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Judgment
M. Venugopal, J.—The Petitioners have filed the present Writ Petition seeking the relief of Writ of Certiorarified Mandamus calling for the
records of the third Respondent in A2/2792/93 dated 21.5.2008 and to quash the same. Also, the Petitioners have sought for issuance of direction
by this Court in directing the Respondents to receive the rent already fixed.
According to the Petitioners, they are carrying on business as flower vendors in commercial complex, Mattuthavani, Madurai. Some of the
Petitioners are carrying on business from the year 1981. They possess the licence issued by the Madurai Corporation. Some of the Petitioners
obtained licences in their name by means of transfer.
The First Respondent/Commissioner of Agricultural Marketing Department and Marketing Society, Chennai-32, constructed a commercial
complex for Agricultural commodities at Mattuthavani. All the vendors carrying on similar business at various places have been allotted shops in
their complex.
On 3.9.2000, all the vendors have been directed to execute an agreement with the Third Respondent/Secretary, Madurai Marketing
Committee, Madurai, for purchasing the shop through their Associations. The Petitioners have submitted their deeds through their Madurai Flower
Merchants and Commission Agents Association. Those who are possessing licences from the Corporation, will get preference in the allotment.
Due to unforeseen reasons, the agreement of some of them have been misplaced and not found at the time of allotment of shops by the third
Respondent. The Petitioners with a bona fide intention to obtain allotment orders, submitted their Deeds and paid 15% of EMI(Equal Monthly
Installment) for their allotment through D.D. dated 1.9.2003 and 28.9.2004.
By means of proceedings dated 3.7.2003 and 8.3.2005, it is resolved by the Respondents to extend time upto 15.3.2005 for paying 15% of
EMI towards allotment. Some of the Petitioners have made the said payment. Even thereafter, the Respondents have not allotted shops to the
Petitioners on the pretext that their Deeds have not been found out. Hence, Allotments have not been made in favour of the vendors.
It is the case of the Petitioners that the Associations made a representation to the third Respondent stating that some of the member''s deeds
have been misplaced and refused to receive 15% EMI. Later, some of them approached this Court and obtained Allotment etc.
The Petitioners remitted 15% amount as per instructions furnished by the Respondents with a bona fide intention that the shops will be allotted
to them. But, their Deeds have been misplaced and hence, shops have not been allotted to some of them. Therefore, a representation has been
made to the District Collector and the District Collector by means of proceedings, dated 7.11.2006, held that shops shall be allotted to the
Petitioner on temporary rental basis determining monthly rent as Rs. 1430/- (Rupees one thousand four hundred and thirty only) for 600 square
feet and promised to make the said arrangement permanent. Totally, 5 shops situated at 300 meters from main building have been allotted to the
Petitioners and they shared them. Initially, 101 shops have been constructed and the same intended to be allotted to the flower vendors. 63 shops
have been allotted to flower vendors according to the names found in the Deeds by giving preference to those who are possessing licenses from
Corporation. Another 41 shops have been allotted to the remaining vendors. In these two allotments, though the Petitioners have made several
representations and appeared before the Respondents in person, they did not allot shops to the Petitioners. Only after approaching the District
Collector, Madurai, shops have been allotted to the Petitioners temporarily on rental basis on 7.11.2006. The said arrangements have been
accepted on the promise of the District Collector, Madurai, that subsequently steps will be taken to make these allotments permanent.
However, the First Respondent/The Commissioner Agricultural Marketing Department and Marketing Society, Chennai-32, by means of his
proceedings, dated 21.5.2008, has increased the rent from Rs. 1,430/-(Rupees one thousand four hundred and thirty only) to Rs. 4,447/-(Rupees
four thousand four hundred and forty seven only). The stand taken by the Petitioners is that the said order is an illegal one.
The learned Counsel for the Petitioners contends that the impugned order of the third Respondent in A2/2792/93 dated 21.5.2008 in increasing
the Rent from Rs. 1,430/-(Rupees one thousand four hundred and thirty only) to Rs. 4,447/-(Rupees four thousand four hundred and forty seven
only) is an illegal and not valid one in the eye of law because of the simple fact that the Petitioners have not been provided with an opportunity to
present their case and hence the same is in negation of principles of Natural justice.
The learned Counsel for the Petitioners advancing his arguments submits that the impugned order of the third Respondent dated 21.5.2008 has
not been served on the Petitioners and the impugned order has been passed behind their back.
Apart from the above, it is the contention of the learned Counsel for the Petitioner that increase in rent is an excessive one and without any
rational basis. In short, the impugned order of the third Respondent, dated 21.5.2008, is a non speaking one.
