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2009 DIGILAW 4648 (MAD)

Arulnidhi v. The Sethiathope Town Panchayat represented by its Executive Officer

2009-11-03

R.BANUMATHI

body2009
Judgment :- Being aggrieved by the concurrent findings of Courts below dismissing the suit filed by him, the unsuccessful Plaintiff has filed this Second Appeal. 2. The following facts are not in dispute, Sethiathope Town Panchayat constructed a new bus stand and shops at Sethiathope for which Sethiathope Town Panchayat borrowed a sum of Rs.22 lakhs from Tamil Nadu Urban Finance and Infrastructure Development Corporation Limited, Chennai. To repay the amount and also to augment the income of the Panchayat, Sethiathope Town Panchayat auctioned the shops in the bus stand. After complying all the formalities, public auction was conducted on 010. 2002 and the shops were given to the highest bidder. Plaintiff participated in the auction and was allotted the suit property to run a Hotel and the licence was for a period of three years ended by 33. 2005. In the next year, i.e. from 04. 2005 to 33. 2006, Sethiathope Town Panchayat decided to conduct auction and auction was to be held on 3. 2005. At that stage, Plaintiff filed the suit for Permanent Injunction restraining the Defendant-Panchayat from evicting the Plaintiff except under due process of law. 3. Case of Plaintiff is that the suit property was let out to him on a monthly rent of Rs.2560/- under the terms of lease agreement and Plaintiff stood inducted into possession of the suit property as tenant. According to the Plaintiff even before he took the property as tenant for running Hotel, he was conducting a cycle stand in the vacant site and that Plaintiff invested heavily for running the Hotel. Case of Plaintiff is that he being the statutory tenant, he is entitled to be in lawful possession of the suit property and that his lease hold right being in subsistence till 31.03.2005, he is entitled to be in occupation unless evicted under due process of law. 4. Resisting the suit, Defendant-Panchayat filed written statement stating that Plaintiff is neither a tenant nor a statutory tenant. According to the Defendant-Panchayat, after the auction, successful bidder will occupy the concerned shop only from 04. 2005 and Defendant-Panchayat is not going to disturb the possession of the licensee till the period of 33. 2005. Case of Defendant is that after the period, no one is entitled to continue or occupy the property unless and until such person is the successful bidder in the auction which will be held on 3. 2005 and Defendant-Panchayat is not going to disturb the possession of the licensee till the period of 33. 2005. Case of Defendant is that after the period, no one is entitled to continue or occupy the property unless and until such person is the successful bidder in the auction which will be held on 3. 2005 and prayed for dismissal of the suit. 5. On the above pleadings, relevant Issues were framed. On behalf of the Plaintiff, Exs.A1 to A26 were marked and no oral evidence was adduced. On the side of the Defendant-Panchayat, the Executive Officer was examined as DW1 and Exs.B1 to B4 were marked. 6. Upon consideration of oral and documentary evidence, trial court held that Plaintiff was only a licensee and not a lessee and in support trial court relied upon the decision 1998 (1) CTC 465 [Chellappa and another v. Commissioner, Tirunelveli Municipal Corporation, Tirunelveli and another]. Trial court further held that Plaintiffs licence period was ended by 33. 2005 and Ex.A26 -Auction notice was for the period from 04. 2005 to 33. 2006 and Plaintiffs licence period being over, Plaintiff has no right to be in occupation beyond the licence period and on those findings, dismissed the Plaintiffs suit. 7. Being aggrieved, Plaintiff preferred an appeal in A.S.No.25/2008. By the time, the appeal came up for hearing, Shop No.23 was already auctioned and was handed over to third party/auction purchaser. Referring to G.O.No.147 dated 30.12.2000, first Appellate Court held that as per the said Government Order, Appellant-Plaintiff has not approached the Town Panchayat three months prior to 33. 