D. Eslin Joseph vs The Dindigul Municipality

R. Subbiah, J.—The writ appeal is directed against the order, dated 23.11.2010 passed in W.P.(MD) No. 7251 of 2007 whereby the

learned single Judge dismissed the writ petition filed by the Appellant herein.

It is the case of the Appellant that the Respondent municipality had leased out several shops nearby the Kamaraj Bus Stand at Dindigul. The

Appellant is one among the other persons who was provided with a space in the municipal bus-stand for running a juice stall. The Respondent was

allotted with a space measuring 5''X4'' feet, opposite to Rani Mangammal booking counter at Dindigul bus stand. The same was approved by the

council on 09.10.1990.

The Appellant put up the shop in the allotted property and started running the juice stall in the name of ""HPMC Pure Apple Juice Stall"". It is

further stated that the Appellant had spent a considerable amount for putting up the said shop. He had also obtained electricity connection from

Electricity Board. While so, the Respondent municipality officials in the month of August 1992 without serving any notice have illegally attempted to

evict the Appellant from the leased out property. Hence, he filed a suit in O.S. No. 1157 of 1992 before the District Muncif Court, Dindigul to

restrain the Respondent and its employees from in any way interfering with the peaceful possession and enjoyment of the property leased to him,

except under due process of law. The said suit was decreed in favour of the Appellant. Thereafter, the Appellant made an application dated

21.05.1998 to provide more space to run the business. The request of the Appellant was also placed before the council and the same was

approved by the Council on 27.10.1998. Thereafter, the Appellant was allotted more area and a fresh lease agreement was entered into to that

effect.

In the said situation, on 19.02.2007, with the aid of officials of the Respondent, the municipality made an attempt to evict the Appellant by

demolishing the shop.

Hence, he approached this Court by filing a writ petition in W.P.(MD) No. 2483 of 2007 for Writ of Mandamus, to direct the Respondent to

continue his lease and run the juice stall and to pay a compensation of Rs. 2,00,000/- for the damage caused to him. In the said writ petition, it was

the specific contention of the Appellant that he had not received any notice from the municipal authorities before initiating action against him.

Hence, the learned single Judge directed to serve a copy of the notice, dated 08.12.2006 sent by the municipal authorities to the Appellant and

directed the Appellant to give a reply to the said notice, within a period of 15 days from the date of receipt of the order.

The learned single Judge further directed the municipality on receipt of the reply from the Appellant to take further action in accordance with

law. Accordingly, the Appellant has also sent a reply dated 13.06.2007 to permit him to run the juice stall. But after the receipt of the reply, the

Respondent municipality had permitted the Appellant to run the juice stall by their letter 30.06.2007. Subsequently, by order dated 10.08.2007,

the Respondent called upon the Appellant to vacate the juice stall. Challenging the said notice, the Appellant has filed W.P.(MD) No. 7215 of

2007. The said writ petition was dismissed by the learned single Judge, by order dated 23.11.2010. Aggrieved over the same, the present writ

appeal is filed.

Learned Counsel appearing for the Appellant submitted that earlier this Court has given a liberty to the Appellant to send a reply to the notice,

dated 08.12.2006 sent by the Respondent municipality. Though the reply was sent by the Appellant, the Respondent municipality without

considering the same, passed the impugned order. Moreover, the Appellant was running the juice stall for more than 20 years by spending a huge

amount for running the business.

He further submitted that if the Appellant is thrown out, he would suffer a lot of hardship. Since the reply sent by the Appellant was not considered

by the Respondent, the impugned order is liable to be quashed. Learned Counsel appearing for the Appellant further submitted that from the year

1990 onwards, the Appellant is paying the rent amount to the municipality, promptly. Even for the year 2010 to 2011, he has also paid the rent

amount and the same was also received by the municipality.

Per contra, learned Special Government Pleader submitted that originally, the lease was granted only for a period of three years and by way of

Court order, the Appellant is running the juice stall. It is further submitted that the licence granted to the Appellant was also cancelled by the

municipality. Under such circumstances, the Appellant has no legal right to continue to run the business in the property on lease.

Heard the learned Counsel for the respective parties and perused the materials available on record.

The main grievance of the Appellant is that the Respondent without considering the reply has passed the impugned order and therefore, the

same is liable to be quashed. On a perusal of the entire materials on record, we find that originally, the licence was granted only for a period of

three years. Subsequently, the municipality authority has also cancelled the licence by the impugned order wherein the Respondent had stated that

the shop is causing hindrance to the free flow of ingress and egress to the movement of public. Hence, in our considered opinion, when the

Respondent had come to the conclusion that the shop is a hindrance to the public, the question of acceding to the request of the Appellant to

permit him to run the shop, does not arise in this case. Therefore, in our opinion, it is incorrect to say that the order was passed by the authorities

without taking note of the reply sent by the Appellant. Moreover, the learned single by adverting to Section 62 of Indian Easements Act observed

in his order that once licence stands revoked and if the licencee has not handed over the vacant possession, the Respondent is entitled to evict the

Appellant by following the due process of law. In our considered opinion, the learned single Judge by a well considered order has dismissed the

writ petition. We do not find any valid reason to interfere with the order of the learned single Judge. However, since it is represented by the learned

Counsel for the Appellant that the Respondent has received the rent amount for the year 2010-2011, we direct the Respondent to permit the

Appellant to run the shop till 31.03.2011. The Appellant shall hand over the possession immediately thereafter. In case, if the Appellant is failed to

hand over the possession after 31.03.2011, the Respondent is at liberty to take over the possession thereafter.

Accordingly, the writ appeal is dismissed. No costs.

Consequently, connected miscellaneous petition stands closed.

After we have passed the order dismissing the Writ Appeal, the learned Counsel for the Appellant submitted that since the Appellant is running

Juice Stall for about 20 years, after 31.03.2011, if the Appellant is thrown out, he would go without any livelihood and he would be subjected to

great hardship. The learned Counsel for the Appellant submitted that the Appellant may be permitted to make a representation before the

Respondent municipality to provide alternative place for running the shop. The Appellant is at liberty to prefer a representation before the

Respondent municipality and in the event of any such representation being preferred, the Respondent municipality shall consider the same and pass

appropriate orders.