In the counter filed by the third Respondent, it is stated that it is the policy taken by consensus to shift the paddy commission merchant market
from the heart of the city in Nelpettai, flower market and input traders of agriculture to the present place in Mattuthavani and that the merchants of
paddy, flowers and agricultural inputs have been doing their respective business at the busiest place of Madurai town and the markets have created
traffic and other problems to the public. Therefore, the Government, the District Administration, Madurai Corporation and the Respondents have
decided to construct an oriental market at Mattuthavani, Madurai, by the Respondents to the paddy merchants, flower merchants and agriculture
input traders for shifting the business from the heart of the city.
The Learned Special Government Pleader for the third Respondent submits that about 143 paddy shops and 54 input shops and 100 flower
shops haven been constructed and that 1.3.1999, the foundation stone for the construction has been laid by the Hon''ble Minister for Agriculture
and that it has been decided to have the agreement by the third Respondent with proposed purchasers on 3.9.2000. Moreover, on 5.5.2000, it
has been decided in negotiation that 15% of the amount is to be received in advance and the draft agreement has also been prepared after
negotiations.
The Learned Special Government Pleader for the Third Respondent/Secretary, Madurai Marketing Committee contends that the Petitioners
have been admitted into possession as a licencee initially and not as tenants and as a matter fact they have to obtain permission from the first and
the second Respondents for regularising them as tenants. According to the Learned Special Government Pleader for the third Respondent, the
agreements have been signed with other traders on 3.9.2000. The Petitioners have not come forward at that point of time to sign the agreement on
3.9.2000 with the third Respondent. Only the traders who has signed the agreement on 3.9.20000 have been allotted shops. Although the
Petitioners have not been signed in the agreement during September 2000, only on the basis of welfare grounds, five shops out of twelve shops
have been allotted on Rental basis to the Petitioners from 8.11.2006.
On 8.11.2006, when the flower merchants have been shifted to the oriental market complex and to a private market place in Villapuram, the
individuals who have not obtained shops in either of the place approached the Second Respondent/District Collector, Madurai, for allotment of
shops. On the basis of petition and as per orders of District Collector and Revenue Divisional Officer, the Petitioners have been accommodated in
five shops and in the remaining vacant 12 shops as an interim temporary measure. At the time of providing the temporary arrangement, the damage
for use and occupation for 600 sq.ft. shop have been fixed by the first Respondent at Rs. 1430/- (Rupees one thousand four hundred and thirty
only) as per Public Work Department norms.
The shops have not been actually constructed for the purpose of letting out to the Petitioners. The number of shops have been determined and
for input Traders Association, more number of shops were originally built. They have not applied in the proper forms and at the appropriate time.
The 12 shops for Input Traders have been remained vacant and on the basis of the petition projected by the Petitioners, a temporary decision have
been taken by the Second Respondent/District Collector, Madurai, to allot five shops to the Petitioners. The order of the Revenue Divisional
Officer clearly mentions that it is a transitory measure. The rent fixed at the time of occupation has been received as for damages and for use and
occupation at Rs. 1430/-(Rupees one thousand four hundred and thirty only) for an extent of 600 sq.ft. shop. Presently, the fair rent has been fixed
as per Public Works Department norms. The fixation of fair rent at Rs. 4,447/-(Rupees four thousand four hundred and forty seven only) has been
informed to the Petitioners through a letter dated 21.5.2008 by the third Respondent.
The amount at the rate of Rs. 1430/-(Rupees one thousand four hundred and thirty only) for 600 sq.ft shop is for the period of 8.11.2006 to
31.7.2007 after the land guideline valuation has been increased by the Government of Tamil Nadu with effect from 1.8.2007 prospectively and not
retrospectively.
The Learned Special Government Pleader for the third Respondent submits that the Petitioners, who have not paid the Rent can be evicted
and the Respondents intends to take appropriate action for recovery of the fair rent and when the same has been intimated to the associations and
beneficiaries, for getting earlier recovery, and the fair rent, the Petitioner have filed the Writ Petition to protect themselves.
The Learned Special Government Pleader brings it to the notice of this Court that original proposal to construct about 60 shops have been
constructed for the Agricultural Input Traders(AIT) and that the members who has given 44 applications have been allotted with 44 shops and the
balance 16 shops have not been allotted. The Agricultural Input Traders Associations preferred W.P. No. 8742 of 2005 before this Court on
16.11.2005. The Writ Petition has been disposed of by this Court granting liberty to the third Respondent and the first Respondents to bring the
remaining shops by calling for tenders from such of those eligible traders who are doing the trade in agricultural inputs with license. Therefore, the
Petitioners are bound to follow the orders passed by this Court in W.P. No. 8742 of 2005 and only for this reason, the third Respondent has not
so far regularized the tenancy of the Petitioners.
