AI Structured Summary
Not yet generated for this judgment
Judgment
M. Jaichandren, J.—Since the issues arising for consideration, and the facts and circumstances of both the Writ Petitions are similar in nature, a common order is passed.
In W.P.(MD). No. 2857 of 2010, the petitioner has prayed for a Writ of Certiorarified Mandamus to call for the records and to quash the impugned proceedings of the second respondent, dated 05.02.2010, made in Na.Ka. No. 215/09/A3 and to restrain the second respondent from interfering with the petitioner''s right to carry on his business inside the municipal bus stand, Bodinaickkanur, from 01.04.2009 to 31.04.2012. Like wise, in W.P.(MD). No. 9063 of 2010, the petitioner has prayed for a Writ of Certiorari to call for the records pertaining to the impugned order of the first respondent, issued vide Ref.X.K. No. 2041/n/2010-2011, dated 06.04.2010, and the consequential order of the fourth respondent, dated 02.07.2010, and to quash the same.
The petitioner has stated that he is carrying on his business in the name and style of "Sr.Pungaj Bhavan", inside the municipal bus stand, Bodinaickkanur, Theni District, in an extent of 6252.5 Sq.ft. It has been further stated that the property bearing shop Nos. 3 and 4 had been leased out in favour of one Venkatachalam Reddiar, from the year 1965. Thereafter, the property had been leased out to the petitioner''s father Late. Nammalwar, from the year, 1974. After the death of the petitioner''s father, on 02.01.1996, the lease had been transferred in favour of the petitioner, by the proceedings of the second respondent, dated 14.03.1997. The petitioner is running a vegetarian restaurant in the premises in question, catering to those, who are using the municipal bus stand at Bodinaickkanur.
It has also been stated that, by the proceedings of the second respondent, in Na.Ka. No. 7313/2005/A3, dated 08.03.2006, the lease had been renewed in favour of the petitioner, from 01.04.2006 to 31.03.2009. While so, on 02.07.2009, the petitioner had requested the second respondent to renew the lease in favour of the petitioner for a further period of three years. The petitioner had also paid a sum of Rs. 3,404/- for the renewal of the lease, as per the direction issued by the second respondent, on 13.04.2009. He has also been paying the rent, with 15% hike in the monthly lease amount, till date, without fail. The respondent municipality in its Agenda No. 29, had proposed to renew the lease, from 01.04.2009 to 31.03.2012, in its proceedings, in Na.Ka. No. 215/09/A3, dated 28.01.2010. While so, the third respondent had granted the extension of lease to 35 lessees, who are similarly placed, like the petitioner. However, the request of the petitioner for extension of lease had been rejected, contrary to the principles of legitimate expectation and promissory estoppel.
The only ground based on which the request of the petitioner, for the extension of the lease period, had been rejected is that the petitioner has been, unauthorisedly, occupying a large extent of the property, larger than the area that had actually been alloted to him under the lease. As such, the petitioner had encroached upon an area, which he is not entitled to, under the lease agreement and he had also put up certain constructions thereon, without the permission of the authorities concerned. The allegation against the petitioner regarding the encroachment is baseless and arbitrary in nature. In fact, the petitioner had filed a Civil Suit, in O.S. No. 155 of 2009, on the file of the District Munsif Court, Bodinaickkanur, against the second respondent, praying for a decree and permanent injunction restraining the respondents therein from demolishing the eastern wall of the restaurant, under the guise of removing the unauthorised constructions. An order of interim injunction had also been obtained by the petitioner, in I.A. No. 154 of 2009. While so, the second respondent had issued the impugned proceedings, dated 05.02.2010, asking the petitioner to vacate the premises, within a period of 30 days. Thus, the request of the petitioner for the renewal of the lease had been rejected.
