IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.08.2010 CORAM THE HONOURABLE MR. JUSTICE K.VENKATARAMAN WRIT PETITION NOS.16349 TO 16371, 17225, 17271, 16902 TO 16908, 16993 TO 16997, 17875, 17876, 17018, 17017 17090 TO 17093 OF 2010 & All Connected M.P's W.P.No.16349 of 2010 Pattu W/o.Nagappan .. Petitioner in WP 16349/2010 P.Manoharan .. Petitioner in WP 16350/2010 Tmt.Saraswathi .. Petitioner in WP 16351/2010 Tmt.Marayee .. Petitioner in WP 16352/2010 Tmt.Revathi .. Petitioner in WP 16353/2010 Tmt.Kasithamani .. Petitioner in WP 16354/2010 M.Gopinath .. Petitioner in WP 16355/2010 Tmt.Rathinammal .. Petitioner in WP 16356/2010 Muthulakshmi .. Petitioner in WP 16357/2010 Tmt.Sivabakkiam .. Petitioner in WP 16358/2010 M.Balasubramaniam .. Petitioner in WP 16359/2010 Shanthi .. Petitioner in WP 16360/2010 Alamelu .. Petitioner in WP 16361/2010 B.Jayalakshmi .. Petitioner in WP 16362/2010 Suseela .. Petitioner in WP 16363/2010 Tmt.Kalaiyarasi .. Petitioner in WP 16364/2010 Ariyammal .. Petitioner in WP 16365/2010 Saravanan .. Petitioner in WP 16366/2010 Tmt.Malliga .. Petitioner in WP 16367/2010 Ponnusamy .. Petitioner in WP 16368/2010 A.Marimuthu .. Petitioner in WP 16369/2010 Shanthi .. Petitioner in WP 16370/2010 M.Ramasamy .. Petitioner in WP 16371/2010 Geetha .. Petitioner in WP 17225/2010 Sakthivel .. Petitioner in WP 17271/2010 S.Shankar .. Petitioner in WP 16902/2010 Gopinath .. Petitioner in WP 16903/2010 Krishnamoorthi .. Petitioner in WP 16904/2010 Ravi .. Petitioner in WP 16905/2010 Rajendran .. Petitioner in WP 16906/2010 Poosaripillai .. Petitioner in WP 16907/2010 https://hcservices.ecourts.gov.in/hcservices/ S.Selvakumar .. Petitioner in WP 16908/2010 N.Subramaniam .. Petitioner in WP 16993/2010 Balamurugan .. Petitioner in WP 16994/2010 T.K.Shanmugam .. Petitioner in WP 16995/2010 Chinnapillai .. Petitioner in WP.16996/2010 S. Latha .. Petitioner in WP.16997/2010 R. Dhanalakshmi .. Petitioner in WP.17875/2010 M. Ramaswamy .. Petitioner in WP.17876/2010 G. Vadivel .. Petitioner in WP.17017/2010 Arulraj .. Petitioner in WP.17018/2010 Periyammal .. Petitioner in WP.17090/2010 Akilandam .. Petitioner in WP.17091/2010 Krishnaveni .. Petitioner in WP.17092/2010 Tmt. Thamilarasi .. Petitioner in WP.17093/2010 -Vs.- 1. The Velur Selection Grade Town Panchayat By its Executive Officer Paramathi Velur Paramathi Velur Taluk Namakkal District 2. The Velur Selection Grade Town Panchayat By its President Velur Selection Grade Town Panchayat Paramathi Velur Paramathi Velur Taluk Namakkal District 3. Mani @ Marappan S/o.Pappanna Gounder President Velur Selection Grade Town Panchayat Paramathi Velur Paramathi Velur Taluk Namakkal District ... Respondents in all Writ Petitions Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus directing the respondents 1 and 2 to forbear from evicting the petitioner from the Fruit shop Nos.6, 8, 7, 17,19,11,10,15 - 14, 1, 5, 16, 18, 9, 2, 3, 22, 9, 3 in WP No.16354/2010, no Shop number only non Vegetarian Restaurant situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District, in WP 16349 to 16353/2010, WP 16355 to 16361/2010, WP 16363 & 16364/2010, WP 16366 to 16368/2010, 16370/2010. https://hcservices.ecourts.gov.in/hcservices/ Prayer in WP.No.16354/2010 : Writ of Mandamus directing the respondents 1 and 2 to forbear from evicting the petitioner from the Non Vegetarian Restaurant situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. Prayer in WP.No.16362/2010 : Writ of Mandamus directing the Respondents 1 and 2 to forbear from evicting the petitioner from the Vegetarian Restaurant situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. -Prayer in W.P.16365/2010; 16369/2010; 17225/2010; 17090; 17091; 17092; & 17093/2010 :- Writ of Mandamus directing the Respondents 1 and 2 to forbear from evicting the petitioner from the Betal Shop No.12,11,9,2, 10, 5, and 7; situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. Prayer in W.P.16903/2010; Writ of Mandamus directing the Respondents 1 and 2 to forbear from evicting the petitioner from the Bus Stand payment Toilet situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. Prayer in WP No.16904/2010 : Writ of Mandamus directing the respondents 1 and 2 to forebear from evicting the petitioner from the Bus Stand Petty shop No.2 situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. Prayer in WP.Nos.16902, 16905 to 16908, 16993, 16995, 16996, 16997, 17875, 17876, 17017, 17018, 17271 & 16371/2010:- Writ of Mandamus directing the respondents 1 and 2 to forebear from evicting the petitioner from the Bus Stand shop No.8, 21, 10, 16, 19, 17, 22, 9, 15, 3, 1, 12, 7, 20 & 2, situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. Prayer in WP No.16994/2010 : Writ of Mandamus Directing the respondents 1 and 2 to forebear from evicting the petitioner from Bus Stand Aavin Milk Shop No.3 situated in the Bus stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. For Petitioners : Ms.B.Vaigai, for Mr.Vasudevan in W.P.Nos.16349 to 16371, 17225 & 17271 of 2010 https://hcservices.ecourts.gov.in/hcservices/ Mr.S.M.Loganathan, in W.P.Nos.16902 to 16908, 16993 to 16997, 17090 to 17093, 17018, 17875 & 17876 of 2010 For Respondents : Mr.G.Sankaran, Spl.G.P., for R1 & R2 in all WP's Mrs.Dakshayani Reddy, G.A., for R3 C O M M O N O R D E R The petitioners have come up with the present writ petitions for a mandamus directing the respondents 1 & 2 to forbear from evicting them from their Shops situated in the Bus Stand in Paramathi Velur, Velur Selection Grade Town Panchayat at Paramathi Velur Taluk, Namakkal District. 