Madras High Court
M.Ponnusamy … vs The Secretary To Government on 7 December, 2021
W.P.Nos.16504, 16510 & 16511 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition Nos.16504, 16510 and 16511 of 2021
M.Ponnusamy …. Petitioner in all WPs
-Vs-
1. The Secretary to Government
Revenue and Disaster Management Department
Secretariat, St.George Fort, Chennai 600 009.
2. The Director of Municipal Administration
11th Floor, Urban Administrative Building
Opposite to CIBA Building, Santhome High Road
M.R.C.Nagar, Raja Annamalaipuram
Chennai – 600 028.
3.The Commissioner
Namakkal Municipality
Namakkal – 637 001. …. Respondents in all WPs
Prayer in W.P.16504 of 2021 : Writ Petition under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus calling for the
records relating to the impugned order passed by the 3rd respondent vide
Na.Ka.No.1230/2018/A2 dated 23.07.2021 and quash the same and consequently
directing the 3rd respondent to refund the licence amount of Rs.10,59,705/- remitted
by the petitioner towards collection of parking charge for bicycle / two wheeler in the
stand situated near Thottanna Clock Tower at Namakkal for the period from
22.03.2020 to 31.12.2020 by considering his representation dated 24.06.2021 (Prayer
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W.P.Nos.16504, 16510 & 16511 of 2021
amended vide order dated 05.10.2021 made in WMP No.21164/2021 in WP
No.16504/2021 by NAVJ)
Prayer in W.P.16510 of 2021 : Writ Petition under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the impugned order passed by the 3rd respondent vide Na.Ka.No.
1230/2018/A2 dated 23.07.2021 and quash the same and consequently directing the
3rd respondent to refund the license amount of Rs. 65 420/- remitted by the
petitioner towards collection of Fee in Pay and Use Toilet near Parai Tank Namakkal
for the period from 22.03.2020 to 31.12.2020 by considering his representation dated
24.06.2021.(Prayer amended vide order dated 05.10.2021 made in WMP
No.21169/2021 in WP No.16510/2021 by NAVJ)
Prayer in W.P.No.16511 of 2021 : Writ Petition under Article 226 of the
Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to
call for the records relating to the impugned order passed by the 3rd respondent vide
Na.Ka.No. 1230/2018/A2 dated 23.07.2021 and quash the same and consequently
directing the 3rd respondent to refund the license amount of Rs. 13 96 859/- remitted
by the petitioner towards Anna Bus Stand Entrance Fee Namakkal for the period
from 22.03.2020 to 31.12.2020 by considering his representation dated 24.06.2021.
(Prayer amended vide order dated 05.10.2021 made in WMP No.21171/2021 in WP
No.16511/2021 by NAVJ)
For Petitioner : Mr.D.Shanmugaraja Sethupathi
For Respondents : Mr.V.Manoharan,
Additional Government Pleader – for RR 1 &2
Mr.P.Srinivas, Standing Counsel – for R3
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W.P.Nos.16504, 16510 & 16511 of 2021
COMMON ORDER
Since the issue raised in all these writ petitions is one and the same, with the
consent of the learned counsel for the parties, these writ petitions were heard
together, and are being disposed of by this common order.
2. The petitioner is one and the same in all the writ petitions. He has taken out
the lease for collecting toll from cycle and two wheeler parking stand in particular
locality of the third respondent municipality, and to collect fee for pay and use toilet
under the third respondent municipality and also to collect toll for the buses coming to
the Central Anna Bus Stand at the third respondent Municipality. The lease period was
from 01.04.2018 to 31.03.2021.
3. For the said three years lease period, every year the lease amount has to be
paid. However, for the period starting from 01.04.2020 is concerned, due to the
COVID-19 pandemic first wave, since there has been a complete lockdown for several
months, there were no activities in these places ie., the cycle and two wheeler parking
stand, pay and use toilet and the Anna Bus Stand of the third respondent municipality.
4. Subsequently, due to the second wave of COVID-19 also, there were no
further activities as the second time also lockdown had been imposed. In the
meanwhile, the lease period was over by 31.03.2021 and in order to provide for
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further lease from 01.04.2021, the third respondent Municipality has gone for a fresh
auction and the petitioner, though wanted to participate in the said auction, he was
not permitted unless and until he pays the lease amount due for the period
01.04.2020 to 31.03.2021.Having no other option, as the petitioner wanted to
participate in the auction for the subsequent period, he paid the said amount in
respect of the three leases.
