Arulmighu Virudhagiriswarar Vs. the Commissioner and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/923673
SubjectMunicipalities
CourtChennai High Court
Decided OnDec-01-2011
Case NumberW.A. No.1132 of 2002 and W.P. No.9616 of 2002
JudgeELIPE DHARMA RAO; R.SUBBIAH, JJ.
ActsTamil Nadu District Municipalities Act, 1920 - Section 259
AppellantArulmighu Virudhagiriswarar
RespondentThe Commissioner and anr.
Appellant AdvocateMr. R. Sunilkumar, Adv.
Respondent AdvocateMr. V. Subbarayan, Adv.
Excerpt:
1. since the writ appeal arises out of the rejection of the interim order passed in the writ petition, both the writ petition and the writ appeal are taken up together and disposed of by this common judgment. 2. the appellant/petitioner filed w.p. no.9616 of 2002 for issuance of a writ of mandamus, directing the respondents to permit the appellant-temple to continue to run the vegetable market at the property of the temple in survey no.263/1a acre 1.05 in vridhachalam town. 3. the case of the appellant-temple is that the property in survey no.263/1a having an extent of acre 1.05 is classified as natham and held by the temple as a full owner thereof for several decades. a rough patta has also been issued in the name of the temple. the respondents took the property on lease from the temple to establish a public market in the year 1983. subsequently, a lease deed was also executed on 14.8.1992 undertaking to pay a lease of rs.3,000/- per month. the tenure of the lease for three years created under the document was renewed by the proceedings of the respondents on 11.8.1995 offering to pay rs.3,300/- per month. this was also consented by the temple. the respondents fell into arrears of rent and when a demand was made for rs.43,510/- being the arrears, the respondent declined to pay the money by letter dated 19.8.1999. immediately, the respondents issued a letter on 26.8.1999 expressing its decision to surrender possession of the property on 1.10.1999 and further pointing out that subsequent to the said period, the respondents would cease to be a tenant and would not pay the rent. the vegetable vendors, who had been granted licenses to establish the shops in the market, were prepared to attorn directly to the temple as their landlord. the respondents, however, did not want them to continue as the temple's tenants. the respondents were keen on shifting the market to some other place. 4. the further case of the appellant-temple is that the vegetable vendors filed a suit in o.s. no.1846 of 1999 before the district munsif court, vridhachalam against the respondents from interfering with the rights to carry on their business and obtained ex parte injunction and the same is made absolute in i.a. no.469 of 1999. the said suit is still pending. in the meanwhile, the government issued g.o.ms.no.84 dated 29.3.2001 authorising the h.r. & c.e. commissioner to grant lease to vegetable vendors at different rates of rent depending on the size of the place offered for lease ranging between rs.180/- and rs.360/- per month. pursuant to the said g.o., the commissioner, h.r. & c.e. authorized the appellant-temple to grant leases to the tenants by proceedings dated 27.4.2001. accordingly, the tenants are in possession of the temple property and they have been paying the rent to the temple. 5. the further case of the appellant-temple is that they advised the respondents by letter dated 12.7.2001 not to collect any amount from the vegetable vendors either as lease or licence. however, no orders were forthcoming from the respondents. hence, the appellant-temple sought the respondents for express permission by another letter dated 12.7.2001 to grant licence to run a private market at the property where the market was being run. however, the respondents issued a letter dated 12.2.2002 stating that the appellant-temple is not entitled to enter into direct transaction with the vegetable vendors and not to run the market. at the same time, the respondents demanded 15% of the income realised by the petitioner/appellant from the vegetable vendors as its licensees. the respondents also began to cause threats to the vegetable vendors to vacate the place and with the view to virtually stop them from catering to the public, began to lay a compound wall alongside the boundary to prevent access of the public from the road to the market. the respondents' action in refusing to accord express permission to use the property as a private market is illegal and liable to be interfered with by suitable redress of a direction. 6. hence the appellant filed w.p. no.9616 of 2002, seeking for the relief cited supra before this court and also filed w.p.m.p. no.13020 of 2002 for interim injunction restraining the respondents from in any manner interfering with the right of access from palakarai main road to the vegetable market at survey no.263/1a acre 1.05 vridhachalam by removing the compound wall, pending disposal of the writ petition. learned single judge, while admitting the writ petition, dismissed the prayer for interim relief, as per order dated 20.3.2002. as against the said order, the petitioner/appellant has filed this writ appeal in w.a. no.;1132 of 2002. 7. heard learned counsel appearing for both sides and perused the materials available on record. 8. before delving into the contentions raised by the parties, it would be profitable to note down the relevant provisions of the tamil nadu district municipalities act, 1920 (in short “the act”). the issue involved in the writ appeal as well as the writ petition relate to running of market by the municipality in the land of the temple as alleged by the temple. in the act, there is a separate chapter under the heading “markets, buthers, fishmongers, hawkers from sections 2359 to 270a. section 259 of the act relates to public markets. as per section 259, all markets which are acquired, constructed, repaired or maintained out of the municipal fund shall be deemed to be public markets. section 260 provides powers in respect of public markets by which the council may provide places for use as public markets. it is further provided in the section that the council is authorised to collect fees for any period not exceeding three years at a time, subject to certain conditions prescribed by the council. while section 261 deals with the control of the executive authority over public markets, section 262 deals with licence for private market. according to section 262, no person shall open a new private market or continue to keep open a private market unless he obtains from the council a licence to do so. section 262(2) provides for application for such licence to be made by the owner of the place and under sub-section (3) the council shall as regards private markets already lawfully established at its discretion can grant licence subject to any regulatiion as to supervision and inspection. the council is also authorised under the same section to suspend or cancel the licence for breach of any conditions specified by the council. however, 262(4) provides for issuance of show cause notice before cancellation or modification of the licence. further section 262-a prescribes the method of fee for licence, which stipulates 15% of the gross income of the owner from the market in the preceding year shall be charged as licence fee. 9. the aforesaid provisions make it clear about the method of grant of licence, suspension/cancellation of such licence and prescription of licence fee. in the present case, from the materials on record, it is seen that the petitioner/appellant sought permission of the respondents by letter dated 12.7.2001 to grant licence to run a private market at the property where the market was being run. the said request of the appellant-temple was rejected by the respondents by letter dated 12.2.2002 stating that the appellant-temple is not entitled to enter into direct transaction with the vegetable vendors and not to run the market. admittedly, till date, the aforesaid order / letter was not challenged by the temple and the temple had remained silent for about a decade. on the other hand, the respondents demanded 15% of the income realised by the petitioner/appellant from the vegetable vendors as its licensees. after such demand was made by the respondent- municipality, the appellant has chosen to file the writ petition with a prayer to run the market continuously by collecting rent from the lessees. but, the fact remains that the order / letter refusing to grant licence for running the market is in existence. 10. in the aforesaid circumstances, keeping in view the fact that the order refusing to grant licence by the municipality remains in existence and the various provisions of the act, we are of the considered opinion that the appellant/writ petitioner cannot maintain the writ petition and it is liable to be dismissed. accordingly, the writ petition is dismissed. consequently, the writ appeal stands dismissed. however, there shall be no order as to costs.
Judgment:

