P. Dakshinamurthy v. Cuddalore Municipalityrep. by its CommissionerCuddalore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.09.2007CORAMTHE HONOURABLE MR. JUSTICE K. RAVIRAJA PANDIANANDTHE HONOURABLE MRS JUSTICE CHITRA VENKTARAMANWRIT APPEAL NOs.2310 and 2395 OF 2001ANDW.P.M.P.NO.18002 OF 2001P. Dakshinamurthy... Appellant in WA.No.2310 of 2001C. Ramamurthy... Appellant in WA.No.2395 of 2001Vs.Cuddalore Municipalityrep. by its CommissionerCuddalore.... RespondentWrit Appeals filed against the orders made in W.P.No.19192 of2001 dated 12.10.2001 and W.P.No.19118 of 2001, dated 15.10.2001 toissue a Writ of Certiorarified Mandamus or any other appropriatewrit, order or direction calling for the records of the respondentrelating to the allotment of shop No.61 in the municipal bus standLawrence Road, Cuddalore to the petitioner and quash the orderstherein in Na.Ka.10332/99-A8 dated 25.8.2000, 2.11.2000 and13.12.2000 in so far as it relates to the petitioner fixing rentfor the shop at Rs.4493/- demand for one year's rental andadditional electricity deposit and further forbear the respondentfrom demanding or collecting more than the fair rent for the shopallotted to the petitioner, the additional advance rental for 8months and electricity security deposit of Rs.5000/-to issue a writ of Certiorarified Mandamus or any other appropriatewrit, order or direction calling for the records of the respondentrelating to the allotment of shop No.26 in the Municipal Bus Stand, Lawrence Road, Cuddalore to the petitioner and quash the ordertherein in Na.Ka.10002/97 A8 dated 1.2.2000 in so far as it fixesrent for the shop No.26 at Rs.6740/-p.m. and further forbear therespondent from demanding or collecting more than the fair rent forthe shop allotted to the petitioner and repay to him the excess https://hcservices.ecourts.gov.in/hcservices/ rental advance for 8 months paid to the respondent and also theadditional electricity security deposit of Rs.5000/-.For Appellant : Mr.

A. MuthukumarFor Respondent : Mr. V. SubbarayanJ U D G M E N T(Judgment of the Court was delivered byK. Raviraja Pandian, J.)When the matter was taken up on 23.8.2007, there was norepresentation for the respondent. We heard the appellant anddictated orders in the open Court granting the relief as prayed forby pointing out that there was no opposition from the respondent. After some time, the counsel for the respondent appeared andpleaded that he would prepare and argue the case on merits andsought for time. Hence, the case is listed today. The counsel forthe respondent today submitted that the orders dictated on23.8.2007 may be recalled. The counsel for the appellants fairlyaccepted for the same. Hence, the orders dictated on 23.8.2007 notyet signed is recalled. The appeals are heard on merits.

In these writ appeals, the appellants challenge thecorrectness of the order of the learned single Judge dated12.10.2001 made in W.P.No.19192 of 2001 and W.P.No.19118 of 2001,dated 15.10.2001, whereby the learned single Judge non suited theappellants herein in questioning the correctness of fixation ofrent for the shops, which is under the possession of the respectiveappellants in a sum of Rs.4493/- and Rs.6740/- respectively butowned by the respondent.

Originally, the appellants were tenants under therespondent-Municipality. The appellants were evicted. The oldbuilding was demolished and new shops were constructed in thatplace and allotted to various persons on rent for augmenting incometo the respondent-Municipality.

The procedure for allotting shops owned by the localbodies are governed by the terms of the G.O.Ms.No.147, dated30.12.2000. As per the Government Order, the shops of the localbodies could be offered for lease either by public auction or byrenewing the lease in favour of the existing tenants on enhancementof rent by 15% on the basis of resolution passed by the localbodies having regard to financial requirements.

In this case the shops are newly constructed, the https://hcservices.ecourts.gov.in/hcservices/ request for renewal of the lease by the appellants were notconsidered. Hence, the appellants moved this Court by filing writpetitions and obtained allotment of shops based on the orders ofthis Court. While allotting the shops, new rate of rent was fixedby the respondent. Aggrieved by the fixation of new rate of rent, the appellants filed writ petitions.

