land was at the center of the Udumalpet Town very near to the bus stand. The municipality requires revenue and has proposed to build a shopping complex. Such resolution was also passed after issuance of the show cause notice to the second respondent.
9.It was stated that the second respondent had informed that they have not entered into any lease agreement with the petitioner and they are only charging signage fees for displaying the name board.
10.Mr.P.Srinivas, learned counsel for the Municipality also produced a model agreement issued by the municipality, which provides that if any condition was violated, the license can be revoked by the municipality under condition No.34.
11.The highhandedness of the first respondent in taking the law into their own hands cannot be appreciated. It must be noted that it is not as if petrol retail outlets are not having such allied activities in order to attract customers. If second respondent had violated any condition of license, only licence can be revoked. The first respondent cannot take law on his own and put lock and key on the sweet stall run by the petitioner. Such the business conducted by the petitioner cannot be said to be either illegal or unlawful or totally unconnected with the petrol retail outlet run by the second respondent. So long as the second respondent is running the petrol bunk outlet, running the sweet stall by the petitioner in the same bunk cannot be said to be either illegal or contrary to the terms of conditions of licence. Until such time the second respondent is permitted to run the petrol bunk, the petitioner is also entitled to carry out his sweet stall in the said bunk.
12.Therefore, the writ petition will stand allowed. No costs. The first respondent is directed to remove the lock put up by them on the petitioner’s sweet stall at No.120, Palani Road, Udamalpet, within one week from the date of receipt of copy of this order. Consequently, connected miscellaneous petitions stand closed.
vvk
To
1.The Commissioner,
Udumalpet Muniipality
Udumalpet,
Tiruppur District.
2.M/s.Indian Oil Corporation Ltd.
No.139, Nungambakkam High Road,
Chennai 34