2. In view of the fact that common issue arises in all these writ petitions, a common order is passed in these writ petitions. That apart, since the facts in all these writ petitions are similar, the facts set out in W.P.No.16349 of 2010 is set out here under: (a) The petitioner is a successful bidder in respect of shop No.6 situated in the bus stand of the Velur Selection Grade Town Panchayat for a period from 01.04.2008 to 31.03.2011, subject to the terms and conditions set out therein. In pursuant to the same, the petitioner was carrying on business. The third respondent on assuming office wanted to demolish the bus stand where the shop of the petitioner is situated for erecting a new bus stand although the present bus stand is in good condition and there is no necessity to demolish the same even as per the technical report of the Executive Engineer of the PWD, Namakkal. (b) The first respondent Panchayat in the year 2007 requested the Executive Engineer of the PWD Namakkal Division to give opinion regarding the structure stability of the bus stand. The Executive Engineer adviced by his letter dated 17.04.2007, that it is enough if the respondents carry out repairs to maintain the stability of the structure. However, not satisfied with the same, the first respondent under the instigation of the third respondent again on 16.05.2007 passed a resolution requesting the PWD to give no objection for the demolition and reconstruction of new building. Once again the Executive Engineer, Namakkal reiterated his position by his letter dated 30.05.2007 that there was no need to demolish the bus stand. (c) The Superintending Engineer, PWD directed the respondents to approach the Commissioner, Department of Rural Development as the latter was the appropriate authority. On 27.08.2007, once again the respondents passed a resolution requesting the Department to grant special permission for the demolition and reconstruction of the bus stand as the Panchayat had been allotted https://hcservices.ecourts.gov.in/hcservices/ Rs.1 Crore for the construction of the said building. Again the first respondent made representation to the Executive Engineer, PWD, Salem seeking permission for the demolition of the bus stand. (d) The first respondent approached the Commissioner of Town Panchayat, Chennai through Assistant Director of Town Planning for permission to demolish the said bus stand. The Commissioner by his proceedings dated 30.07.2008 has clearly stated that the proposal for demolition must be recommended by the Namakkal District Collector. But, however the Superintending Engineer PWD who was asked to give report on the stability of the building, by the Chief Engineer (Building), PWD, gave a report totally irrelevant to the task assigned. The Superintending Engineer appears to have given a tangent report stating that the building should be demolished. (e) The petitioner was issued with a show cause notice dated 29.06.2010 directing to show cause why he should not vacate the shop before 31.07.2010 as the panchayat has passed a resolution on 02.07.2008 for building a new bus stand after demolishing the old one. The petitioner's lease continue till March, 2011 and the bus stand was structurally not weak. The action to demolish the existing structure and to build a new construction was done due to malafide reason. (f) Though, show cause notice was issued to the petitioner, it clearly establishes that the respondents had already decided to demolish the bus stand. Hence, the petitioner has approached this Court by filing the present writ petition for the relief set out earlier. 