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2006 DIGILAW 2462 (MAD)

C. Munusamy v. The Commissioner

2006-09-19

R.BANUMATHI

body2006
Judgment :- (Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus to call for the notice in Na.Ka.No.5649/99/C2 dated 29.02.2000 passed by the Respondent and quash the same and direct the Respondent to collect the rent of Rs.370/- per month as fixed in the Public re-auction held on 17.12.1990.) The Petitioner seeks for a Writ of Certiorarified Mandamus to call for and quash the Notice Na.Ka.No.5649/99/ C2 dated 29.02.2000, passed by the Respondent and to direct the Respondent – Arakkonam Municipality to collect the rent of Rs.370/- per month as fixed in the Public re-auction held on 17.12.1990. 2. Background facts: The Respondent Municipality owns about 213 shops in the daily Nalangadi Market in Arakkonam. In the year 1990, the Respondent decided to auction the right to occupy 12 shops on monthly rental basis for a period of three years by way of Tender cum Auction. On 20.08.1990, the tenders were opened in public and the highest offer of Rs.615/- made by the Petitioner was accepted. Though the Petitioner's offer was accepted, there were some difficulties for the Respondent in completing the auction process. Subsequently the Respondent allowed the Petitioner to occupy the shop. In 1995 when the proceedings confirming auction was issued in Na.Ka.C2/10558/90, since five years had elapsed after the tender process, the Respondent added 15% with the rent and fixed the rent at Rs.708/- [Rs.615 + 15%] and the Petitioner was allotted Shop No.E-1. 3. It is stated that the Petitioner has paid the rent only up to the year 1995-96 [full] and part, towards 1996-97 and as on date, he has to pay a rental arrears of Rs.81,416/- and hence Notice was issued to him calling upon him to pay the arrears of rent of Rs.40,440/- up to 1995-96 to 1999-2000. 4. According to the Petitioner, he made a representation to the Respondent requesting him to cancel the order dated 02.05.1995 in fixing the monthly rent of Rs.615/- and instead, requested fixing of rent at Rs.370/- and his request was not accepted by the Respondent. According to the Petitioner, the Respondent's action is highly malafide and with ulterior motive. It is the case of the Petitioner that he has paid the rent at the rate of 370/- per month and is ready to pay the rent regularly at the rate of Rs.370/- per month. According to the Petitioner, the Respondent's action is highly malafide and with ulterior motive. It is the case of the Petitioner that he has paid the rent at the rate of 370/- per month and is ready to pay the rent regularly at the rate of Rs.370/- per month. Alleging malafide intention and ulterior motive, the Petitioner seeks to quash the impugned notice Na.Ka.No. 5649/99/C2 dated 29.02.2000. 5. Stating that arrears of Rs.81,416/- is due from the Petitioner and referring to a number of civil proceedings initiated by the Petitioner and other members of the association viz., Arakonam Municipality and Daily Market Merchants Association, the Respondent has filed the counter contending that the Petitioner, having suppressed the civil suits and who is in huge arrears of rent, is not entitled to invoke the writ jurisdiction. 6. Submitting that the rent of Rs.708/- is a huge amount for a physically handicapped man like the Petitioner, the learned Counsel for the Petitioner has contended that the above said rent has been charged even from the year 1990. Drawing the attention of the court to the payments made by the Petitioner to the tune of Rs.10,000/-, the learned Counsel for the Petitioner has submitted that the Petitioner has shown bonafide and that he was always ready to pay the rent regularly at the rate of Rs.370/- per month, the rate in which he was in occupation of the shop for some time. The learned Counsel for the Petitioner further submitted that the Petitioner has made request of reducing the rent which was not favourably considered by the Petitioner and seeks for a direction to the Respondent to collect rent at Rs.370/- per month. 7. Drawing the attention of the court the various writ proceedings initiated by the Petitioner and also the Civil suits filed by the Petitioner and other members of the Association, the learned Counsel for the Respondent has submitted that the Petitioner is squatting on the property without paying any rent and that there is huge arrears of rent. It was also submitted that the impugned Notice was issued to the Petitioner calling upon him to pay the arrears of rent of Rs.40,440/- and without paying the rent, the Petitioner has hurriedly filed the Writ Petition. 8. It was also submitted that the impugned Notice was issued to the Petitioner calling upon him to pay the arrears of rent of Rs.40,440/- and without paying the rent, the Petitioner has hurriedly filed the Writ Petition. 8. In the year 1990, the Respondent Municipality decided to auction the right to occupy 12 shops, on a monthly rental basis, for a period of three years, by way of Tender cum Auction. On the date of auction i.e. on 20.08.1990, sealed covers were opened and in the sealed covers, the Petitioner has quoted Rs.615/- per month and that was the highest bid submitted. However, that tender dated 20.08.1990 was cancelled and a fresh auction and re-auction was held on 25.11.1990. 