Judgment :- In all these writ petitions, the petitioners have questioned the auction notice issued by the 2nd respondent, the Commissioner, Tambaram Municipality, calling for tender-cum-public auction of shops occupied by the petitioners with a consequential relief forbearing the respondents from putting into auction the shops belonging to the petitioners. In W.P.No.17350 of 2002, the petitioner-sangam has challenged the notice dated 9.5.2002 and in all the other writ petitions the members of the petitioner-sangam have challenged the individual notice dated 22.7.2002 issued by the 2nd respondent. 2. The following are the few facts as culled out from the averments made in the affidavit filed in support of the W.P.No.17350 of 2002, which led to the filing of the writ petitions. Since almost all the petitioners have questioned the impugned auction notice on the same averments, I do not elaborate the averments made in the affidavits filed in support of each of the writ petitions and for the purpose of disposal of the writ petitions, the averments made in W.P.No.17350 of 2002 are alone discussed. 3. The petitioner sangam was formed with the aim of uplift and welfare of 112 shop owners of open market situate at "Duraiswami Reddiar Market" GST Road, West Tambaram, Chennai-45. The land in which the market is situate initially was classified as railway poromboke and revenue poromboke. The members of the petitioner-sangam occupied the vacant land 50 years back and have also put up superstructures. The superstructures put up by the members of the petitioner sangam are assessed to property tax and that too way back from the year 1979-80. 4. Considering the long number of years of occupation of the land together with the superstructure for the purpose of doing their business in the open market, the Government of Tamil Nadu issued G.O.Ms.No.819 Revenue Department dated 2.4.1980. By the said Government Order, the entire lands were offered to the second respondent (herein after referred as "The Municipality). In fact, an extent of 3.65 acres of land in S.F.No.323/1 and 0.25 acres of land in S.F.No.323/1A1A1B of Tambaram Village, Saidapet Taluk was placed at the disposal of the Municipality with the existing encroachments on collection of land value with a further condition that the Municipality should only lease the land to the encroachers and should not sell them at any time. Though the land was handed over to the Municipality, pursuant to the compliance of the above Government Order, the members of the petitioner-sangam were not granted lease in respect of the land occupied by them. However, the members of the petitioner-sangam continued to pay the land rent as well as property tax for the superstructure to the Municipality. In fact, by a resolution the Municipality decided to collect the licence fee through private contractors. This practice was adopted right from the year 1981. On the strength of the payment of property tax for the superstructure and on the payment of licence fee, the members of the petitioner-sangam had inherited right over the superstructures and the Municipality being the owner of the land alone, cannot claim any right over the superstructures and therefore, the Municipality is not entitled to auction the shops in question. 5. A counter affidavit is filed by the Commissioner, Tambaram Municipality. According to the counter affidavit, an extent of 3.65 acres of land comprised in S.F.No.323/1 and an extent of 0.25 acres of land comprised in S.F.No.324 Part of Tambaram village were notified as market in the Tambaram Town Planning Scheme as the land was in possession of erstwhile Chengleput District Board. The District Collector, Chengleput periodically granted permission to the local body for its possession and permitted the Municipality to lease out the land to third parties. This area came to be known as "Duraiswami Reddiar Market". About 172 persons came to occupy this land and they had put up superstructures. Apart from the lands occupied by 172 persons, there was also adjoining vacant land. When the Government Order dated 2.4.1980 was issued transferring the land to the Municipality, there were only 172 superstructures put up by way of encroachments. Accordingly, for the 172 shops, licence fees were collected and the respective lands were also leased out for occupation. This practice is currently also continued. 6. Insofar as the claim of the members of the petitioner-sangam numbering 112, it is averred that they had put up superstructures only after the alienation in favour of the Municipality. Therefore, rightly the land under occupation of 112 shop owners were not leased out to them. The superstructures put up by the members of the petitioner-sangam were assessed to property tax and initially, licence fee was collected through contractors. This system was continued till 31.3.1998. Therefore, rightly the land under occupation of 112 shop owners were not leased out to them. The superstructures put up by the members of the petitioner-sangam were assessed to property tax and initially, licence fee was collected through contractors. This system was continued till 31.3.1998. Thereafter, the Municipality itself started collecting daily licence fee directly from the vendors at the rate of