1. Since the writ appeal arises out of the rejection of the interim order passed in the writ petition, both the writ petition and the writ appeal are taken up together and disposed of by this common judgment.

2. The appellant/petitioner filed W.P. No.9616 of 2002 for issuance of a writ of mandamus, directing the respondents to permit the appellant-temple to continue to run the vegetable market at the property of the temple in survey No.263/1A acre 1.05 in Vridhachalam Town.

3. The case of the appellant-temple is that the property in survey No.263/1A having an extent of acre 1.05 is classified as natham and held by the temple as a full owner thereof for several decades. A rough patta has also been issued in the name of the temple. The respondents took the property on lease from the temple to establish a public market in the year 1983. Subsequently, a lease deed was also executed on 14.8.1992 undertaking to pay a lease of Rs.3,000/- per month. The tenure of the lease for three years created under the document was renewed by the proceedings of the respondents on 11.8.1995 offering to pay Rs.3,300/- per month. This was also consented by the temple. The respondents fell into arrears of rent and when a demand was made for Rs.43,510/- being the arrears, the respondent declined to pay the money by letter dated 19.8.1999. Immediately, the respondents issued a letter on 26.8.1999 expressing its decision to surrender possession of the property on 1.10.1999 and further pointing out that subsequent to the said period, the respondents would cease to be a tenant and would not pay the rent. The vegetable vendors, who had been granted licenses to establish the shops in the market, were prepared to attorn directly to the temple as their landlord. The respondents, however, did not want them to continue as the temple's tenants. The respondents were keen on shifting the market to some other place.

4. The further case of the appellant-temple is that the vegetable vendors filed a suit in O.S. No.1846 of 1999 before the District Munsif Court, Vridhachalam against the respondents from interfering with the rights to carry on their business and obtained ex parte injunction and the same is made absolute in I.A. No.469 of 1999. The said suit is still pending. In the meanwhile, the Government issued G.O.Ms.No.84 dated 29.3.2001 authorising the H.R. & C.E. Commissioner to grant lease to vegetable vendors at different rates of rent depending on the size of the place offered for lease ranging between Rs.180/- and Rs.360/- per month. Pursuant to the said G.O., the Commissioner, H.R. & C.E. authorized the appellant-temple to grant leases to the tenants by proceedings dated 27.4.2001. Accordingly, the tenants are in possession of the temple property and they have been paying the rent to the temple.

