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Judgment
Y. Venkatachalam, J.—Invoking Article 226 of the Constitution of India, the Petitioner herein has filed the present writ petition seeking for a writ of certiorarified mandamus to call for the entire records relating to the impugned proceeding of the first Respondent in his proc. No. Mu. Mu.1571 48/92/Pe.l, dated 8-1-93 and to quash the said impugned proceedings of the first Respondent dated 8.1.93 and consequently forbear the 1st and 2nd Respondents from in any way granting lease or licence in respect of refreshment stall at Paramathi Velur Bus Stand, Velur, Salem District and to pass such further or other orders as this Court may deem fit and proper.
In support of the writ petition, the Petitioner herein has filed an affidavit wherein she has narrated all the facts and circumstances that forced her to file the present writ petition and requested this Court to allow the writ petition as prayed for. Though no counter affidavit has been filed by the Respondents the Learned Counsel appearing for the Respondents 1&2 contested the matter and pleaded that the writ petition has to be dismissed for want of merits.
Heard the arguments advanced by the Learned Counsel appearing for the respective parties. I have perused the contents of the affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by the Learned Counsel appearing for the respective parties during the course of their arguments.
In the above facts and circumstances of the case, the only point that arises for consideration is, as to whether there are any valid grounds to allow this writ petition or not.
The brief facts of the case of the Petitioner as seen from the affidavit are as follows: The Petitioner herein is a licence for running a vegetarian refreshment stall at the Bus Stand of Paramathi Velur, Salem District, having leased in an Open auction for a period between 1-4-91 and 31-3-1994. It is very clear that at the time of her auction it was made known that only one refreshment stall will be allowed in the Bus Stand and having that in mind, the Petitioner has participated with the auction and had a high bid. That being so, the 3rd Respondent whose son is a political figure in that area belonging to the ruling party seems to have approached the first Respondent and the first Respondent without any regard to the rules and regulations seems to have granted a lease in favour of the 3rd Respondent in his proceedings dated 8-1-93. The said order is not even served on the Petitioner and says that a permission is being given to the 3rd Respondent to run a Non-Vegetarian Stall in place measuring to an extent of 30'' x 20'' on a temporary basis for a period of three years. The said order directs the 2nd Respondent to grant permission with 4 conditions viz., the stall should have only temporary structures and the fee is Rs. 600/- for the first year; Rs. 900/- for the second year and Rs. 1,200/-for the third year which should be paid in advance every year and the third Respondent can recover the possession of issuing one month notice. The said order further says that Executive Officer to get a proper lease deed from the Respondent. The first Respondent may not have jurisdiction under the Panchayat Act as well as the Rules governing the issue to give a direction, the entire move is political, extraneous and without jurisdiction. The Executive Officer who is exercising the powers of the Council alone is entitled to consider the question of granting any permission or licence. In this case, the direction given by the first Respondent therefore, totally lacks bona fides and is without jurisdiction. Though the first Respondent has issued such directions, the second Respondent has not acted on the instructions given by the first Respondent and did not grant any permission whatsoever, while matters stood like this, the third Respondent taking advantage of the third Respondent''s son in the political field occupied the possession unauthorisedly and entered into the lands and started putting up a permanent structure which created a law and order problem in that area. The second Respondent on coming to know of this highhanded action on the part of third Respondent, rushed to the spot and removed the materials gathered for construction and prevented the third Respondent from making any constructions. The third Respondent and her son seems to have even gone to the extent of assaulting the staff of the panchayat and FIR came to be registered in this regard. The Executive Officer, as well as the staff has given a complaint, which has been registered as Crime No. 140 and 141/93 on the file of the Paramathi Velur Police Station and the same is now under investigation. The public also staged agitations and went on hunger strike, etc., on the high handed action on the part of the third Respondent. In view of the fact that the proposed third Respondent is acting high handedly and causing loss in this area, the business of the Petitioner is also affected. The Petitioner herein filed a suit in O.S. No. 299 of 1993 on the file of the District Munsif Court at Namakkal, Salem District praying for Declaration that the 2nd Respondent has no jurisdiction to grant licence to run the non-vegetarian stall and for a permanent injunction, the said suit is pending. There is an interim injunction in the said pending suit. The 3rd Respondent in her turn seems to have filed a suit in O.S. No. 343 of 1993 against the second Respondent for an injunction as if she has already running a stall. Thus according to the Petitioner, the entire thing revolves round on the impugned order of the first Respondent who has no jurisdiction to issue the impugned order. The reports of the Commissioner appointed by the Civil Court, will go to show that the 3rd Respondent has no valid licence or permission to start the business. Further there is no construction at all. The first Respondent only directed the second Respondent to grant the permission and admittedly the second Respondent has not granted any permission. In such circumstances, the claim of the third Respondent is wholly unsustainable in law. According to the Petitioner the provisions of the Panchayat Act in Section 106 is very clear that the Bus stand shall be the property of Panchayat, which has got the right to levy the fees and collect the same. Therefore, the Executive Officer, is the person authorised to grant or refuse to grant the License and it is not open to the first Respondent to issue directions. The first Respondent has no power whatsoever and the power to pass the very impugned order is not traceable in any of the provisions of the Panchayats Act. Further according to the Petitioner herein, the entire move on the part of the first Respondent is politically motivated and that the concerned files will amply prove the claim of the Petitioner. Therefore the entire move on the part of the first Respondent is arbitrary, unreasonable and lacks bona fides. Hence this writ petition.
