V.S. Balakrishnan v. Pudukkottai Municipality

The petition is for issue of mandamus calling for the records pertaining to the Notification issued by the first respondent in Na.Ka A4.15423/89 dated 29.1.1990 and to quash the same in so far as the Item-1 is concerned. Item-1 of the Notification relates to a right to collect fees in the weekly market for the period from 1-4-1990 to 31.3.1991 According to the petitioner, when the auction was held in the previous year, he was a successful bidder for a sum of Rs. 7,00,150/-. He was directed to pay a sum of Rs. 51,300/- every month. A document was executed on 5.4.1989 on a stamp paper of Rs. 5/-. Under that document, the right of collecting the fees in the weekly market, Pudukkottai during the period from 1.4.1989 to 31.3.1990 was being given to the petitioner herein.

2. It is contended by the petitioner that the document is really one of lease and the petitioner has become a tenant under the Municipality by virtue of the said document and it is not open to the Municipality to hold a fresh auction for the period 1990-1991 and dislodge the petitioner. The second contention is that the petitioner is entitled to the benefit of G.O.Ms No. 285, Municipal Administration and Water Supply Department dated 29.4.1985, under the terms of which the petitioner is entitled to continue on paying an increased lease amount of 15% every year.

3. The contention of the Municipality is that what was given to the petitioner was not a lease and it was only a licence to collect fees from the persons who vend their goods in the weekly market at Pudukkottai. It is also argued that the Government Order referred to by the petitioner is applicable only to lease of buildings, stalls, lands, shops, bunks, etc. and not to a right to collect market fees.

4. The second respondent get himself impleaded as a party to this writ petition on a contention that he is regularly taking part in auction for such rights of collection of fees in the weekly market and he has preferred to offer a sum of Rs. 12,00,000/- per year in the weekly market in question. He adopted the arguments of the counsel for the Municipality.

5. In one sense, the writ petition has become infructuous in view of the framing of the prayer. As pointed out already, the prayer is only to quash the Notification of auction dated 29.1.1990 in so far as the Item-1 is concerned. That Notification was for the period from 1.4.1990 to 31.3.1991 and it has already been worked out. Admittedly, no subsequnt Notification for any auction has been issued by the Municipality in view of the order of stay granted by this court in this writ petition in favour of the writ petitioner. Hence nothing survives in this writ position in so far as the challenge to the Notfication is concerned.

6. However, the petitioner is making a claim which would effect the rights of the Municipality and if the claim is accpeted the Municipality will not be in a position to auction the right of collection of fees in the weekly market unless and until the petitioner is dislodged in accordance with law. Hence it is necessary to consider the contention put forward by the petitioner. Counsel on both sides argued the matter in detail.

7. Reliance is placed by learned counsel for the petitioner on two clauses in the document dated 5.4.1989 In clause I, it is stated that the Municipal Council has granted unto the licencee the sale and exclusive licence and authority to only collecting the fees in the weekly market by leasing to vendors, situated at the registration sub-district. It is submitted that the expression used is “leasing to vendors”. According to the petitioner, a right to lease out the property has been conferred on the petitioner by the Municipality under the document. Secondly, reliance is placed on the last clause of the document which reads thus:—

“He shall maintain the market shops and stalls and be in possession with the right of leasing the shops and stalls. The licencee shall hand over possession of the buidlings and vacant lands on the expiry of term in the same condition in which he is now put in possession.”