It has been further stated that the petitioner has been carrying on his business in the premises in question, for the past 13 years and his livelihood depends, solely, on the said business. There are more than 23 employees working in the Hotel, catering to thousands of persons. It has also been stated that the respondents, having directed the petitioner to pay the additional deposit, with a hike of 15%, as per the Government order, in G.O.Ms. No. 92, Municipal Administration and Water Supply Department, dated 03.07.2007, the rejection of the request of the petitioner, for the extension of the lease, by the respondents, is contrary to the principles of legitimate expectation and promissory estoppel. There is no encroachment by the petitioner, as alleged by the respondents. Even though the petitioner has been prepared to offer a higher lease amount, as fixed by the respondents, the respondents have rejected the request of the petitioner, without considering the same. As such, the impugned proceedings of the respondents, are arbitrary, illegal and void.
The learned Counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
7.1. In Shri Raghunandan Panda Vs. State of Orissa and Others, , it has been held as follows:
It has been pointed out by a Division Bench of this Court to which one of us was a party in the case of Union of India v. K.P. Joseph that "Generally speaking an administrative order confers no justiciable right but this rule like all other general rules is subject to exceptions". Some decisions of this Court to illustrate the exceptions have been noticed thereafter in the judgment at page. 755. It has been pointed out further "To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties". In this case, however, it is difficult to accept the argument put forward on behalf of the appellant that the Rules confer any rights on him. No person has a vested right to get any lease of the government land; of course, he has got a right to get his application for lease disposed of fairly and not arbitrarily. If, therefore, it could be held in favour of the appellant that his claim for lease of the plot in question was capriciously, arbitrarily and unfairly rejected and that the lease granted to respondent No. 3 was arbitrary and unfair a case could be found in his favour.
7.2. In State of Assam and Others Vs. Banshidhar Shewbhagavan and Company, , it has been held as follows:
...There can be no doubt that if any authority exercised any power conferred on him by law in bad faith or for collateral purpose, it is an abuse of power and a fraud on the statute. In such a case there can be no difficulty in striking down that act of the authority by the issue of an appropriate writ under Article 226 of the Constitution.
7.3. In Dwarkadas Marfatia and Sons Vs. Board of Trustees of the Port of Bombay, , it has been held as follows:
...Where any special right or privilege is granted to any public or statutory body on the presumption that it must act in certain manner, such bodies must make good such presumption while acting by virtue of such privileges. Judicial review to oversee if such bodies are so acting is permissible.
...The Port Trust is statutorily exempted from the operation of the Rent Act on the basis of its public/governmental character. The legislative assumption or expectation as noted in the observations of Chagla, C.J. in Rampratap Jaidayal case cannot make such conduct a matter of contract pure and simple. These corporations must act in accordance with certain constitutional conscience and whether they have so acted, must be discernible from the conduct of such corporations. In this connection, reference may be made on the observations of this Court in Som Prakash Rekhi v. Union of India reiterated in M.C. Mehta v. Union of India wherein at p. 148 this Court observed: (SCC p. 480, para 55)
It is dangerous to exonerate corporations from the need to have constitutional conscience; and so, that interpretation, language permitting, which makes governmental agencies, whatever their mien, amenable to constitutional limitations must be adopted by the court as against the alternative of permitting them to flourish as an imperium in imperio.
....
We are inclined to accept the submission that every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords, must be judged by that standard. If a governmental policy or action even in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional.
7.4. In Mahabir Auto Stores and others Vs. Indian Oil Corporation and others, , it has been held as follows:
It is well settled that every action of the State or an instrumentality of the State in exercise of its executive power, must be informed by reason. In appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution.... It appears to us, at the outset, that in the facts and circumstances of the case, the respondent company IOC is an organ of the State or an instrumentality of the State as contemplated under Article 12 of the Constitution. The State acts in its executive power under Article 298 of the Constitution in entering or not entering in contracts with individual parties. Article 14 of the Constitution would be applicable to those exercises of power. Therefore, the action of State organ under Article 14 can be checked.
7.5. In Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, , it has been held as follows:
The Preamble of the Constitution of India resolves to secure to all its citizens Justice, social, economic and political; and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains ''Directives Principles of State Policy'' which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Article 14 - non-arbitrariness which is basic to rule of law - from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals.
