K.M. Mohan vs The Collector

M. Sathyanarayanan, J.—The writ petitioner is the appellant and he filed W.P. No. 109 of 2012, praying for the issuance of Writ of Mandamus, directing the second respondent, viz., the Commissioner, Vellore Corporation, to allot shop Nos. 1 and 2 together at Dharapadavedu, Chittoor Bus Stand, Vellore, to him, on priority basis, following Resolution No. 163 dated 31.12.2007. The said writ petition, after contest, came to be dismissed on 03.08.2012 and aggrieved by the same, the appellant has filed this writ appeal.

It is the case of the appellant/writ petitioner that he was running a Hotel in the name and style of ''Lakshmi Vilas'' Hotel in Chittor Bus Stand, Vellore, belonging to the erstwhile III Grade Vellore Municipality, now Vellore Municipal Corporation and it was leased out to him in the year 1988 and was for a period of one year and subsequently, from the year 1990 onwards, lease was granted for a period of three years, on an increase of 15% of the rent every year.

The appellant claims that he was in continuous possession of the building in question and also paying rent regularly without fail and was residing in the said building along with this family also. The appellant would further state that he has also made several representations to the Local Body to effect repairs and there was no proper response and it was followed by a further representation dated 13.01.1997 and on the said representation, the Vellore Municipality has chosen to initiate action in terms of the Resolution, dated 30.05.1998, wherein a decision was taken to demolish and reconstruct the Hotel building and also leasing out the same in favour of the appellant. The appellant would further contend that to his shock and surprise, vide order dated 01.03.2005, the Vellore Municipality has called upon him to vacate the premises and therefore, he filed W.P. No. 8726 of 2005, praying for appropriate direction, directing the Vellore Municipality to renew the lease in his favour for a further period of three years and it was dismissed on 15.03.2005. The appellant, aggrieved by the dismissal of the writ petition, filed W.A. No. 1172 of 2005.

The appellant would also contend that the Vellore Municipality once again passed a Resolution on 31.05.2005 for demolishing the building in question and a writ petition was filed in W.P. No. 13689 of 2005 by one Ganesan, seeking a direction, directing the Vellore Municipality to take possession of the building and it was ordered on 25.04.2005. The appellant, aggrieved by the same, filed W.A. No. 1455 of 2005 and it was taken up along W.A. No. 1172 of 2005 and by a common judgment dated 29.07.2005, W.A. No. 1172 of 2005 was dismissed and as per the order passed in W.A. No. 1455 of 2005, it has been ordered that the appellant herein is to be vacated from the building in question only by a Civil Court or by a Statutory Authority and the SLP filed against the said order by the Vellore Municipality before the Honourable Supreme Court also ended in dismissal on 28.11.2005.

The appellant would further contend that thereafter, Vellore Municipality has issued a notice u/s 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975, treating him as an ''unauthorised occupant'' and in response to the said notice, the appellant herein submitted his reply and an order came to be passed on 22.09.2006, directing the appellant to vacate the premises within a period of 14 days and challenging the same, he filed W.P. No. 37757 of 2006. The appellant would also contend that thereafter, he has approached the Vellore Municipality stating that he is willing to hand over possession of the building for the purpose of demolition and reconstruction, but at the same time, prayed that after reconstruction, he may be allotted a shop and the Vellore Municipality has passed Resolution No. 163, dated 31.12.2007, considering the request made by the appellant herein and vide proceedings dated 28.03.2008, has also stated that there were no arrears due and payable by the appellant herein and based on the said undertaking, the appellant had vacated and handed over the premises in question to the Vellore Municipality and the building was demolished and reconstruction was also done.

The grievance expressed by the appellant is that in spite of the undertaking given by the Vellore Municipality to hand over possession of the shop, after demolition and reconstruction, such promise has not been kept and therefore, was constrained to file the above writ petition.

