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2015 DIGILAW 1603 (MAD)

D. Ramesh v. Commissioner, Usilampatti Municipality

2015-03-24

B.RAJENDRAN

body2015
Judgment :- 1. Aggrieved over the impugned orders passed by the first respondent, dated 15.09.2014, the petitionershave come forward with these Writ Petitions. Since the facts and circumstances of the caseare one the same, they are taken up together and decided by a common order. 2. In all these Writ Petitions, the petitioners have stated thatthe respondentsare attempting to take away the shops allotted to them without following the due process of law even though, the lease period granted to them comes to an end only on 30.09.2016. Originally, the lease period granted got expired on 31.03.2011. Thereafter, they sought extension as per G.O.Ms.No.92 Municipal Administration cum Water Supply Department, dated 30.07.2007. Accordingly, they were given extension also till 31.03.2014 on the revised rate of rent of Rs.500/- per month. Thereafter, again they made a representation on 31.12.2013 to extend the period of lease for three years from 01.04.2013 to 31.03.2017, but the same was not considered by the respondents. Therefore, they filed a batch of Writ Petitions in W.P.(MD).Nos.5547 to 5556 of 2014. Those Writ Petitions were disposed of, on 17.07.2014, by this Court with a direction to the respondents therein to consider the representations of the petitioners within a period of two months from the date of receipt of the copy of the order. They have also obtained water connection in the year 2006. 3. In the meanwhile, the Municipality passed a Resolution in No.404 dated 20.06.2014 for cancelling the lease granted in Resolution Nos.153 and 154 dated 28.09.2007 and to conduct a fresh tender and to that effect, a Resolution in NO.404 came to be passed cancelling the lease granted in Resolution Nos.153 and 154 dated 28.09.2007. The said action was challenged vide Writ Petition in W.P.(MD).No.13279 of 2014 and subsequently, the said Writ Petition was also allowed. While so, the first respondent through his proceedings dated 15.04.2014 decided to demolish the shops in which the petitioners are occupying. Aggrieved over the action of the respondents, about 84 persons filed a Writ Petition in W.P.(MD).No.5669 of 2012 to restrain the respondents from evicting without due process of law. According to the petitioner, an order of interim injunction was granted on 24.04.2012 and the same is pending. Pending the same, these Writ Petitions have been filed. 4. Aggrieved over the action of the respondents, about 84 persons filed a Writ Petition in W.P.(MD).No.5669 of 2012 to restrain the respondents from evicting without due process of law. According to the petitioner, an order of interim injunction was granted on 24.04.2012 and the same is pending. Pending the same, these Writ Petitions have been filed. 4. The Municipality has filed a detailed counter affidavit and vacate stay petition in which it is categorically stated that the respondent has never granted a lease either to the petitioners or anybody else and it is only a licence to the then occupants in the open area to vend (tharaikadai). Therefore, the version of the petitioners that lease has been granted to them is misconstrued. The erstwhile Municipal Chairman and its Councilors have misunderstood the G.O.Ms.No.92 Municipal Administration cum Water Supply Department, dated 30.07.2007. When the petitioners made a representation dated 31.12.2013 to extend the period of licence for further period of three years, the petitioners were called upon to produce the relevant documents, namely, the original licence or lease, as the case may be, as many of the persons, according to the Municipality, who are now occupying the shops in question is not the original owner at all. The premises in question has been sublet to a third party without obtaining the prior permission from the Municipality. They have also put up constructions without the permission of the Municipality. Therefore, they are not entitled to the relief as sought for in the Writ Petitions. 5. Above all these things, it is only a show cause notice calling upon them to produce the relevant documents to establish their right, but without doing so, straight away they have come forward with these Writ Petitions. Even in the renewed licence granted to one Kamal Batcha and Latha by the respondents proceedings in Na.Ka.No.1303/2011/A2 dated 30.06.2011, it has been clearly stated that it is only a licence for the open space shops and renewed from 01.04.2011 but unfortunately the previous Municipal Council has wrongly understood the G.O.Ms.No.92 Municipal Administration cum Water Supply Department, dated 30.07.2007 and passed a resolution No.153 dated 28.09.2007. 6. In any view of the matter, the said Government Order has been stayed by this Court. Since it is not in force, it will not be applicable to the facts and circumstances of the case. 6. In any view of the matter, the said Government Order has been stayed by this Court. Since it is not in force, it will not be applicable to the facts and circumstances of the case. According to the Municipality, the original persons were given licence has sold the same to the third party without consent of the respondents with huge monetary benefit. Therefore, according to the Municipality, the shops were sub-leased to the present occupiers and getting lump sum amount of advance of Rs.3 to 5 Lakhs and get monthly rent of minimum of Rs.3,000/- to Rs.4,000/- from the sub-lease and therefore, they have no right to continue the shops in question. That is the reason why, the respondents wanted to know the original occupants who were in possession at the time of allotment of shops. The present notices themselves came to be issued as per the earlier direction of this Court. They have been successfully evading from producing the original documents since 2009 by filing a Writ Petition after Writ Petition. 