....
However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.
Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons.
7.6. In Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, , it has been held as follows:
...The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest.
There are many cases in which a public authority has been held to have acted from improper motives or upon irrelevant considerations, or to have failed to take account of relevant considerations, so that its action is ultra vires and void.
....
By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans the courts can certainly examine whether "decision-making process" was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.
If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court amounts to encroachment on the exclusive right of the executive to take such decision.
...Public authorities are essentially different from those of private persons. Even while taking decision in respect of commercial transactions a public authority must be guided by relevant considerations and not by irrelevant ones. If such decision is influenced by extraneous considerations which it ought not to have taken into account the ultimate decision is bound to be vitiated, even if it is established that such decision had been taken without bias....
7.7. In Food Corporation of India v. Kamdhenu Cattle Feed Industries reported in 1993 SC 1601, it has been held as follows:
In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ''fairplay in action''. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant''s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.
7.8. In LIC of India and Another Vs. Consumer Education and Research center and Others, , it has been held as follows:
In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest.
....
The purpose of contract law is not simply to create conditions of liability, but also to respond to the social process of promising.
7.9. In U.P Awas Evam Vikas Parishad Vs. Gyan Devi (Dead) by L.Rs. and another, etc. etc., , the Supreme Court has held that the principle of legitimate expectation would apply even in cases when a person has no enforceable right, if he is likely to be affected by an order passed by the public authority.
7.10. In M.P. Oil Extraction and Another Vs. State of M.P. and Others, , it has been held that the doctrine of "legitimate expectation" operates in the domain of public law and in an appropriate case, constitutes a substantive and enforeceable right.
7.11. In Tamil Nadu Municipal Shop Merchants Association and Vs. State of Tamil Nadu and Others, , it has been held as follows:
There is another aspect of the matter. The petitioners came to enjoy the right pursuant to a contract. They bid at the auction and became successful bidders pursuant to which they were permitted to occupy the shops or stalls and run their business. Admittedly, in all these cases, the period for which the bid was made has ended. The petitioners all claim that they must be granted a further period and that they are prepared to pay enhanced rent or licence fee as the case may be at 15%. The right of the petitioners therefore arises out of a contract. The right is civil in nature. At best, it is contractual in its effect. Time and again the Apex Court has held that a judjcial review of contractual obligations or enforcement of contractual obligations cannot be permitted under Article 226. Therefore, the petitioners cannot maintain a claim under Article 226 for the enforcement of the contractual obligations. It is not possible to accept the contention of the learned Counsel for the petitioner that he can approach the Court under Article 226. The local bodies cannot be compelled under law to grant leases/ licences in favour of the petitioners forever.
....
The Apex Court has held in the decision reported, in M.C. Mehta Vs. Union of India (UOI) and Others, that provisions of an Act have to be so construed as to keep individual or a class interest subordinate to the larger public interest. One has to take into consideration the larger interest of the people at large or the Society. Public bodies have the right to put the properties belonging to them in auction and augment their income and thus deal with it in a manner more advantageous to them. Any direction not to hold auction or to renew the lease will not only put an unwarranted limit on their right but would work against the larger interest of the Society....
The Municipalities or the Panchayats as the case may be, put up buildings in the bus stand or in the parking stands. In some cases, they also put up some shopping complexes. There are stalls in the public markets where the right to expose goods are leased out. In W.P. Nos. 4904 and 4905 of 2000 the Municipal Council is not made a party. The property vests with the Municipal Council, who are the owners. The Director of Municipal Administration is but an authority having some powers over the Municipal Council. The Director of Municipal Administration cannot become the owner of the property, though he may have some right or power to issue directions to the Municipal Council now and then in that regard. A reading of Sections 260 and 261 to which I have already referred to would show that the council may provide places for use of public markets and may farm out the same and the control of which will be only with the Executive Authority. But surprisingly enough, the Municipalities have not been made parties. Merely because Director of Municipal Administration has got a controlling power over the Executive authority of the local body, without impleading the concerned Municipalities, the petitioners cannot ask this Court to issue directions.
