High Court · 2011

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.06.2011CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NOs.19152 and 19755 of 2009andM.P.Nos.1,2,1,2 and 3 of 2009Cuddalore Bus Stand and Lawrence Road Shop Traders Welfare Sangamrep by its President No.3, Lawrence Road,Cuddalore-602 002.(Regd.No.2 of 2009).. Petitioner in W.P.No.19152 of 20091.D.Radhakrishnan2.R.Uma, Shop No.8, Lawrence Road,Cuddalore-2.3.R.Uma, Shop No.9, Lawrence Road,Cuddalore-2.4.G.M.Vinoth Kumar, Shop No.10, Lawrence Road,Cuddalore-2.5.G.M.Vinoth Kumar, Shop No.11, Lawrence Road,Cuddalore-2.6.R.Subramaniyam7.M.S.Thippusulthan8.P.Krishna Sami9.R.Ramanujam10.G.Jambukeswaran11.S.Suseela12.K.Balachand13.A.M.Ayub Shop No.19, Lawrence Road,Cuddalore-2.14.A.M.Ayub, Shop No.20, Lawrence Road,Cuddalore-2.15.S.Vaithiyanathan16.R.Balamurugan17.R.Velmurugan18.A.Mallikammal19.R.Jeevaratchagan20.A.Arumugam21.R.Babu Naidu22.S.Ramasami23.C.Mohanraj24.A.Sivakumar25.J.KRishnamurthi26.K.Shanmugam Shop No.8, Rear Side Bus Stand,Cuddalore-2.27.K.Shanmugam, Shop No.9, Rear Side Bus Stand,Cuddalore-2.28.A.Sivakumar https://hcservices.ecourts.gov.in/hcservices/

29.A.Palani30.K.Govindarajan31.G.Jambukeswaran32.S.Venkatachalam33.N.Ezhil Arasan34.D.Shanmugam35.P.Dhatchinamurthi36.R.KAsthuri37.K.K.Varadan38.H.Elias39.K.Ravichandran40.S.Parivendhan.. Petitioners in W.P.No.19755 of 2009Vs.1.The Secretary to Government of Tamil Nadu, Municipal Administration & Water Supply Department, Fort St. George, Chennai-600 009.2.The Commissioner of Municipal Administration, Office of Municipal Administration, Ezhilagam, Chennai-600 005.3.The Commissioner, Cuddalore Municipality, Cuddalore Post and District... Respondents in both writ petitions Both writ petitions are preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records pertaining to theletter of the second respondent bearing Na.Ka.No.18563/2008/FB3,dated 01.09.2008 culminated with the notice cum intimation order ofthe third respondent dated 04.08.2009 and quash the same and todirect the respondents to reallot the shops as per the thirdrespondent's resolution No.192, dated 30.03.2007 in pursuance ofrelevant Government orders i.e. G.O.(2D) No.147, MA&WS Department,dated 30.12.2000, G.O.Ms.No.92, MA&WA Department, dated 03.07.2007and G.O.Ms.No.150 MA&WA Department, dated 06.09.2007. For Petitioners : Mr.V.Raghupathi in both W.Ps.For Respondents : Ms.C.Devi, GA for RR1 and 2 in both W.Ps. Mr.M.Dhandapani, Spl.G.P. for R-3 in both W.Ps. COMMON ORDERThe first writ petition was filed by Cuddalore Bus Standand Lawrence Road Shop Traders Welfare Sangam, represented by itsPresident. It is claimed that it was a registered association with https://hcservices.ecourts.gov.in/hcservices/ Registration No.2 of 2009. The original prayer in the first writpetition is to challenge the notice cum intimation order of thethird respondent Cuddalore Municipality, dated 4.8.2009 and aftersetting aside the same, seeks for a direction to the respondents toreallot the shops to the petitioners as per the resolution of theMunicipality No.192, dated 30.3.2007 as well as the GovernmentOrders in G.O.(2D)No.147, MA&WS Department, dated 30.12.2000 andG.O.Ms.No.92, MA&WS Department, dated 3.7.2007. Subsequently, thepetitioner had moved an application in M.P.No.3 of 2009 seeking foramendment of the prayer which was also ordered by this court on18.11.2009.2.By the amended prayer, the petitioner seeks to set asidethe order, dated 1.9.2008 which culminated into a notice dated4.8.2009 and after setting aside the same, seeks for a direction toreallot the shops as per the resolution No.192, dated 30.03.2007 aswell as two Government Orders as referred to above and alsoG.O.Ms.No.150, MA&WS Department, dated 06.09.2007. 3.While the first writ petition was pending, individualshop keepers numbering 40 persons have filed the second writpetition in W.P.No.19755 of 2009 with same prayer as well as by asimilar amendment made subsequently. 4.In both writ petitions, notice was taken for theMunicipality by Mr.M.Dhandapani, learned Special Government Pleaderand for first and second respondents, Ms.C.Devi, learned GovernmentAdvocate took notice. 5.Heard the arguments of Mr.V.Raghupathi, learned counselappearing for petitioners and also the respective counsels forrespondents.6.By the impugned order, dated 4.8.2009, a reference wasmade to the order of the Commissioner of Municipal Administration,dated 1.9.2008. By the aforesaid order, the second respondent haddirected the third respondent that the Government Order made inG.O.Ms.No.916, Rural Development cum Local Authority Department,dated 15.6.1984 was cancelled by the Government by G.O.(2D)No.85,MA&WS Department, dated 19.7.2000. In view of the same, shops newlybuilt by the Municipality need not be given to old lessees withoutpublic auction and by fixing rent. Therefore the Municipality wasinformed that as and when the Municipality demolishes the old shopsin the bus stand and built new shops, there was no question ofavoiding a public auction for allotting the shops. It is pursuantto the said order, the impugned order of the Municipality came tobe issued on 4.8.2009. The Municipality after referring to theGovernment Order, had stated that the newly built shops will begiven on public auction and will be given to the highest biddersand after getting approval with the Municipality they will beallotted. Therefore, the deposited amounts made by the petitionersthrough bank drafts were directed to be refunded to thepetitioners. https://hcservices.ecourts.gov.in/hcservices/