Rs.6/- or Rs.10/- per day depending upon the size of occupation. Since many of the members of the petitioner-sangam did not even pay the said licence fee, the collection of licence fee was resorted to by way of contract through public auction. Since there were no bidders by resolution dated 30.4.2002, the Municipality decided to grant monthly lease directly instead of granting right to collect licence fee daily. It is further averred in the counter affidavit that the Municipality has put up street lights, formed the roads for the daily market occupied by the members of the petitioner-sangam at the costs of Rs.80 lakhs. The levy of property tax on superstructures would not confer any right on the members of the petitioner-sangam. The Municipality has not granted permission to put up any superstructure and no planning permission was granted. In the absence of the same, the superstructures put up by the members of the petitioner-sangam are unauthorized. Hence the members of the petitioner-sangam cannot question the impugned notice and the action of the Municipality in bringing the shops in question for public auction. 7. It is also averred in the counter affidavit that questioning the Government Order dated 2.4.1980 imposing the restriction on the Municipality only to lease the land to the encroachers and not to sell the same, 172 persons who occupied the land and had put up superstructures, filed W.P.Nos.6977 and 10816 of 1982 and those writ petitions were dismissed by this Court by order dated 13.3.1990 upholding the conditions imposed in the Government Order on the grounds encroachers have no right to question the conditions. Admittedly, the members of the petitioner-sangam have not approached the Court presumably on the ground that they are not covered under the Government Order for granting either lease of the land or right over the superstructures. Further, the petitioners were granted licence only to sell vegetables, greens etc., in the daily market. 8. Admittedly, the members of the petitioner-sangam have not approached the Court presumably on the ground that they are not covered under the Government Order for granting either lease of the land or right over the superstructures. Further, the petitioners were granted licence only to sell vegetables, greens etc., in the daily market. 8. A reply affidavit is filed on behalf of the members of the petitioner-sangam denying the averments made in the counter affidavit that G.O.Ms.No.819 dated 2.4.1980 is not applicable to the members of petitioner-sangam. It is also denied that the Municipality has spent nearly Rs.80 lakhs for erection of streetlights and formation of roads. It is further reiterated that the members of the petitioner-sangam being the owners of the superstructures, the respondent Municipality is not empowered to bring the shops for public auction. 9. Mr.S.Sampathkumar, learned Senior Counsel appearing for the petitioner-sangam would contend that when the petitioners are the owners of the superstructures and are paying land rent as well as the licence fee for vending vegetables, greens etc., and when the superstructures put up by the petitioners are assessed to property tax, the Municipality is not empowered to bring the property for public auction as the Municipality is not the owner of the superstructures. However, he would fairly contend that the right of the Municipality over the land cannot be questioned. He referred to number of documents filed in the typed-set of papers to sustain the submission that the Municipality had been collecting property tax for the superstructures. 10. Mr.N.R.Chandran, learned Advocate General submitted that the Government Order in G.O.Ms.No.819 Revenue Department dated 2.4.1980 was issued only in respect of 172 shops and the adjoining vacant land. The said Government order does not cover 112 shops in question as the shops were put up much later to the Government Order. The learned Advocate General further submitted that the petitioners have put up small shops and not pucca constructions as contended by them and these small shops were assessed to property tax. The petitioners were not given any lease over the land and by collecting the licence fee were allowed to vend vegetables, greens etc., in the open market i.e., daily market. No lease was also granted in respect of the shops in question. The petitioners being encroachers have no right to superstructures. The petitioners were not given any lease over the land and by collecting the licence fee were allowed to vend vegetables, greens etc., in the open market i.e., daily market. No lease was also granted in respect of the shops in question. The petitioners being encroachers have no right to superstructures. In support of the above submissions, the learned Advocate General relied upon the judgments of this Court in "TIRUCHIRAPALLI PALPORUL VIRKUM THOZHILALAR SANGAM v. COMMISSIONER, CORPORATION OF TIRUCHIRAPALLI ( 1998 (2) CTC 610 )" and in "M.G.R. NAGAR KUDISAI VAZHVOR SANGAM v. STATE OF TAMIL NADU AND OTHERS (2000 WLR 712)". 