Madras High Court
S.M.Shanmugavelu vs The Joint Commissioner / ... on 21 December, 2022
W.P (MD) No.26255 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 21.12.2022
Coram
THE HONOURABLE Mrs. JUSTICE V.BHAVANI SUBBAROYAN
W.P.(MD) No.26255 of 2022 &
W.M.P.(MD) Nos.20429 and 20430 of 2022
S.M.Shanmugavelu .. Petitioner
Vs.
The Joint Commissioner / Executive Officer,
Arulmigu Aranganathaswamy Thirukovil,
Srirangam,
Trichy District ..Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari to call for the records pertaining to the
impugned shops tender / public auction notice issued by the respondent
in Na.ka.No.5393/1431/C3/ dated 08.11.2022 and quash the same in so
far as the Shop Nos.2 & 3 are concerned.
For Petitioner : Mr.R.V.Rajkumar
For Respondent : Mr.M.Saravanan
Standing Counsel
ORDER
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W.P (MD) No.26255 of 2022
The petitioner has preferred the present Writ Petition for issuance
of a Writ of Certiorari to call for the records pertaining to the impugned
shops tender / public auction notice issued by the respondent in
Na.ka.No.5393/1431/C3/ dated 08.11.2022 and quash the same in so
far as the Shop Nos.2 & 3 are concerned.
2. The case of the petitioner, in brief, is as follows:-
The respondent during August, 2007, through a public auction,
has leased out 12 shops belonging to the respondent temple, situated at
Aswatheertha Kulam Complex in S.No.763/3, Block No.18, Ward No.2,
Gandhi Road, Srirangam. The petitioner participated in the said auction
and was allotted two shops, viz., Shop Nos. 2 and 3, on rental basis, as
per O.Mu. No. 64402 of 2007 dated 24.12.2007. The petitioner is
running a two wheeler spare parts shop and paying the rent regularly.
The lease of the petitioner was lastly renewed in the year 2019. While
so, the respondent issued the impugned tender/auction notice dated
08.11.2022 for letting out the Shops 1 to 12 belonging to the temple
Situated at Aswa theerthakulam shopping complex on auction. Hence
this petition.
3. The learned counsel for the petitioner would submit that as per
G.O.Ms.No.456 dated 09.11.2007, every three years, the rent has been
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W.P (MD) No.26255 of 2022
increased by 15% and accordingly, the petitioner has remitted the rent
regularly without any default and there is no other complaint whatsoever
and thus, the impugned order is not sustainable. Further, in the
impugned tender cum auction proceedings, it is stated that the license is
for a period of five years, which is unreasonable, as it is settled norms
that the tender cum auction can be only for a period of one year or three
years and hence prayed that the impugned proceedings is liable to be
quashed.
4. Per contra, the learned standing counsel appearing for the
respondent drawn the attention of this Court to the communication letter
dated 4.10.2004 by the Special Commissioner to the respondent,
wherein it could be seen that the Shops are rented to the petitioner for a
period of three years. The Petitioner has admitted in his affidavit that the
lease was lastly renewed in the year 2019 and was not renewed
thereafter. The persons in occupation either licensees/lessees are
bound to vacate the premises after expiry of the period. The petitioner
has every right to participate in the auction and obtain fresh license and
cannot seek to quash the aucution notice for the mere reason that he
had remitted the rent regularly without default, thereby sought to dismiss
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W.P (MD) No.26255 of 2022
the writ petition.
5. Heard the learned counsel on either side and perused the
documents placed on record.
6. On a close reading of Section 34 of the Tamilnadu Hindu
Religious and Charitable Endowments Act, 1959, states that, any
exchange, sale or mortgage and any lease for a term exceeding five
years of any immovable property, belonging to, or given or endowed for
the purpose of, any religious institution shall be null and void, the Act
does not contemplate that the license period must be only for a term of
3 years. If at all the petitioner contends that the license period should
not be for a period 5 years, he has to prove the same with a valid
provision of law.
7. It is relevant to note that mere contentions of the petitioner that
the tender cum auction can only be for a period of one year or three
years on the ground that as per G.O.Ms.No.456 dated 09.11.2007, the
rent is hiked by 15% for every 3 years and that he is paying the said
rents regularly without any default, is not a valid ground to quash the
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W.P (MD) No.26255 of 2022
impugned tender notice, the same does not put an embargo that the
license period must only be for a period of 1 or 3 years.
8. Besides the above, Hon'ble Apex Court in cantena of
Judgements has held that Tenders are not open to judicial scrutiny
under Article 226 of the Constitution of India. In the Judgment [Airport
Authority of India versus Centre for Aviation Policy, Safety &
Research (CAPSR) & Others] reported in 2022 SCC OnLine SC
1334, at Paragraph no.27, among other things, it is held as under:-
"27…. while exercising the powers under Article 226
of the Constitution of India. As per the settled position of law,
the terms and conditions of the Invitation to Tender are
within the domain of the tenderer/tender making authority
and are not open to judicial scrutiny, unless they are
arbitrary, discriminatory or mala fide. As per the settled
position of law, the terms of the Invitation to Tender are not
open to judicial scrutiny, the same being in the realm of
contract. The Government/tenderer/tender making authority
must have a free hand in setting the terms of the tender."
