S.Umar Farook v. The Chairman

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.09.2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.18664 OF 2007ANDM.P.NO.1 OF 2007S.Umar Farook.. PetitionerVs.

The Chairman, Tamilnadu Slum Clearance Board, Kamarajar Salai, Chennai-600 005.

The Assistant Executive Engineer, Tamilnadu Slum Clearance Board, Kannagi Nagar, Chennai-600 096... Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus, forbearing the respondents from conducting auction to run Cable T.V.Connection service at Kannagi Nagar Tamilnadu Slum Clearance Boardtenament for the period from 31.3.2007 to 01.04.2008. For Petitioner : Dr.G.KrishnamurthyFor Respondents: Mr.P.S.Raman, Addl. Advocate General for Mr.Y.Bhuvanesh KumarORDERInvoking the writ jurisdiction of this court, the petitioner hassought for the issue of a writ of mandamus to restrain the respondentsfrom conducting auction to run cable T.V. Connection service at KannagiNagar, Tamil Nadu Slum Clearance Board tenament for the period from31.3.2007 to 01.04.2008. 2. The affidavit filed in support of the petition and also the counteraffidavit are perused. The court heard the learned counsel on either side.

The learned counsel for the petitioner would submit that thepetitioner was granted licence to run cable TV business at Kannagi Nagaron 4.3.2004 and it was being renewed; that the petitioner has filedW.P.No.30732 of 2005 and this court, by an order, dated 14.11.2005, hasallowed the petitioner to run the business till 1.12.2005; that thepetitioner has made a representation on 6.12.2006 expressing hiswillingness to pay Rs.50000/- towards 5 years lease premium. His https://hcservices.ecourts.gov.in/hcservices/ representation was not considered. Since his representation was notconsidered, he moved this court by way of writ petition in W.P.No.444 of2006 to direct the respondent to consider the same. An order came to bepassed on 14.2.2006 that the representation should be considered within aperiod of four weeks from the date of receipt of copy of this order. Further an order came to be passed on 8.2.2007 in W.P.No.6841 of 2006 andW.P.No.7136 of 2006, directing the respondents to call for auction before31.3.2007 for the issue of a fresh licence for the period commencing from1.4.2007, but the respondent has not conducted auction; that therespondents received Rs.24000/- towards lease amount to run the Cable TVfor one year period commencing from 1.4.2007; that now, it comes to theknowledge of the petitioner that public auction is fixed on 23.5.2007 at10.00 a.m. to run cable TV at Kannagi Nagar without mentioning the periodand under these circumstances, if the respondents are allowed to conductauction, it would be an infringement of right of the petitioner to runcable TV, for which the respondents have received Rs.24000/- and issuedreceipt therefor for the period of one year, commencing from 1.4.2007 andunder these circumstances, the writ has got to be issued against therespondents.

Contrary to the above, the learned Additional Advocate General, appearing for the respondents, would submit that in the instant case, thewrit petition has been brought forth on the strength of the receiptalleged to have been issued by the department, but not so; that thereceipt has been issued by the subordinates for Rs.24000/-, which wouldrepresent the arrears payable by the petitioner for the earlier period; that it is not received by the Subordinates for the period commencing from1.4.2007 and on the strength of which, the petitioner cannot be allowed torun the business; that charge memos have been served upon the subordinatesand they have been kept under suspension for the violation of the order ofthis court; that it is pertinent to point out that this court, by anorder, dated 8.2.2007 in W.P.Nos.6841 and 7136 of 2006, has directed therespondents to conduct auction before 31.3.2007; that it is true, auctionwas not conducted within the time, but the auction is scheduled to takeplace on 23.5.2007; that notice has also been issued; that merely becausethere is a delay in conducting auction, the petitioner cannot have thebenefit of the same either, or rely upon the receipt clandestinely issuedby the subordinates, against whom actions have been taken and under thesecircumstances, the writ petition has got to be dismissed.

After careful consideration of the submissions made, the court isof the considered opinion that no writ could be issued against therespondents, as asked by the petitioner. It is not in controversy thatthe petitioner, by virtue of licence issued in his favour, has beencarrying on cable TV business at Kannagi Nagar area till 31.3.2006. Onearlier occasion, writ petitions have been filed by the petitioner andalso by the rivalry. Those petitions came up for consideration before thiscourt on 8.2.2007, wherein orders have been passed, directing therespondents to conduct auction before 31.3.2007 and issue a fresh licencefor the period commencing from 1.4.2007. It is also quite evident fromthe said order that the receipt now relied on by the petitioner and on thestrength of which those writ petitions have been brought forth, wereactually brought to the notice of the court at that time and they wereconsidered also and after considering the same, this court has passed anorder, directing the respondents to conduct auction on or before 31.3.2007and to issue a fresh licence for the period commencing from 1.4.2007. At https://hcservices.ecourts.gov.in/hcservices/ that juncture, the petitioner has relied on the receipt issued by thesubordinates of the respondents Department. Even assuming that thereceipt has been issued by the Department even for future period, thecourt is of the considered opinion that it is thoroughly illegal andinvalid, in view of the order of this court, wherein there was a directionto conduct a public auction on or before 31.3.2007 and also to issue afresh licence for the period commencing from 1.4.2007.

Added further circumstance is that action has been taken againstthe subordinates by the respondent Department. Now, at this juncture, thepetitioner cannot have the benefit of the receipt either, or cannot urgethe delay caused in conducting public auction, as a reason for continuinghis business. Once there was an order by this court that the cable TVbusiness in that area should be done by the Slum Clearance Board only byway of public auction, there is no question of either departmentpermitting or the petitioner continuing the business contrary to the orderof this court. Under these circumstances, as per the orders of this courtmade earlier, the Slum Clearance Board has to conduct public auction inrespect of the Cable TV business in that area. Both the petitioner andall other public are entitled to participate therein.

Apart from that, the receipt has been brought to the notice of thecourt. The charge memo issued would cover the amount of Rs.24000/-, whichwas paid by the petitioner on 19.4.2007 to the Slum Clearance Board. Fromthe very reading of the charge memo issued by the Slum Clearance Board tothe subordinates would clearly reveal that Rs.24000/- was received towardslicence fee and nowhere it is stated that it was towards any arrears offee. Under these circumstances, the court is of the considered opinionthat it is a fit case where a direction has got to be issued to therespondents Slum Clearance Board to make repayment of Rs.24000/-, whichwould cover under the receipt and was received by the department, within aperiod of eight weeks herefrom to the petitioner herein. Accordingly, adirection is issued.