11. The learned Advocate General further submitted that the temporary Shops viz., superstructures were constructed without there being any valid sanction. Merely because the same are assessed to property tax, the same will not create any right or title on the petitioners in respect of superstructures. In support of the said submission, the learned Advocate General relied upon the judgments of this Court in "ARUMUGHA KONE v. PALAYAMKOTTAI MUNICIPAL COUNCIL ( 1974 (1) MLJ 258 )", in "GENERAL MERCHANT ASSOCIATION v. CORPORATION OF CHENNAI ( 2000 (3) CTC 565 )" and in "PALANISWAMY AND OTHERS v. SRIRAMAPURAM TOWN PANCHAYAT ( 2000 (3) MLJ 691 )". 12. Based upon the pleadings and the submissions the following points arise for consideration: 1)Whether the members of the petitioner sangam are also governed by Government Order dated 2.4.1980? 2)Whether by mere payment of property tax, the members of the petitioner sangam could claim right over the superstructures? 3)Whether the respondent Municipality could bring the shops for public auction? 13. Point No.1: The lands covered under the Government Order dated 2.4.1980 are in respect of S.F.Nos.323 and 324 of Tambaram Village, Saidapet Taluk, Chengleput District, known as "Duraiswami Reddiar Market". This market was notified as market in the Tambaram Town Planning Scheme. The said market was in possession of Defunct Chengalpattu District Board. 13. Point No.1: The lands covered under the Government Order dated 2.4.1980 are in respect of S.F.Nos.323 and 324 of Tambaram Village, Saidapet Taluk, Chengleput District, known as "Duraiswami Reddiar Market". This market was notified as market in the Tambaram Town Planning Scheme. The said market was in possession of Defunct Chengalpattu District Board. Considering the vast encroachments over the land for long number of years, the Government decided to alienate the extent of 3.65 acres and 0.25 acres in S.F.No.323/1 and 324/1A1A1B with existing encroachments on payment of land value at Rs.2,500/- per cent together with interest at the rate of 9% p.a. from the date of issuance of the order till the date of payment with the further condition that the Municipality should only lease the land to the encroachers and should not sell it at any time. This Government Order refers to the land as well as the encroachments over the said land only in respect of "Duraiswami Reddiar Market". In the reply affidavit, the petitioners claim that apart from 172 shops located in "Duraiswami Reddiar Market", 112 shops put up by the members of the petitioner-sangam were also in existence and the area was known as "Daily Market". For the purpose of applicability of the Government Order, the contents of the Government Order are relevant. In the said Government Order only the land and the encroachments made in the place known as "Duraiswami Reddiar Market" are alone referred. The Government Order does not refer to any Daily Market. Only 172 shop owners of "Duraiswami Reddiar Market" alone had approached this Court questioning the said Government Order in imposing restriction on the Municipality from selling the land to the encroachers. It is clear that the members of the petitioner-sangam did not object to such condition by approaching this Court. Moreover, in terms of the said Government Order, 172 shop owners were alone granted lease by the Municipality over the land in their respective occupation. It is an admitted fact that no such lease was granted to any of the members of the petitioner sangam. As already noted, it is also not in dispute that the members of the petitioner-sangam were not granted lease in respect of the land in terms of the Government Order, but such lease was given only to 172 shop owners of "Duraiswami Reddiar Market". As already noted, it is also not in dispute that the members of the petitioner-sangam were not granted lease in respect of the land in terms of the Government Order, but such lease was given only to 172 shop owners of "Duraiswami Reddiar Market". It is also the specific stand of the members of the petitioner-sangam that the market in which they are doing their business is known as "Daily Market". Considering the above facts, it must be held that though the land which was vacant could have been occupied by the members of the petitioner-sangam much prior to the Government Order, there were no pucca constructions on the encroachments. Though the land occupied by the members of the petitioner-sangam was also alienated by the Government by order dated 2.4.1980 in favour of the Municipality, the right of lease over the land as well as entitlement to run the business was only in respect of 172 shop owners of "Duraiswami Reddiar Market" as they had put up pucca constructions even before the Government Order was passed and no such right was given under the Government Order in respect of 112 shop owners viz., members of the petitioner-sangam in the market known as "Daily Market". To this extent only the Government Order could be made applicable to the members of the petitioner sangam. 14. Point No.2: To decide the entitlement of the members of the petitioner-sangam over the superstructures, the following three aspects must be considered:- 1)Whether the land occupied by each of the members of the petitioner sangam was leased out to them and any lease/land rent was collected from them? 2)Whether the superstructures were assessed to property tax? 3)Whether daily licence fee is collected from the members of the petitioner sangam? 