The Petitioners and other flower merchants applied for allotment of shops in the remaining shops originally constructed for the Input Traders on
31.1.2007 to the first Respondent. Subsequently, the Petitioners filed W.P. No. 8799 of 2007 and this Court has directed the Respondent to
consider the representation given by the Petitioners within a period of eight weeks. Thereafter, the first Respondent after considering the
application in letter No. MCS4/4572/94 dated 10.04.2008 has communicated to the Petitioner that for flower merchants only 100 shops have
been constructed and all of them have been allotted to the flower merchants and also that there is no proposal available to construct more shops.
Lastly, the contention of the Learned Special Government Pleader that the rent at Rs. 4447/-(Rupees four thousand four hundred and forty
seven only) for 600 sq.ft shop has been fixed as per Public Works Department norms after taking into account, the location, proximity to bus
stand, land value, available amenities and other aspects. The amount of Rs. 1430/-(Rupees one thousand four hundred and thirty only) has been
fixed as per Public Work Department norms. The amount fixed is not exorbitant and it is only fair rent as per the norms of the Government.
In reply additional affidavit filed on behalf of the Petitioners it is averred that due to unforeseen reasons, their applications have been found
missing at the time of due date and the criteria for allotment of land as per Notification itself is payment of 15% and when the Petitioners have
submitted 15% and the same has been admitted by the Respondents. It is not proper on the part of the Respondent not to allot the shops in
respect of the Petitioners and that time for 15% payment has been periodically extended and also that the Petitioners are entitled to be given
permanent allotment in the existing shops or newly constructed shops.
In the additional counter filed on behalf of the third Respondent in paragraph Nos. 3 and 5 and 6, it is averred as follows:
I humbly submit that the above writ Petitioners had never entered into any agreement with this Respondent, which is the fundamental request for
the allotment of shop, and the writ Petitioners do not have any locus standi to ask for allotment of flower shops. Even without entering any
agreement for allotment of shop the 1st, 2nd, 3rd, 5th, 6th, 7th and 13th writ Petitioners have cleverly and cunningly had sent the 15% of the sale
price to this Respondent. In the course of the business transaction, this Respondent had received the amount and only after the later date, it was
found that the Petitioners did not enter into any agreement with this Respondent for allotment of shops in their favour. Further it is submitted that
the 4th, 8th, 9th, 10th and 11th Petitioners have not entered any agreement with the Respondent and had send the 15% of the sale price of the
shops to this Respondent and same was rightly refused by this Respondent and the 12th Petitioner had never entered into the agreement and also
not paid any amount to this Respondent. So, the writ Petitioners are only strangers for the allotment of the shops and they do not have any right to
claim any allotment of shops in their favour without entering into the agreement with this Respondent.
I submit that the agreements were signed by the other traders on 3.9.2000. But the Petitioners herein did not come forward to sigh the
agreement at that time with this Respondent on 3.9.02000. Only those traders who signed the agreements on 3.9.2000 were allotted shops. It is
stated that when the flower merchants were shifted from the existing place to the paddy market complex and to a private market complex in
Villapuram on 8.11.2008. The Petitioners could not get shops in either of the places moved the District Collector, Madurai for allotment of shops.
Even though Petitioners did not participate and signed the agreement on third September 2000, only out welfare grounds. On the basis of the
Petitioner and as per the orders of the District Collector and Revenue Divisional Officer, the Petitioners were accommodated in 5 shops in the
remaining vacant 12 shops constructed for the agricultural input traders purely as a temporary measure. It is to be stated here that at the time of
making the temporary arrangement the damage for use and occupation for 600 sq.ft shop was fixed by the third Respondent at R.1430/- as per
Public Works Department norms from 8.11.2006. Due to the revised land cost as on 1.8.2008 the rent was refixed at Rs. 4447/- per month.
I submit that 50 shops measuring 300 sq.ft. and 50 shops measuring 150 sq.ft were constructed in paddy complex. As per G.O. Ms. No. 166
Agriculture, (A.M.III) Department, dated 3.10.2006, out of 100 shops constructed for the flower merchants, 35 shops with 300 sq.ft and 28
shops with 150 sq.ft. were allotted to the 63 eligible traders. Finally as per G.O. Ms. No. 354 Agriculture (A.M.III) Department, dated
23.11.2006, 10 shops measuring 300 sq. ft and 22 shops measuring 150 sq.ft were allotted to 32 eligible traders and the remaining 5 shops
measuring 300 sq. ft were divided into 10 shops measuring 150 sq. ft. and the same were allotted to 9 traders, the unallotted portion of 150 sq.ft.
was kept by this Respondent for the office purpose. So, this Respondent humbly submits that there is no vacant shops in the flower shops
construct in the Paddy Complex.
