Madras High Court
Thanjavur Municipal Corporation vs M/S.Jupiter Talkies on 23 August, 2021
W.A(MD)No.1509 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.08.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The HON'BLE MR.JUSTICE M.DURAISWAMY
W.A.(MD) No.1509 of 2021
and
C.M.P(MD)No.6176 of 2021
Thanjavur Municipal Corporation,
Through its Commissioner,
Thanjavur. .. Appellant/Respondent
Vs.
M/s.Jupiter Talkies,
Through its Proprietor,
Thiru. Joseph Francis,
Market Road,
Thanjavur. ... Respondent/Petitioner
PRAYER: Appeal under Clause 15 of the Letters Patent Act, against the
order dated 26.05.2021 in W.P(MD)No.9544 of 2021.
For Appellant : Mr.N.Dilip Kumar
For Respondent : Mr.V.R.Shanmuganathan
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W.A(MD)No.1509 of 2021
JUDGMENT
[Judgment of the Court was delivered by The Hon'ble Chief Justice]
The appeal could have been disposed of on the basis of the material
noticed in the order of admission of July 30, 2021, but since the Court was
in extreme shock in receipt of the impugned order, the matter was adjourned
so that the respondent-writ petitioner could not complain that it had not
been afforded due opportunity to present its case.
2.The writ petition in this case was filed on May 23, 2021, ostensibly
upon the writ petitioner's representation of May 15, 2021 (which was
received by the appellant on May 17, 2021) not being acted upon. The
prayers in the writ petition need to be noticed:
“Issue a writ of Mandamus directing the respondent herein
to execute a temporary lease agreement in favour of the
petitioner for the lands in the lands in Ward No.5, Block No.8,
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W.A(MD)No.1509 of 2021
Market Road, Thanjavur Town, to an extent of 13605 sq. ft. in
S.No.82 and to an extent of 26935 sq. ft. in S.No.455, both put
together about 400000 sq. ft. from and out of total extent
measuring an extent of 35835 sq. ft. in S.No.82 and measuring an
extent of 26395 Sq. ft. in S.No.455 belonging to the respondent
Municipal Corporation, in which petitioner own a superstructure
and running a cinema theatre under the name and style “Jupiter
Talkies” for the further period and upon such terms and
conditions and upon such rent as the corporation may reasonably
fix for execution of fresh lease.”
Significantly, there is no reference to the notice dated May 15, 2021 in the
prayers, though such notice is mentioned in the body of the petition.
3.At least two previous writ petitions pertaining to the same matter
had been filed in this Court by the respondent-writ petitioner. The second of
the writ petitions, WP(MD)No.783 of 2021, was withdrawn on the ground
that the petitioner would pursue his remedy elsewhere as is recorded in an
order of January 21, 2021.
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W.A(MD)No.1509 of 2021
4.According to the writ petitioner, a parcel of land was leased out by
the appellant herein in favour of a private party in the year 1922 for a period
of 99 years with a right to sub-lease. The writ petitioner claims that the
original lessee sub-leased a portion of the property in 1946 to the
petitioner's immediate predecessor-in-interest. The writ petitioner further
informs the Court that such predecessor-in-interest constructed a cinema
hall at the site and the writ petitioner purchased the leasehold rights along
with the construction in 1988.
5.Prior to the expiry of the head lease on May 31, 2021, notices were
issued to the lessees or sub-lessees or occupants at the leasehold premises.
Two essays by invoking Article 226 of the Constitution to prolong the
occupation ended in little joy to the petitioner. After withdrawing the
second writ petition and this Court permitting the writ petitioner to work out
his remedies in accordance with law, the writ petitioner duly instituted a suit
in Thanjavur. A prayer for interim relief was made in the suit, notices were
directed to be issued but no interim order was obtained by the writ
petitioner.
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W.A(MD)No.1509 of 2021
6.The writ petitioner says that it is in such circumstances, particularly
since the lockdown following the second surge of the pandemic stopped
normal functioning in courts, that the writ petitioner was constrained to
issue a notice to the appellant herein on May 15, 2021 making the following
request:
“We state that since the period of lease is to over by
31/5/2021 and we are in lawful possession and enjoyment for
decades together, we are making this request, requesting the
Corporation to grant temporary lease till the disposal of the
pending suit. We stated that since the agreement dated
30/05/1922 provides for renewal of lease for further 99 years,
we request the corporation to consider our request for
execution of lease atleast for another 3 years, till the suit
seeking the relief for execution of lease for 99 years is
disposed of and reaches finality.”