7.Mr.V.Raghupathi, learned counsel for the petitionerssubmitted that shops in the bus stand were allotted by theMunicipality on payment of monthly lease rent 35 years ago. On25.01.2007, the Municipality had informed the shop keepers aboutthe proposed demolition. On 8.3.2007, a joint meting between themembers of the association and the Municipal Commissioner was held.Thereafter, the Municipality had passed a resolution No.192, dated30.3.2007. By the resolution, the Municipality had decided todemolish the shops and building, but while building new shops, theywill be allotted to the old shop keepers provided the old shopkeepers will deposit whatever the amount of cost to build the shop.After construction of the shops, they will be allotted to samepersons who are now paying rent and they must pay the rent fixed bythe P.W.D. The lease will be renewed once in three years fixingrevised rent. In case the shop keeper is no more, the same will beallotted to a person who is taking the shop in auction. It ispursuant to the said resolution, notices were issued to shopkeepers to vacate the places and also to pay the deposits forconstruction of new building. The estimates for each one of themare intimated. The petitioners have also paid the amount pursuantto the final notices issued to them. The rates fixed for the shopswere Rs.1,74,435/-, Rs,1,29,630/- and Rs.69,315/- respectively. 8.It was stated that the Commissioner of the thirdrespondent had also agreed to issue letter of assurance. But,however on 30.12.2008, the Municipality had issued notices to themembers to vacate the shops. A writ petition in W.P.No.694 of 2009was filed by the Sangam to quash the notices. On 22.01.2009, anorder of interim injunction was granted restraining the respondentsfrom allotting the shops to non members. The court while grantinginjunction had noted that since each of members have paid aroundRs.1 lakh for the construction of new shops, the interim order willcontinue. As per the order of this Court, the members have vacatedthe shops. But, since the new construction had not started, anapplication in M.P.No.3 of 2009 was filed in that writ petitionseeking for a direction to the third respondent to complete thereconstruction of the building. On 7.8.2009, a counter affidavitwas filed by the Municipality stating that as per G.O.(2D)No.85,MA&WS Department, dated 19.7.2000, the deposit amount was sought tobe returned. Therefore, by the impugned order, the direct allotmentwas dispensed with. The action of the respondents cancelling theearlier order and refunding the amount is illegal. 9.In the counter affidavit filed by the third respondent,while these facts were clearly admitted, but with reference tocancellation, the Municipality took the following stand inparagraphs 7 and 8 of the counter, which reads as follows:"7.This respondent submits that apart from that asper G.O.Ms.No.2D No.85 dated 19.07.2000 it wasspecifically stated that the earlier occupants ofthe shop cannot be permitted to continue after newconstruction without bringing the constructedbuilding in public auction. So as per the G.O., itis not possible for this respondent to allot the https://hcservices.ecourts.gov.in/hcservices/ proposed newly constructed shops to the 40 vendorswithout conducting public auction as detailed above.The earlier occupants have got right to participatein the public auction and if they are highest bidderthey can occupy the premises as per the Provision ofLaw. 8.It is submitted that this respondent has filed thecounter by stating that the amount deposited by thepetitioner to a tune of Rs.50,43,439/- were returnedback to the concerned parties by giving properinformation that after completion of construction ofshops in the bus stand the said shops will not behanded over to the old occupiers as per thedirection of Municipal Administration, Chennai andfresh auction will alone conduct as per usualprocess and shops will be handed over to the highestbidder in the public auction and all the publicincluding the petitioner can participate in thepublic auction. Now in order to stop the proposedpublic auction, the petitioner have come forwardwith the above writ without any basis with malafidemotive, since the petitioner has filed vexatiouswrit in W.P.No.694/2009 was dismissed as infructuouson 17.08.2009 having obtained an order of dismissalby raising the very same with slight change ofpleading is not maintainable in law and thepetitioners are estopped from disputing the same atthis stage and the claims caused by recidivatealso."10.With reference to the alleged promise by theMunicipality, in paragraph 9, the following averments were made,which reads as follows:"9....The resolution was passed in favour