IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.01.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.13005 to 13012 of 2009 G.Durairajan ..Petitioner in WP 13005/2009 Mrs.S.Vimala ..Petitioner in WP 13006/2009 Arun Justin Prakash Samuel ..Petitioner in WP 13007/2009 S.Ali ..Petitioner in WP 13008/2009 M.S.Bhasakaran ..Petitioner in WP 13009/2009 Sri Chinamman Tyres rep. by its Partner S.Anand Kumar ..Petitioner in WP 13010/2009 Syed Mohideen Basha ..Petitioner in WP 13011/2009 S.Balaji ..Petitioner in WP 13012/2009 Vs. 1. The Commissioner Chennai Corporation, Rippon Buildings Park Town, Chennai 600 003. 2. The District Revenue Officer Land & Estate Department Chennai Corporation Rippon Buildings, Park Town, Chennai 600 003. .. Respondents in all WPs Prayer : Petitions under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus to call for the records of the respondents particularly that of the second respondent in proceedings eP/k/c/J/e/f/vz;/, 2/ rpwg;g[ / 2009 dated 02.06.2009 and eP/k/c/J/e/f/vz;/, 2/ 1830/ 2009 dated 25.06.2009 and quash the same as illegal and unlawful, arbitrary against principles of natural justice and consequently forbear the respondents from in any manner demand higher rent in respect of the petitioner's respective shop portions at 337/1,337/3,337/4,337/7,337/2,337/6,337/8 and 337/5 respectively Wall Tax Road, (V.O.C. Road), Chennai-600 079. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners ::Mr.T.S.Raja Mohan For Respondents::Mr.A.Mohammed Gouse C O M M O N O R D E R Heard both sides. 2. The petitioners are all Shop Keepers having taken out shops on rental basis from the respondent Chennai City Municipal Corporation. There shops are situated in VOC Road, Ward No.44, Chennai. The petitioners have come forward to challenge the Notice dated 2.6.2009 issued by the District Revenue Officer, Land and Estate Department. By the said notice, the petitioners were informed about the Resolution No.365/2000 dated 22.6.000 passed by the Corporation Council. By the said Resolution, the Corporation Council decided to increase annually the rental by 10% for the Shops out let by them with effect from 1.4.2000. Therefore the petitioners were directed to pay the revised rental amount and also to pay the arrears payable by them. The petitioners have come forward to challenge the said communication. 3. An Interim stay was granted on the condition that the petitioners should comply with the conditions imposed in the impugned order. Subsequently the stay was made absolute and the main matter was directed to the posed for hearing after the counter affidavit has been filed by the respondent Corporation. 4. The respondent Corporation has filed a counter affidavit dated 21.12.2009 and a typed set of papers containing the Tender Applications submitted by the petitioners as well as the copy of the resolution including the letter dated 28.12.1998 issued by the Corporation of Chennai. 5. Mr. T.S.Raja Mohan, learned counsel appearing for the petitioners submitted that the petitioners being tenants and the respondent Corporation is a "landlord" within the meaning of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960, the demand of 10% increase per annum is highly arbitrary and unjustified. In terms of the provisions of the Rent Control Act, a tenant is expected to pay only a fair rent and the Act itself gives a formula for fixing fair rent. However, instead of fixing the fair rent as per the Act, the petitioners are demanding in excess of the agreed rental. It is clearly illegal and it is contrary to section 7 of the Rent Control Act which forbids landlords from charging not more than a fair rent. 6. He also placed reliance upon the Judgment of the Supreme Court in LIZA ARULANANDAM v. A.S.SULACHANA reported in (1990) 4 SCC 701. In that case the procedure for fixation of fare rent in terms of section 4 of the Rent Control Act has been delineated. https://hcservices.ecourts.gov.in/hcservices/ 7. A perusal of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, shows that the rents collected for shops farmed out or leased by a Municipal Council or a Panchayat Union Council or the Municipal Corporation are excluded from the said definition. Section 2(8) of the Act defining the term 'tenant' is extracted below: 2 (8) 'tenant' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who -- (i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant, and (ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continues to carry on such business thereafter, and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, carstand or slaughter-house or of rents for shops has been farmed out or leased by a Municipal Council or a Panchayat Union Council or the Municipal Corporation of Madras or the Municipal Corporation of Madurai." (Emphasis added) 8. Per Contra Mr.A.Mohammed Gouse, learned counsel for the respondent stating that the petitioners have agreed to get the shops allotted only on the basis of tenders invited by the Corporation and the terms and conditions for taking the shops on tender is supplied along with the allotment letter. Condition No.32 in the tender condition states that the shop licence will be given only for twelve months and any extension thereafter depends upon the discretion of the Corporation. In case of any extension of licence, the monthly licence will be fixed by the Corporation. The petitioners have signed the said conditions of allotment which was given to them pursuant to the tender submitted by them. The learned counsel also submitted that on 28.12.1998, each of the petitioners have been informed that their licence are valid only for twelve months and subsequent rental will be based upon their paying the 10% per annum of the rental over and above the rent paid by them. The Council of the Corporation which dealt with the issue in its meeting held on 22.6.2000 by a Resolution No.365/2000 had reiterated the very same condition. Therefore, the learned counsel submitted that a fair rent formula cannot be made applicable in the case of the Corporation shops as it was fixed on https://hcservices.ecourts.gov.in/hcservices/ the basis of the tender submitted by the petitioners. The petitioners are also bound by the terms of the tender and the rents paid by them as it is very low. 9. Mr.Raja Mohan, learned counsel contended that what was given to them was eleven months lease and the petitioners are present are statutory tenants. The respondent Corporation ought to have given notice either for enhancement of rent or for evicting them as per the principle of natural justice. For such an enhancement not only the petitioners are to be informed of the reasons, but an opportunity must also be given to them to object. It is arbitrary on the part of the Corporation to demand higher rents. 10. These arguments overlook a fact that in the absence of backed by any statutory provision such as Rent Control Act, the petitioners will have to fall back on the contract between the parties i.e. the Notice Inviting Tender (NIT) and the acceptance of the same by the tenderer cannot be allowed to approach this Court by resorting to Article 226 of the Constitution. As to whether the demand of 10% increase per annum is excessive or not cannot be gone into considering the nature of relationship between the petitioners and the respondent Corporation. The decision relied on by the petitioners have no application as it dealt with the case of a tenant covered by the Rent Control Act. In the absence of any legal and enforceable right, this Court is not inclined to entertain these Writ Petitions. 11. Hence all the Writ Petitions will stand dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rpa To 1. The Commissioner Chennai Corporation, Rippon Buildings Park Town, Chennai 600 003. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Revenue Officer Land & Estate Department Chennai Corporation Rippon Buildings, Park Town, Chennai 600 003. +1cc to Mr.A.Mohamed Gouse, Advocate Sr 5848 +1cc to Mr.T.S.Rajamohan,Advocate Sr 5865 TRM(CO) km/12.2. W.P.Nos.13005 to 13012 of 2009 https://hcservices.ecourts.gov.in/hcservices/