3. Counter affidavit was filed in W.P.Nos.16349 to 16371 by the first and the second respondents, setting out the following facts: (a) The bus stand is in existence for several decades but however it was sought to be regularised and regular bus stand was constructed in the year 1984 by availing loan under IUDP Scheme through the Public Works Department. The construction of the bus stand was completed in the year 1986 and it was put into use. The bus stand consists of Bus Bays and 22 concrete shops in the ground floor which is located in the middle of the bus stand. Apart from that, there are vacant sites for vending fruits on the northern side of the bus stand located at the left side entry of the bus stand. That apart, another 13 vacant shops have been allotted for selling betel nuts on the right side of the left entry opposite to fruit shops. (b) The lease period for all the vacant shops came to an end on 31.03.2008 and thereafter, the Town Panchayat Council passed a resolution dated 28.02.2008 resolving to extend the lease period for a further period of three years from 01.04.2008 by accepting 15% enhanced rent. The order of allotment was subjected to conditions of lease and there is a specific condition that the lessees should hand https://hcservices.ecourts.gov.in/hcservices/ over the vacant possession of the shop without any protest as and when the land is required for usage of Town Panchayat. (c) The present construction of the bus stand was made 27 years ago and the building has got more damaged and dilapidated. The ceiling plastering has been completely damaged and it is posing hazard and danger to the safety of the general public using the bus stand. On 30.08.2005, the Executive Officer of the Velur Town Panchayat requested the office of the Public Works Department to inspect the building and ascertain the structural stability of the building. But, however no action was taken. The Local Body election was conducted in the year 2006 and the newly elected body assumed charge on 25.10.2006. Thereafter, further communications have been sent to the Public Works Department to verify the stability of the building and to take remedial measures. (d) The Executive Officer, Velur Town Panchayat sent a communication dated 03.01.2007 and another communication dated 20.02.2007 to the Executive Engineer, Public Works Department, Namakkal stating the hazardous nature of the building and to provide the remedial measures in the interest of the public. The Executive Engineer, Public Works Department, Namakkal conducted a inspection and sent a letter dated 17.04.2007 stating that the building has been damaged due to the fact that it was not maintained properly from the date of completion of construction and further there are cracks in the concrete pillars and damage in the building and the same has to be repaired in order to ensure the structural stability of the building. (e) The letter received from the Executive Engineer, Public Works Department, Namakkal dated 17.04.2007 was placed before the council meeting held on 16.05.2007 and the council passed a resolution resolving to construct a new bus stand by demolishing the existing bus stand. On 27.05.2007, one Alagiri from Pilikalpalayam Village got seriously injured when the concrete part of the ceiling fell on him and he was hospitalised. (f) On the basis of the report of the Executive Engineer, P.W.D, Namakkal, the Chief Engineer, P.W.D, Chennai forwarded a report dated 08.08.2007 leaving the decision to the Town Panchayat for taking further action by obtaining special permission from the Department of Town Panchayat. Hence a resolution was passed in the council on 27.08.2007 for obtaining special permission from the Director of Town Panchayat, Chennai for demolition and construction of new bus stand. (g) In pursuant to the same, the Assistant Executive Engineer of Town Panchayat, Namakkal District inspected the building on 25.04.2008 and reported that the building is highly dilapidated . He has suggested to demolish the existing building and construct a https://hcservices.ecourts.gov.in/hcservices/ new bus stand. He has forwarded a proposal to the Commissioner of Town Panchayat on 13.05.2008 along with his suggestions. Thereafter, the Commissioner of Town Panchayat, Chennai issued a proceedings dated 30.07.2008 calling for the proposal for the construction of the new bus stand under TUFIDCO Infrastructure Financing Scheme in full shape with council resolution etc., duly recommended by the District Collector. (h) Based on the report of the Superintending Engineer, P.W.D, Chennai, the Chief Engineer, P.W.D, Chennai sent a report, recommending the demolition of the old bus stand and putting up a new bus stand. The Town Panchayat also passed a resolution in this regard on 02.07.2008. The Executive Officer of the Town Panchayat forwarded a proposal to the Town Planning Department seeking approval of planning permission by his letter dated 23.01.2009. After availing planning permission from the competent authority, the District Collector, Namakkal forwarded the proposal to the Director of Town Panchayat in his letter dated 01.03.2010 seeking permission for construction of new bus stand by demolishing the old bus stand. The Director of Town Panchayat, chennai forwarded the proposal to the TUFIDCO on 12.06.2010 requesting for sanction of loan and the loan was also sanctioned by proceedings dated 07.07.2010. Finally, the