Madras High Court
Chellapandi vs The District Manager on 27 September, 2021
W.P.(MD) No.13759 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.09.2021
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.13759 of 2021
and
W.M.P.(MD)No.10711 of 2021
Chellapandi .. Petitioner
Vs.
1. The District Manager,
Tamilnadu State Marketing Corporation Ltd. (TASMAC),
No 100, Annanagar, Madurai 625 020.
2. The District Manager,
Tamilnadu State Marketing Corporation Ltd. (TASMAC),
Madurai South, Kappaloor,
Madurai District.
3. The Supervisor,
Tamilnadu State Marketing Corporation Ltd. (TASMAC),
Tasmac Shop No.5171,
Plot No 161, Ashoknagar,
Koodalnagar, Madurai District.
4. A. Mani ..Respondents
(R4 is suo motu impleaded vide order dated
11.08.2021 in W.P.(MD)No.13759 of 2021 by RSKJ)
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W.P.(MD) No.13759 of 2021
Prayer: Writ Petition is filed under Article 226 of Constitution of India, to issue
a Writ of Certiorarified Mandamus, calling for the records pertaining to the
impugned proceedings issued by the 2nd respondent in Na Ka No.675/2021/E
dated 16.06.2021 and quash the same as illegal and unconstitutional and
consequently direct the respondents to vacate the said Tasmac Shop No.5171
situated at Plot No.161, Ashok Nagar, Madurai within the time stipulated by this
Court.
For Petitioner : Mr.B.Arun
For R1 & R2 : Mr.H.Arumugam
Standing Counsel
For R4 : Mr.S.Vinayak
ORDER
Prayer sought for herein is for a Writ of Certiorarified Mandamus, calling
for the records pertaining to the impugned proceedings issued by the second
respondent in Na.Ka.No.675/2021/E dated 16.06.2021 and quash the same as
illegal and unconstitutional and consequently direct the respondents to vacate the
said tasmac Shop No.5171 situated at Plot No.161, Ashok Nagar, Madurai within
the time stipulated but this Court.
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W.P.(MD) No.13759 of 2021
2.The petitioner claimed to be a leaseholder of the property at Plot No.161,
Ashok Nagar, Madurai, as a lease agreement was entered into between the
petitioner and the fourth respondent dated 03.05.2017. With the strength of the
said leasehold right, he had entered into an agreement with the
respondents/TASMAC to locate the retail vending IFML Shop No.5171 at the
said address.
3.In this context, it is the case of the petitioner that, the fourth respondent is
the owner of the property, from whom, with the lease agreement dated
03.05.2017, the property had been taken for lease, that is by way of usufructuary
mortgage (othi) for a period of six years, for which, a bulk amount of Rs.30 Lakhs
was paid, therefore, without any rent to be paid for the said leasehold right on
monthly basis or yearly basis, the petitioner had obtained the leasehold right of
the property concerned, that is empty land, for a period of six years, where the
petitioner claimed that, after obtaining necessary permission from the local
authority, he had put up some structure for the purpose of locating the TASMAC
retail vending shop. Accordingly, after putting up the structure, the petitioner
claimed to have entered into an agreement with the respondents/TASMAC to
have the tasmac shop No.5171 in the said address and accordingly, the TASMAC
shop was located and was functioning.
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W.P.(MD) No.13759 of 2021
4.When that being so, it seems that, there has been some issues arose either
between the petitioner and the TASMAC or the petitioner and the fourth
respondent. However, with the result, it seems that, the petitioner by request
dated 14.06.2021 has asked the respondents/TASMAC to vacate the TASMAC
shop as according to the petitioner, for locating and continuing the TASMAC
shop in the said building, the original owner that is the fourth respondent is
objecting. Therefore, within 10 days, the TASMAC shop should be vacated and
the vacant possession shall be handed over to the petitioner.
5.By considering the said request of the petitioner dated 14.06.2021, the
respondent/TASMAC on 16.06.2021 has sent the following communication:-
“lh];khf; ypl;.> kJiu njw;F khtl;lj;jpy; ,aq;Fk;
kJghd rpy;yiw tpw;gidf; fil vz;.5171-d; fl;bl
chpikjhuh; jpU.v.kzp vd;gth; ,lj;jpy; ,aq;Fk; fil vz;.
5171 kw;Wk; kJf;$lk; Mfpatw;iw fhyp nra;J juf;Nfhhp
xg;ge;jjhuh; jpU.gp.nry;yg;ghz;b> j.ng.nghpafUg;gd; vd;gth;
ghh;itapy; fhZk; kD mspj;Js;shh;. Nkw;b muR kJghd
filia 10 jpdq;fspy; fhyp nra;Jju ,ayhJ vd;w
tpguk; ,jd;%yk; njhptpf;fg;gLfpwJ.”
