P K AZEEZ VAIDYAR Vs. COMMISSIONER COONOOR MUNICIPALITY

JUDGEMENT

(1.) THE petitions aforementioned are directed against the proceedings of the respondents, calling upon the petitioners and the other merchants to pay at Rs.15 per diem in respect of single stalls and at the rate of Rs.30 per diem in respect of double stalls of a municipal market in the town of Coonoor District, the Nilgiris. According to the petitioners, they were holding on lease either single stall or double stall out of the number of stalls owned by the respondents at Coonoor and paying rent of Rs. 1.70 to Rs.2.00 per day for a single stall and Rs.3.40 to Rs.5.00 for a double stall. THE stalls, however, were sought to be reconstructed and accordingly the petitioners vacated their respective stalls to enable the respondents to demolish the old buildings. THE old buildings were demolished accordingly, according to the petitioners on the firm understanding that the respondents would give the stalls back to the concerned persons who were occupying them as soon as the reconstruction was over. After the reconstruction was completed, however, the respondents wanted to auction the stalls. Treating this as a violation of the undertaking seven merchants together filed a suit in O.S.No.17 of 1983 of the District Munsif Court, Coonoor and prayed for a permanent injunction restraining the respondents from in any manner allotting or auctioning the stalls by public auction to any third persons. In the said suit, it is said an understanding was reached between the plaintiffs therein on the one hand and the respondents herein on the other hand, under which the respondents gave a firm undertaking that the stalls would be allotted to the same persons, who were occupying the stalls originally before reconstruction. THE respondents, it appears, however proposed to reinduct in the stalls the petitioners and others who were therefrom before on a new rent per day fixed by them at Rs.15 per day for single stall and Rs.30 per day for double stall. Calling the rate fixed per day arbitrary and against the rules for fixation of rent or for a licence fee, the petitioners have moved this Court seeking a writ of certiorari to quash the proceedings under which the new rate of rent has been fixed and/or licence fee by the respondents.