9. It is stated that there was some difficulties in completion of the auction process. Thereafter in the year 1995, by the proceedings Na.Ka.C-2/10558/90 dated 2.5.1995, the Petitioner was allotted shop Nallankadi E-1, for a period of three years. In that order, the rent was fixed at Rs.615/- + 15% totalling Rs.708/- for shop No.E-1. Thereafter, the Petitioner had made representation on 19.10.1995 requesting for fixing the rent of Rs.370/-. On 23.11.1995, in Na.Ka.No.C-2/10558/90, the Respondent Municipality had sent the reply declining the request for reduction of the monthly rent. Now it is stated that the Petitioner is in arrears of Rs.81,416/-. 10. Even at the outset, it is to be pointed out that this is the third round of litigation in the High Court. Earlier, challenging reauction and the notification order in Na.Ka.No.313/87/A2 dated 25.11.1990, the Petitioner had filed W.P.No.19154/1990 and in the mean time, the Petitioner has occupied the shop as there were some difficulties in completing the auction process. Later, by the proceedings dated 25.05.1995, the shop was authorisedly allotted to the Petitioner on the rent of Rs.708/-. 11. The Petitioner had also filed W.P.No.691/1996, challenging the rent of Rs.708/-. W.P.No.691/1996, was dismissed by this Court, by the order dated 13.12.2002, pointing out that the licence itself was only for a period of three years and three years have lapsed even in the year 1998 itself, this Court has dismissed W.P.No.691/1996 as infructuous. 12. 11. The Petitioner had also filed W.P.No.691/1996, challenging the rent of Rs.708/-. W.P.No.691/1996, was dismissed by this Court, by the order dated 13.12.2002, pointing out that the licence itself was only for a period of three years and three years have lapsed even in the year 1998 itself, this Court has dismissed W.P.No.691/1996 as infructuous. 12. The Respondent Municipality had issued the impugned notice on 08.03.2000 calling upon the Petitioner to pay the arrears of Rs.40,440/- payable from 1995-1996 to 1999-2000 and this is the third round of litigation, apart from number of civil proceedings pursued by the Petitioner and other members of the Association. It is stated that the Petitioner along with other members of the Association viz., Arakkonam Municipality and Daily Market Merchant Association, have filed the suit in O.S.No.75/1995 in District Munsif Court Arakkonam. Against the Judgment and Decree in the suit, A.S.No.12 and 23 of 2001 were also filed. It is stated that as against the Judgment in the Appeals, Second Appeal in S.A.S.R.Nos.116855 and 116857/2004 had been preferred and the second appeals are also pending before the Court. The Petitioner had not referred to all those proceedings before the civil Court in the present Writ Petition. 13. By the order in Na.Ka.C2/10559/90, dated 02.05.1995, the Petitioner was given the right to be in occupation only for a period of three years. That period of three years has already expired in 1998. The Petitioner is also in arrears of rent of more than Rs.81,416/-. When the right of the Petitioner has already expired in 1998, the Petitioner has got no subsisting and continuing right to prosecute the matter, much less challenging the Notice. 14. Notice was issued to the Petitioner calling upon him to pay the arrears of Rs.40,440/-. As submitted by the learned Counsel for the Respondent Municipality, the Petitioner himself has quoted Rs.615/-. No malafide or unreasonableness is attributable to the rent fixed by the Municipality viz., Rs.615/- + 15% [for a period of five years], totalling Rs.708/-. 15. The learned Counsel for the Petitioner has submitted that the Petitioner had already paid Rs.5,000/- on 14.03.2000 and another Rs.5,000/- on 31.03.2000 and he has totally paid Rs.10,000/- to the Respondent. It is also submitted that when the Petitioner himself has made certain payments, the Petitioner being a physically challenged person, the bonafide of the Petitioner is to be taken into consideration. It is also submitted that when the Petitioner himself has made certain payments, the Petitioner being a physically challenged person, the bonafide of the Petitioner is to be taken into consideration. The arrears stated is Rs.81,416/-. While so, the payment of part of the amount would not amount to the payment of the entire arrears nor would it show any bonafide. 16. The shop was allotted to the Petitioner on the specific terms and conditions that the Petitioner should pay a rent of Rs.650 + 15% totalling Rs.708/-. The prayer in the Writ Petition seeking direction to the Respondent Municipality to collect the rent at the rate of Rs.370/- per month is preposterous. The Petitioner cannot dictate terms to the Respondent Municipality. Having quoted the rent at the rate of Rs.615/- per month, it is not open to the Petitioner to seek reduction of rent at the rate of Rs.370/- per month. The Respondent is a municipality which has to discharge civic responsibilities. For discharging the civic responsibilities, the source of income for the Municipality is only by way of collection of rent, house tax etc. The Respondent Municipality cannot afford to reduce the rent nor could it show any sympathy towards the Petitioner merely because he is physically handicapped. The Petitioner has been in unauthorized occupation of the shop beyond the period without paying any rent. The Petitioner having occupied the shop on a rent of Rs.708/-, cannot successfully challenge the Notice calling upon him to pay the arrears of rent. This is all the more so, when this is the third round of litigation and after the expiry of the auction period. 17. In the result, the Writ Petition is dismissed with the cost of the Respondent Municipality.