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W.P.(MD) No.13759 of 2021
6.Felt aggrieved over the said communication of the
respondents/TASMAC, the petitioner has filed this Writ Petition with the
aforesaid prayer.
7.At the time of admission of this Writ Petition, since this Court found that
the original owner one A.Mani is a necessary party to be heard in this Writ
Petition he was made as a party, suo motu this Court by order dated 11.08.2021
impleaded the fourth respondent, who is the original owner of the property
concerned as one of the respondents. That is how, the fourth respondent has come
into picture.
8.Thereafter, pleadings have been completed where counter affidavit has
been filed both by the respondents/TASMAC as well as the fourth respondent.
9.The stand of the fourth respondent is that, no doubt there has been an
agreement between the fourth respondent and the petitioner on 03.05.2017.
However, according to the fourth respondent, the agreement is purely a lease
agreement of monthly rental basis. Under which, the property in question was
leased out to the petitioner for a monthly rent of Rs.15,000/- for first year,
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W.P.(MD) No.13759 of 2021
Rs.20,000/- for second year and Rs.22,000/- for third year for a period of three
years, for which a rental advance of Rs.4,00,000/- was also received by the fourth
respondent.
10.It is the further case of the fourth respondent that, however the petitioner
has fabricated the lease agreement on the same date, i.e., 03.05.2017, whereby, he
claimed that, the lease agreement is by way of usufructuary mortgage (othi) for a
period of six years, for which a lump sum amount of Rs.30,00,000/- was paid in
lieu of the rental to be collected from the petitioner by the fourth respondent for a
total period of six years.
11.It is the further case of the fourth respondent that, the actual lease
agreement is for three years that too on the basis of monthly rental and therefore,
the lease agreement projected by the petitioner as if it is not a lease agreement,
but it is nothing but usufructuary mortgage agreement for a period of six years, is
a forged one, according to the fourth respondent. Therefore, the fourth respondent
denied such execution of any lease deed to and in favour of the petitioner.
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W.P.(MD) No.13759 of 2021
12.It is the further case of the fourth respondent that, since three years
original rental period was over from 2017 to 2020, the fourth respondent was free
to exploit the property as he is the owner of the property and accordingly, he
entered into one agreement with the TASMAC on 24.06.2021. By which, the
property in question has been leased out to the TASMAC to continue to locate the
TASMAC shop referred to above at the fourth respondent's premises. Therefore,
insofar as continuing the TASMAC shop in the premises of the fourth respondent
is concerned, it is legally validated by the lease agreement executed by the fourth
respondent with the TASMAC dated 24.06.2021, wherein the petitioner,
according to the fourth respondent, has no say, as the agreement entered into
between the petitioner and the fourth respondent came to an end by 02.05.2020
itself as the three years lease period was over.
13.However, it is a case of the petitioner that, the actual lease agreement
between the petitioner and the fourth respondent dated 03.05.2017 is for six years
for which a sum of Rs.30,00,000/- was paid by the petitioner to the fourth
respondent and it was a vacant land. Knowing well that the vacant land is given
to lease to the petitioner with an understanding that the petitioner would spend
money and construct the structure for the purpose of doing business and
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W.P.(MD) No.13759 of 2021
accordingly, the petitioner after having obtained permission from local authority
and constructed the structure and let in the same to the TASMAC for locating the
retail shop. Therefore, for six years period, the petitioner can maintain the lease
with the fourth respondent. Therefore, unilaterally, the TASMAC cannot have any
lease agreement with the fourth respondent without taking into confidence of the
petitioner, as the petitioner is having the subsisting leasehold right of the property
concerned even today.
14.Therefore, once the petitioner decided to terminate the agreement
between the petitioner and the TASMAC, the same should be accepted by the
TASMAC and the TASMAC shop should be vacated. However, contrary to the
same, the request of the petitioner since has been rejected, through the impugned
order of the respondents/TASMAC, dated 16.06.2021, the same shall be liable to
be interfered with and a suitable direction can be given to the second respondent
to vacate the TASMAC shop from the premises in question and hand over the
possession.
15.On the other hand, it is a case of the TASMAC that, no doubt, originally
TASMAC entered into an agreement with the petitioner, who, with the strength of
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W.P.(MD) No.13759 of 2021
the leasehold rights of the property concerned obtained from fourth respondent
entered into an agreement with the TASMAC to locate the TASMAC shop and
subsequently when the same was requested to be vacated, it was considered by
the TASMAC, where the TASMAC had come to know that the lease agreement
between the petitioner and the fourth respondent came to an end with three years
period by May 2020 itself. Thereafter, the petitioner did not have any right over
the property in question. Therefore, in order to continue to locate the TASMAC
shop in the same address, the TASMAC had negotiated with the fourth
respondent, who is the owner of the property and accordingly, a lease agreement
had been entered into between the TASMAC and the fourth respondent on
24.06.2021. Thereby, the TASMAC shop already been located there, is continuing
of course legally. Therefore, the petitioner cannot have any right to claim that the
TASMAC shop located in the premises in question shall be vacated by the
TASMAC.