7.Thus, if the writ petitioner's case is taken at face value, it amounts
to this: that notwithstanding the pendency of a civil suit in which the right
of the writ petitioner to continue in occupation and the right of the writ
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W.A(MD)No.1509 of 2021
petitioner to use the land and the construction made thereon were directly
and substantially in issue, the writ petitioner made a request to the principal
defendant in the suit for a kind of interim arrangement that the writ
petitioner applied to obtain from the suit court but is deemed to have been
declined; and, upon the unreasonable and irrational conduct of the appellant
herein in failing to respond to the rather unusual request of the writ
petitioner within five days of the receipt thereof, the writ petitioner carried
the complaint to this court by invoking the extraordinary jurisdiction under
Article 226 of the Constitution. Even if the writ petitioner may have feigned
ignorance of the principle of res judicata, which is a matter of public policy
and of universal application, the Court should have been aware thereof.
8.A word needs first to be said as to the width and breadth of the
authority available to a constitutional Court under Article 226 of the
Constitution before the mendacity on the part of the writ petitioner takes
centre-stage. The authority under Article 226 is of the widest amplitude.
Though, ordinarily, the remedy available under such provision is seen to be
confined to the field of public law, the last five words of Article 226(1)
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W.A(MD)No.1509 of 2021
permit orders in other fields to be issued in appropriate cases. Indeed,
Article 226 of the Constitution can be the authority to deal with all matters
in a breakdown situation, as in the unforeseen circumstances brought about
by the pandemic or when there is an act of God that prevents the normal
functioning of courts in the District Judiciary. In short, when there is
injustice which requires to be dealt with immediately, Article 226 of the
Constitution is available. But every instance of authority comes with a
degree of self-restraint. The greater the authority, the more the caution that
is needed to be exercised in wielding such authority. Jurisdiction, as it must
be said, is an obligation and a responsibility; not a privilege.
9.In a situation where the civil court machinery was completely
non-functional, a High Court could have been approached, whether under
Article 226 or under Article 227 of the Constitution, to grant relief to a
person who did not have a forum open to approach. However, what is
evident from the conduct of the writ petitioner here is that the forum may
have been chosen not upon there being no choice, but more by design.
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W.A(MD)No.1509 of 2021
10.The order permitting the writ petitioner to withdraw the second of
his writ petitions in this Court was made on January 21, 2021. It is common
knowledge that till or about the middle of March, 2021 the second surge of
the pandemic was not noticed and lockdown measures came to be clamped
down in this State only in April, 2021. Even though the Courts reacted
earlier, by the end of March, 2021, to stop footfall in Court complexes, the
virtual mode of Court operations continued unabated and there was scarcely
a grievance of a matter requiring attention but not being taken up. At any
rate, if the writ petitioner's prayer for interim relief had not been granted
within reasonable time, it was open to the writ petitioner to carry an appeal
from the relevant order or even a revision, if only to direct the trial court to
dispose of the prayer for interim relief within a time-bound period. After
all, in February, 2021 when the suit may have been instituted, the date of
expiry of the lease on May 31, 2021 was more than two months away.
11.Yet, the writ petitioner chose not to be proactive upon instituting
the suit and suddenly swung into action in the third week of May when the
weather conditions may have suited the writ petitioner. It was ridiculous on
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W.A(MD)No.1509 of 2021
the part of the writ petitioner to make a prayer in the purported request dated
May 15, 2021 that would have resulted in virtual interim decree in the suit
in which the appellant herein was the principal defendant. It was
preposterous for the writ petitioner to suggest that the appellant herein was
under an obligation to immediately respond to the purported request on May
15, 2021. Just as it was unusual and unnatural for this Court to entertain the
writ petition to pass an order that the civil court is deemed to have declined
in issuing, despite the writ court not enjoying the powers of an appellate
forum or revisional forum and at least one previous writ petition pertaining
to the matter having been voluntarily withdrawn by the writ petitioner.
