Madras High Court
The Commissioner vs Bhuvaneswari ... 1St on 20 June, 2022
W.A(MD)No.562 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.562 of 2022
and C.M.P.(MD) No.4888 of 2022
1.The Commissioner,
Madurai Corporation,
Madurai – 625 002.
2.The Assistant Engineer,
South Zone,
Madurai Corporation,
Madurai. ... Appellants/Respondents 1 and 2
Vs.
1.Bhuvaneswari ... 1st Respondent/Writ Petitioner
2.The General Manager,
A-1301, Madurai District Cooperative
Milk Producer Union Ltd.,
Sathamangalam,
Madurai. ... 2nd Respondent/3rd Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, to set
aside the order dated 23.09.2021 in W.P(MD)No.11589 of 2021 and
allow the Writ Appeal.
For Appellant : Mr.B.Saravanan
For 2nd Respondent : Mr.K.Prabhu
Standing Counsel
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W.A(MD)No.562 of 2022
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR,J.)
Aggrieved by the order of learned Single Judge dated
23.09.2021, made in the writ petition filed by the first respondent in W.P.
(MD) No.11589 of 2021, the above appeal is filed by the Madurai
Corporation.
2. The first respondent filed W.P.(MD) No.11589 of 2021 for
issuance of a Writ of Mandamus, directing the first respondent to take
appropriate action against the second respondent and direct the first
respondent to restore the basement constructed by the petitioner near
West Masi Street, Pillayar Temple, Madurai or direct first respondent to
permit the petitioner to reconstruct the basement by paying adequate
compensation by considering the representation of the petitioner dated
06.07.2021.
3. Earlier, the writ petitioner/first respondent wanted her to be
appointed as an agent by the second respondent and by proceedings
dated 15.06.2022, she was appointed as an agent to sell milk and related
products at Pillaiyar Temple, North Masi Street, Madurai. On behalf of the
petitioner, the second respondent has applied for establishing a bunk
shop near Mela Masi Street Pillaiyar Temple by earmarking an extent of 8
feet x 6 feet. The permission was sought for in the name of the second
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W.A(MD)No.562 of 2022
respondent. Though the second respondent has appointed the writ
petitioner as a dealer to sell the products in the place that is vested with
the appellant, it is to be noted that the appellants by communication
dated 26.05.2021, directed the second respondent to deposit non-
refundable sum of Rs.50,000/- by way of Demand Draft drawn in favour
of the appellant. It appears that the writ petitioner, based on the
communication sent by the Corporation requesting the second
respondent to pay a sum of Rs.50,000/- as non-refundable deposit,
constructed a basement to establish a small depot as an agent of the
second respondent and licensee under the appellants. The petitioner in
her affidavit submitted that the appellants without prior notice came to
the location and demolished the basement that was constructed by the
petitioner at the cost of Rs.10,000/-. Under these circumstances, based
on the dealership agreement, the writ petitioner had with the second
respondent the writ petition was filed by the first respondent.
4. The said writ petition was allowed by the learned Single
Judge in the following lines:
“7. For reasons set out above, W.P.
(MD).No.11589 of 2021 is disposed of by
directing the respondents herein to permit the
petitioner to set up the Aavin milk booth at the
allotted space and not to interfere with or
otherwise disturb the petitioner in establishing
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W.A(MD)No.562 of 2022
and running such Aavin milk booth in accordance
with the licence granted in such regard. For
purposes of earmarking the precise location for
setting up the Aavin milk booth, the petitioner
and the Madurai Corporation shall jointly inspect
the location and agree upon the precise location
for establishment of the Aavin milk booth. This
exercise shall be completed within a period of one
(1) week from the date of receipt of a copy of
this order. There shall be no order as to costs.”
5. Learned Single Judge while passing the order has extracted
the communication of the first appellant to the second respondent,
admitting their willingness to give the location for establishing small
Aavin booth to the writ petitioner. In such circumstances, this Court is
unable to find any error in the order of learned Single Judge, directing
the appellants as indicated in paragraph 7 of the order.
6. Though learned counsel for the appellants relied on
G.O.Ms.No.92, Municipal Administration and Water Supplies Department,
dated 03.07.2007, to support his stand that all local bodies can lease out
or grant licence only by way of public auction, learned counsel is unable
to sustain his arguments as the conditions put by G.O.Ms.92 is too
general and there is an indication that there may be exception to general
rule that no property of local body should be leased out or licensed
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W.A(MD)No.562 of 2022
without following the tender process. Further, the G.O.Ms.No.92 dated
03.07.2007 is regarding grant of extension of period of licence or lease
after the expiry of period of licence granted. Further, it may be open to
the appellant Corporation to impose conditions to protect their interest so
that the lease or licence granted will be in strict adherence to the
instructions of Government by Executive Orders or provisions of the
relevant Act. It is also open to the Corporation to insist for deposit of a
sum of Rs.50,000/-, in case no amount is due from the appellants to the
second respondent. However, denial of licence citing G.O.Ms.No.92,
dated 03.07.2007, cannot be countenanced.
7. This Court also takes judicial notice that the appellant
Corporation has granted lease or licence in favour of the second
respondent to establish Aavin Parlour / bunk shops by collecting licence
fee or rent in other places.
8. The Writ Appeal stands dismissed with the above
observations. No Costs. Consequently, connected Miscellaneous Petition
is closed.
[S.S.S.R.,J] [S.S.Y.,J.]
20.06.2022
Index :Yes/No
Internet :Yes/No
sj
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W.A(MD)No.562 of 2022
S.S.SUNDAR,J.
and
S.SRIMATHY,J.
sj
W.A(MD)No.562 of 2022
20.06.2022
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