9. Further, in the Judgment [Jagdish Mandal v. State of
Orissa] reported in (2007) 14 SCC 517, it is held by the Supreme
Court as under:
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W.P (MD) No.26255 of 2022
"22. Judicial review of administrative action is
intended to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its purpose is to
check whether choice or decision is made "lawfully" and not
to check whether choice or decision is "sound". When the
power of judicial review is invoked in matters relating to
tenders or award of contracts, certain special features
should be borne in mind. A contract is a commercial
transaction. Evaluating tenders and awarding contracts are
essentially commercial functions. Principles of equity and
natural justice stay at a distance…"
10. It is an admitted fact that by way of communication letter
dated 4.10.2004 by the Special Commissioner to the respondent, the
subject mentioned Shops are rented to the petitioner for a period of
three years and the petitioner has admitted in his affidavit that the lease
was lastly renewed in the year 2019 and was not renewed thereafter.
11. Further, as per Explanation (b) of Section 78(1) of HR&CE
Act, an encroacher includes any person, who continues to remain in the
property after the expiry or termination or cancellation of the lease,
mortgage or license granted to him. Hence the persons in occupation of
a temple property as licensees/lessees are bound to vacate the
premises after expiry of the period. In this regard, it is worthwhile to refer
to the Judgment of the Division Bench of this Court in Arulmigu
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W.P (MD) No.26255 of 2022
Dhandayutghapani Swamy Thirukovil V. R.Sundaresan [Writ
Appeal (MD) Nos.511 to 594 of 2015], wherein it is held as follows:-
“13.At the outset, it should be pointed out that the
respondents cannot be said to have a cause of action to
approach the Court and stall the auction. By putting the
leasehold rights or licencee rights to run the shops to
auction, the appellant did not seek to interfere with the
possession of the respondents. It is only when the appellant
sought to throw out the respondents, either by taking
recourse to the procedure prescribed by law or in any case
without taking recourse to due process of law, the
respondents would have had a cause of action to challenge
the auction notice.
14. An auction notice could have served several
purposes for the department. In case the auction notice had
resulted in some people offering a rent or licencee fee which
is lower than what is now paid by the respondents, the
appellant might have even continued the status quo without
any hindrance to the shop keepers. Alternatively, if the
auction had resulted in many people offering a high rate as
lease rent or as licencee fee, the appellant could have made
use of the said offer for the fair rent proceedings against the
tenants.
……
18.It appears that atleast in respect of four shops,
auction went on and it fetched amounts which are 10 times
more than the amount now paid. The occupants of those
four shops have accepted the auction and they have got
fresh lease/licence. Therefore, the respondents cannot
object even to the auction being conducted by the appellant.
19.On the ground that the proceedings dated
07.05.2015 have not been communicated, the respondents
have conveniently gone into a slumber. Therefore, if no
auction is conducted and the hands of the appellant are tied,
the temple may not be able to augment its resources. Such
a state of affairs cannot be brought forth by the Court as
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W.P (MD) No.26255 of 2022
observed by the Supreme Court in A.A.Gopalakrishnan Vs.
Cochin Devaswom Board {2007 (7) SCC 482}.”
12. It is not in dispute that the petitioner has not renewed license
after the year 2019, further, Section 34 of the Tamilnadu Hindu
Religious and Charitable Endowments Act, 1959, does not contemplate
that the license period must be only for a term of 1 or 3 years and the
petitioner has also not proved the same by way of any documentary
evidence.
13. On going through the entire facts and circumstances of the
case in a wholesome manner and as held by the Hon'ble Supreme
Court and the Hon'ble Division Bench of this Court, as mentioned supra,
that the 'Tender' are not open to judicial scrutiny under Article 226 of the
Constitution of India unless they are arbitrary, discriminatory or mala
fide and applying such principle to the case on hand, it is clear that
there is no such arbitrary, discriminatory or mala fide arisen in this case
warranting interference to stall the commencement of the tender
process, this Court is not inclined to interfere with the same. Also, the
petitioner cannot seek to quash the auction notice merely on the ground
that he had remitted the rent regularly without any default. In reality, it is
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W.P (MD) No.26255 of 2022
the settled position that the persons in occupation either
licensees/lessees are bound to vacate the premises after expiry of the
period. Whether it is a lease or license to run a shop, the same can only
be done by a public auction and the petitioner has no valid right to
challenge it, as he is only a license holder.
In view of the above, the Writ Petition is dismissed. However, the
petitioner is at libery and has every right to participate in the auction and
obtain fresh lease / license. Consequently, connected miscellaneous
petitions are closed. No costs.
21.12.2022
Speaking order / Non speaking order
Index :Yes / No
Internet :Yes / No
ssd
To
The Joint Commissioner / Executive Officer,
Arulmigu Aranganathaswamy Thirukovil,
Srirangam,Trichy District
https://www.mhc.tn.gov.in/judis
W.P (MD) No.26255 of 2022
V.BHAVANI SUBBAROYAN,J.,
ssd
W.P.(MD) No.26255 of 2022 &
W.M.P.(MD) Nos.20429 and 20430 of 2022
21.12.2022
https://www.mhc.tn.gov.in/judis
