@JUDGMENTTAG-ORDER
Honourable Mr. Justice K. Chandru
1. The petitioners in these writ petitions are all licensees maintaining public toilets located in various parts in the Integrated Mattuthavani Bus Stand at Madurai. The petitioners were issued with renewal licenses for a period of one year from 01.04.2011 to 31.03.2012. Being the highest bidders in the earlier year for which licences were granted, their licenses were renewed with a 5% increase in the amounts quoted for a period of one year for the year 2011-2012 subject to the usual conditions of licence.
2. The conditions of licence itself indicated that it was only a renewal fee and not a lease amount and that all auction conditions imposed for the year 2011-2012 will continue to operate in respect of the renewal also. The conditions of auction was published by the municipal Corporation in respect of its public toilets that the user public must be charged Rs. 1.50 for using the latrines, for using the bath rooms Rs. 3/- and for the urinals Rs. 1/-. The licenses should maintain the toilets at their own expense in a clean condition.
3. Auction Condition 11 contemplates that they should have printed receipts containing signature of the licensees or his agent and they must only collect the fee specified therein. They also must maintain proper accounts for the collection which are to be shown at the time of demand. Further, in the receipts running numbers will have to be printed from the date of the licence and till the end of the licence period. They must obtain the seal of the Corporation in the receipts.
4. Condition No. 13 stipulates that if any of the conditions were violated, the deposit fee made by the licensees will be forfeited and it can also be recovered for all the damages. For each conditions violated, Rs. 100/-can be levied as fine even if the license was revoked in respect of violation of other conditions prompt action can be taken by the Commissioner.
5. The original file kept by the Corporation was produced. It is seen that the District Collector cum Regional Transport Authority Madurai made a surprise inspection on 04.06.2001 at the Matthuthavani Bus stand along with a team of officials including the Assistant Director of Panchayat, P.A.to the Collector (Agri), Tahsildars of Madurai North and South Taluks and Revenue Inspectors in respect of the toilets, urinals and bathrooms. It was observed by the inspection team that the maintenance of up keep of these were very poor and filthy condition emanating unhygienic odour. It was causing health hazard to the users on verification of enquiry from the useRs. It was confirmed that the fee collected from the travelling public was more than 200% than what was permitted and no receipts were given by the agents for proof of collection which gave room to doubt that they were collecting fee on their own volition. This report was forwarded to the Commissioner of Corporation, Madurai. Apart from this, a report was sent by the Assistant Commissioner Revenue. It was found that all the contractors who have taken licences have not issued any receipt and they were collecting extra money. The deficiencies in respect of other conditions were also referred to in the report.
6. On the basis of these materials, the Commissioner of Madurai Corporation, issued show cause notices to the petitioneRs. In the show cause notices, it was indicated in the reference column about the proceedings of the Commissioner dated 21.03.2011 and the report of the District Collector dated 04.06.2011. It was found that the petitioners have violated the general conditions of auction Nos.11 and 13(a) to (d). In view of violation of licence conditions and for not proper upkeep of the toilets they were directed to give explanation within two days. Failing which, the Commissioner informed that on the basis of the general auction condition No. 9, he was inclined to cancel the licences. The petitioners in each of the writ petitions wrote different replies. In most of the replies, they have stated that in future they will duly obey the conditions of licence and will not give room for any further complaints.
7. In W.P.(MD)No. 7584 of 2011, the petitioner was a Women Self Help Group and in their reply, they have stated that the public toilets were locked for several months and the users including some encroachers have committed nuisance.
7(a). In W.P.(MD)No. 8118 of 2011, the petitioner sent a reply without denying the allegations, merely stated that in future, he will keep the toilets in good condition without there being any need to take action against him.
7(b). In W.P(MD)No. 7863 of 2011, in the reply, he had stated that he was charging only what was notified by the auction condition and he will keep the toilets in good condition.
7(c). Similarly, in W.P.(MD)No. 8119 of 2001 he had stated that the conditions of toilets were not good and that, in future, he will keep it in order.
7(d). In W.P.(MD)Nso.7598 to 7603 of 2011, no documents were produced about the reply sent by the petitioneRs.
8. The first writ petition came to be filed on 07.07.2011. When the first writ petition came up for hearing, it was argued by the learned counsel for the petitioners, that the cancellation has been made on the basis of the report of the District Collector and it was a non speaking order. The learned Judge who granted interim orders directed the petitioners to file an affidavit of undertaking stating that they will continue to maintain the pay and use toilets efficiently and hygienically, in the interest of public at large and the petitioners'' social and economic status of the petitioners, this Court is inclined to stay the impugned proceedings initially for a limited period. The respondents are also entitled to inspect the premises and report as to status of maintenance. The same interim order was granted in most of the cases those, interim orders are also continuing. But in all these cases, when this Court imposed a condition for granting of stay to file affidavits before this Court undertaking to keep the toilets in good condition.
9. A perusal of the records shows till this date, no affidavits of undertaking were. After getting interim orders, the petitioners forgot about fulfilling their obligations in sustaining the interim ordeRs.
