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2019 DIGILAW 35 (MAN)

Leitanthem Sushindro Singh v. State of Manipur

2019-07-03

M.V.MURALIDARAN

body2019
JUDGMENT : M.V. Muralidaran, J. 1. This writ petition has been filed by the petitioner seeking a writ of certiorarified mandamus calling for the records dated 31.08.2016 and 18.11.2015 respectively and to quash the same and also direct the third respondent to furnish all the information sought In the application dated 25.01.2014. 2. Briefly stated, the case of the petitioners is as follows: 2.1. After the election code of conduct was announced for election of Thoubal Municipal Council without following due process of law for selection of beneficiary, by order dated 18.11.2015, an allotment of 30 shops licenses for a period of 21 years at the Shopping Complex at Thoubal Wangmataba was issued. According to the petitioners, the construction of the Shopping Complex was done behind the back and knowledge of the general public and without participation of the Ward Development Committee of Ward No. 2, who have legal right to be consulted as per law. 2.2. Earlier, the petitioners have filed WP(C) No. 421 of 2016 before this Court seeking to quash the allotment order dated 18.11.2015 and to direct the respondent authorities to evict all the occupiers of shops at the Shopping Complex, Thoubal Wangmataba. In the said writ petition, the petitioners have also sought a direction on the respondent authorities to dispose of the representation dated 25.04.2016. By an elder dated 22.07.2016, this Court disposed of the writ petition directing the second respondent therein i.e., the Deputy Commissioner (Thoubal) to consider and dispose of the representation dated 25.04.2016 by passing a speaking order within a period of one month from the date of receipt of a copy of the order. 2.3. Pursuant to the order dated 22.07.2016 passed in W.P.(C) No. 421 of 2016, the Deputy Commissioner had issued the impugned order dated 31.08.2016 rejecting the representation of the petitioners dated 25.04.2016 stating that he had directed the Executive Officer of Thoubal Municipal Council to inquire into the allegation made in the representation dated 25.04.2016. According to the petitioners, the Deputy Commissioner has not conducted any enquiry before passing the impugned order. 2.4. The case of the petitioners is that the Deputy Commissioner merely compared the records submitted by the petitioners with those In the Council, which was unnecessary, as it is not a dispute of genuineness of records. According to the petitioners, the Deputy Commissioner has not conducted any enquiry before passing the impugned order. 2.4. The case of the petitioners is that the Deputy Commissioner merely compared the records submitted by the petitioners with those In the Council, which was unnecessary, as it is not a dispute of genuineness of records. Without answering the queries as to how the allotment of shops was made, the process for selection of beneficiaries/allottees and how the said Shopping Complex in question was constructed by the Municipal Council, the second respondent passed the impugned order dated 30.08.2016 and the impugned order is devoid of merits and the same Is liable to be quashed. Hence, the petitioners have filed the writ petition seeking the relief stated supra. 3. The second respondent/Deputy Commissioner filed a counter affidavit stating that under Section 202 of the Manipur Municipality Act, 1994, the second respondent has no authority to exercise power of enquiry as no empowerment has been sanctioned by the Government in that behalf. However, In order to comply with the direction issued in W.P.(C) No. 421 of 2016, dated 22.07.2016, the second respondent requested the Executive Officer of Thoubal Municipal Council to make necessary enquiry and furnish comment on the allegations made in the representation dated 25.04.2016 for consideration and necessary orders. It is stated that based on the materials available in the enquiry report of the Executive Officer and other materials, the impugned order dated 31.08.2016 was passed. Stating that there is no illegality in the impugned order dated 31.08.2016 and that the impugned order was issued on the basis of the materials available on record, the second respondent prayed for dismissal of the writ petition. 4. Respondent Nos. 3 and 5/Executive Officer of Thoubal Municipal Council filed counter affidavit stating that the second respondent issued the impugned order dated 31.08.2016 only after examining the enquiry report submitted by the Sub Divisional Officer, Thoubal/Executive Officer, Thoubal Municipal Council and other relevant papers and documents. It is stated that the shops of the Shopping Complex at Thoubal Wangmataba were allotted to 30 persons on lease basis in pursuance of the Municipal Council's Resolution taken in the Council's meeting held on 09.11.2015. It is stated that the shops of the Shopping Complex at Thoubal Wangmataba were allotted to 30 persons on lease basis in pursuance of the Municipal Council's Resolution taken in the Council's meeting held on 09.11.2015. It is stated that there was no absence of legal procedure in the allotment of shops and that the allotment of shops was done on the basis of the resolution passed in the Council's Sitting No. 4/2015 of Thoubal Municipal Council. As far as construction of the said Shopping Complex is concerned, the same was done by the Public Works Department, Government of Manipur and was not related with the Thoubal Municipal Council. According to the respondents 3 and 5, the lease deed made on the condition that the license of shop issued to the owner under the deed should be valid for only one