5. The further case of the appellant-temple is that they advised the respondents by letter dated 12.7.2001 not to collect any amount from the vegetable vendors either as lease or licence. However, no orders were forthcoming from the respondents. Hence, the appellant-temple sought the respondents for express permission by another letter dated 12.7.2001 to grant licence to run a private market at the property where the market was being run. However, the respondents issued a letter dated 12.2.2002 stating that the appellant-temple is not entitled to enter into direct transaction with the vegetable vendors and not to run the market. At the same time, the respondents demanded 15% of the income realised by the petitioner/appellant from the vegetable vendors as its licensees. The respondents also began to cause threats to the vegetable vendors to vacate the place and with the view to virtually stop them from catering to the public, began to lay a compound wall alongside the boundary to prevent access of the public from the road to the market. The respondents' action in refusing to accord express permission to use the property as a private market is illegal and liable to be interfered with by suitable redress of a direction.

6. Hence the appellant filed W.P. No.9616 of 2002, seeking for the relief cited supra before this Court and also filed W.P.M.P. No.13020 of 2002 for interim injunction restraining the respondents from in any manner interfering with the right of access from Palakarai Main Road to the vegetable market at survey No.263/1A acre 1.05 Vridhachalam by removing the compound wall, pending disposal of the writ petition. Learned single Judge, while admitting the writ petition, dismissed the prayer for interim relief, as per order dated 20.3.2002. As against the said order, the petitioner/appellant has filed this writ appeal in W.A. No.;1132 of 2002.

7. Heard learned counsel appearing for both sides and perused the materials available on record.

8. Before delving into the contentions raised by the parties, it would be profitable to note down the relevant provisions of the Tamil Nadu District Municipalities Act, 1920 (in short “the Act”). The issue involved in the writ appeal as well as the writ petition relate to running of market by the Municipality in the land of the temple as alleged by the temple. In the Act, there is a separate chapter under the heading “Markets, Buthers, Fishmongers, Hawkers from Sections 2359 to 270A. Section 259 of the Act relates to Public markets. As per Section 259, all markets which are acquired, constructed, repaired or maintained out of the municipal fund shall be deemed to be public markets. Section 260 provides powers in respect of public markets by which the council may provide places for use as public markets. It is further provided in the section that the council is authorised to collect fees for any period not exceeding three years at a time, subject to certain conditions prescribed by the Council. While Section 261 deals with the control of the Executive Authority over public markets, Section 262 deals with licence for private market. According to Section 262, no person shall open a new private market or continue to keep open a private market unless he obtains from the council a licence to do so. Section 262(2) provides for application for such licence to be made by the owner of the place and under sub-section (3) the Council shall as regards private markets already lawfully established at its discretion can grant licence subject to any regulatiion as to supervision and inspection. The council is also authorised under the same section to suspend or cancel the licence for breach of any conditions specified by the council. However, 262(4) provides for issuance of show cause notice before cancellation or modification of the licence. Further Section 262-A prescribes the method of fee for licence, which stipulates 15% of the gross income of the owner from the market in the preceding year shall be charged as licence fee.

9. The aforesaid provisions make it clear about the method of grant of licence, suspension/cancellation of such licence and prescription of licence fee. In the present case, from the materials on record, it is seen that the petitioner/appellant sought permission of the respondents by letter dated 12.7.2001 to grant licence to run a private market at the property where the market was being run. The said request of the appellant-temple was rejected by the respondents by letter dated 12.2.2002 stating that the appellant-temple is not entitled to enter into direct transaction with the vegetable vendors and not to run the market. Admittedly, till date, the aforesaid order / letter was not challenged by the temple and the temple had remained silent for about a decade. On the other hand, the respondents demanded 15% of the income realised by the petitioner/appellant from the vegetable vendors as its licensees. After such demand was made by the respondent- Municipality, the appellant has chosen to file the writ petition with a prayer to run the market continuously by collecting rent from the lessees. But, the fact remains that the order / letter refusing to grant licence for running the market is in existence.

10. In the aforesaid circumstances, keeping in view the fact that the order refusing to grant licence by the Municipality remains in existence and the various provisions of the Act, we are of the considered opinion that the appellant/writ petitioner cannot maintain the writ petition and it is liable to be dismissed. Accordingly, the writ petition is dismissed. Consequently, the writ appeal stands dismissed. However, there shall be no order as to costs.