P.V. Arumugam vs The Commissioner Dharapuram Municipality

M.M. Sundresh, J.—The Petitioner was originally allotted a shop by the Respondent Municipality in the year 1989. By the proceedings

dated 13.03.2002, the Respondent has directed the Petitioner to pay the enhanced rent fixed pursuant to the government order in G.O. Ms. No.

147, Municipal Administration and Water Supply Department dated 30.12.2000, proceedings of the Commissioner of municipality Administration,

Chennai dated 11.01.2001, and the consequential resolution passed by the Respondent in resolution No. 124, dated 08.03.2002. Challenging the

said order dated 13.03.2002, The Petitioner has come forward to file the present writ petition.

It is seen that the permission given to the Petitioner expired in the year 2002. Thereafter, in pursuant to the resolution No. 124, dated

08.03.2002, the Respondent extended the lease from 01.04.2002 to 31.03.2005 subject to condition that the Petitioner pays the enhanced rent,

apart from paying the security deposit. Therefore, from the impugned order, it is very clear that the decision to extend the lease was made only

subject to the enhanced rent payable by the Petitioner, along with the enhanced security deposit. The said decision was also made after taking into

consideration, the government order passed in G.O. Ms. No. 147 dated 30.12.2000 and the consequential circular of the Commissioner of

Municipality Administration dated 11.01.2001.

It is further seen that the Respondent has also subsequently, decided to reduce the rent payable by the Petitioner. The said decision was made

by appointing a committee. The Petitioner gave an undertaking that he is ready and willing to pay the reduced rent and in case of any audit

objection, he is responsible for payment as per the enhanced rate, fixed.

The Learned Counsel for the Respondent submitted that there was in fact, an audit objection raised and in view of the same, the Respondent

has passed another resolution dated 26.02.2007 in resolution No. 125 restoring the original demand. Therefore, the learned Counsel submitted

that the writ petition has become infructuous, inasmuch as, there was a subsequent order and the Petitioner has given an undertaking stating that he

is liable for any demand pursuant to the audit objection. This Court finds that the submission made by the learned Counsel for the Respondent

merits acceptance.

The Petitioner gave an undertaking in the year 2004, which was after filing of the writ petition. The Petitioner also approached the Respondent

after filing of the writ petition seeking reduction of rent. A perusal of undertaking given would show that the Petitioner has undertaken to the effect

that in the event of any audit objection, he would be responsible for the same.

The learned Counsel brought to the notice of this Court a judgment of this Court rendered in W.P. No. 16419 of 2001, dated 09.12.2010 filed

by the similarly placed persons, challenging the enhancement made by some other Municipality. Considering the case of the Petitioners therein, this

Court was pleased to pass the following order:

I am not able to countenance any of the arguments of the learned Counsel for the Petitioner. On facts, it is clear that the lease in favour of the

Petitioner has been extended rather than renewed for the period from 1.4.2001 to 31.3.2004 on payment of rent at the rate of Rs. 770/- and also

payment of proportionate deposits for the same. Otherwise the shop would have been brought to public auction and in that auction more amount

would have been fetched to the second Respondent Municipality. After getting the licence period extended on an enhanced lease amount, the

Petitioner cannot now wriggle out and say that the enhancement is very high. If the Petitioner wants to continue in possession of the property given

in lease he will have to pay the rent as fixed in the order dated 19.3.2001. Hence there is no merit in the writ petition.

This Court, after going through the said order, is of the view that the reasoning rendered by the learned Single Judge is squarely applicable to the

facts on hand. The Petitioner having given an undertaking to pay the enhanced demand, cannot go back to challenge the same by questioning the

fixation of rent. The Petitioner cannot approbate and reprobate. Further, the question of enhancement of rent being a disputed question of fact, this

Court cannot exercise its discretionary power under Article 226 of the Constitution of India. Hence, considering the above said facts and in the

light of the discussion made above, this Court finds no reason to interfere with the order impugned. Accordingly, the writ petition is dismissed. No

costs