The learned Counsel for the Petitioners submits that an enhancement of Rent from Rs. 1430/-(Rupees one thousand four hundred and thirty
only) to Rs. 4447/-(Rupees four thousand four hundred and forty seven only) with retrospective effect from 8.11.2006 as per impugned order
dated 21.5.2008 is not correct and further, the third Respondent cannot fix the rent by increasing the same in exorbitant and excessive manner and
that of in a arbitrary manner. The learned Counsel for the Petitioner to lend support to the said contention relies on the decision of this Court in
M.K.M. Geeyavudeeen in W.P. No. 4420 of 2007 and Ors. v. The Commissioner, Pudukkottai Muncipality, Pudukkottai in all W.P.s reported in
2008-2-L.W. 219 at page 220 wherein it is held that the Tamil Nadu Municipalities Act by itself does not contain a provision either for letting out
the buildings owned by municipalities or the method of fixation of the rental value of such buildings. It is only by the executive fiat that the
Government had been directing the municipalities to adopt some method of fixation of fair rent. In the absence of a specific provision in the Act, the
recourse to the method of fixation of fair rent as provided under the Tamil Nadu buildings (Lease and Rent Control) Act, alone, could provide a
scientific and logical basis for the fixation of fair rent.
Per contra, the Learned Special Government Pleader for the third Respondent cites the order of this Court in W.P. (MD) No. 6598 of 2005
dated 13.9.2005 in R. Chandran v. The Chief Executive Officer and three others wherein it is held as hereunder:
I do not find any reason to entertain this Writ Petition as the relief sought for is totally extraneous not coming under Act 226 of the Constitution of
India. Hence, this Writ Petition is dismissed. No costs. Consequently, connected W.P.M.P. is closed.
He also relies on the order dated 16.11.2005 in W.P. (MD) No. 8742 of 2005 in the Agricultural Input Traders v. The Commissioner,
Department of Agricultural Marketing and Agri-Business CIPET Road, Chennai and Anr. wherein at paragraph Nos. 5 and 7 it is observed as
follows:
In my opinion, in the absence of any agreement between those members and the Respondents for allotment of shops, the Respondents cannot
be directed either to consider the representation for allotment of shops or to allot the shops in their favour. In a matter of allotment of shops
belonging to the Coporation, it would be only proper for the second Respondent to call for tenders from the public, stipulating the eligibility criteria
for making application and allot the shops. The remaining shops shall be treated as vacant and unallotted and those shops allotted only by calling
for tenders.
Under the circumstances, the relief sought for in this Writ Petition cannot be ordered and this Writ Petition is dismissed. The Respondent is at a
liberty to bring remaining 10 shops for allotment by calling for tenders from such of those eligible traders who are doing the trade in agricultural
inputs with the license. Initially, 60 shops were allotted and the learned Special Government Pleader submitted that out of 60 shops only 6 shops
have been now ear-marked for godown. It is made clear that though 6 shops shall be utilized by the Respondent only for godown and the same
cannot be allotted to any third party individuals.
Also, in W.P. (MD) Nos. 10526 and 10527 of 2006 this Court, on 9.7.2007, in M. Nachippan and Palanisamy v. The Agricultural
Production Commissioner cum Secretary to Government Commissioner, Agricultural Department Government of Tamil Nadu, Fort ST. George,
Chennai-9 and two Ors. in paragraph Nos. 11 and 12 laid down as follows:
It is also stated that the licensee having business for a period of two years, have entered into an agreement as per the understanding between
the Association and the Respondents herein. In the absence of any agreement made and confirming to the norms for the purpose of allotment, and
confirming to the norms for the purpose of allotment, the Petitioners are not entitled to have the prayer granted by this Court. The Respondents are
correct in saying that the remittances were made in the year 2005. As such, the fact is that the plea of the Petitioner cannot confer any right on
them, merely, because they have made an application and was received by the Respondents herein. 12. In the face of the factual position that there
had not been proper compliance of the terms of allotment, I do not find any justification to grant the relief. However, it is open to the Petitioners to
make necessary application to the Respondents herein to review their case subject to the availability of space for allotment.