It is the case of the appellants/petitioners that thefixation of rent by the respondent is not based on any scientificevaluation or based on any statutory provision but fixedarbitrarily. When the writ petitions were taken up before thelearned single Judge, a suggestion appears to have been made to thepetitioners to participate in open auction for the said shops, which has not been opted for by the petitioners. The learned singleJudge after taking note of the argument advanced and the materialsplaced, has come to the conclusion that the fixation of rent, whichwas complained of by the petitioners could not be considered asincrease as the shops themselves were newly constructed one andthe said shops were allotted to the petitioners as per thedirections of this Court. Taking into consideration of thelocation, proximity to important and busy places and othernecessary factors, the Municipality has fixed the rents, whichcould not be legally complained of by the appellants. Havingrecorded such a finding, the learned single Judge non suited thepetitioners for the relief as sought for and dismissed the writpetitions.

The correctness of the said order is now canvassedbefore us by filing the writ appeals. The learned counsel appearingfor the appellants submitted that certain shops have been allottedto certain persons with the lower rate of rent. However, theappellants/petitioners were asked to pay the higher rate of rent. The rent has not been fixed with reference to any guidelines butfixed whimsically by the respondent authority. That is the mainground that has been argued before this Court.

However, the learned counsel appearing for the Municipality has placed a calculation memo before this Court, whereby the rent has been fixed at the rate of Rs.34.23 per sq.ft. The calculation memo reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ CUDDALORE MUNICIPALITYRENT CALCULATION FOR SHOP NOS.23 TO 64 AT BUS STANDI. 1. Loan Amount : Rs.90.00 Lakhs 2. Interest : 11.75 3. Total Area : 6924.79 sq.ftII. 1. Net Building Value : Rs.79,45,101III 1. Land Area : 10458.07 sq.ft 2. Land Value (Rs.347.50/sq.ft. : Rs.36,34,179/- 3. Total Value : Rs.1,15,79,280/-Rental Value: 1. 12% of Capital Value: Rs.13,89,573.00 2. Interest for loan amount (11.75%) : Rs.10,57,500.00 3. Maintenance charge 5% : Rs. 3,97,255.00Total Annual Rent : Rs.28,44,263.00 Total Monthly Rent: Rs. 2,37,022.00 --------------------- (or)Rs. 34.23/sq.ft --------------------Shop No.23 to 29 = 6.00x4.00 = 18.30 sq.m = 196.90sq.ft =Rs.6740/-Restaurant No.30 =18.25x8.20 =149.65sq.m=1610.23sq.ft=Rs.55118/-Shop No.31 to 35B= 3.05x4.00 = 12.20sq.m = 131.27sq.ft = Rs.4493/-Shop No.36 = 2.82x4.00 = 11.28sq.m = 121.37sq.ft =Rs.

It is contended by the learned counsel appearing forthe Municipality that as per G.O.Ms.No.147, MunicipalAdministration, dated 30.12.2000, the appellants cannot have anyright to demand the shops, which has been newly constructed. However, an order has been passed by this Court in the writpetition filed by the petitioners on 8.9.1998 to allot the shopsand in view of the order, the shop has been allotted by fixing therent as aforesaid to the appellants. Though the shops have beenallotted as per the direction of this Court and taken possession bythe appellants on 16.12.2000, till date the appellants/petitionershave not paid any single pie towards rent and the arrears of renthas been accumulated to several thousands of rupees that may bedirected to be paid by the appellants/petitioners.

Having regard to the totality of the circumstances ofthe case, we are of the view that the rent fixed by the respondent-Municipality in respect of the shops is based on the scientificcalculation and based on the cost of construction and in the realmof contract. Therefore we are not inclined to interfere with thefixation of rent. Likewise, it is well open to the respondent torecover the arrears of rent from the appellants and also thecurrent rent in accordance with law. This order would not precludethe appellants to approach the respondent for payment of arrears ineasy instalments and it is for the respondent to consider thesame.

With this observation, the writ appeals are disposedof. Consequently, connected miscellaneous petition is closed. Nocosts. Sd/Asst. Registrar/true copy/Sub Asst. Registrarkb https://hcservices.ecourts.gov.in/hcservices/ ToCuddalore Municipalityrep. by its CommissionerCuddalore.+1cc to Mr.A.Muthukumar, Advocate Sr 55836SSV (CO)km/24.9.W.A.Nos.2310 & 2395 of2001