Director of Town Panchayat, Chennai by his proceedings dated 23.07.2010 accorded administrative sanction for construction of the bus stand at the estimated cost of Rs.97 Lakhs. (i) At this stage, the Town Panchayat Council held its meeting on 22.06.2010 and passed a resolution resolving to terminate the lease of shops beyond 31.07.2010 in respect of the shops for which the lease period was renewed up to 31.03.2011. In pursuant to the same, show cause notice was issued calling upon the petitioner's to explain why they shall not be vacated from the shops. Out of 36 lessees, 11 persons have received the notice and consented in writing to the Town Panchayat stating that they are vacating the premises on 31.07.2010. However, the 25 lessees including the petitioner herein have refused to receive the notice. (j) The petitioner has no semblance of right to be in occupation of the shops when the Town Panchayat has taken steps to construct a new bus stand in public interest. There is no motive or malafide against anybody much less on the third respondent when all the decisions has been taken by the Town Panchayat Council by passing a resolution. 4. Counter affidavit was filed on behalf of the third respondent wherein the following facts have been set out: (a) It is alleged that the construction of the new bus stand is being pursued at his instance against the report submitted by the authorities of Public Works Department. However, the real fact is that, he being the President of the Town Panchayat cannot take any https://hcservices.ecourts.gov.in/hcservices/ unilateral decision and the decision is being taken only by the Town Panchayat Council following the rules and regulations. Further, it is the long felt need of the general public to construct new bus stand with all amenities and to accommodate more number of buses owing to the dilapidated condition of the existing bus stand building which is posing serious threat to the human lives. (b) Even prior to his assumption of charge to the post of President of Town Panchayat, communications have been sent to the P.W.D regarding the seriously damaged bus stand building for taking remedial measures. Hence, it is highly far fetching to attribute motive against him as if he is personally interested and the same is not sustainable. Thus, the counter affidavit seek for the dismissal of the writ petition. 5. I have heard Ms.Vaigai,assisted by the Mr.Vasudevan and Mr.S.M.Loganathan, the learned counsels appearing for the petitioners, Mr.G.Sankaran, the learned Special Government Pleader appearing for the respondents 1 and 2 and Mrs.Dakshayani Reddy, the learned Government Advocate appearing for the third respondent. 6. Ms.Vaigai, the learned counsel appearing for some of the petitioners contended that, (i) the lease was renewed from 01.04.2008 upto 31.03.2011. But prior to the expiry of the lease period, the respondents are contemplating to take possession of the shops from them. (ii) As per Clause 7 of the terms and conditions of the lease, only if the place is required for the Panchayat, it should be handed over. The resolution passed in the council meeting was not for demolition of the existing bus stand but the resolution was for re- construction of the bus stand only. Hence the respondents cannot ask the petitioners to vacate from the shop allotted to them. (iii) The lease was renewed on 31.03.2008, from 01.04.2008 upto 31.03.2011. While so, within four months, the council wanted to re-construct the building. If there was such intention, the renewal of lease would not have been made on 31.03.2008. (iv) The Commissioner of Town Panchayat in his letter dated 30.07.2008 to the Assistant Director of Town and Country Planning, Salem Zone indicated that the proposal for the demolition of the bus stand should be recommended by the District Collector and permission should be obtained from the P.W.D authorities. The proceedings of the District Collector, Namakkal dated 01.03.2010 addressed to the Director of Town Panchayat does not indicate that any proposal was made by him for demolishing the existing bus stand. https://hcservices.ecourts.gov.in/hcservices/ (v) Relevant conditions were not taken into account and the failure to consider the relevant materials could only be abuse of the process of law. (vi) The show cause notice dated 29.06.2010 do not state that the Government has sanctioned the demolition of the existing bus stand. (vii) The explanation that has been offered by the petitioners was not at all considered while causing final notice dated 21.07.2010. Hence, the show cause notice issued to the petitioners was an empty formality with a pre-determined mind to vacate the petitioners. (viii) Sanction for constructing a new bus stand was made only on 23.07.2010, after the impugned order directing the petitioners to vacate and hand over the vacant possession of the shops which