16.The learned respective counsel appearing for the parties reiterated
aforesaid respective facts as projected by them on their behalf and seek
indulgence of this Court.
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W.P.(MD) No.13759 of 2021
17.I have considered the said rival case projected by the parties herein and
have perused the materials placed before this Court.
18.Insofar as the property in question is concerned, it is admittedly the
property of the fourth respondent from whom, the petitioner claimed to have
obtained the leasehold right for six years with the lease agreement dated
03.05.2017.
19.However, it is a claim of the fourth respondent, who is the owner of the
property that, as per lease agreement dated 03.05.2017, it is not for six years and
the terms of the lease agreement are differed than the one projected by the
petitioner. Therefore, according to the fourth respondent, the lease agreement
projected by the petitioner as if entered into between the fourth respondent and
petitioner is a forged one.
20.Similar case has been made by the petitioner stating that the lease
agreement projected by the fourth respondent as if entered into between the fourth
respondent and the petitioner is a forged one.
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W.P.(MD) No.13759 of 2021
21.Which lease deed is a forged one and which one is genuine cannot be
decided by this Court. Moreover, it is to be noted that both the lease agreements
have not been registered.
22.Be that as it may, insofar as the property is concerned, the owner is the
fourth respondent, who entered into a lease agreement with the TASMAC on
24.06.2021 with that strength, the TASMAC is continuing with the IFML retail
shop in the said address. Therefore, for continuous functioning of the TASMAC
shop in the said address, as of now, there can be no legal impediment.
23.In this regard, it is further to be noted that, in order to get a protection
on the strength of the lease agreement dated 03.05.2017 for six years period ie.,
between 2017 and 2023, the writ petitioner had already filed a civil suit in
O.S.No.43 of 2021 on the file of the learned District Munsif Court, Madurai,
seeking for judgment and decree for injunction restraining the fourth respondent
from interfering with the possession and enjoyment of the suit property till the
expiry of six years period as per the lease agreement dated 03.05.2017.
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W.P.(MD) No.13759 of 2021
24.It is further to be noted that, though said suit has been filed, no interim
order has been granted by the Civil Court and the suit is still pending.
25.As to whether, which agreement of lease between the petitioner and the
fourth respondent is a genuine one and which one is fabricated one, can very well
be decided by the Civil Court, for which, evidence have to be led in. Therefore, in
the pending civil suit, both parties can let in evidence to establish their rights as to
whether, the petitioner has the leasehold right for six years even by way of
usufructuary mortgage or the petitioner has lost the leasehold right on the expiry
of three years period between May 2017 and May 2020. That can very well be
decided depending upon the evidence to be let in by both parties before the
pending Civil Suit.
26.Therefore as of now, since the fourth respondent is admittedly the owner
of the property concerned with whom, the TASMAC had already entered
agreement to continue to locate and run the TASMAC shop by agreement dated
24.06.2021, the said shop can continue in the said address. Once the civil suit
filed by the petitioner is decided, depending upon outcome of the civil Court's
judgment and decree, the parties can work out their remedy not only the
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W.P.(MD) No.13759 of 2021
continuous possession and enjoyment of the suit property as a lessee by the
petitioner but also as to whether any rent has to be paid by the petitioner or any
usufructuary mortgage amount said to have been paid by the petitioner to the
extent of Rs.30,00,000/- to be returned by the fourth respondent to the petitioner.
As all these issues are depending upon the outcome of the Civil Court's judgment
and decree, for which, this Court cannot express any view or opinion.
27.In that view of the matter, this Court feels that, absolutely there could be
no ground to interfere with the impugned order passed by the respondents /
TASMAC. As the respondents / TASMAC is, for the time being, entitled to
continue the TASMAC shop in the property located belongs to the fourth
respondent.
28.The present Writ Petition with a prayer couched therein would fail and
therefore, the Writ Petition is liable to be dismissed with the aforesaid
observations. Accordingly, it is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
27.09.2021
Index: Yes/No
Internet: Yes
ias/mga
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W.P.(MD) No.13759 of 2021
Note: In view of the present lock down 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.P.(MD) No.13759 of 2021
R.SURESH KUMAR, J.
ias/mga
W.P.(MD) No.13759 of 2021
27.09.2021
https://www.mhc.tn.gov.in/judis