year and the same may be renewed every year and application for renewal of the license should be made atleast 30 days prior to the date of expiry of the license. Stating that the present writ petition is ill-conceived, devoid and vague, the respondents 3 and 5 prayed for dismissal of the same. 5. The sixth respondent Filed counter stating that they came to know about the order dated 30.05.2019 passed by this Court and in compliance, the Thoubal Municipal Council, issued the order dated 04.06.2019 to 30 shop owners of the Shopping Complex of Thoubal Wangmataba to shut down their respective shops and handover their respective keys after duly vacating all the goods and commodities. Since the sixth respondent was not a party to the writ petition and the sixth respondent society is running small time business in and around the said shop site, they have been impleaded in the writ petition. The order of this Court dated 30.05.2019 to shut down the shops caused much inconvenience and, hence, prayed to allow them to carry on their business with immediate effect for another period of six months within the shop premises. 6. The prayer of the sixth respondent is opposed by respondent Nos. 1 and 2 stating that the request of the sixth respondent Is without any basis, as the shops were directed to be sealed immediately. In the affidavit filed by the respondent Nos. 6. The prayer of the sixth respondent is opposed by respondent Nos. 1 and 2 stating that the request of the sixth respondent Is without any basis, as the shops were directed to be sealed immediately. In the affidavit filed by the respondent Nos. 1 and 2, it has been stated that allotment to the sixth respondent was made without following the procedures and provisions prescribed in the Manipur Municipality Act, 1994. 7. Assailing the impugned order, the learned counsel for the petitioners submitted that the petitioners are aggrieved by the order dated 31.08.2016, wherein and whereby, the second respondent rejected the joint representation dated 25.04.2016 made by the petitioners. This, according to the petitioners, is without application of mind. He would submit that before passing the impugned order, the second respondent has not conducted any enquiry as to how the 30 allottees were selected for allotment of shops for a period of 21 years. According to the learned counsel, the allotment order dated 18.11.2015 was issued when the election code of conduct was in force in respect of election to the Thoubal Municipal Council. The learned counsel further submitted that the conclusion arrived at by the second respondent in the impugned order is imaginary and the same cannot be sustained in the eye of law and thus, prayed for setting aside the same. 8. On the other hand, the learned Additional Government Advocate submitted that pursuant to the direction issued by this Court in W.P.(C) No. 421 of 2016, the second respondent requested the Executive Officer of Thoubal Municipal Council to make necessary enquiry and furnish comments on the allegations made in the joint representation dated 25.04.2016 for consideration and necessary disposal. He would submit that based on the material available on record, the second respondent passed the impugned order and, therefore, the interference of this Court is not warranted. 9. The learned counsel for respondents 3 and 5 submitted that construction of the Shopping Complex was done by the Public Works Department, Government of Manipur and is not related with Thoubal Municipal Council and that the allotment of shops was done in accordance with the resolution passed In the Council's meeting. Therefore, there is no bona fide in the writ petition and the same is misconceived and prayed for dismissal of the same. 10. Therefore, there is no bona fide in the writ petition and the same is misconceived and prayed for dismissal of the same. 10. The learned counsel for the newly impleaded sixth respondent Union submitted that the members of the sixth respondent have been running small time business in and around the shop site before the advent of the present Shopping Complex. He would submit that the sixth respondent has no other alternative but to pray to allow them to carry on their respective business for another period of six months within the shop premises. 11. This Court also heard the submissions of the learned counsel appearing for the private respondents/30 allottees. 12. This Court considered the submissions made by the learned counsel appearing for the petitioners and the learned respective counsel appearing for the respondents and also perused the materials available on record. 13. The main grievance of the petitioners is that there is no Municipal law for granting lease for a period of 21 years and the relevant provision mandates grant of lease only for a period of three years. Therefore, the allotment order for 21 years without the approval of the State Government is bad in law. Consequently, the impugned order dated 30.06.2016 rejecting the joint representation of the petitioners dated 25.04.2016 is liable to be set aside. 14. It appears that earlier, the petitioners have approached this Court by filing W.P.