Madras High Court
A.Sheik Mohammed vs The Secretary To Government on 7 October, 2021
W.P.(MD)No.17897 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.10.2021
CORAM
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.(MD)No.17897 of 2021
A.Sheik Mohammed
... Petitioner
Vs.
1. The Secretary to Government,
Municipal Administration & Water
Supply Department,
Secretariat, Chennai-9.
2. The Commissioner,
Madurai Corporation,
Madurai. ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India,
to issue a Writ of Mandamus, directing the second respondent not to
insist the license fee during April 2020 to September 2020, May 2021
and June 2021 by considering representation dated 01.12.2020 and
20.08.2021.
1/8
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.17897 of 2021
For Petitioner : Mr.M.Parameswari
for M/s.Johnny Basha
For Respondents : Mr.P.Subbaraj
Counsel for the State for R1
Mr.K.Kannan for R2.
ORDER
The petitioner seeks waiver of licence fee during the period when a
lockdown was announced pursuant to the first and second wave of the
COVID-19 pandemic.
2. The petitioner states that he runs a hotel under the name "Hotel
Vasantham" at the Mattuthavani Integrated Bus Stand. He was granted a
licence in the year 1999 and the licence fee was increased every three
years at the rate of fifteen percent. As on date, it is stated that the licence
fee is about Rs.1,93,000/- per month. The petitioner states that such
licence fee was paid without default until March 2020.
3. In the wake of the COVID-19 pandemic, the petitioner states
that the State of Tamil Nadu declared a complete lockdown from
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W.P.(MD)No.17897 of 2021
26.03.2020. While there was some relaxation in other areas, as regards
the bus stand, no relaxation was granted and there was a complete
lockdown. The petitioner asserts that such lockdown extended from April
2020 to September 2020. Consequently, the petitioner was in a position
to resume business only in October 2020. Such business was carried on
until April 2021. Once again, on account of the second wave of the
COVID-19 pandemic, a lockdown was announced and such lockdown
was enforced as regard the bus stand in May and June 2021. In these
facts and circumstances, the petitioner carried a representation to the
second respondent seeking waiver of licence fee for the above mentioned
eight months. The present writ petition is filed in view of the failure of
the second respondent to act on such representation.
4. Mr.P.Subbaraj, learned counsel for the State, appears on behalf
of the first respondent and Mr.K.K.Kannan, learned Standing Counsel,
appears on behalf of the Madurai Corporation.
5. Mr.Kannan submits that the petitioner is liable to pay an
aggregate sum of Rs.38,69,543/- towards outstanding licence fees for the
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W.P.(MD)No.17897 of 2021
period February 2020 to March 2021. He also points out that the Madurai
Corporation is subject to policy decisions taken by the State. In fact, he
points out that pursuant to G.O.Ms.No.298, waiver was granted for two
months in 2020 extending from 01.04.2020 to 31.05.2020. He points out
that the Madurai Corporation cannot take a decision in the matter and
that it is for the State Government to take a policy decision with regard to
establishments such as the Mattuthavani Integrated Bus Stand.
6. On the other hand, the petitioner points out that lockdown was
enforced strictly during these eight months. As a consequence, the
petitioner was unable to carry on business. Therefore, the second
respondent cannot insist on payment of licence fees after preventing the
petitioner from undertaking its business activities. In this regard, the
petitioner relies upon an earlier order of this Court in W.P(MD).No.
19596 of 2020, order dated 01.02.2021. The petitioner points out that the
Court took into consideration the fact that the licensee cannot be called
upon to fulfil its obligations when the licensor has not fulfilled the
obligation of permitting the licensee to use the licensed premises.
According to the petitioner, the said judgment is squarely applicable to
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W.P.(MD)No.17897 of 2021
the facts of this case.
7. As correctly contended by the petitioner, any contract, including
a licence, imposes obligations on both parties thereto. In the context of a
licence to use a property, the obligation to permit the use of such
premises is a condition precedent for claiming a licence fee for the use
of the premises. To that extent, in principle, the petitioner has made out a
case for the consideration of the request for waiver of licence fee for the
period of lockdown. However, these are policy decisions inasmuch as
such decisions cannot be taken on an ad hoc basis at the instance of
specific individuals. The State should take a decision which would be
applied in a non-discriminatory manner to all person who constitute a
particular class. In the case at hand, such class would be all persons who
were not permitted to run their respective businesses during specific
months of 2020 and/or 2021. While it is pointed out that a policy
decision was taken under G.O.Ms.No.298, it appears that such decision
covered only two months in 2020. The petitioner asserts that the
lockdown was enforced at Mattuthavani Integrated Bus Stand for six
months. Therefore, the policy decision may also require re-examination
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W.P.(MD)No.17897 of 2021
as regards 2020. Insofar as 2021 is concerned, the lockdown was
enforced in a more localized way. The petitioner contends that such
lockdown was enforced both in May and June 2021 as regards the
Mattuthavani Integrated Bus Stand. If such assertion is factually correct,
the petitioner is entitled to the consideration of the representation for
waiver.
8. At the same time, it should be noted that the Madurai
Corporation points out that the licence fee arrears aggregates to about Rs.
38.69 lakhs. As a condition precedent to the consideration of the
petitioner's representation, the petitioner should remit the licence fee for
all months other than the months when there was a lockdown. After
making payment of licence fee in the manner indicated above, the
petitioner is permitted to carry a fresh representation to the first
respondent herein. Upon receipt of such fresh representation, the first
respondent is directed to consider such representation by taking into
account the earlier order of this Court in W.P(MD).No.19596 of 2020
dated 01.02.2021 as well as the observations in this order. Upon such
reconsideration, the first respondent is directed to take a policy decision
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W.P.(MD)No.17897 of 2021
and communicate the same to the petitioner and all the relevant
departments within a period of three months from the date of receipt of a
copy of this order.
9. W.P(MD).No.17897 of 2021 is disposed of on these terms
without any order as to costs.
07.10.2021
Index : Yes/No
Internet : Yes/No
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To
1. The Secretary to Government,
Municipal Administration & Water
Supply Department,
Secretariat, Chennai-9.
2. The Commissioner,
Madurai Corporation,
Madurai.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.17897 of 2021
SENTHILKUMAR RAMAMOORTHY, J.
pkn
W.P.(MD)No.17897 of 2021
07.10.2021
https://www.mhc.tn.gov.in/judis/