was let out to them. Thus, the Director of Town Panchayat gave administrative sanction only on 23.07.2010 for construction of new bus stand, but however the show cause notice was issued even prior to that and the order directing the petitioners to vacate the premises was made prior to that sanction. (ix) Clause 6 and 7 of Rule 9 of The Tamil Nadu Panchayats (Opening and Maintenance of Market) Rules, 2000 contemplates that failure to comply with the terms of a notice under the Rule or contravenes the provisions of any of the other Rules shall be punishable. Conditions enumerated under the lease agreement namely, that the lessees shall vacate the shop as and when it is required by the Town Panchayat is a contractual term subject to Rule 9. Hence, the petitioners could be vacated from the shops in question which was leased out to them only by exercising powers under Rule 9 and nothing more. (x) If the action of the third respondent was not in good faith, the whole action is a malice. 7. Mr.Loganathan, the learned counsel appearing for some of the petitioners in addition contended that , (i) The third respondent has no power to ask the petitioners to vacate the shops which have been leased out to them. (ii) Section 154 of the Tamil Nadu Panchayat Act and The Tamil Nadu Panchayats (Public landing places, halting places, cart- stands) Rules, 1999 have been cited for the plea that since grant of lease of the shops at the bus stand emanates from Government, the power vest with the Government to cancel the lease. Thus, the third respondent has no power to direct the petitioners to vacate from shops which was let out to them. https://hcservices.ecourts.gov.in/hcservices/ (iii) Clause 15 of Section 242 empowers the Government in addition to the Rule making power under the Panchayats Act, power to make Rules generally to carry out the purpose of the said Act. Clause 15 of the Section 242 speaks about the preparation of plans and estimates for works and the power of panchayat and of servants of the Central or State Government to accord professional or administrative sanctions to estimates. (iv) Table 1 of the Tamil Nadu Panchayats (Preparation of Plans and Estimates for Works and Mode and Conditions of Contracts) Rules, 1998 contemplates that if more than one lakh is the estimated cost of work at a Village Panchayat, there shall be administrative sanction by the District Collector. However, the same was not followed in the case on hand. 8. On the other hand, Mr.G.Sankaran, the learned counsel appearing for the respondents 1 and 2 submitted, (i) Even before the third respondent assumed the office there was a proposal to demolish and re-construct the existing bus stand on 30.08.2005 and 28.03.2006. Hence, it cannot be contended on the side of the petitioners that with a malice, the third respondent has directed the petitioners to vacate the shops which was let out to them. The report of the Executive Engineer does not state that the building is in good condition but only states that the stability could be protected, if repairs are carried out. Hence, it cannot be urged on the side of the petitioners that the Executive Engineer did not recommend for demolition of old bus stand and did not state that the building was in good condition. (ii) The terms and conditions enumerated under the lease deed executed in favour of the petitioners clearly indicates that the petitioners shall vacate the shops as and when it is required for the Town Panchayat. (iii) The report of the Assistant Executive Engineer of the Town Panchayat addressed to the Assistant Director of Town Panchayat dated 25.04.2008 clearly reveals the position of the existing bus stand and the requirement of construction of a new bus stand. (iv) The new construction is for a public purpose and it cannot be heard from the mouth of the petitioners to state that the existing bus stand should not be demolished and a new bus stand shall not be constructed. 9. The learned counsel appearing for the third respondent, Mrs.Dakshayani Reddy contended that (i) All actions that have been taken for demolishing the existing bus stand and for re-construction of new bus stand, prior to the election of third respondent as President of the Town Panchayat. https://hcservices.ecourts.gov.in/hcservices/ (ii) It is not only the decision of the third respondent to demolish the existing bus stand and to put up a new bus stand but it is a collective opinion of the council which has passed a resolution for the same. (iii) Bald allegations regarding malafide was made against the third respondent. No specific allegation of malafide was made. 10. With the above contentions raised on the side of the petitioners and the respondents, it has to be seen whether the proposed action taken against the petitioners is valid and justified in accordance with the provisions of the Tamil Nadu Panchayats Act. 11.