(C) No. 421 of 2016 with a prayer to quash the allotment orders dated 18.11.2015. This Court, by order dated 22.07.2016, held as under: "Heard Mr. Romendro, learned counsel for the petitioners, also heard Ms. Monomala, learned G.A. for the State respondents. In this writ petition, the petitioners have sought for quashing the allotment order dated 18th November, 2015 and direct the occupants to be evicted on the grounds, inter alia, that the aforesaid allotment order was made while the election code of conduct was in operation in respect of the election to the Thoubal Municipal Council. There are other allegations regarding which this Court would not like to make any observation in view of submission of the petitioner that the petitioner would be satisfied, for time being, if a direction is issued to the respondent No. 2 to dispose of the representation submitted by the petitioner dated 25.04.2016. There are other allegations regarding which this Court would not like to make any observation in view of submission of the petitioner that the petitioner would be satisfied, for time being, if a direction is issued to the respondent No. 2 to dispose of the representation submitted by the petitioner dated 25.04.2016. Accordingly, the present writ Petition is disposed of as prayed with the direction to the respondent No. 2 to consider and dispose of the representation dated 25, 04.2016 (Annexure-A/4 to the writ petition) submitted by the petitioner by issuing a speaking order Within a period of 1 (one) month from the date of receipt of a certified copy of this order. Petition stands allowed to the extent indicated above." 15. By joint representation dated 25.04.2016, the petitioners prayed to cause an enquiry into the facts and circumstances and to initiate action qua allotment of shops vide allotment order dated 18.11.2015 for a period of 21 years at the Shopping Complex at Thoubal Wangmataba. In the said representation, the petitioners stated that the entire process of construction and allotment of shops at the said Shopping Complex is a big scam amounting to crores of rupees and a fraud has been committed by the previous Thoubal Municipal Council on the public money, as nothing was made known to the concerned WDC of Ward-II or localities of the concerned Ward. 16. While rejecting the joint representation of the petitioners dated 25.04.2016, the second respondent passed the impugned order dated 31.08.2016. The relevant portion of the impugned order reads thus: "8. Whereas, in order to enable to comply with the direction of the Hon'ble High Court of Manipur; the undersigned has personally inspected the office of Thoubal Municipal Council on 30.08.2016 and has enquired into the matter and the findings/enquiry report of Executive Officer, Thoubal Municipal Council was found in order. 9. Now, therefore in view of the above facts and circumstances as stated above and to comply with the direction of the Hon'ble High Court of Manipur and after a thorough consideration and examination of all the allegations/submissions made in the joint representation dated 25.04.2016 and after proper application of mind, it is hereby ordered that the request made by the two applicants in the aforesaid joint representation dated 25.04.2016 are rejected as devoid of merit for the justified reasons mentioned above. However, liberty is given to these two applicants to approach any competent authority for redressal of their grievances (if any). This disposes of the direction of the Hon'ble High Court's Order dated 22.07.2016 referred to above." 17. The contention of the petitioners is that the allotment order dated 18.11.2015 was issued to 30 persons without intimation to the Government as required under the Municipal law and that the same was issued by a self-styled Assistant Executive Officer, Thoubal Municipality and not by the competent legal authority. There is some force in the contention of the learned counsel for the petitioners, since the allotment made by the so called Assistant Executive Officer was not intimated to the Government. Further, the allotment order is silent regarding the sanction and/or approval obtained from the Government. On a perusal of the allotment order, it is seen that even there is no marking of a copy of the allotment order to the State Government. 18. It is seen that this Court by an order dated 30.05.2019, while directing the petitioners to implead all the 30 allottees as party respondents in the writ petition, stayed the allotment order dated 18.11.2015 for a period of four weeks and the Municipal authorities were directed to take possession of 30 allotted shops in hand and also directed to seal the shops and report before this Court. 19. By an affidavit dated 12.06.2019, the third respondent stated that despite best efforts, they could not seal all the said 30 shops, since vacating all the goods and commodities from their respective shops by the owners, by arranging a new place for keeping the said goods and commodities within a very short period, was beyond the capacity of the shops owners. However, the Executive Officer of Thoubal Municipal Council had issued a Corrigendum dated 07.06.2019 to the said 30 shop owners to vacate their respective materials in the shops; shut down their respective shops and hand over keys of the shops to the office of the Thoubal Municipal Council for sealing the shops on or before 1.00 PM. on 10.06.2019. It is also stated that the Council has finally completed the sealing process of the 30 shops on 10.06.2019 by shutting down all the 30 shops and giving custody of all the respective keys to the office of the Thoubal Municipal Council. 20. on 10.06.2019. It is also stated that the Council has finally completed the sealing process of the 30 shops on 10.06.2019 by shutting down all the 30 shops and giving custody of all the respective keys to the office of the Thoubal Municipal Council. 