....
The decision reported in 1999 WLR 155 (V. Chellappa v. Commissioner, Tirunelveli Municipal Corporation) is to the effect that non-statutory contracts and right touching an immovable property cannot be enforced and Article 226 of the Constitution and that the petitioners cannot resist the right of the Municipality to auction and that the Municipality can hold the properties and put it to better use to augment more income in public interest in the manner most advantageous to it and that any direction not to hold auction or renew the licence is nothing but putting a limit on such right, which is impermissible in law.
....
There is no provision under the District Municipalities Act which has been pointed out that the rights or lease granted to the appellants were perpetual under the District Municipalities Act. The Municipal Authorities, it has been statutorily provided by the illustration, may grant for six years i.e., three years and three years and no more. The argument advanced by the learned Counsel for the appellants, if accepted that after the expiry of three years, the lease has lobe extended, it is nothing but a lease perpetuity. Lease in perpetuity or extension or renewal without time limit amounts to lease in perpetuity which is not permissible in law and in terms of the statutory provisions. This is not the intention of the statute and this will create a monopoly in favour of a person who has once taken the lease in an open auction. This apart it causes a loss, the local authority, when the property can be auctioned at much higher price and the appellants arc not debarred from participating in the auction.
I cannot agree with this contention. There are number of Municipalities, town Panchayats and Corporations. They own buildings, stalls etc. either located in the bus-stand or in the shandy or in other public places, cart-stands etc. Some of the public bodies have their own shopping complexes. The situation is peculiar to each local body. There is no uniformity in the same. One cannot expect all the local bodies to have a uniform practice though it may be desirable to have such uniform practice. The local bodies have to act according to the exigencies of the time, their set up, the situation they have to face and the circumstances that govern them. It cannot be the same for all the local bodies. Some local bodies may have certain peculiar problems in that field. In fact, the learned Senior Counsel Mr. Masilamani at the beginning of his argument submitted that the local bodies are only like private land owners. If they can be equated to private land owners, then, it has to be equally stated that one private land owner need not, will not and does not act as the other private owner and that the approaches will be different.
....
I am not able to accept the contention that there is any violation of Article 14 in that regard. There is no discrimination. For every classification is in some degree likely to produce some inequity and mere production of inequity is not an abrogation of Article 14. It is only a reasonable exercise of power by the Local Body. The Government has only the Supervisory power. The Government has the Rule making power under the Act and with a view to stream-line the procedure, the Government issues administrative instructions and brings about amendments to the Rules regarding leases and lincences. Hence. It is not possible to expect an uniform authority. What holds good to a petitioner Municipality may not hold good to another Municipality. What holds good for licence relating to a restaurant in a Municipal bus-stand may not hold good when applied to a licence to exposed goods in market. The policy of fixity of tenure cannot be also achieved in such cases. Because, that would defeat the very purpose of public auction. Normally, it is only granted for a period of one year or three years. It cannot be stated that the present policy is not to the benefit of the people. If certain person with open eyes take properties in a public auction, knowing fully well that the period of licence or lease is only for a period of three years and if such persons are to make investments, they cannot turn round later on to say that they have made huge investments and therefore, on that ground they must be granted further extension of lease. If that argument is to be accepted, then it will be easy for every one who comes into the picture at the first instance, make a show of investment and claim that he has made huge investments and continue to be in the property forever. Rightly or wrongly and knowing fully well about the terms and conditions of the lease, and the period of lease, they have come into the properties. If they are foolish enough to make huge Investments in the hope that they will be able to get further extension of lease, they have to blame themselves. They cannot be allowed to take advantage of their own false sense of hope. Nor they can on that ground, be allowed to get away with the same.
....