5. In respect of the first lease, ie., for cycle and two wheeler parking stand, he
had paid a sum of Rs.10,59,705/- and for the second lease ie., pay and use toilet, he
had paid a sum of Rs.65,420/- and in respect of the third lease ie., for collecting toll
from the buses in the bus stand, he had paid a sum of Rs.13,96,859/-. It is to be
noted that, these amounts have been paid as arrears of lease amount for the period
from 01.04.2020 to 31.03.2021.
6. After having paid the above amounts, the petitioner was permitted to
participate in the tender or public auction conducted by the third respondent to
execute the lease in favour of the successful tenderer for the period commencing from
01.04.2021. The petitioner has become the successful tenderer in all the three leases
and he has been confirmed the leases for the current period ie., from 01.04.2021 also.
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7. At this juncture, now the plea of the petitioner is to return back the amount
paid by the petitioner from 01.04.2020 to 31.03.2021, as during the period since most
of the time there were no activities due to COVID-19 pandemic, absolutely there was
no chance for the petitioner to collect any toll or fee from the public or the users of
those facilities and therefore, in this regard, in respect of these three leases, the
petitioner has made a representation on 24.06.2021 separately to the respondents to
return back the amounts paid by him for the year 2020-2021 ie., from 01.04.2020 to
31.03.2021. Since the said representation has not been considered and the amount
has not been returned, he has approached this Court by filing these writ petitions with
the respective prayers.
8. Heard Mr.Shanmugaraja Sethupathi, learned counsel for the petitioner, who,
after having reiterated the aforesaid facts, would submit that, insofar as the waiver of
the lease amount for the lockdown period due to COVID-19, the Government had
already passed a Government Order in G.O.(D) No.298 dated 02.09.2020, under
which two months waiver has been given during the lockdown from 01.04.2020 to
31.05.2020. However, the lockdown was not over by 31.05.2020 and thereafter even
after lifting the lockdown there had been only limited activities. Hence, there was no
scope for the lessees like the petitioner to collect any amount and hence such a
waiver granted by the Government under the said G.O., shall be extended for a further
period at least for six months ie., upto 31.12.2020 and if such extension is given, the
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petitioner would be able to get back at least half of the amount deposited in this
regard.
9. Learned counsel for the petitioner would also refer to a decision of this Court
made by a learned Judge in W.P.8940 of 2021 dated 19.07.2021 in the matter of
“R.Sagunthala -Vs- The State of Tamil Nadu represented by the Secretary to
the Government, Municipal Administration and Water Supply Department
and Others”, where this Court has directed the respondents therein ie., State
Government as well as the concerned municipality under whom the writ petitioner
entered into lease agreement, to consider the request of the petitioner to grant waiver
for more period than the two months period. Relying upon the said decision, the
learned counsel for the petitioner seeks the indulgence of this Court to issue similar
direction to the respondents to consider his representation dated 24.06.2021 and to
pass orders thereon.
10. Heard Mr.V.Manoharan, learned Additional Government Pleader appearing
for respondents 1 and 2 and Mr.P.Srinivas, learned Standing Counsel appearing for the
third respondent municipality.
11. Learned Additional Government Pleader and the learned Standing Counsel
would submit that, insofar as the demand to grant the waiver is concerned, it is a
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decision to be taken by the Government, as that would have a repercussion in all such
contracts given to various individuals throughout the State. Therefore, such a decision
has to come from the State Government and in this regard the municipality cannot
independently take any decision.
12. Insofar as the earlier two months waiver is concerned, beyond the said two
months waiver, no further Government Order has been issued by the Government and
it can be assumed that the Government has not come forward to give any further
waiver beyond the waiver given for April and May 2020.
13. They would also submit that, insofar as the claim made by the petitioner
that, waiver for further period at least for three months upto 31.12.2020 has to be
given and in this regard, the amounts paid by the petitioner has to be refunded is
concerned, the representation given by the petitioner in this regard may be considered
by the respondents especially the third respondent, who, on consideration of the
same, would await the decision to be made in this regard by the Government by
issuance of a Government Order, without which, no positive decision can be taken by
the third respondent as sought for by the petitioner.