The Vellore Municipality, later on, became Vellore Corporation, and in its counter affidavit, contended among other things that the appellant has not paid the arrears of rent amounting to Rs. 3,70,317/-, even after the notices had been sent to him, for the settlement of the dues, as per the orders passed by this Court. It is also contended that steps had been taken by the Vellore Municipal Corporation to lease out the shops in question by way of auction, in terms of G.O.Ms. No. 92, dated 03.07.2007.

The learned Judge, taking into consideration the rival submissions, has held that no direction could be issued against the respondent-Vellore Municipal Corporation, directing them to allot the shop constructed in Dharapadavedu, Chittoor Bus Stand, Vellore, to the writ petitioner without conducting a public auction and assigning the said reason, has dismissed the writ petition and aggrieved by the same, the appellant has filed the present writ appeal.

During the pendency of the writ appeal, the appellant filed M.P. No. 1 of 2012 praying for stay of all further proceedings pursuant to the public auction notice dated 22.08.2012, issued by the Vellore Municipal corporation and this Court, vide interim order, dated 06.09.2012, has directed the Vellore Corporation not to auction shop No. 1 at Dharapadvedu, Chottoor Bus Stand, Vellore, till the disposal of the writ appeal and the said interim order is in force.

Mr. P. Wilson, learned Senior Counsel appearing for the appellant would vehemently contend that the appellant had undertook to vacate the premises with a request to the Local Body to allot a shop after demolition and reconstruction and it was considered and the Local Body, in its proceedings dated 28.03.2008, had also stated that there were no arrears due and payable by the appellant. The learned Senior Counsel has also brought to the knowledge of this Court, a notice, dated 21.04.2014, issued by the Vellore Municipal Corporation wherein they demanded a sum of Rs. 3,70,317/-, being the arrears of lease along with interest at the rate of 18%, amounting to a sum of Rs. 3,55,504/-, aggregating together, the amount due and payable by the appellant is Rs. 7,25,821/- and according to the learned Senior Counsel, the said demand is also per se unreasonable for the reason that as per the earlier proceedings No. 26, dated 28.03.2008, it was the stand of the Vellore Municipal Corporation that the appellant herein is not at all in arrears of lease and therefore, the said demand made is per se unreasonable and unsustainable and hence, prays for appropriate direction, directing the Vellore Municipal Corporation to allot the shop, which is kept vacant pursuant to the interim order passed in this writ appeal.

Per contra, Mr. S. Silambanan, learned Senior Counsel appearing for the third respondent, would submit that a sum of Rs. 3,70,317/- is due and payable by the appellant being the arrears of lease and he is also liable to pay interest at the rate of Rs. 18% per annum, which was calculated for a sum of Rs. 3,55,504/- and in all, he is liable to pay a sum of Rs. 7,25,821/- and once he clears the arrears, the request made by him for allotment of a shop, which is kept vacant pursuant to the interim order made in this writ appeal, will be entertained and he will be given possession of the shop in question.

In response to the said submission, the learned Senior Counsel appearing for the appellant, on instructions today, would submit that though it is the stand of the appellant herein, as per the proceedings No. 26, dated 28.02.2008, that the appellant is not at all due and payable any amount to the Vellore Municipal Corporation, to get possession of the shop in question, which is lying vacant for a period of two years, he is ready and willing to clear the arrears of lease, viz., Rs. 3,70,317/-, but the interest demanded @ 18% on the said amount, which was worked out to Rs. 3,55,504/- may kindly be waived, as he has not utilised the said shop for a period of two years and it is also kept under lock and seal and in the event of handing over possession of the shop, he has to do the necessary repair work for running his business.