(2.) IN a common counter-affidavit, the respondents have said that 28 new stalls have been constructed under INtegrated Urban Development Programme Scheme with the Central Governments assistance by way of loan, which is repayable within 25 years along with interest at 5 1/2% per annum which is subsequently revised to 6 1/2% per annum. The construction work has taken up by the Public Works Department and executed with an estimated cost of Rs.8.95 lakhs. The buildings were completed and handed over to the Municipality on 1.8.1983. The respondents admitted in the counter-affidavit that some of the merchants went to the court of the District Munsif, Coonoor and obtained interim injunction, but it is said,"the suit was dismissed on 30.11.1983 by the Hon"ble District Munsif s Court as the suit was not pressed by the petitioners, in view of the memo of settlement filed by both parties and as resolved by the council in its resolution No.237/83 dated 12.11.1983 to allot the stalls to the petitioners at the rate of daily fee of Rs.30 and Rs.60 for single and double stalls respectively subject to the conditions to pay six months deposit and subject to the approval of the rates so fixed by the Director of Municipal Administration, Madras". It is said further in the counter-affidavit that the Municipal Council in its resolution No.237 dated 12.11.1983 resolved to allot the new stalls to the previous stall holders on daily licence fee of Rs.30 and Rs.60 for each of the single and double stalls respectively subject to the approval by the Director of Municipal Administration, Madras and on payment of six months deposit in advance and to pay the daily licence fee promptly. Subsequently, the Director of Municipal Administration was addressed in this respondent's Office Roc.No.7214/81-A4, dated 5.12.1983 for allotting the said stalls to the old stall holders atRs.30per single stall per day dispensing with the public auction, It is thus said, "after the dismissal of the said suit on 30.11.1983 all the vendors decided not to pay any tax or fees with effect from 15.12.1983 until the stalls are handed over to them with a reasonable rent since the daily fee fixed at Rs.30 per single stall per day was considered to be on the high side. The Commissioner and the Special Officer discussed the problem with the stall holders on 17. 12.1983. The vendors demanded to hand over the stall with lesser rent without collecting any amount from them, but the Commissioner would not agree to consider the request before the receipt of the orders from the Director of Munici- pal Administration and also as it was not found possible to hand over the stalls without remitting the six months deposit. On the representation made by the vendors, the District Collector convened a meeting with Municipal Officials stall holders, local M.L.A etc., and after a prolonged discussion, the District Collector obtained permission from the Director of Municipal Administration to settle the matter. The District Collector after examining carefully all the aspects of total expenditure for the construction of the above stalls, repayment of annual instalment of principal with interest to be repayable within 25 years maintenance, establishments and the prevailing circumstances for the actual plinth area of the individual stalls taking into account of the neighbouring stalls auctioned recently and arriving to a conclusion as suggested to reduce the daily fee of Rs.30 to Rs. 15 per single stall per day. The District Collector also requested the Municipal Commissioner to obtain the Council Resolution and to hand over the stalls immediately with an undertaking that the stall holders should pay Rs.15 per single stall per day promptly and pay six months deposit as per conditions; after taking assurance from the vendors for the withdrawal of the token fast and band on the same day. Accordingly on the suggestions and decision arrived at by the District Collector, the Commissioner placed the entire discussion before the Council and the Council resolved to hand over the stalls accepting the rate of daily fee of Rs.15 for single stall and Rs.30 for double stall per day as suggested by the Collector, subject to the approval of the Director of Municipal Administration, Madras in its resolution No.295/ 83 dated 27. 12.1983. Consequently the Municipal Commissioner has issued orders allotting the stalls in his proceedings A4/7214/82 dated 2.1.1984 to the petitioners. Accordingly the said stalls were taken over by the individuals on 9.1.1984 giving an undertaking in writing and accepting to remit the daily licence fee then and there and to remit the six months deposit of Rs.2,700 for a single stall and of Rs.5,400 for double stall within 15 days in one instalment". It is alleged in the counter-affidavit that the stall holders failed to pay the daily fees promptly and also defaulted in payment of the deposit aforementioned. As the conditions stipulated in the office proceedings No.7214/81 dated 2.1.1984 were violated and also the assurance given by the vendors to pay the six months deposit within 15 days also failed and the stall holders defaulted in payment of daily fee, action was taken to lock up the stalls on 2.2.1984 evening with the assistance of the police and the stalls were locked and sealed for the failure of non-payment of six months deposit amount and also daily fee promptly from the date of occupation, i.e. from 9.1.1984 to 2.2.1984 with a view to realising the dues. All the stall holders have represented the matter to the District Collector again on the next day. The District Collector after discussing with the Municipal authorities advised the stall holders to remit Rs.500 immediately and to remit the daily fees promptly without any further default and to pay the balance of six months; deposit within thirty days. On the advice and suggestions made by the District Collector, the stall holders have remitted Rs.500 on 4.2.1984 and took over possession of the shops again on the same day i.e. 4.2.1984. After taking possession of the above stalls the vendors instead of clearing the arrears of daily fees and the six months deposit, however, according to the respondents, the petitioners have approached this Court to evade payment and to make the Municipality suffer with financial constraints. There is a calculation in the counter-affidavit how the daily fee has been fixed in these words: "Under the I.U.D.P. Schemes under Phase III, 52 new shops have been constructed by the Coonoor Municipality (single stall 18 numbers and double stalls 34 numbers). When the stall holders have been requested to take over possession on a daily fee of Rs. 11.25 (45 sq.ft.,) and Rs.26.25 (105 sq.ft.,) fixed at the rate of Rs.0.25 paise per sq.ft., by the Director of Municipal Administration, Madras, they refused to take possession of the said stalls saying that the fee fixed is arbitrary. Hence, the said 52 stalls were auctioned on 28.1.1987 in public auction and the details of the bid amount are submitted here below:

(3.) THE Tamil Nadu District Municipalities Act, 1920 (V of 1920) has specific provisions in Secs.250 to 261 of and for Public Markets", that is to say all markets which are acquired, constructed, repaired or maintained out of the municipal fund. Sec.260 gives to the Municipal Council power to provide places for use as public markets and provides in Sub-sec. (2) thereof that the Council may in any public market levy any one or more of the fees at such rates as are enumerated therein and may place the collection of such fees under the management of such persons as may appear to it proper or may farm out such fees for any period not exceeding three years at a time and on such terms and subject to such conditions as it may deem fit. Five kinds of fees are mentioned, one being fees for the use of shops, stalls, pens or stands in such markets.