1. In all these writ petitions, a common question arises, i.e., whether petitioner is entitled to have the issuance of a writ of certiorarified mandamus to call for the records on the file of the respondent in Na. Ka. No. 4270/97 dated 11.7.1997 and quash the same as illegal, incompetent and without jurisdiction, and to direct the respondent herein to extend the benefit of G.O. Ms. 285, Municipal Administration, dated 29.4.1985 to the petitioners, and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case.

2. In all these writ petitioners, the petitioners are run-ning small business in bunk shops within the limits of Panruti Municipality respondent herein. All of them have a common case that they are using the bunks without causing any disturbance to the public, and they are paying rent to the Municipality as demanded. It is also their case that none of them has encroached any portion of the Government land, nor have they sub-let the shop or violated any of the conditions of licence granted to them. They have also said that they have never defaulted in payment of rent, while so, respondent-Municipality issued a notice asking them to vacate the bunks, pursuant to a resolution passed by the Municipality on 25.6.1997.

3. It is seen that the respondent-Municipality has passed a resolution that all the bunks, situated on the roadside, are causing hindrance to the public and they have also encroached upon municipal land, and the Municipality is also apprehending that further en-croachments will continue. It is also stated therein that pursuant to the resolution, and also pursuant to the conditions of auction, on the basis of which various petitioners in these writ petitions came into occupation of these bunks, are liable to vacate the same on or before 31.8.1997, failing which steps will be taken to take possession of those bunks on 1.9.1997.

4. Learned Counsel for the petitioners submits that on the basis of G.O. Ms. 285, dated 29.4.1985, they are entitled to the benefit of extension of the lease on payment of 15% more than what they have offered earlier. Learned Counsel further submitted that these instructions, even though issued in 1985, are still valid and the Municipal authorities are bound by the same. How far the said contention could be asserted is the only question to be answered in these writ petitions.

5. As I said already, petitioners want the issuance of a writ of certiorarified mandamus, i.e., certiorari to quash the notice, dated 11.7.1997 and mandamus in the nature of a direction to the respondent-Municipality to allow them to continue on the basis of G.O. Ms. No. 285, dated 29.4.1985.

6. I do not think that a writ of mandamus could be issued in these cases, for, G.O. Ms. 285 has not been issued on the basis of any stature of any Rule. The Government has issued instructions to the Municipalities regarding the lease of lands belonging to the Municipality. There are no rules even under the District Municipalities Act, governing the same. Learned Counsel for petitioners was also not in a position to substantiate his case that G.O. Ms. No. 285 was issued on the basis of any statutory rule. Clause (3)(a) of Article 13 of the Constitution of India defines 'Law' as including any ordinance, order, by-law, rule, regulation, custom or usage, having the force of law. On the basis of various decisions of the Supreme Court also, the High Courts, only those orders could be law, i.e., law made by Legislature or intra vires statutory orders and orders made in exercise of power conferred by Statutory Rules, but not administrative orders having no statutory sanction. Unless learned Counsel for the petitioners satisfies that the impugned Government order has the force of law, a writ of mandamus cannot be issued.

7. In one of the earlier decision of the Supreme Court reported in Dwarka Nath v. Bihar State A.I.R. 1959 S.C. 249, the question that came for consideration was, whether Bihar Education Code has force of law. The code provided for withdrawal or withholding of recognition in case the managing committee of a school did not carry out the directions of the Board of Secondary Education. Their Lordships held that the code had no greater sanction than an administrative order or rule, and is not based on any statutory authority of other authority which would give it the force of law.

8. In Raman and Raman Ltd. v. State of Madras , the question that came for consideration was, regarding various orders issued under Sections 43-A and 47 of the Motor Vehicles Act. In paragraph 9 of the Judgment, their Lordships considered the distinction between a 'direction' and 'order' It was held thus:

The terms of the section and the manner of issuing orders and directions thereunder also support the same conclusion. The legislature used two words in the section (i) order and (ii) directions. Whenever it intended to affect the rights of parties, it used the word "rules", but in this section it designedly used the words appropriate to the control of administrative machinery. The words "directions and order" are defined in one of the Law Lexicons thus:

Direction contains most of instructions order most of authority, Directions should be followed; orders obeyed. It is necessary to direct those who are unable to act for themselves; it is necessary to order those whose business it is to execute the orders.

The said meaning of the words is more appropri-ate to administrative control rather than to rules of Law affecting rights of parties. Further, the declaration in the section that the orders and the directions under the section shall be binding on the authorities concerned is indicative of the fact that they are not laws, for if they are laws, no such declarations necessary....

The contention in that case that the various Government orders were issued under statutory power and, therefore, they are laws, was rejected. Their Lordships held that the source of the power does not affect the character of the things done in exercise of that power. Whether it is a law or an administrative direction depends upon the char-acter of nature of the orders or directions authorised to be issued in exercise of the poor conferred. [Italics supplied]

9. The said decision was following The State of Assam and Anr. v. Ajit Kumar Sharma and Ors. (1965) 1 S.C.W.R. 984. The question that came for consideration was, whether the Gauhati University has the power to frame rules for the grant of leave to to teachers of private colleges which are binding on the Governing Bodies such colleges, and had actu-ally been adopted by the Governing Body of the College for its teachers. The college was also receiving grant-in-aid from the State of Assam and there were certain conditions for giving grant-in-aid. A teacher of a college applied for leave with pay in order to contest a seat for Parliament. The leave was granted to him by the Governing Body of the College. He got defeated. The question that came for consideration was, what is the nature of leave that could be granted in such cases, and ultimately, the teacher was informed that he was granted compulsory leave without pay. The question raised, whether the Rules framed by the Gauhati University which were accepted by the College, have statutory force. It was held that they were only instructions and, therefore, no writ of manda-mus could be issued.