The local bodies herein are not claiming any higher right. All the parties have entered into a contract which had come into existence after they became the highest bidders in the auction. Therefore, the petitioners are bound by the contracts. Therefore. when parties are governed by contracts, the parties can only resort to terms and conditions of the lease to ventilate their grievance or seek redressal. They cannot resort to a procedure under Article 226. Contractual obligations can never be enforced through Article 226. Further, the local bodies are not seeking to exercise any superior right or power. The leases/licenses have expired only by efflux of time. They want to reauction the properties. It is the common and ordinary right of the owner of the property to enjoy the property in the manner he wants. If the property is leased out for a particular period, the owner is entitled to reclaim the property after the expiry of the period and take further steps with regard to the same. Therefore, this is not a case where it can be stated that the local bodies are claiming any higher right. But what they want to exercise is only their rights under the terms and conditions of the lease. The contention that there cannot be two different standards with regard to normal activity is, in my opinion, not well founded. For there are no different standards at all obtaining. If we term the action of the local bodies in auctioning out the rights by way of public auction as a normal commercial activity, then, they are entitled to do so. Such a lease cannot be compared to a lease under the Tamil Nadu Buildings (Lease and Rent Control) Act. The contention of the learned Counsel based upon the view of the matter from the angle of the Tamil Nadu Buildings (Lease and Rent Control) Act is only a misplaced argument. They are two different fields, where different reasons govern the matter. It may be that the landlord under the Tamil Nadu Buildings (Lease and Rent Control) Act cannot claim more rent than that fixed unless he resorts to the provisions of the Act. It is also true that since the property is leased out, the tenant can hold the property forever unless the landlord claims that he requires the premises bona fide or the tenant commits default in payment of rent. The petitioners Counsel cannot draw an analogy from that to contend that since the property is leased out to the petitioners, they can continue to be in possession of the property for indefinite period of time and that they cannot be asked to pay over and above than what they were paying prior to that. The two enactments operate in two different fields. They cannot be mixed up. Nor an inspiration can be drawn to contend that there is any discrimination and different norms with regard to lessees and licencees of the local bodies.
7.12. In Ramaraju Vs. The State of Tamil Nadu and Others, , a Full Bench of this Court has held that encroachments on road margin, coming under the purview of the municipalities, can be removed only after following the procedures contained in Chapter IX of the Tamil Nadu District Municipalities Act, 1920, especially, the provisions contained in Sections 182 and 183(6) of the Act. The concerned municipalities, before initiating steps to remove the encroachments, shall issue notice to the encroachers, in writing, giving them atleast two weeks time to remove the encroachment. If the encroachers avoid receiving the notice, such notice can be effected by affixture and not by any other means, such as through public announcement or beating of drums or by general notice in newspapers.
7.13. In Kannan and Others Vs. The Commissioner, Panruti Municipality, , it has been held as follows:
The Municipality has got an absolute power over those properties. The Government has only a supervisory power over it. Under the District Municipalities Act, all its properties absolutely vest in the Municipality. In such a case, the Municipality has got absolute power to decide as to how its properties should be dealt with. In these cases, the Municipality has passed Resolution that it apprehends encroachment in its lands and public is also experiencing great difficulty in view of the location of the bunks. Of course, the petitioners dispute the above statement of the Municipality. But when a public body passes a Resolution taking into consideration the interest of the public, naturally the petitioners cannot claim that they should be permitted to continue the shops in the very same place.
....
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 is 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.
7.14. In V. Chellappa and another Vs. Commissioner, Tirunelveli Municipal Corp., Tirunelveli and another, , it has been held as follows:
These petitions are liable to be dismissed in view of the decision of the Supreme Court in AIR 1989 S.C. 1026 and State of Rajasthan Vs. Bhawani Singh and others, , wherein it has been held that non-statutory contracts and right touching an immovable property cannot be enforced under Article 226 of the Constitution.
For these reasons, I hold that the petitioners are not entitled to resist the right of the respondent to auction, because, such right springs from the very right of ownership of the property so long as there is no statutory prohibition. It can hold the property and put it to better use to augment more income in public interest in the manner most advantageous to it. Any direction not to hold auction or to renew the licences is nothing but putting a limit on such right, which is impermissible in law.