15. Insofar as the first aspect is concerned, admittedly no lease was granted by the Municipality to any of the members of the petitioner-sangam in respect of the land in their occupation. Mr.S.Sampath Kumar, learned Senior Counsel appearing for the petitioners, on the other hand, relying upon the typed-set of papers would contend that the members of the Petitioner-sangam were paying land rent. He would specifically draw my attention to page 67 and 77 of Typed-set II of papers. Page 67 relates to the receipt issued by the Market Contractor by name S. Harikrishnan on 1.6.1964 in favour of one K.V.Balu. He would specifically draw my attention to page 67 and 77 of Typed-set II of papers. Page 67 relates to the receipt issued by the Market Contractor by name S. Harikrishnan on 1.6.1964 in favour of one K.V.Balu. In the receipt it is seen that an amount of Rs.11.78 and Rs.11.40 was collected from the said K.V.Balu towards rent for the shop. Page 77 relates to again a payment of rent for the shop for the months of September and October, 1971 by K.V.Balu. He would also rely upon the receipts, copy of the same are annexed in the typed-set II. Those receipts evidence only payment of property tax and not payment of rent on land. Except these receipts, no other receipts/documents are relied by the learned Senior Counsel for the petitioners for payment of land rent. On a perusal of the above, it is seen that these receipts do not refer to the payment of land rent to the Municipality but only in respect of the payment of rent to the shops viz., superstructures and payment of property tax. In the absence of any document to show that the members of the petitioner-sangam were paying land rent, it cannot be contended that they were authorized to occupy the land by collection of land rent. In this view of the matter, the argument of Mr.S.Sampathkumar that the petitioners are licensees under Section 52 of the Indian Easements Act, 1882 and the same cannot be revoked except for the reasons under Section 60 of the said Act cannot be accepted, as on facts, they cannot claim to be licensees under the said Act and they are only encroachers. 16. Insofar as the superstructures are concerned, it is admitted fact that the same were put up by the members of the petitioner-sangam as it is not the case of the Municipality that the superstructures were put up by the Municipality. 16. Insofar as the superstructures are concerned, it is admitted fact that the same were put up by the members of the petitioner-sangam as it is not the case of the Municipality that the superstructures were put up by the Municipality. Though there is a dispute as to the date on which the superstructures came into existence, the stand of the respondent Municipality that the superstructures were put up after the Government Order dated 2.4.1980 cannot be accepted as number of receipts referred to in the typed-set II of papers more particularly, the receipts at pages 67 and 77 which have been referred in the earlier portion of the order relate to the payment of rent to the shops even in the year 1964. Unless there were some superstructures, question of rent for the shop may not arise. Accordingly, it must be held that the superstructures were put up by the petitioners much prior to the issuance of Government Order dated 2.4.1980 and at least from the year 1964 and the members of the petitioner-sangam were paying property tax for the superstructures. 17. Coming to the claim of the members of the petitioner-sangam as to the payment of licence fee, there is no dispute on this aspect as the respondent Municipality itself in the counter affidavit has stated that the daily licence was collected through the contractors till 31.3.1988 and the system was discontinued from 1.4.1998 when the Municipality itself started collecting the daily fee from the vendors viz., the members of the petitioner-sangam. By resolution dated 30.4.2002, the Municipality decided to grant monthly lease instead of granting the right to collect the licence fee daily. In that view of the matter, it must be held that the members of the petitioner-sangam were permitted to do their business in their respective shops on payment of licence fee. 18. On the above factual findings, it is now to be considered as to the entitlement of the members of the petitioner-sangam to claim right over the superstructures and also to continue their business in their respective shops. 19. The law is well settled that mere payment of property tax, will not confer any right on a person over the superstructure. The tax is levied under the provisions of Section 81 of the Tamil Nadu District Municipalities Act. 19. The law is well settled that mere payment of property tax, will not confer any right on a person over the superstructure. The tax is levied under the provisions of Section 81 of the Tamil Nadu District Municipalities Act. The said Section enables the Municipality to levy property tax on buildings and land within the Municipality. It does not restrict the power of the Municipality to collect tax only in respect of the buildings constructed after obtaining sanctioned plan. The superstructures in question, were admittedly put up by the members of the petitioner-sangam without there being any permission or sanctioned