14. I have considered the submissions made by the learned counsel on either
side and have perused the materials placed on record.
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15. The only grievance of the petitioner is that, at least for the period of six
months ie., from 01.06.2020 to 31.12.2020 waiver can be given and in this regard, out
of the entire lease amount paid for all the three leases referred to above, 50% at least
can be refunded to the petitioner, for which representation given by the petitioner can
be directed to be considered.
16. In this context, the learned Judge, who dealt with a similar circumstance in
the aforesaid judgment cited supra dated 19.07.2021, has passed the following order.
“ 8. The grievance of the petitioner is that during the complete
lockdown period from 24.03.2020 to 06.09.2020, the Mannargudi Bus
Stand was fully closed and therefore, she was not able to collect the
Bus Stand Fees and even after partial lifting of the lockdown from
06.09.2020, only limited bus service was operated and the petitioner
was put to severe financial crisis and therefore, the petitioner is
entitled for complete waiver of licence fee for the total lockdown
period and partial waiver of licence fee during the subsequent
relaxation period with limited operation of transport services.
9. It is the stand of the fourth respondent that Clause 49 of the
Licence Conditions dated 21.02.2018 squarely covers the filed and the
petitioner, having accepts the terms and conditions of licence, cannot
turn around and claim waiver of licence fee as a matter of right. It is
the further contention of the fourth respondent that the Government
has taken a policy decision in G.O.(D)No.298, Municipal
Administration and Water Supply Department dated 02.09.2020
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ordering waiver of lease/rental amount during the pandemic lockdown
period from 01.04.2021 to 31.05.2020 and therefore, State Government
is the competent authority to grant waiver of licence fee and the fourth
respondent cannot decide on the aspect of waiver of licence fee.
10. It is to be noted that during lockdown period, only essential
services like suppliers and seller of groceries, vegetables, milk,
medicines were allowed to operate for particular working hours and as
far as the petitioner is concerned, she is only a licensee under the
fourth respondent Municipality to collect the Bus Stand Fee for entry
of private buses in to the Mannarkudi Bus Stand and due to lockdown
imposed by the Government vide G.O.Ms.No.152, dated 23.03.2020,
the Mannarkudi Bus Stand was under complete close down between
24.03.2020 and 06.09.2020 and even after partial lifting of lockdown
from 06.09.2020, only the shops involving essential services were
allowed to run and there were only limited bus service and while that
being the position, without the normal operation of buses, the
petitioner could not be in a position to collect the Bus Stand Fee and
therefore, she cannot be expected to pay the entire annual licence fee
as claimed by the fourth respondent.
11. Though the petitioner has claimed that Covid~19 pandemic
is a force majeure event and therefore, she is entitled for waiver of
payment of licence fee from 24.03.2020 by relying upon the order of
the Madurai Bench of this Court in W.P.(MD)No.19596 of 2010 dated
01.02.2021, the fact remains that the said order has been stayed by a
Division Bench of this Court in W.A.(MD)Nos.219 and 220 of 2021 and
therefore, this Court is not inclined to go into merits of the case.
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12. It is to be noted at this juncture that the Government has
taken a policy decision in G.O.(D)No.298, Municipal Administration
and Water Supply Department dated 02.09.2020, after considering the
request of the Commissioner of Municipal Administration and ordered
waiver of lease/rental amount during the pandemic lockdown period
from 01.04.2021 to 31.05.2020 by the lessee in respect of leased out
properties or urban bodies covering Municipalities and Corporations
based on humanitarian ground. This Court is of the view that the
aforesaid waiver of licence fee was granted by the Government only
for a limited period of two months and whereas in the case on hand,
the Mannukudi Bus Stand was closed completely during the lockdown
period of six months without any entry of buses in to the said bus stand
and even after partial lifting of lockdown from 06.09.2020, there was
only limited entry of buses and therefore, the grievance of the
petitioner as well as similar class of licencees have not been addressed
appropriately. This Court also cannot brush aside the important fact
of augmentation of revenue by way of collections of taxes, rents and
licence fees for running the Municipalities.