Challenging the impugned proceedings, the Petitioner herein contends that the Petitioner''s right carry on the business, which is fundamental rights guaranteed to the Petitioner is being violated, that there was no mention on the part of the second Respondent at the time of the grant of lease in the Petitioner''s favour with reference to starting of a non-vegetarian stall, and that the second Respondent by his conspicuous act has induced the Petitioner to participate in the auction and made a high bid. Therefore it is her case that in such circumstances, it is not open to the first and second Respondent to alter the situation to the detriment of the Petitioner. The entire act of the first and second Respondents are therefore hit by the theory of promissory equitable and estoppel. It is also her grievance that the Petitioner herein has invested a huge sum of money and depending upon the income and that therefore, it is not proper on the part of the first and second Respondents to create a stalemate and deprive the lawful earnings of the Petitioner. Thus it is contended by her that the present move of the first Respondent is not only without jurisdiction but also violates the fundamental rights guaranteed to the Petitioner under Articles 16, 19 and 21 of the Constitution of India. It is also her case that the Government Orders issued from time to time are very clear that there should not be any arbitrariness or unreasonableness in the grant of licence, and that therefore the same is liable to be quashed.
Having seen the entire material available on record and from the facts and circumstances of this case and also from the claims and counter claims made by the rival parties, the following are the admitted facts in this case. The Petitioner herein took lease in an open auction the licence to run a vegetarian refreshment stall at the bus stand of Paramathi Velur for a period between 1.4.91 and 31-3-94. She claims that it is very clear that at the time of her auction, it was made known that only one refreshment stall will be allowed in the bus stand and having that in mind she took the lease on a high bid. Now she is aggrieved that the first Respondent has granted a lease in favour of the 3rd Respondent in his proceedings dated 8-1-93 and that the said permission is being given to the 3rd Respondent to run a non-vegetarian stall in place measuring 30'' x 20'' on temporary basis for a period of three years. Therefore, it is contended by the Petitioner herein that the Respondent have no jurisdiction under the Panchayat Act as well as the Rules governing the issue to give a direction and also that the entire move is political, extraneous and without jurisdiction.
In this case, the order impugned is the proceedings of the first Respondent in his Proc. No. Mu. Mu.l57148/92/Pe.l, dated 8.1.93 and her prayer is to quash the same and consequently to forbear the 1st and 2nd Respondent from in any way granting lease or licence in respect of refreshment stall at Paramathivelur Bus Stand, Velur, Salem District. A perusal of the impugned order goes to show that the first Respondent had only directed the 2nd Respondent to give permission to run a non-vegetarian restaurant only for three years as temporary measure. It has also been mentioned therein that only after getting the agreement to abide by the rules laid down therein the 2nd Respondent has to give permission to run such a stall. It is not the case of the Petitioner herein that consequent to the impugned proceedings, the 2nd Respondent received any agreement from the 3rd Respondent or they have issued any permission to the 3rd Respondent to run such a stall. To the contrary, it is very clear from the records, that the 2nd Respondent by his notice dated 7.4.93 clearly informed that they have not given any permission to the said 3rd Respondent to run non-vegetarian refreshment stall. That apart they have also asked the 3rd Respondent to remove the building material brought by the 3rd Respondent to construct such a stall in the bus stand premises. That apart in this case, it is also significant to note that regarding the same issue there is a Civil Suit pending in the Civil Court and there is also an interim injunction against the 3rd Respondent. It is admitted even by the Petitioner herein that the said civil suit is still pending. Another important aspect in this case is that the impugned notification is dated 8-1-93 wherein the first Respondent asked the second Respondent to grant permission to the third Respondent subject to certain conditions to run a non-vegetarian refreshment stall in the bus stand as a temporary measure and only for a period of three years. That being so, even if such permission had been granted that would have closed by the date 8-1-96. Thus it is very clear in this case that though the first Respondent had asked the 2nd Respondent to give permission to the 3rd Respondent subject to certain conditions, the 2nd Respondent has not acted upon the impugned proceedings of the 1st Respondent and also that the period of 3 years mentioned in the impugned proceedings also already expired even on 7.1.96. Therefore, in the above circumstances of the case, I do not see any merit whatsoever in the writ petition.
Therefore for all the aforesaid reasons and in the facts and circumstances of the case and also in view of my above discussions with regard to the various aspects of this case, I am of the clear view that the Petitioner herein has failed to make out any case in her favour and that therefore there is no need for any interference with the order/notification impugned in this writ petition. Thus the writ petition fails and the same is liable to be dismissed for want of merits.
In the result, the writ petition is dismissed. No costs. Consequently WMP No. 14370/93 also is dismissed.