Dismissed

S. Perumal Ramesh, v. the Tirunelveli City Municipal

Madras HC4 Aug 2014WP(MD)/12506/2014

Case brief

AI extract

What is this about?

This order dismissed a writ petition seeking to quash a tender-auction notification for a pay and use toilet license. The court held the petitioner had no vested right to convert a license into a lease and ruled that the Transparency in Tenders Act governs the tender procedure, overriding the Municipal Manual.

What did the court decide?

The writ petition was dismissed and connected miscellaneous petitions were closed.

S. Perumal Ramesh, Vs the Tirunelveli City… — Pension and Retirement Benefits | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.08.2014 CORAM:

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THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM

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W.P.(MD) No.12506 of 2014 and M.P.(MD) Nos.1, 2 & 3 of 2014

S.Perumal Ramesh

... Petitioner

-vs-

1.The Tiruneveli City Municipal

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Corporation Council rep through its mayor Tirunelveli City Municipal Corporation Tirunelveli

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2.The Commissioner

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Tirunelveli City Municipal Corporation Tirunelveli

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3.The Assistant Commissioner

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Tiruneveli Division Tirunelveli City Municipal Corporation Tirunelveli ... Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for the records relating to the impugned tender/auction notification of the third respondent, dated 11.07.2014, published in Dinamani Daily, dated 12.07.2014 and to quash the same.

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For Petitioner : Mr.H.Arumugam

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For Respondents : Mr.Aairam K.Selvakumar Government Advocate

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O R D E R

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The prayer in this writ petition is for issuance of a writ of certiorari to quash the tender/auction notification, dated 11.07.2014, published by the third respondent, in Dinamani Daily, dated 12.07.2014.

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Mr.Aairam K.Selvakumar, learned Government Advocate takes notice for the respondent. With the consent of both the parties, this writ petition is taken up for final hearing at the admission stage itself.

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The petitioner was granted a license to collect fees in the pay and use toilet, situated at Nethaji Bose Market, Tirunelveli Town, for a period from 2011-2014. He initially gave a consent to renew the license, as per G.O.Ms.No.78, Municipal Administration and Drinking Water Supply Department, dated 25.05.2009, by paying enhanced amount of 5%. This was https://hcservices.ecourts.gov.in/hcservices/ considered and the period of license was extended till 18.03.2014. Subsequently, the petitioner came to know that the first respondent

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passed a resolution, on 29.07.2013, converting the license to collect fees in slaughter house into lease and the second respondent also extended the lease to the existing person, based on G.O.Ms.No.92, Municipal Administration and Eater Supply (Finance-4) Department, dated 03.07.2007. Taking inspiration from that, the petitioner made a request to the second respondent to convert his license for collecting fees in the pay and use toilet into lease.

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The learned counsel for the petitioner would submit that the representation is still pending and without considering the same the respondents Municipal Corporation is bringing the right to collect fees in the pay and use toilet for public auction by the impugned auction notification. Further, he has submitted that a direction has been issued in W.P.(MD) No.10783 of 2014, on 03.07.2014, to dispose of the petitioner's representation and in spite of that the impugned tender-cumauction notification has been issued. It is further submitted that the impugned tender-cum-auction notification is bad in law in the light of the fact that it contravenes Section 52.6 of the Municipal Manual and tender-cum-auction could not simultaneously be conducted.

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Heard the learned counsel for the parties and perused the materials placed on record.

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At the very outset, it has to be pointed out that the relief sought for by the petitioner is thoroughly misconceived. The petitioner seeks to convert the right granted to him into lease by giving a representation drawing inspiration from a resolution passed by the first respondent in respect of a slaughter house. The petitioner has no vested right to seek for conversion of license into lease. The property namely the pay and use toilet has been constructed and is owned by the Municipal Corporation. The petitioner is only a licensee to collect fee from the users of the pay and use toilet. The type of grant in favour of the petitioner cannot satisfy the test laid down by the Honourable Supreme Court to hold that the said transaction between the petitioner and the respondents is lease. No comparison can be drawn to any other grant by the same Municipal Corporation and the nature of rights conferred on a person running or managing a slaughter house could hardly be of relevance with regard to the right conferred on the petitioner. In any event, the petitioner accepted the fact that he was only a licensee even prior to 2009, thereafter he requested that his license may be extended subject to payment of 5% of additional amount. This request was favorably considered and he enjoyed the license till 2014. Therefore, the question of converting the license into lease that too at the request made by the petitioner by way of a representation is a relief, which cannot be granted that too by issuing a writ of mandamus by this Court. Hence, such a plea cannot be countenanced and deserves to be in limine rejected.

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The learned counsel would submit that tender-cum-auction cannot be simultaneously held and therefore the impugned notification is illegal. In this regard, reference was made to the Municipal Manual and the decision of the Principal Bench of this Court in W.P.Nos.7050 & 7222 of 2003, dated 18.03.2003 and the decision of the Honourable Division Bench of the Principal Bench of this Court in W.A.Nos.1489 & 1490 of https://hcservices.ecourts.gov.in/hcservices/ 2003, dated 19.02.2008.

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It is to be noted that the Municipal Manual is a Manual of Administration setting out the procedures to be followed in the administration of the municipality, issuance of licenses, grant of permission for collection of fees from markets, cart stands and slaughter houses etc. However, at present, the tender system in respect of all Government largesses are governed by a special enactment namely the Tamil Nadu Transparency in Tenders Act, 1998. This special enactment shall prevail over the provisions of the Municipal Manual and in terms of the special enactment, the tender-cum-auction procedure gives wider participation and even if a person, who has quoted a particular rate in the tender, could subsequently participate in the open auction, which would ensure fairness in procedure, adequate representation and participation and also protect the interest of revenue and this procedure has been consistently being followed in respect of all lease and license to be granted by the local bodies and therefore the ground raised by the learned counsel for the petitioner stating that the notification is contrary to the conditions stipulated in the manual cannot be countenanced. For all the above reasons, the writ petition being devoid of merits, the same is liable to be dismissed.

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In the result, this writ petition is dismissed. Consequently, connected miscellaneous petitions are closed. No costs.

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Sd/Assistant Registrar

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\True copy\

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Sub Assistant Registrar

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To:

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1.The Mayor Tiruneveli City Municipal Corporation Council, Tirunelveli City Municipal Corporation, Tirunelveli.

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2.The Commissioner,Tirunelveli City Municipal Corporation, Tirunelveli.

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3.The Assistant Commissioner, Tiruneveli Division, Tirunelveli City Municipal Corporation, Tirunelveli.

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+1 CC to Mr.H.ARUMUGAM, ADVOCATE SR.NO.43250

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ORDER IN

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W.P.(MD) No.12506 of 2014 04.08.2014

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KRK

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NA/05/08/2014/P3/5C

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https://hcservices.ecourts.gov.in/hcservices/

S. Perumal Ramesh, v. the Tirunelveli City Municipal

Case brief

What is this about?

What did the court decide?

S. Perumal Ramesh, v. the Tirunelveli City Municipal

Case brief

What is this about?

What did the court decide?

What the court decided

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