20. By an order dated 14.06.2019, while reserving the writ petition for orders, this Court passed the following order: "Heard Mr. M. Rarry, learned Addl. AG appearing for the respondents, Mr. G. Romendro, learned counsel appearing for the petitioners, Mr. L. Anand, learned counsel for the respondent no. 6 and Mr. Y. Thoiba, learned counsel for the private respondents. Heard the arguments for both the counsels and the main writ petition is reserved for orders. Mr. Y. Thoiba, the counsel for the private respondents seeking 6 (six) months time to vacate the properties and handover the same to the third respondent. But, this Court consider the case of private respondents and inclined to grant 4 (four) months time only from today and they must handover the vacant possession of the property to 3rd respondent after completion of 4 (four) months i.e. on 12.07.2019 without fail. The third respondent is directed to remove the lock and seal and handover the property for the possession of the 30 (thirty) allottees today itself. The order in the main writ petition will be passed later on. It is made clear that the 30 (thirty) allottees have no right to file any application for extension of the time after the completion of 4 (four) months. The copy of this order may be furnished to all the parties. Main writ petition being WP(C) No. 829 of 2016 is reserved for orders." 21. Thus, it is clear that the private respondents i.e., 30 allottees, were granted four months time to vacate and handover vacant possession of the shops in question and that they have also agreed to vacate and hand over vacant possession of the shops within the period of four months. The said order dated 14.06.2019 attained finality and the respondents have not preferred any appeal against the same. Therefore, in view of the subsequent development pending writ petition that the private respondents agree to vacate and handover possession of the shops allotted to them, no further direction needs be issued to them. The said order dated 14.06.2019 attained finality and the respondents have not preferred any appeal against the same. Therefore, in view of the subsequent development pending writ petition that the private respondents agree to vacate and handover possession of the shops allotted to them, no further direction needs be issued to them. Anyhow, the private respondents are directed to strictly adhere to the undertaking given, as recorded in the order dated 14.06.2019. 22. Coming to the power of the Municipal Council of Thoubal to grant lease to the allottees for a period of 21 years, admittedly, there is no law for leasing the shops for a period of 21 years. Section 107 of the Manipur Municipality Act, 1994 provides that the Municipality may grant a lease for a period not exceeding three years for collection of rents, tolls and fees in Municipal markets at the rate fixed by the Municipality. 23. It is well established that when a statute specifically provides that an authority has to act in a particular manner and in no other manner, the provision of law being mandatory and not directory has to be strictly adhered to. The Municipal Council, being one of the local self Government bodies, is a trustee of its property and the doctrine of public trust will be applicable when the Council decides to transfer its property to a third party invoking the provisions of the Municipalities Act. 24. Generally, the lease of vacant lands and buildings, including bunks, stalls and shops, shall be granted in public auction for one year in the first instance and the Municipal Councils, on request by the lessees, may renew the lease, provided the application for such renewal of lease should reach the Executive Authority prior to the expiry of lease period. The period of such renewal from its commencement shall not exceed three years at a time. Further, the lease amount for the first year of such renewal shall be fixed by the Council on the basis of market rate or value for such shops, sites and shops in the vicinity after providing for an escalation of not less than 10% per year for the subsequent period of two years. Further, new shops and sites of the Municipal Councils should be leased out in public auction only. 25. Thus, the Municipal Commissioner can grant lease in such cases for a maximum period of three years. Further, new shops and sites of the Municipal Councils should be leased out in public auction only. 25. Thus, the Municipal Commissioner can grant lease in such cases for a maximum period of three years. If the period exceeds three years, then he has to obtain sanction from the State Government. The State can grant lease over such properties up to 25 years and beyond this period, even the State has no power under the statute. Admittedly, in the case on hand, as stated supra, nothing has been produced and/or brought on record by the official respondents to show that the Municipal Council had obtained sanction from the State Government when leasing the shops in question to 30 allottees. 26. Moreover, a fair, rational and transparent mode of grant of lease of immovable properties of local bodies is by way of public auction as the object for which leases are granted by the Municipality/Corporation is, primarily, to maximise its revenue. Admittedly, in the case on hand, the impugned allotment order does not disclose any public auction being conducted. The impugned allotment order simply states that the shops of Shopping Complex at Thoubal Wangmataba, Thoubal are allotted to the persons under lease basis for the period of 21 years. 27. As stated supra, the authority who had issued the allotment order has no power to lease the shops in question for a period of 21 years to the allottees when statute is clear that the lease should be granted only for three years. Nothing has been produced by the official respondents to show that the Municipal Council has power to lease the shops beyond three years. 