plan. Nevertheless, the Municipality is empowered to collect property tax on such buildings and superstructures. That apart, the property tax is only in relation to the existence of the buildings and not with reference to the superstructure put up only with the permission or sanctioned plan. Merely because, property tax is paid, it cannot be said that the Municipality has authorized the construction. Unauthorised constructions are governed by specific provisions of the Act and equally levy of property tax is also governed by specific provisions of the Act. 20. Chapter 10 of the Tamil Nadu District Municipalities Act relates to building regulations. By virtue of Section 191, the State Government is empowered to make rules relating to regulation or restriction of the use of sites for building and for regulation or restriction of building. Such rules have been made and are governing the issue of sanction of planning permission. Section 192 relates to building site and construction or reconstruction of buildings. In terms of the said Section, "no piece of land shall be used as a site for the construction of a building and no building shall be constructed or reconstructed otherwise than in accordance with the provisions of this part and of any rules or bye-laws made under this Act relating to the use of building-sites or the construction or reconstruction of buildings." Section 193 empowers the Council to regulate future construction of certain classes of buildings in particular streets or localities. A person intends to put up a construction should make an application under Section 177 to the Executive authorities. The Executive Authority is empowered to grant permission only when there is prior approval of the site for construction as contemplated under Section 198. A person intends to put up a construction should make an application under Section 177 to the Executive authorities. The Executive Authority is empowered to grant permission only when there is prior approval of the site for construction as contemplated under Section 198. There is prohibition under Section 199 against even commencement of work without permission 199. Section 216 is more relevant for the purpose of disposal of these writ petitions, which relates to the power of Executive Authority to demolish or alter the building work unlawfully commenced, carried on or completed. There is prohibition under Section 199 against even commencement of work without permission 199. Section 216 is more relevant for the purpose of disposal of these writ petitions, which relates to the power of Executive Authority to demolish or alter the building work unlawfully commenced, carried on or completed. The said Section reads as follows: "S.216: Demolition or alteration of building work unlawfully commenced carried on or completed: (1) If the Executive Authority is satisfied, (i) that the construction or reconstruction of any building or well (a) has been commenced without obtaining the permission of the Executive Authority or where an appeal or reference has been made to the Council in contravention of any order passed by the Council or (b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based or (c) is being carried on or has completed in breach of any of the provisions of this Act or of any rule or by-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws or (ii) (d) that any alternations of or addition to any buildings or any other work made or done for any purpose, into or upon any building has been commenced or is being carried on or has been completed in breach of Section 215, he may make a provisional order requiring the owner or the builder to demolish the work done or so much of it as, in the opinion of the Executive Authority has been unlawfully executed or to make such alternations as maybe the opinion of the Executive Authority be necessary to bring the work into conformity with the Act, by laws, rules, direction or requisitions as aforesaid, or with the plans and particulars on which such permission or order was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceedings with the building or wells (2) The Executive Authority shall serve a copy of the provisional order made under sub-section (1) on the owner of the building or well together with a notice requiring him to show cause within a reasonable time to be framed in such notice why the order should not be confirmed; (3) If the owner fails to show cause to the satisfaction Of the Executive Authority, the Executive Authority may confirm the order with any modifications, he may think fit to make such order shall then be binding on the owner." 