7. It is pertinent to point out that the petitioners stated in paragraph No.10 of the affidavit that they have obtained an order interim injunction in W.P.(MD).Nos.5669 of 2012. The said Writ Petition came to be dismissed as infructuous on 08.09.2014. The present Writ Petitions have been filed on 15.10.2014, after W.P.(MD).No.5669 of 2012 has become infructuous. The respondents specifically deny that the Writ Petitioners have got lease upto 30.09.2016. Therefore, their request for further extension has not been granted. Hence, the authorities are taking necessary legal steps to evict the petitioners. Heard both sides. 8. The only ground on which the petitioners attack the impugned orders is that they have got a licence upto 30.09.2016. By the time the lease comes to end, the respondents are trying to evict the petitioners and therefore, they have come forward with the Writ Petitions. 9. Before going into the merits of the case, it is useful to extract the impugned order, which reads as follows:- “TAMIL” 10. A perusal of the impugned order, it is seen that it is a only a show cause notice calling upon them to give an explanation to continue their legal right in the property in question. Therefore, under this notice, the respondents have not called upon to vacate the premises. A perusal of the impugned order, it is seen that it is a only a show cause notice calling upon them to give an explanation to continue their legal right in the property in question. Therefore, under this notice, the respondents have not called upon to vacate the premises. The petitioners have relied upon G.O.Ms.No.92 Municipal Administration cum Water Supply Department, dated 30.07.2007. Based on which, according to them, it was leased out. In the counter, it is specifically averred that it is not built shops and they have not constructed any shops and leased to either to the petitioner or to any other persons. According to them, it is only a open space shop. Even that has been sublet to a third party, where they have put up unauthorised constructions without the permission of the Municipality. Therefore, they seek the relevant document to establish their legal right to continue in the shops occupied by the petitioners. It is the contention of the respondents that the properties were sublet to a third party, by which the petitioners are getting benefited, whereas the Municipality is losing huge sum on this. It is the further contention of the respondents that the present Writ Petitions itself is a premature one. The earlier Writ Petition in W.P.(MD).No.5669 of 2012 where they were able to obtain an order of interim injunction was subsequently withdrawn by them. Though there were 84 persons filed the W.P.(MD).No.5669 of 2012, only five of them have come forward with these Writ Petitions for the relief stated earlier. They have been successfully dragging the issue in one way or the other and thereby depriving the income of the Municipality. Whether licence or lease is granted, it can only be known on verification of the records. Therefore, there is nothing wrong on the part of the respondents seeking necessary documents to continue as a tenant in the shops in question, if they are entitled to. Without giving proper explanation, they have straight away come forward with these Writ Petitions, which is not maintainable. Therefore, no mandamus could be granted to the Writ Petitioners herein. This Court time and again held that what cannot be considered by way of Mandamus that cannot be directed to be considered by the authorities concerned. 11. It is opt to mention a Supreme Court judgment in the case of A.P.SRTC Vs. Therefore, no mandamus could be granted to the Writ Petitioners herein. This Court time and again held that what cannot be considered by way of Mandamus that cannot be directed to be considered by the authorities concerned. 11. It is opt to mention a Supreme Court judgment in the case of A.P.SRTC Vs. G.Srinivas Reddy, reported in (2006) 3 SCC 674 = 2006-3-L.W.170, had observed as follows:- “19. There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued by court. We may illustrate by an example. A claim, which is stale, time- barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the court directing him to1.75" "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider". 12. Following the Apex Court's judgment cited supra, a Division Bench of this Court, in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, wherein, it has been observed that what cannot be considered that cannot be directed to be considered by this Court.In the said judgment, in para 8, it is observed as follows:- “.... 8. 12. Following the Apex Court's judgment cited supra, a Division Bench of this Court, in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, wherein, it has been observed that what cannot be considered that cannot be directed to be considered by this Court.In the said judgment, in para 8, it is observed as follows:- “.... 8. Why we are extracting this judgment in such detail is that we should be aware of the consequences of our order when we direct the authorities to "consider". In the aforesaid situation, if the learned Judge, before directing the authorities to consider, had heard the petitioner herein, then the order of the Division Bench reprimanding the 5th respondent would have been brought to the notice of the learned Single Judge. Some time, we also come across cases where our directions is to an authority who cannot really pass an effective order and the effective order can only be passed by an authority superior to the one to whom we issue directions. Obviously, when the order is not complied with, since it cannot be complied with because of the hierarchy discipline, the officer has to face the contempt. All these can be avoided if we only bear in mind the guidelines given in the above case by the Supreme Court before we direct the respondent to "consider and pass orders". 13. In the light of the discussion and observation, this Writ Petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.