1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.06.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition (MD)No.1423 of 2011 Super Market Thozhilalargal, Viyabarigal Nala Sangam (Reg.No.149/2010) Kaikolar Oorani, Paramakudi, Ramanathapuram District, represented by its Secretary, P.S.Arul ... Petitioner Vs. 1.The Secretary, Department of Municipal Administration, Secretariat, Chennai. 2.The Commissioner of Municipal Administration, Office of the Municipal Administration, Chepauk, Chennai. 3.The Regional Commissioner of Municipal Administration, Corporation Buildings, Madurai. 4.The Commissioner, Paramakudi Municipality, Municipality Office, Paramakudi, Ramanathapuram District. ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned tender cum auction notice in Na.Ka.No.429/07/Si2, dated 25.01.2011 on the file of the respondent No.4 and quash the same as illegal and consequently, to direct the respondent No.4 to extend the lease in favour of the petitioner as per G.O.Ms.No.92, dated 03.07.2007. https://hcservices.ecourts.gov.in/hcservices/ 2 For Petitioner : Mr.T.Lajapathi Roy For Respondents 1-3 : Mr.M.Govindan, Special Government Pleader. For 4th Respondent : Mr.P.Srinivas ORDER The present writ petition has been filed by a Sangam. According to the petitioner, the members of the association has been running business under the lease hold shops from the fourth respondent municipality for the last 10 years. According to them, they are paying the rent regularly and they are small scale merchants earning only Rs.100/- per day. They would only contend that the impugned tender auction notification dated 25.01.2011 seeking tender applications for lease of the shops belonging to the fourth respondent municipality for the period from 2011 to 2014 is wrong. The petitioner further would contend that the association has sent a representation dated 01.02.2011 to all the respondents to consider the claim of the petitioner for extension of lease for the further period of 15 years as per G.O.Ms.No.92, dated 03.07.2007 and the same is pending. Therefore, the impugned notification calling for fresh tender applications without considering their claim for extension of the lease for further period as per G.O.Ms.No.92, dated 03.07.2007 is legally not sustainable. Hence, the present writ petition. 2.The respondent corporation has filed a detailed counter affidavit along with the vacate stay petition. In the counter affidavit, it is stated that the writ petition filed by an association is not maintainable in the eye of law. The petitioner has no locus standi to file this writ petition as there is no privity of contract between the petitioner and the respondents and there is no lease or licence has been granted to anybody in respect of daily market situated at Paramakudi. It is further categorically stated that the municipality alone is collecting licence fees from the vendors and occupiers in the daily market and the market itself was constructed by the municipality and it is being used for the traders who come there and display and sell their commodities on the basis of a daily fee. Since it is a daily market, the vendors who are occupying the vacant spaces for doing their business have to pay daily rent to the municipality or its licensee for such business. There are 42 shops having shutter and 126 open stalls and in which 21 shuttered shops are inside the market and another 21 shuttered shops are situated outside the market facing the main road. Earlier, for the year year, between 1994-1995 one Ambrose was granted licence to collect the fee from the vendors who were doing business in the market on daily rent basis and after the licence period was over, the respondent municipality alone had been collecting fee from the vendors till date through its staff. It is further stated that the daily market not even one shop has been allotted to any particular person and no licence has been granted to anybody in respect of any shops or stalls and if anyone who wishes to conduct business in the market will come and occupy any stall or shop on daily rental basis. Earlier, between 1994-1995, daily rent was fixed at https://hcservices.ecourts.gov.in/hcservices/ 3 Rs.10/- for open stalls and Rs.25/- for shuttered shops and thereafter, it has not been increased till 2010 and therefore, the Paramakudi Municipal council has resolved by a resolution No.551, dated 30.06.2010, and refixed the daily rental as Rs.75/- per day for 21 shuttered shops situated in front of the market and Rs.60/- per day for 21 shuttered shops situated inside the market and Rs.40/- per day for open stalls situated inside the market. 3.It is further stated that as there was shortage of staff to collect fee from the vendors in the market, they have decided to give licence to right to collect fee alone from the vendors in the market and that is why, the tender notification has been called for. Therefore, the very request of the members of the petitioner association that their lease has to be extended as per G.O.Ms.No.92, dated 03.07.2007 does not stand to scrutiny at all. What is sought for in the tender notification is only a licence to collect the fee from the vendors on daily basis and even that rate has also been fixed and it is further stated that neither licence or lease has been granted to the petitioner association. Subsequent to the interim order, public auction was directed to be conducted on 09.02.2010 and in that auction, three persons participated and it is now pending confirmation due to the interim order granted by this Court. 4.In reply, learned counsel for the petitioner submitted that the members of the association have been continuously carrying on the business in the market and those persons who are occupying shutter shops or doing business regularly, they cannot be treated as a daily rented business people and in fact, it has to be construed as lease. 5.Heard the submissions made by the learned counsel for the respective parties and perused the materials available on record. 