of thepetitioner and the same was forwarded to thecontrolling authority for approval. The controllingauthority has rejected the request and informed thatthere is no rule to collect the deposit without anypublic auction. ...The respondent never promised the members of thepetitioner for allocation of shops. Every resolutionhas to be approved by the controlling authority,whenever the resolution passed by the councilviolating the G.O./Rules/Guidelines. Accordingly,the executive authority has rejected the request inaccordance with the G.O."11.Mr.V.Raghupathi, learned counsel for the petitionerssubmitted that the Municipality is clearly estopped from resilingfrom the earlier promise made. This was especially when each of theshop keepers were directed to pay approximately the costs of theconstruction and they were made to vacate the shops. He alsosubmitted that it is not as if the Municipality abide by the https://hcservices.ecourts.gov.in/hcservices/ Government directions. In several cases, they were allotted shopsin Lawrence Road on the basis that they have been running shops fornumber of years and those shops were never brought to publicauction. Even in case of transfer, they were also allowed to be infavour of new persons. Copies of such documents were also enclosedin the form of additional typed set filed on 25.11.2009.12.The learned counsel for the petitioners referred to anorder of the State Government in G.O.No.150, MA&WS Department,dated 06.09.2007, wherein they have allotted shops for the oldlessees. The State Government has no right to cancel the Municipalresolution. Under the provisions of the District MunicipalitiesAct, there is no power vested with the Municipality. But thisargument overlooks Section 36 of the District Municipalities Act. 13.The learned counsel referred to a judgment of this Courtin P.Arunodhayam and another Vs. Secretary to Government, RevenueDepartment, Government of Tamil Nadu, Fort St. George, Chennai andothers reported in 2008 (3) CTC 563 to state that publicauthorities' auction should be based upon reasons and it should notbe unreasonable, irrational and violative of fairness in action. Insuch circumstances, promissory estoppal will apply. 14.The learned counsel further referred to a judgment ofthe Supreme Court in State of Bihar and others Vs. Kalyanpur CementLimited reported in (2010) 3 SCC 274 and stated that therespondents are bound to honour the earlier resolution. He referredto the following passages found in paragraphs 35,36 and 79 of thesaid judgment which reads as follows:"35.In our opinion, the aforesaid statement of lawcovers the submissions of Dr. Dhavan and Mr Dwivedithat in order to invoke the aforesaid doctrine, itmust be established that:(a) a party must make an unequivocal promise orrepresentation by word or conduct to the other party;(b) the representation was intended to create legalrelations or affect the legal relationship, to arisein the future;(c) a clear foundation has to be laid in thepetition, with supporting documents;(d) it has to be shown that the party invoking thedoctrine has altered its position relying on thepromise;(e) it is possible for the Government to resile fromits promise when public interest would be prejudicedif the Government were required to carry out thepromise;(f) the Court will not apply the doctrine inabstract. https://hcservices.ecourts.gov.in/hcservices/ However, since the judgments have been cited, we maynotice the law laid down therein.36.In STO v. Shree Durga Oil Mills4 it was held that:(SCC p.580, para 25)“25. Moreover, as it has been noted earlier that theIPR itself had not granted any exemption but hadindicated that orders will be issued by variousdepartments for granting the exemptions. Theexemption order under sales tax could only be issuedunder Section 6 which could be amended or withdrawnaltogether. This is expressly provided by Section 6.If the respondent acted on the basis of anotification issued under Section 6 it should haveknown that such notification was liable to be amendedor rescinded at any point of time, if the Governmentfelt that it was necessary to do so in publicinterest.”79.We are also unable to accept the submission thatthe decisions dated 6-1-2001 and 5-3-2001 had beentaken due to the change in the national policy. Thiswas sought to be justified by Dr. Dhavan on the basisof the Conferences of Chief Ministers/FinanceMinisters. It is settled law as noticed by Bhagwati,J. in Motilal Padampat9 that the Government cannotclaim to be exempt from the liability to carry outthe promise on some indefinite and undisclosed groundof necessity or expediency. The Government isrequired to place before the Court the entirematerial on account of which it claims to be exemptfrom liability. Thereafter, it would be for the Courtto decide whether those facts and circumstances aresuch as to render it inequitable to enforce theliability against the Government. Mere claim ofchange of policy would not be sufficient to exoneratethe Government from liability. It is only when theCourt is satisfied that the Court would decline toenforce the promise against the Government. However,the burden would be upon the Government to show thatit would be inequitable to hold the Government boundby the promise. The Court would insist on a highlyrigorous standard of proof in the discharge of thisburden.15.The learned counsel further referred to the fact that insome of the cases, the Municipality had given direct allotmentinstead of going through public auction. 