Therefore, the petitioners being licencees, where their right to collect fees is not affected during the subsistence of the licence period, they have no right to resist the action of the respondents either to bring the property to auction or confirmation of the auction already held or to refuse to renew any such licence.
7.15. In M. Palanisamy and others Vs. The Sriramapuram Town Panchayat, , it has been 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 Sales Tax Officer and Anr. v. Shree Durga Mills and Anr. 1997 (1) ST 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 gain. This jurisdiction is meant to preserve the right and not to create a right where the petitioners have no semblance of any right to see renewal where the properties were put to argument 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 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-leases 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.
In the counter affidavit filed on behalf of the third respondent, the averments and allegations made by the petitioner, in his affidavits filed in support of the Writ Petitions, have been denied. It has also been stated that it is false to state that the lease had been granted in favour of the petitioner''s father, for an extent of 6252.5 Sq.ft, in shop Nos. 3 and 4, in the Municipal bus stand, at Bodinaickkanur, in the year, 1974. In fact, shop Nos. 3 and 4, together, measures to an extent of 1750 Sq.ft only. The lease granted in favour of the petitioner, in respect of those shops, had expired, on 31.03.2009. The petitioner had not produced the ''no objection certificate'' from the Fire Service Department, as it is a necessary requirement for the renewal of the lease in his favour. Even though the lease had been granted to the petitioner only for an extent of 1750 Sq.ft, he is running a restaurant in an extent of 6252.5 Sq.ft, by encroaching upon the property belonging to Bodinaickkanur Municipality. The Revenue Divisional Officer, Uthamapalayam, had also conducted an enquiry, u/s 133 of the Criminal Procedure Code, 1974, to prevent the petitioner from causing nuisance. However, the petitioner is running the Hotel in question, on the strength of the interim order of stay granted by this Court, in the miscellaneous petition, in M.P.(MD). No. 1 of 2010, filed along with the present Writ Petition.
It has also been stated that the petitioner is not entitled to demand extension of lease in his favour, in respect of the larger extent of the property, contrary to the original lease granted in his favour. Further, the third respondent municipality is taking steps to demolish the illegal encroachments for the purpose of extension of the municipal bus stand at Bodinaickkanur and to provide better facilities to the public using the said bus stand. As such, the Writ Petitions filed by the petitioner are devoid of merits and therefore, they are liable to be dismissed, with costs.
In view of the averments made in the affidavits filed on behalf of the parties concerned and in view of the submissions made by the learned Counsels appearing on their behalf, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the relief, as prayed for, in the present Writ Petitions. The petitioner has not been in a position to show that he is entitled to the extension of the lease, for carrying on his business in the municipal bus stand, at Bodinaickkanur. in an extent of 6252.5 Sq.ft. It is not in dispute that the petitioner had filed a Civil Suit, in O.S. No. 155 of 2009, on the file of the District Munsif Court, Bodinaickkanur, praying for a decree of permanent injunction, against the second respondent. He had also obtained an order of interim injunction in his favour, in I.A. No. 154 of 2009. While so, it would not be appropriate for this Court to decide the issues arising for consideration in the said Civil Suit, in the present Writ Petition, at this stage. Further, nothing has been shown on behalf of the petitioner to substantiate his claim that the respondents had infringed the principles of legitimate expectation and promissory estoppel.
In fact, as per the lease agreement, the petitioner had agreed to vacate the premises in question, as and when it was found necessary, by the third respondent municipality, in public interest. In such circumstances, it is not open to the petitioner to demand that the lease, which had expired, on 31.03.2009, should be extended for a further period of three years, from 01.04.2009 to 31.04.2012. As such, the Writ Petitions are devoid of merits and therefore, they are liable to be dismissed. Accordingly, both the Writ Petitions are dismissed. Consequently, connected miscellaneous petitions are closed. No costs. However, it is made clear that it would be open to the concerned Civil Court to decide the issues arising for its decision, in O.S. No. 155 of 2009, on merits and in accordance with law, without being influenced by the observations made by this Court, in this order.