10. In G.J. Fernandez v. The State of Mysore and Ors. , the question was, regarding the nature of the Mysore Public Works Department Code and the consequence of its disobedience. In para 12 of the judgment, their Lordships held thus:

... The State can give administrative instructions to its servants how to act in certain "circumstances"; but that will not make such instructions statutory rules which are justifiable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the constitution providing therefore. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the constitution been pointed out to us under which those instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and scope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the code are more administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedi-ence did not confer any right on a person like the appellant, to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, thought the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view, "We take it is unnecessary for us to consider things, for, we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant, on the breach of more administrative instructions.

Therefore, in the present writ petitions, reliance placed on the Government Order, namely, G.O. Ms. No. 285, for the purpose issuing a writ of mandamus, cannot be accepted.

11. That apart, for issuing a writ of mandamus, the duty cast upon the respondent must be a public duty, and in the absence of a statutory provision, manda-mus will not issue to secure performance of obligation, unless that is a duty enforced by Rules having the force of law.

12. In Durga Das Basu's Shorter Constitution of India'- 12th Edition (1996), at page 597, the learned Author has said that in order to obtain a writ or order in the nature of mandamus, the applicant must sat-isfy the following condition: (i) The applicant must show that he has a legal right to the performance of legal duty (as distinguished from a discretion), by the party against whom the mandamus is sought, and such right must be subsisting on the date of the petition and (ii) the duty that may be enjoined by manda-mus may be one imposed by the Constitution; a statute; common law or by rules or orders having the force of law. While considering the same, learned Author says that mandamus does not lie to enforce departmental manuals or instructions not having any statutory force or concessions, which do not give rise to any legal right in favour of the petitioner. [Italics supplied]. Such a writ could be issued only to Compel performance of duties of a public nature or to enforce private rights when duties of a public nature specially affect private rights, or when the private rights are withheld by or in collusion with public officers. In this case, only concession has been given by the Government and it cannot be enforced a legal right.

13. The Municipality has got an absolute power over those properties. The Government has only a supervisory power over it. Under the District Municipalities Act, all its properties absolutely vest in the Municipality. In such a case, the Municipality has got absolute power to decide as to how its properties should be dealt with. In these cases, the Municipality has passed Resolution that it apprehends encroachment in its lands and public is also experiencing great difficulty in view of the location of the bunks. Of course, the petitioners dispute the above statement of the Municipality. But when a public body passes a Resolution taking into consideration the interest of the public, naturally the petitioners cannot claim that they should be permitted to continue the shops in the very same place.

14. In all these cases, notice were issued to various petitioners stating that it is one of the conditions in the auction that notice can be issued before the arrangement is put an end to. In none of the writ petitions petitioners contend that there is no such condition in the auction. The best evidence is to produce copy of the agreement executed by them in favour of the Municipality or the condition of auction. When the same is not challenged in the writ petitions, and when the notice also says it has been issued pursuant to the conditions to which writ petitioners were parties, it cannot be said that the respondent has acted against law.

15. It must be noted that the various writ petitioners came to occupy the various bunks long after the Government order in which there is provision to termi-nate the licence or arrangement by giving notice. That is why time has been given till 31.8.1997 though notice was issued on 11.7.1997.

16. Learned Counsel for writ petitioners relied on a decision reported in V.S. Balakrishnan v. Pudukkottai Municipality, represented by its Commissioner, Pudukkottai, 1994 Writ L.R. 430. In that case, even though the G.O. was relied on by the petitioner therein, Srinivasan, J., as he then was, found that the petitioner therein was not entitled to seek the assistance of Government order for the reason that he has only a right to collect the fees from the licensee. What is the nature of the Government order was never decided, nor did the same come for consideration before the learned Judge. Further, what were the conditions of lease, was also not a matter in issue in that case. I do not think, any reliance could be placed on the decisions relied on by learned Counsel for petitioner.

17. Learned Counsel submitted that it is the practice of the Municipality only to grant a lease. The best evidence in these cases is the production of auction notice or the agreement, if any, executed by petitioner in favour of the Municipality. These documents are not before court. At any rate, the subject-matter in all these writ petitions are bunk shops, i.e., movables and, therefore, the provisions of the lease as contemplated under Section 105 of Transfer of Property Act may not have any application.

18. Learned Counsel for petitioners also relied on an unreported Division Bench Judgment of this Court in The Tamil Nadu Municipal Market Building Association. Vellore, represented by its President v. The State of Tamil Nadu, W.A. Nos. 91, 175, 236, 245, etc. dated 9.7.1991. Of course, on the basis of this G.O. claims were made by the writ petitioners in those cases. In these cases, writ petitioners offered to pay 15% more than what they were paying. The Municipality also agreed for the course. For that reason, the Division Bench held that there is no point in dispossessing the writ petitioners who were in possession of land if they are prepared to pay rent as per the Government order. I do not think that the Division Bench judgment could be taken as a precedent, for the matters in issue in these cases was not agitated there in. In these cases, the Municipality does not want to dispossess the petitioner for getting any en-hancement. It is entirely for a different reason, they want to dispossess all the petitioners, and it is one of the conditions in the auction. Taking into consideration the above facts, I hold that none of the petitioners has any case to urge before this Court, especially for the issue of a writ of mandamus.

19. The question of certiorari will never arise in these cases. The Municipality the owner of the bunks, is justified in issuing the notice for reasons, which it feels to be justified in terminating the arrangement. The Resolution of the Municipality is not challenged in any of the writ petitions. The challenge is only is respect of the notice, as against which no relief could be granted, for, these notices are issued only as a consequence of the resolution passed by the respondent-Municipality.

20. In the result, all the writ petitions are dismissed. The connected W.M. Ps. are also dismissed consequently.