21. A plain reading of the above provisions shows that the site on which the building is proposed to be constructed must first be approved as the site fit for construction of the building. An application should be made by the owner of the land for putting up construction, which should be approved by the Executive Authority. There is embargo on any person to put up any construction without there being any valid permission or approved plan. In the event the building is put up without there being any prior approval or sanction, the Municipality is empowered to demolish such constructions. The power of the Municipality vis-a-vis right of the owner of the unauthorized construction is the relevant factor to decide the issue. It is not the case of the members of the petitioner sangam that they had put up construction with prior approval or sanction. On the other hand, it is the claim that they are the owners of the superstructures by virtue of payment of property tax. This argument is totally misconceived on the face of the above provisions of the Act. When an encroacher puts up construction on the encroached portion of the land without there being permission or sanctioned plan, cannot claim any right over the superstructures as there is no right either on the land or on the superstructure. In the absence of such entitlement, can the members of the petitioner sangam question the action of the Municipality to bring the shops for public action. By virtue of Section 216, the Municipality is empowered to demolish the unauthorized construction. Such power is conferred on the Municipality, presumably, on the ground that there was no right vested in the encroacher who has put up construction unauthorisedly. When the power of demolition is vested in the Municipality to take action to demolish the unauthorized construction, the members of the petitioner sangam would have no defence to question such action. In this view of the matter, the judgments relied upon by the learned Advocate General may be referred. 22. In "TIRUCHIRAPALLI PALPURUL VIRKUM THOZHILALAR SANGAM v. COMMISSIONER CORPORATION OF TIRUCHI ( 1998(II) CTC 610 )", this Court considered a case of hawking on public platform. In this view of the matter, the judgments relied upon by the learned Advocate General may be referred. 22. In "TIRUCHIRAPALLI PALPURUL VIRKUM THOZHILALAR SANGAM v. COMMISSIONER CORPORATION OF TIRUCHI ( 1998(II) CTC 610 )", this Court considered a case of hawking on public platform. While considering the right of the petitioners/hawkers, this Court has held that hawkers are encroachers on public streets and the Municipality is duty bound to evict the encroachers who squat on public streets and keep public streets free from encroachments. This Court has also observed that the public streets are meant for the use of the general public and the platforms are not laid to facilitate carrying on private trade or business. 23. In "M.G.R. NAGAR KUDISAI VAZHUVOR SANGAM v. STATE OF TAMIL NADU AND OTHERS (2000 Writ Law Reporter 712)", this Court while considering the right of the encroachers of Erikarai held that the authorities are empowered to evict the encroachers who are in unauthorized occupation of the Government Property. 24. In "PALANISWAMY v. SRIRAMAPURAM TOWN PANCHAYAT ( 2000(3) MLJ 691 )", this Court upheld the right of the Municipality even to enhance the lease amount by 15% over and above the lease amount and even the lessee cannot question such enhancement. While the lessee has no right to question the enhancement of rent made by the Municipality and cannot defend an action of demolition of unauthorized construction, an encroacher who has put up unauthorized construction cannot question the action of the Municipality in bring the shops for public auction. In the absence of any right over the superstructure, the members of the petitioner sangam cannot have any entitlement to question the impugned action taken by the Municipality. Though this Court has upheld the entitlement of the Municipality to demolish the unauthorized construction under Section 216 of the Act, in the interest of the Municipality for augmenting the revenue, no exception could be taken to the action of the Municipality in deciding not to demolish the building but use the same by bringing the superstructure in public auction, if the Municipality is satisfied that the superstructures are not hindrance to the public and free flow of traffic. When once such conclusion is arrived, the challenge to the impugned notices by the members of the petitioner sangam cannot be sustained. 25. When once such conclusion is arrived, the challenge to the impugned notices by the members of the petitioner sangam cannot be sustained. 25. For all the above reasons, I find no merit in challenge to the impugned notices. However, this Court cannot belittle the fact that the members of the petitioner sangam were in occupation of the superstructures for nearly 35 years, disentitling them from doing their business immediately would result in great hardship. Only on that consideration, I direct the Municipality to keep the impugned notices bringing the shops in question for public auction in abeyance for a period of one year i.e., from October, 2003 to October, 2004 and till such time the members of the petitioner sangam are entitled to occupy the superstructures by payment of licence fee and rent to the shops applicable on the date when the impugned notices were issued and the arrears, if any. After the end of October 2004, the members of the petitioner sangam are directed to hand over the superstructures/shops to the Municipality to enable the Municipality to bring all the shops for public auction. The members of the petitioner sangam are also entitled to participate in such auction of shops. 26. With the above direction, all the writ petitions are dismissed. No costs. Consequently, all the connected WPMPs are also dismissed.