A perusal of the impugned order of the third Respondent dated 21.5.2008 indicates that the Executive Engineer of Tamil Nadu State
Agricultural Products Sales Board, Chennai. has determined rent for 600 sq.ft. per shop from 17.2.2005 at Rs. 1430/-(Rupees one thousand four
hundred and thirty only) and from 1.8.2007 for shop measuring area of 600 sq.ft, the revised monthly rent has been determined at Rs. 4447/-
(Rupees four thousand four hundred and forty seven only).
The Learned Special Government Pleader for the third Respondent submits that the Petitioners are only licencee and not lessees and if they
dispute the amount of Rent fixed as per proceedings of the third Respondent dated 21.5.2008, they have to agitate before the competent civil
forum and they cannot approach the writ jurisdiction and as such, the Writ Petition is not maintainable before this Court.
Countering the submissions of the learned Counsel for the third Respondent, the learned Counsel for the Petitioners submitted that the
Respondents are the agents of state and as such the present Writ Petition filed by the writ Petitioners praying for the relief that the impugned order
of the third Respondent dated 21.5.2008 in increasing the rent from Rs. 1430/-(Rupees one thousand four hundred and thirty only) to Rs. 4447/-
(Rupees four thousand four hundred and forty seven only) with retrospective effect from 8.11.2006 is not maintainable and valid.
As far as the present Writ Petition is concerned, the Petitioners submit that the proceedings of the third Respondent dated 21.5.2008 in regard
to the increase of the fixation of the rent from Rs. 1430/-(Rupees one thousand four hundred and thirty only) to Rs. 4447/-(Rupees four thousand
four hundred and forty seven only) with retrospective effect from 8.11.2006 is an illegal one. But, the third Respondent has taken a specific plea
that the rent of Rs. 1430/-(Rupees one thousand four hundred and thirty only) which has been fixed is according to Public Works Department
norms and the amount of Rs. 4447/-(Rupees four thousand four hundred and forty seven only) for 600 sq. ft. of shop is a proper rent taking into
account of the location, proximity to bus stand, the land value, the amenities provided and other aspects. In short, the plea of the third Respondent
is that the increased rent at Rs. 1430/- for 600 sq.ft of shop from 17.2.2005 and from 1.8.2006 for 600 sq. ft. of shop at revised state of Rs.
4447/-(Rupees four thousand four hundred and forty seven only) is a fair and reasonable one and the same does not suffer from any serious
material irregularity or patent illegality.
It is to be borne in mind that a licence is normally created where a person is granted the right to the premises without becoming entitled to
exclusive possession of them or the circumstances and conduct of the parties show that all that was intended was that the grantee should be
granted a personal privilege with no interest in land. A mere licence does not create any estate or interest in the property to which it relates; it only
makes an act lawful which otherwise it would be unlawful(HALSBURY, 4th Edn., Vol. 27, paras 8 and 9,p.16)
Further, in determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and
licensee the decisive consideration is the intention of the parties (HALSBURY, 4th Edn., Vol. 27, para 6, p.13).
Lease is defined as per Section 105 of Transfer of Property Act, A lease creates a right or an interest in the enjoyment of the demised
property. A renewal of a lease is really a grant of fresh lease though it postulates the existence of a prior lease.
On a careful consideration of respective contentions and in view of the fact that the third Respondent has taken a legal plea that the Petitioners
are not lessees and they are only licencees and also that the proper rent has been fixed as per Public Works Department norms it has been
mentioned in the third Respondent''s proceedings dated 21.5.2008 But the same being disputed by the Petitioners this Court is of the considered
view that disputed questions of fact like whether the Petitioners are lessees or licensees or whether the fair rent claimed by the third Respondent as
per his proceedings dated 21.5.2008 is a correct one or not cannot be gone into in the present Writ Petition. These aspects will have to be
determined through oral and documentary evidence before competent forum in the manner known to law and in accordance with law and viewed
in that prospective, this Court disposes of the Writ Petition by directing the Petitioners to approach the competent forum in regard to the
determination or fixation of fair rent for the shops in question and to seek appropriate remedy thereto in the interest of justice within a period of
four weeks from the date of receipt of copy of this order.
Further, this Court directs the third Respondent to provide a copy of the working sheet relating to the details of calculations in arriving at the
fair rent fixed as per proceedings of the third Respondent dated 21.5.2008 so that the Petitioners are put on notice as to the claim made by the
third Respondent in his proceedings dated 21.5.2008 to prevent aberration of justice and also to keep in tune with the adherence to principles of
natural justice to throw light as regards the mode, manner and method of determination of the rent specified in the proceedings dated 21.5.2008 of
the third Respondent.
In the result, the Writ Petition is disposed of. No costs. Consequently, connected M.Ps are closed.