VELLORE MUNICIPALITY Vs. S SHANMUGAM

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 94 of 1993 on the file of the Court of Subordinate Judge, Vellore. The defendant who has lost his defence before the Courts below is the appellant herein.

(2.) THE averments in the plaint relevant for the purpose of deciding this appeal are as follows: the suit is for an order of permanent injunction restraining the defendant his men, agents and servants from holding an auction of the lease hold right in respect of Plot No. 7 of Vellore Sewage farm on 25. 2. 1992 or any other day till the plaintiff is evicted by due process of law. The defendant is the owner of certain lands collectively called as "vellore Sewage farm. It consists of about 30 to 35 plots and each plot is being leased out by public auction. It is the usual practice for the Municipality to lease out the plots for one year and subsequently extend the period of lease for a period for five years at 10% enhanced lease amount. The defendant auctioned the lease hold right in respect of the sewage farm for the year 1991-92 on 14. 2. 1991 and this plaintiff was declared the successful bidder in respect of plot No. 7 and he was given the lease hold right of the same for a period of one year with the usual understanding that the period of lease will be extended to a period of five years with a condition that the plaintiff gives enhanced amount at 10% annually. 2a) The plaintiff paid a sum of Rs. 12,700/- towards the annual lease amount in respect of Plot No. 7. The counterfoil of the challan for the payment made to the defendant is also produced by the plaintiff. The annual lease was fixed at Rs. 14,300/- and the plaintiff had to pay the balance of Rs. 1600/- towards the annual lease. Subsequently, a memo was issued by the defendant asking the plaintiff to pay the balance of Rs. 1,600/- and also execute a lease deed in favour of the defendant. The said memo is also produced. In accordance with the demand, the plaintiff paid a sum of Rs. 1600/- on 10. 6. 1991 and executed a lease deed as required by the defendant. 2b) Though the plaintiff had executed a lease agreement the copy of the same had not been furnished to the plaintiff. The plaintiff submits that as per the lease agreement the plaintiff is entitled to be in possession and enjoyment of the property on and from 1. 4. 1991 to 31. 3. 1992 and subject to the renewal of the lease for a further period of four years on any enhanced lease amount and continue his lease hold right for a further period of four years. The entire sewage farm plots are being enjoyed by the lessees in a similar manner. Each one expressing his willingness to continue the lease hold right for enhanced lease amount. The defendant is bound to extend the lease period as is the case in respect of other plots which are similarly situate. 2c) The plaintiff understands that the defendant is planning to auction the lease hold right in respect of Plot No. 7 on 25. 2. 1992 contrary to their own undertaking that the lease hold right will be extended for a further period of four years. If the defendant auctions the lease hold right the plaintiff will be jeopardised. The plaintiff had committed any act violative of the terms and conditions of the lease. The plaintiff is not in arrears of lease amount and the plaintiff has already signified his willingness to have the lease amount enhanced and he is ready to pay the enhanced lease amount. As such plaintiff is entitled to an extension of the lease as the other lessees have been granted. But the act of the defendant to hold a public auction in respect of this plot alone will be unfair and discriminatory. The plaintiff is entitled to have his possession and enjoyment of the property as the provisions of the Cultivating Tenants Protection Act are applicable to the plaintiff also. The defendant had not terminated the lease by issuance of a notice or such other course open in law. But the defendant proposes to hold public auction of the lease hold right and thereby evicting the plaintiff by third parties which is clearly unlawful if not illegal. If the defendant succeeds in holding the auction the plaintiff's invaluable civil right will be lost besides the plaintiff will be forced to incur loss which cannot be compensated in terms of money. The proposed auction of the defendant has, therefore, to be restrained. Hence the suit.

(3.) THE defendant in his written statement would contend that the said sewage farm and the said plot No. 7 owned by the defendant situate at Virudhampattu Village in Gudiyattam Taluk and hence this Court has no territorial jurisdiction. There is no lease of the plots and what was auctioned was not the lease hold right of the said plots but only the licence to enjoy the usufructs. Every year, the defendant would conduct public auction for the issue of licence for enjoying the usufructs in the said plots for one year and there is no extension of period for five years as alleged falsely in the plaint. In the said auction conducted by the defendant, the plaintiff was declared as the highest bidder and hence he was given the licence to enjoy the usufructs that is grass grown in the said plot NO. 7 for one year from 1. 4. 1991 to 31. 3. 1992 and the licence amount is for one year alone and there was no delivery of the said plot to the plaintiff, but he was given the right to enjoy the said usufructs. There was no interest created over the said plot. The allegation made in the plaint that there was an understanding that the period of lease will be extended to a period of five years on condition that the plaintiff gives enhanced amount at 10% annually is false and denied. The plaintiff was not put in possession of the said plot. As stated supra, there was no lease in favour of the plaintiff but only a licence for one year from 1. 4. 1991 to 31. 3. 1992 only. 3a) The plaintiff has failed and neglected to execute any agreement in favour of the defendant and hence the allegation that the plaintiff executed an agreement in favour of the defendant is false and denied. There is no lease and the plaintiff took part in the said public auction agreeing to the terms and conditions stated in the auction notice. There is no clause in the said auction notice for the extension of the period for four years and there is no provision for any extension of the period. The plaintiff is bound by the terms and conditions of the said auction notice. A fresh notice has to be issued after the expiry of the licence period and a licence to be given to the highest bidder for the year 1. 4. 1992 to 31. 3. 1993. Any extension of period without public auction is prohibited under the rules and regulations of the District Municipalities Act.