2005 and therefore, Defendant-Town Panchayat was right in bringing the property for fresh auction for grant of licence. Lower Appellate Court further held that the licence period having been over and that Defendant-Panchayat decided to auction the Shop which was in compliance with due process of law and therefore, Appellant-Plaintiff would not be entitled for the relief of Permanent Injunction as prayed for by him. 8. Confirming the findings of the trial court, lower Appellate Court dismissed the appeal. Aggrieved by the same, Appellant preferred this Second Appeal. When the Second Appeal came up for admission at length, I have heard the arguments of learned counsel for the Appellant. 9. 8. Confirming the findings of the trial court, lower Appellate Court dismissed the appeal. Aggrieved by the same, Appellant preferred this Second Appeal. When the Second Appeal came up for admission at length, I have heard the arguments of learned counsel for the Appellant. 9. Learned counsel for the Appellant contended that Courts below erred in not considering Ex.A1 and Ex.B4 which spell out the exclusive possession of the suit property infavour of the Appellant-Plaintiff. It was further argued that Courts below failed to note that the action of the Respondent in securing the vacant possession of the suit property during pendency of the Appeal is illegal and the conduct of the Respondent-Defendant to forcibly evict the Appellant-Plaintiff is not in accordance with due process of law. 10. Contending that the licence/lease ought to have been extended for a further period of three years, learned counsel for the Appellant placed reliance upon G.O.Ms.No.92 Municipal Administration and Water Supply (TN4) Department dated 07. 2007. The said G.O. provides for giving priority to the licensee/lessee and certain stipulations as to how it could be extended. Clause 4 (2) of the said G.O. reads as under:- 11. Laying emphasis upon the above Clause, learned counsel for the Appellant contended that on expiry of licence/lease period on 33. 2005, there shall be an automatic renewal of licence for a period of nine years and the Courts below ought to have applied the said G.O.Ms.No.92 dated 07. 2007. Arguments advanced based on the said G.O.Ms.No.92 dated 07. 2007 does not merit acceptance. The said G.O.Ms.No.92 dated 07. 2007 is subsequent to the licence period. There is nothing to indicate that the said G.O. will have retrospective effect. Subsequent G.O.No.92 dated 07. 2007 cannot be applied to the instant case where the Appellants licence period ended on 33. 2005. 12. G.O.Ms.No.147 dated 30.12.2000 which was then in force is applicable to the Appellant. As per the said G.O.Ms.No.147 dated 30.12.2000 where the shop/property was auctioned, if the same licensee/lessee wishes to continue the licence period, he has to give requisition three months prior to the expiry of the lease period undertaking to pay 15% over and above the existing rent. As pointed out by the lower Appellate Court, the Appellant had not made any such representation requesting for extension of licence/lease. As pointed out by the lower Appellate Court, the Appellant had not made any such representation requesting for extension of licence/lease. In the absence of any such representation, it is not open to the Appellant to place reliance upon G.O.Ms.No.92 dated 07. 2007. 13. By the resolution of Defendant-Panchayat, Defendant-Panchayat has brought the property for re-auction on 3. 2005 for the next year [01.04.2005 to 31.03.2006]. In the suit Appellant has sought for Permanent Injunction restraining the Defendant-Panchayat from evicting him except under due process of law. As per P.Ramanatha Aiyars The Law Lexicon, 2nd Edition-2007 "due process of law" is explained as under:- "The application of the law as it exists in the fair and regular course of the administrative procedure." The action of the Defendant-Panchayat in reauctioning Shop No.23 is only in accordance with "due process of law". The period of licence of the Appellant being over, Appellant is not entitled to the discretionary relief of Permanent Injunction. Upon analysis of facts and evidence, Courts below rightly recorded concurrent findings and no question of law much less substantial questions of law arise in this Second Appeal. 14. In the result, the Judgment of the lower Appellate court in A.S.No.25/2008 dated 29.04.2009 on the file of Subordinate Court, Chidambaram (arising out of the Judgment in O.S.No.39/2005 dated 30.06.2008 on the file of Principal District Munsif Court, Chidambaram) is confirmed and this Second Appeal is dismissed. No costs.