28. Time and again, the Hon'ble Supreme Court and other High Courts held that lease given illegally beyond the period of three years is not a valid lease. In fact, in the affidavit filed by the respondents 1 and 2 to the opposition affidavit Filed by respondent No. 6, it is clearly stated that the records available show that the shops were allotted without following the procedures and provisions prescribed in the Manipur Municipality Act, 1994 as the lease has been 19 given illegally for 21 years against the law settled by the Hon'ble Supreme Court. Thus, from the averments made in the affidavit of the respondents 1 and 2, it is clear that the allotment of shops made by the Municipal Council for a period of 21 years is illegal and not valid. 29. As stated supra, when provisions of the Manipur Municipalities Act, 1994, particularly Section 107, states that the Municipality may grant a lease for a period not exceeding three years for collection of rents, tolls and fees in Municipal markets at the rate fixed by the Municipality, the Assistant Executive Engineer of Thoubal Municipal Council, who had issued the allotment order dated 18.11.2015, has no power to lease the shops of Shopping Complex at Thoubal Wangmataba to the 30 allottees for a period of 21 years and the same is bad in the eye of law. Therefore, this Court is of the view that the impugned allotment order dated 18.11.2015 is against the statute. 30. Inasmuch as this Court, herein above, held that the allotment order dated 18.11.2015 itself is not a valid one, the impugned order dated 30.08.2016 passed by the second respondent rejecting the joint representation of the petitioners dated 25.04.2016 is without application of mind and the same is liable to be set aside. Moreover, on a perusal of the impugned order dated 30.06.2016, it is seen that the same has been passed in undue haste, without following the procedure contemplated under law. This Court is of the view that while granting lease of the Municipal shops, the Municipal Council and the authority concerned should strictly follow the provisions of the Manipur Municipalities Act, 1994 and the authorities are prohibited from granting allotment of the Municipal shops beyond the maximum period of maximum three years that too after getting approval and/or sanction, as the case may be, from the State Government. 31. At this juncture, it is apposite to quote the relevant portion of the decision of the Supreme Court in Dipak Babaria v. State of Gujarat, (2014) 3 SCC 502 , wherein it is held as under: "60. 31. At this juncture, it is apposite to quote the relevant portion of the decision of the Supreme Court in Dipak Babaria v. State of Gujarat, (2014) 3 SCC 502 , wherein it is held as under: "60. We may refer to Lord Bingham's work titled Rule of Law where in the chapter on exercise of power, he observes that: 'Ministers and public officers at all level must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.' He quotes from R. v. Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd., 1988 AC 858 , which states: 'Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely-that is to say, it can validity be used only in the right and proper way which Parliament, when conferring it is presumed to have intended.' 32. It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. This proposition of law laid down in Taylor v. Taylor, (1875) LR 1 Ch D 426, was first adopted by the Judicial Committee in Nazir Ahmad v. King Emperor, 1936 44 LW 583 and then followed by a Bench of three Judges of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 . This proposition was further explained in para 8 of State of U.P. v. Singhara Singh, AIR 1964 SC 258, by a Bench of three Judges in the following words: (AIR p. 361) '8. The rule adopted in Taylor v. Taylor is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.' This proposition has been later on reiterated in Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266 , Dhanajaya Reddy v. State of Karnataka, (2001) 4 SCC 9 and Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2008) 4 SCC 755 ." The above decision of the Hon'ble Supreme Court fortifies the reasoning given by this Court hereinabove. 33. The Government and its agencies are the largest owners of real property. However, this major source of public wealth is not delivering optimal value by dint of leases like the case on hand which are beyond the statutory period contemplated under law without a provision for enhancement of rent yearly. Vacant lots, underutilized structures, redundant properties, and bloated inventories all burden the balance sheets of government across jurisdictions. This Court only recommends the respondent authorities to bear in mind this vital fact while granting leases in future. 34. In the result, (a) the writ petition is allowed, (b) the impugned orders dated 18.11.2015 and 30.08.2016 passed by the respondent authorities are set aside, (c) however, in view of the clear undertaking given by the private respondents that they will vacate and hand over the vacant possession of the shops, the private respondents are directed to vacate and handover vacant possession of the respective shops as recorded in the order dated 14.06.2019, which was agreed by the allottees, (d) the respondents authorities, particularly, the third Respondent herein is directed to strictly follow the Manipur Municipalities Act, 1994 while granting lease/license/rental of the properties belonging to 3rd Respondent Municipality, (e) the first Respondent Commissioner/Secretary (MAHUD), Government of Manipur is directed to issue suitable circulars to all the Municipalities in the State of Manipur to follow the law of Manipur Municipalities Act, 1994 and the orders of the Hon'ble Supreme Court while granting lease/license/rental of the properties belonging to Municipalities. No costs.