12.If at all any order was necessary to be passed or even the writ
petition entertained, the first aspect that was required to be dealt with was
the need for the writ court to open its doors to a person who had already
withdrawn from it and had carried the matter before the appropriate civil
forum. There does not appear to be any reference in the order impugned to
the attempts made by the writ petitioner to seek an interim order in the civil
proceedings or exhaust its appellate or revisional remedies.
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W.A(MD)No.1509 of 2021
13.As is the wont in such cases, the order impugned is littered with
errors. The appellant rightly points out that there was no lease deed
executed by the appellant in favour of the writ petitioner for 25 years as
recorded in the tenth paragraph of the impugned order. The appellant also
says that in the context of the proceedings between the writ petitioner and
the Corporation and at least two previous writ petitions ending with no
cheer for the present writ petitioner, the following sentence from paragraph
10 of the order impugned makes little meaning and may, probably, not be
presenting the correct picture:
“The petitioner has made a request to the respondent
corporation for extension of lease, but the same was rejected
without giving any opportunity to the petitioner.”
14.It may do well to recount the facts once again. A 99-year lease was
granted to a party with a right to sub-lease; and a portion of the land had
been sub-let by the original lessee in 1946. The sub-lessee constructed a
cinema hall, which such sub-lessee transferred along with sub-lease rights
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W.A(MD)No.1509 of 2021
over the land to the writ petitioner in the year 1988. The writ petitioner
entered into the transaction with eyes wide open that the right to occupy the
leasehold premises would run out by the middle of the year 2021 and
serious doubts existed as to the rights of the parties in respect of the
construction that had been made. At any rate, as to the right of the lessee or
sub-lessee to retain any construction put up on any leasehold land, it would
depend upon the interpretation of the document executed by the parties; in
this case, the deed of lease of the year 1922. It was presumptuous to
perceive any right in favour of the petitioner without even the barest of
references to the deed of lease or of the rights of the original lessee that, at
the highest, the writ petitioner could have claimed to have inherited.
Merely because the petitioner may have been the owner of any “valuable
superstructure” did not and could not imply that the Court – a writ Court, no
less – would re-write the contract between the parties and extend a benefit
to the writ petitioner, to the detriment and prejudice of a public body as the
appellant Corporation, without assigning the slightest of reasons in such
regard.
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W.A(MD)No.1509 of 2021
15.In a constitutional republic wedded to the rule of law, the process
of adjudication demands reasons to be furnished to justify what impelled the
judicial mind to arrive at the conclusion. The necessity is just and much in
support of an interim order as it is in support of a final order or decree. The
reasons indicate the journey that the judicial mind took while applying the
relevant law to the facts and arriving at the conclusion; temporary or
permanent. The order impugned herein is singularly lacking in such feature
and is, at the highest, a judicial diktat or a fiat in the absence of any reasons
in its support. More importantly, when the writ petition had voluntarily
abandoned the writ jurisdiction and had carried his claim to the civil forum,
it could not have returned without citing extraordinary grounds therefor. At
any rate, the writ court could not have entertained the petitioner anymore. It
was not only unusual that the writ petition was received, but also shocking
that an exparte order was made thereon without indicating any reasons
therefor.
16.For the reasons indicated above, the judgment and order impugned
dated May, 26, 2021 cannot be sustained and are set aside. As a
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W.A(MD)No.1509 of 2021
consequence, W.P(MD)No.9544 of 2021 is dismissed with costs assessed at
Rs.75,000/- (Rupees Seventy Five Thousand Only) to be paid by the writ
petitioner to the appellant Corporation within a fortnight from date.
17.Nothing in this order or the order impugned herein should
influence the suit court in adjudicating the action before it in accordance
with law.
18.W.A(MD)No.1509 of 2021 is allowed. C.M.P(MD)No.6176 of
2021 is closed.
(S.B., CJ.) (M.D., J.)
23.08.2021
Index : Yes
Internet : Yes
pm/ps
Note : In view of the present lockdown owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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W.A(MD)No.1509 of 2021
To:
Thiru. Joseph Francis,
The Proprietor
M/s.Jupiter Talkies,
Market Road,
Thanjavur.
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W.A(MD)No.1509 of 2021
THE HON'BLE CHIEF JUSTICE
and
M.DURAISWAMY, J.
W.A.(MD) No.1509 of 2021
23.08.2021
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