13. In view of the above facts and in order to strike a balance,
this Court is of the view that it is for the first respondent / State
Government to look into the grievance of the petitioner as well as
similar type of licencees such as Cycle/Taxi Stands, Weekly Shandies,
Daily Markets, Pay and Use Toilets etc., who could not be able to pay
the licence amount on account of lockdown due to Covid~19 pandemic
situation and shall take appropriate decision, either for complete
waiver of licence amount or reduce/revise/refix the licence fee in a
manner proportionate with the operation of buses or collect the licence
fee in instalments by extending the period of licence. The aforesaid
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exercise shall be completed within a period of twelve weeks from the
date of receipt of a copy of this order.”
17. Having gone through the aforesaid order passed by this Court, I am of the
view that, such a situation is prevailing in the present case also, where such a larger
waiver for an extended period can be considered by the State Government.
18. In this regard, it is the State Government to take a call either to grant the
waiver or not. Therefore, the representation, if any, made by the petitioner as
claimed by him dated 24.06.2021 can be directed to be considered first by the State
Government and in this regard if at all the representation has been given only to the
third respondent Municipality, the Municipality can forward the same to the State
Government or send a communication to get a clarification from the Government
whether such a waiver for the extended period as sought for by the petitioner can be
granted or not.
19. After getting such clarification or decision to be taken by the State
Government, further consequential decision can be taken by the third respondent
municipality on the representation of the petitioner and once such a decision is
taken, the same can be communicated to the petitioner and in this regard, if any
waiver is to be granted that can also be granted to the petitioner and the benefit of
the same can be given to the petitioner.
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20. In the meanwhile, since during the pendency of the writ petition, the
representation of the petitioner dated 24.06.2021 since has been rejected on the
ground that, it can be decided only by the State Government, challenging the same
the prayer also got amended. Mere rejection of the representation by the third
respondent municipality as if they could not take any independent decision, may not
hold good. Therefore, such rejection order would not preclude the petitioner to
press for the waiver.
21. Therefore, considering all these aspects, this Court is inclined to dispose
of these writ petitions with the following order.
a) Unmindful of the impugned order passed by the third
respondent municipality in all these cases, the
representation in this regard, if any, to be made by the
petitioner, shall be made within two weeks from the date of
receipt of a copy of this order, by the petitioner. The same
shall be addressed to the first respondent and second
respondent as well as the State Government represented by
the Director of Municipal Administration and Water Supply
Department.
b) If any such representation is made, the same shall be
considered by the first and second respondents in the light
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of the Government Order in G.O.(D) No.298 dated
02.09.2020 and in this case a pragmatic decision has to be
taken by taking into account the COVID-19 first wave period
due to which there was complete lockdown and thereafter
some partial lockdown even upto the month of October and
December 2020 and this aspect has to be considered by the
State Government with the recommendation or input to be
supplied in this regard by the Director of Municipal
Administration and Water Supply Department and
accordingly a revised Government Order can be passed by
the State Government, giving waiver to the petitioner as well
as similarly placed persons in various municipalities. If such
a decision is taken by the State Government, the third
respondent can consider the plea of the petitioner and in
that case, the amount if any to be refunded to the petitioner,
can either be refunded or re-adjusted towards the licence or
lease amount payable by the petitioner for the future period
of lease.
c) The aforesaid exercise shall be undertaken by the State
Government on receipt of the representation in detail in this
regard to be submitted by the petitioner and a decision shall
be taken within eight weeks from the date of receipt of such
representation. It is open to the petitioner to make a fresh
detailed representation with input separately for each of the
lease to the first respondent and second respondent as
indicated above.
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22. With the above observations and directions, these writ petitions are
disposed of. No costs.
07.12.2021
Index : Yes/No
Internet : Yes/No
KST
To
1. The Secretary to Government
Revenue and Disaster Management Department
Secretariat, St.George Fort, Chennai 600 009.
2. The Director of Municipal Administration
11th Floor, Urban Administrative Building
Opposite to CIBA Building, Santhome High Road
M.R.C.Nagar, Raja Annamalaipuram
Chennai – 600 028.
3.The Commissioner
Namakkal Municipality
Namakkal – 637 001.
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R. SURESH KUMAR, J.
KST
W.P.Nos.16504, 16510 & 16511 of 2021
07.12.2021
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