8. My attention is drawn to the judgment of the Supreme Court in Qudrat Ullah v. Bareilly Municipality (A.I.R 1974 S.C page 396). It is also a case where under an agreement with Municipality a person is allowed to collect the rents and bazar dues from sheds and shops, and the internal roads within the market the deed was held to be a lease deed and not a mere licence. It was observed that whether, a deed is a lease or a licence depnds on the intention of the parties. If an interest in immovable property entitling the transfer or to enjoyment is created it is a lease, if permission to use and without right to exclusive possession is alone granted it is a licence. A look at the facts of the case shows that along with the document in question, plans were prepared and the property was clearly delineated which was dealt with the document. The relevant clause indicated that exclusive possession was given to the transferee and he was allowed to enjoy the immovable property which was the subject matter of the document in question. In these circumstnaces, the Court held that it was a lease and not a mere licence. The ruling will have no bearing on the facts and merits of the case. It is very clear from the Notification of auction that what was sought to be conferred or conveyed was only a right to collect to fees in the weekly market. The Notification related to about 15 items. The comparison of description of the other items shows that the Municipality intended only to confer a right to collect fees and nothing else. The document dated 5.4.1989, on which reliance is placed, does not contain any description of any immovable property. The schedule merely refers to the right to collect fees in the weekly market. It is written in Tamil as follows:—

That shows very clearly that the parties did not intend to deal with any immovable property under the document. When it is a question of intention of the parties. It is clear from the document in question that there was no intention to ideal with any immovable property.

9. The mere fact that in Clause-1, the expression used is “leasing to vendors” will not show that an interest in the immovable property was conferred on the tansferee. In the document, in the context, the clause only means that a successful bidder in the auction will have the right to collect the fees from the persons who come to vend their goods in the weekly market by fixing appropriate prices for their respective portions. The last clause in the document which refers to “possession” would only mean that so long as the period for which the petitioner is entitled to collect the fees in the weekly market he is to bound to keep the premises in good order and he is bound to be in-charge of the same. The clause does not mean that the petitioner is given exclusive possession of the property with an interest therein. The possession that is given to the petitioner in the document is only for the purpose of his exercising the right to collect fees from the vendors who come to the weekly market. On a construction of the document dated 5.4.1989 which is clear that what was given to the petitioner was only a licence and not a lease. If the contention of the petitioner that he is a tenant of an immovable property is to be accepted, the document dated 5.8.1989 cannot be lookd into at all. It is typed on a stamp paper of Rs. 5/- and the document is not properly used and the petitioner cannot prove his case. Apart from this, if it is a question of tenancy in favour of the petitioner it is expressely for a specific period from 1.4.1989 to 31.3.1990 On the expiry of the period, the petitioner is bound to vacate the premises. It is not in dispute that the Municipality never collected rent or accepted the continuance of the tenancy after 31.3.1990 When the Municipality took steps to hold auction for the further period commencing from 1.4.1990 the petitioner has rushed to the court under Art. 226 of the Constitution of India. This petition was filed even on 12.2.1990 before the expiry of the period. Even if the petitioner is held to be a tenant he cannot continue in possession after 31.3.1990 as the period of the lease came to an end.

10. It has been held by the Supreme Court that a right to immovable property cannot be enforced by an application under Art. 226 of the Constitution of India, (vide State of Rajasthan v. Bhavani Singh and others AIR 1992 S.C 1018).

11. The contention that G.O.Ms No. 285, Municipal Administration and Water Supply Department, dated 29.4.1985 confers on the petitioner a right to continue to be in possession by paying an increased lease amount is without any substance. As I have teid that the petitioner is only having a right of licence, the Government Order does not apply. Apart from that, the Government Order is expressly applicable only to lease Municipal buildings, stalls, lands, shops, bunks, etc. and that does not apply to lease or licence to a right to collect fees in the weekly market. Hence the petitioner will not claim any benefit under the Government Order.

12. Learned counsel for the petitioner brought to my notice a Judgment of the Supreme Court in Civil Appeal Nos. 1441 to 1444 of 1991 dated 23.4.1991 (Erode Perundhu Nilaya Viyaparigal, etc., Sangam v. State of Tamil Nadu and others) which arose out of a case of the lease and the tenant claiming the benefit of G.O.Ms No. 285 dated 29.4.1985 The Supreme Court upheld their claim under the Government Order and allowed their appeals. That ruling will have no application in this case as the said Government Order does not confer any right on the petitioner, who obtains only licence to collect fees in the market.

13. In the circumstances, the writ petition fails and is dismissed with costs of the first respondent. Counsel fee Rs. 1,000/-.

RR/VCS