6.First of all, the main objection was taken up by the respondents is that the whether the writ petition is maintainable which has been filed by a association. As per the decisions of this Court in Formation of Indian Network Marketing Association vs.M/s.Apple FMCG Pvt. Ltd., & Others reported in 2005 Writ.L.R.321, Nadar Mahajana Sangam Vs.Reserve Bank of India reported in 2006 (4) MLJ 385 and Association of Veteran Employees of Minority Academic Recognised Institutions of all kind rep.by its Secretary S.Peter Raj, Thoothukudi District Vs. Government of Tamil Nadu and others reported in (2011) 1 MLJ 1110, the writ petition filed by the association is not maintainable. 7.In any view of the matter, taking into consideration, the members of the petitioner association are only small scale traders who are doing daily rate business in the market in the open shops, the matter is taken up for consideration. The fact remains that the members of the association, even according to them, they are only conducting business in the market only on daily rent basis various people come to the market and display their products and sell. It is not the case that only particular people alone are continuously permitted for a long time to run the business. Here, anybody can come to the market and display https://hcservices.ecourts.gov.in/hcservices/ 4 their articles and pay a nominal fee as rent either to the municipality or to the licensee. In this particular case, after 1994, there was no licence granted to any one to collect fee, contra, it was the municipality which was collecting the fee through out directly from such of the vendors both in the open market as well as in respect of the shops with shutters. Therefore, if the daily rents are being collected by the municipality themselves from 1994, till date, the claim of the members of the petitioner association that they are leasees and they continue to enjoy the property does not arise. In fact, the market itself is opened and the vendors are permitted to enter into the market and to sell their goods at the will and pleasure of the municipality, even now, the publication which has been made is only to give right to collect rental fee from such of those vendors both in the open market and in the shuttered shops. Therefore, the apprehension of the petitioner that the rent will be increased cannot be taken into consideration at all. 8.In fact, in the counter affidavit, it has been very clearly stated that from 1994-1995, daily rent was fixed at Rs.10/- for open stalls and Rs.25/- for shuttered shops and thereafter, it has not been increased till 2010 and therefore, the Paramakudi Municipal council has resolved by a resolution No.551, dated 30.06.2010, and refixed the daily rental as Rs.75/- per day for 21 shuttered shops situated in front of the market and Rs.60/- per day for 21 shuttered shops situated inside the market and Rs.40/- per day for open stalls situated inside the market. If at all, the members of the petitioner association are aggrieved, they can always approach the authorities concerned for reduction in the licence fee to be collected by the licencee but they cannot seek to stay the auction itself. At best, they can only clam that the licencee cannot collect any thing more than the fee fixed by the municipality. The municipality which has got the authority to collect daily rent and due to shortage staff to collect licence fee from the daily vendors rightly has chosen to auction the same so that a good revenue could be obtained by the municipality and that too, it has to be done by way of public auction, even in the public auction, the petitioner association could have participated but they have not participated and third parities have taken the auction on 09.02.2011. Therefore, the petitioner Association does not have any right to challenge the notification for auction for permitting the third party to collect the licence fees. Insofar as the representation, dated 01.02.2011, which has been made only 8 days prior to the opening of the tender and when the tender itself was called for much before the request of the petitioner, and therefore, not to auction the right, cannot be entertained. 9.First of all, they claimed right as a leasee for which they did not produce any document. Further, they claimed right as per G.O.Ms.No.92, dated 03.07.2007, which is only for lessee and the same is also not explained by the petitioner. In any view of the matter, insofar as the consideration of the representation is concerned, the representation needs to be https://hcservices.ecourts.gov.in/hcservices/ 5 considered only if it is eligible to be considered. Under the guise of a representation, they cannot stall the proceedings. Therefore, this writ petition cannot be entertained in view of the order passed by the Division Bench of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2- L.W.785, to which I was also a party. In the said decision, following the Supreme Court decision, this Court has held that an application that could not even be considered, cannot be directed to be considered by the authority. Therefore, very strongly opposes the application of this nature and the maintainability of the application also. The Supreme Court 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 to "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". 10.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, had in para 8 observed:- "....... https://hcservices.ecourts.gov.in/hcservices/ 6 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". 11.For the foregoing reasons, the writ petition is not maintainable and accordingly, the writ petition is dismissed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar To 1.The Secretary, Department of Municipal Administration, Secretariat, Chennai 2.The Commissioner of Municipal Administration, Office of the Municipal Administration, Chepauk, Chennai. 3.The Regional Commissioner of Municipal Administration, Corporation Buildings, Madurai. 4.The Commissioner, Paramakudi Municipality, Municipality Office, Paramakudi, Ramanathapuram District +One Cc to Mr.T.Lajapathi Roy, Advocate, SR.No.20188 +One cc to Mr.P.Srinivas, Advocate, SR.No.20214 +One Cc to The Spl. Govt. Pleader, SR.No.20185 sms rl/8c – 6.7.2011 Writ Petition (MD)No.1423 of 2011 https://hcservices.ecourts.gov.in/hcservices/