16.In the present case, it must be noted that the secondrespondent being the Controlling Authority had directed theMunicipality to adhere to the Government norms in the matter ofallotment of shops. There is no escape for the Municipality from https://hcservices.ecourts.gov.in/hcservices/ obeying the order of the Government. Further, all resolutions ofthe Municipality council cannot become binding on the Commissioner.Unless resolutions are in accordance with the rules and regulationsand directives of the Government, the Commissioner cannot bedirected to obey such resolution. For the question of allotment ofshops to same shop keepers, if such an action is taken and enforcedthrough Court, the same will be repugnant to rule of law. The Courtcannot be a party to such an illegal act. If petitioners aredesirous, they must also follow the same route. One illegal actwill not confer any enforceable right on the petitioners. In thematter of exemption, there cannot be any equal.17.In this context, the respondents referred to a divisionbench judgment of this Court in A.Sathar Vs. The DistrictCollector, Coimbatore and another reported in AIR 1998 MADRAS 217,wherein this Court held in paragraph 2 as follows:"2....We are of the view that the extension of thelease to the appellant is against the interest ofthe Panchayat. As already noticed the rental incomefrom the properties owned by the Panchayat is one ofthe sources of income to the Panchayat. Therefore,the interest of the Panchayat cannot be jeopardisedby permitting the appellant to continue inpossession of the premises in question at theenhanced rate of 15 per cent as prayed for. Thereare absolutely no merits in this writ appeal and thesame is dismissed."18.A further reference was made to a division benchjudgment of this Court in DCW Ltd. Vs. The State of Tamil Nadu andothers reported in AIR 2005 MADRAS 264. The following passagesfound in paragraphs 14 and 23 of the said judgment may be usefullyextracted below: 14.It is well settled in the aforesaiddecisions that property belonging to theGovernment or an instrumentality of the State is notprivate property, and hence it cannot be disposedoff at the sweet will of the authorities inany manner they choose. Such property can only begiven by the State or instrumentality of Stateordinarily through public auction/public tender asheld in Selvarani's case cited supra (2005 (1) CTC81). Public property is not largesse which canbe given by the Government to anybody. Since theappellant was given the grant only as temporaryoccupation for a period of twelve years, theycannot insist that the grant be continued even aftertwelve years as of right. If the appellant has madeany investment on the said land they should haverealized that after twelve years they have to vacatethe land, and it is not that they have aright to continue in possession of the land till https://hcservices.ecourts.gov.in/hcservices/ eternity. The appellant has no monopoly over thesaid land which belongs to the Government. Afterexpiry of the lease the public propertyshould be put to public auction/public tenderafter advertising it in well-known newspapers havingwide circulation, so that there is transparency inthe matter and all eligible persons can apply. Inthis way, Article 14 of the Constitution of Indiawill be complied with, otherwise it will beviolated. 23.Moreover, in our opinion, the petitioner'sconduct also disentitles it for relief under thediscretionary jurisdiction of Article 226 of theConstitution. When a person remains in occupationof a property, even after his grant has expired,he is not acting in a fair manner. There was nofresh grant or renewal in favour of the petitionerafter 12 years period, which expired on31.03.2003. Without a fresh grant of lease, theoccupation of the land in question by thepetitioner was totally illegal andunauthorized. We are not inclined to exerciseour discretion under Article 226 of the Constitutionin favour of such unauthorized occupants, whatevermay be the merits of the case....."19.In the light of the same, this court is not inclined tointerfere with the impugned order. Hence both the writ petitionswill stand dismissed. However, there will be no order as to costs.Consequently, connected miscellaneous petitions stand closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarvvkTo1.The Secretary to Government of Tamil Nadu, Municipal Administration & Water Supply Department, Fort St. George, Chennai-600 009.2.The Commissioner of Municipal Administration, Office of Municipal Administration, Ezhilagam, Chennai-600 005.3.The Commissioner, Cuddalore Municipality, Cuddalore Post and District.+ 1 cc to M/s. M. Dhandapani, SR.33060+ 2 cc to Mr.V. Raghupathi, SR.32352, 32353W.P.NOs.19152 and 19755 of 2009RK(CO)Eu 15.6.11