When the appeal is listed today for hearing, the learned Senior Counsel appearing for the appellant has produced two Bankers'' cheque, bearing Nos. 683801, dated 07.06.2014 and 683802 dated 11.06.2014, drawn in favour of the third respondent, viz., Commissioner of Vellore Municipal Corporation, for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) and Rs. 70,000/- (Rupees Seventy Thousand only) respectively, aggregating to a sum of Rs. 1,20,000/- (Rupees One Lakh and Twenty Thousand only) and would further submit that the balance amount may be permitted to be deposited in five instalments and after payment of all the instalments, a direction may be issued to the Vellore Municipal Corporation to hand over possession of the shop in question. The learned Senior Counsel for the appellant would also submit that on receipt of two Bankers'' cheques, possession of the shop may be given and handed over to the appellant and in case of default of payment of any one of the instalment, per month, it is always open to the Vellore Municipal Corporation, to take back the possession of the shop.

On the said submission, the Court heard the submissions of the learned Senior Counsel also, who is appearing for the third respondent/Vellore Municipal Corporation.

The fact remains that there were series of litigations between the appellant and the third respondent-Local Body and the appellant has voluntarily come forward to hand over possession of the shop so as to enable the third respondent-Local Body to carry out demolition and reconstruction and also prayed for handing over possession of the shop in question.

The moot question that arises for consideration is as to whether the appellant is entitled to such indulgence? The said issue is no longer res integra for the reason that the Division Bench of this Court, in which, one of us (N. Paul Vasanthakumar, J.), in the judgment dated 25.11.2013, made in W.A. No. 1175 of 2011, has considered similar issue and also relied upon two judgments rendered by the Honourable Supreme Court of India in the case of Labha Ram and Sons and Others Vs. State of Punjab and Others, , and the order made in SLP Nos. 32780-32788 of 2011, dated 29.11.2011, and held in paragraph No. 11 as follows:-

The issue regarding such obligation on the part of the respondents to provide all license dealers, sufficient accommodation for continuing their trade was already recognised by the Supreme Court in the said judgment. In paragraph-10, a contra decision taken by the Honourable Supreme Court in the decision reported in Chint Ram Ram Chand and Others Vs. State of Punjab and Others, was not accepted by the Three Judges Bench in the above referred judgment. Thus, it is beyond doubt that the appellants are having preferential right in getting allotment of shops on reconstruction, considering their earlier conduct of business in the lease hold shops.

In the light of the factual position, coupled with the decision rendered in the above cited judgment, this Court proposes to pass the following order:-

In the result, the writ appeal is partly allowed and the order dated 03.08.2012, in W.P. No. 109 of 2012, is set aside subject to the following:

a) The learned Counsel on record appearing for the third respondent/Vellore Municipal Corporation is to receive the two Bankers'' cheques bearing Nos. 683801, dated 07.06.2014, for a sum of Rs. 50,000/- and 683804, dated 11.06.2013, for a sum of Rs. 70,000/- on behalf of the third respondent and the third respondent is directed to hand over possession of shop No. 1 at Dharapadavedu, Chittoor Bus Stand, Vellore, to the appellant forthwith after production of solvency certificate as per the requirement stated below. After handing over possession, on completion of the instalment payments, the movables, if any in the custody of the third respondent, shall be handed over to the appellant and the Corporation shall provide all basic amenities to the said shop like one provided to adjacent shops which are let out on lease.

b) The appellant is directed to deposit/pay the balance amount of Rs. 2,50,317/- in equal monthly instalments at the rate of Rs. 50,000/- commencing from July 2014 and the last instalment at Rs. 50,317/- and the monthly instalment is payable on or before 10th of every English Calender Month without fail, along with the monthly rent amount of Rs. 5,000/-. The appellant is also directed to submit a solvency certificate, in respect of the value of the property as on 01.05.2011, from the jurisdictional Tahsildar to the tune of Rs. 3,00,000/-, at the time of getting possession of the shop from the third respondent-Vellore Municipal Corporation. It is also made clear that the if appellant commits default in payment of any one of the instalments and monthly lease/licence amount, it is open to the third respondent to take possession of the shop in question by following the due process of law.

Connected Miscellaneous Petition is closed. No costs.