10. When these matters were listed for final hearing today, Mr.M.E.Ilango, learned counsel appearing for most of the petitioners made the following submissions:
i) The reason found in the order of cancellation is not the same as
found in the show cause issued.
ii) The report of the District Collector was not furnished to them.
iii) Other than the report of the District Collector, there is no material to hold that the auction conditions have been violated.
iv) In case of any violation, they are entitled to impose warning and fine and only cancellation can be done only as a last resort.
v) The period of licence itself is only upto 31.03.2012. therefore, the petitioners can be allowed to continue with suitable directions till the end of the licence period.
The other learned counsels appearing for the other petitioners adopted the same arguments.
11. In support of his submissions, Mr.M.E.Ilango, learned counsel for the petitioners, referred to a judgment of this Court in J.Joshuva Vs.The Revenue Divisional Officer reported in CDJ 2011 MHC 562 for contending that if a show cause notice was issued without following legal norms, it may be set aside in exceptional cases. If the principles of natural justice are violated and are predetermined, if a report relied upon was given by an incompetent authority, they are good grounds to set aside an order.
12. In that case, reference was made to the judgment of the Supreme Court in Union of India and another Vs.Kunisetty Satyanarayan reported in (2006) 12 SCC 28 for emphasizing that the power under Article 226 is limited and only rarest of rare and exceptional cases interference will be called for. It was held that it was one such circumstances, the power under Article 226 was invoked. But it must be noted that in that case, the persons were having a lease in their favour under the Tamil Nadu Minor Mineral Concession Rules 1959. Further, under the Provisions of the said Act, there was no scope for a report being sent by an Assistant Geologist and hence it was held to be incompetent.
13. The said judgment is distinguishable on two grounds. Firstly, in the present case, the petitioners are licensees. Secondly, the District Collector is a Regional Transport Authority who is bound to oversee the provisions of the Motor Vehicles Act. It is a requirement that a municipal bus stand must be kept neat and tidy without inconvenience being caused to travelling public. The report was not only sent by him, but based on the inspection by a group of officials who are directly involved in the maintenance of the bus stand run by the Corporation. The report cannot be said to be either extraneous or outside the purview of the Madurai City Municipal Corporation Act.
14. The learned counsel, thereafter, referred to the judgment of the Orissa High Court in
15. As noted already, in the present case, it is only a question of licence for a period of one year. The petitioners were on a renewed licences and they were imposed with conditions. In some of the explanations by the petitioners, they have not denied the unhygienic conditions of the toilets. In some of the explanations, the petitioners have not denied the allegation that they were not maintaining printed receipts with running numbers and with the seal affixed by the Madurai Corporation.
16. The third judgment relied upon by the learned counsel for the petitioner arose under the Central Excise Act. The said judgment of the Supreme Court in Orient Paper Mills Ltd., Vs. Union of India reported in 1968 STPL (LE) 4216 SC. This is for the purpose of contending that if any directions were given by an incompetent authority, the statutory authority has not bound to carry out those directions. The authorities are bound to exercise their power only within the four corners of law. While laying down the law in respect of Central Excise Act, the Supreme Court also referred to the judgment of the Supreme Court in Rajagopal Naidu Vs. State Tralt. Sport Appellate Tribunal reported in AIR 1964 SC 1578. In that case, the question arose was whether the State Government can give any direction to the Regional Transport Authority to act in a particular manner. In that context, they held that the power to hold a route permit is a delegated power and solely to be determined by the Regional Transport Authority uninfluenced by any other directions. In that context, it was held that the executive instructions by the State Government cannot have any binding effect over such authorities.
17. It is not clear as to how the said proposition of law will apply to the case on hand. On the other hand, the matter relating to the licence to maintain any amenities or facilities under the Madurai City Municipal Corporation is fully governed by the provisions of the Madurai City Municipal Corporation Act, 1971. Since, in the present case, matters related to public toilet, it is necessary to refer the relevant provision relating to public toilets and sanitation
18. Section 216 provides for public latrines where the Corporation obliged to provide and maintain in proper and convenient places a sufficient number of public latrines and sh all cause the same to be kept clean in proper order. Section 217 contemplates the licensing of public latrines. u/s 217(1) the Commissioner may licence for any period not exceeding one year. u/s 217(3), every licensee of public latrine shall maintain it clean and in proper order.
19. The procedure and miscellaneous provision for licenses and grant of permissions are set out u/s 452. u/s 452(5) it shall be duty of the Commissioner to inspect places in respect of which a license or permission is required by or under this Act. He may enter any such place between sunrise and sunset, and also between sunset and sunrise, if it is open to the public or any industry being carried on in it at the time. If he has reason to believe that anything is being done in any place without a license or permission, where the same is required by or under this Act, or otherwise than in conformity with the same, he may at any time by day or night without notice enter such place for the purpose of satisfying himself whether any provision of law, rules, by-laws, regulation, any condition or a license or permission or any lawful direction or prohibition is being contravened. It is also authorised the Commissioner or any person to whom he has lawfully delegated his powers, or by the use of any force necessary for effecting an entrance under this sub-section.
20. It is too late in the day to contend that the District Collector who is also a notified as the Regional Transport Authority cannot enter a municipal bus stand and inspect the conditions of the said bus stand in the interest of the travelling public. Therefore, the argument that reports relied on were sent by the persons who are not authorised by the Act cannot be accepted.
21. On the other hand, the District Collector cum the Regional Transport Authority was also accompanied by the other Officers of the Corporation as seen from the note file where the inspection was also done on an earlier occasion on 20.07.2010 by the authorities. The common grievance was violation of condition No. 11 regarding the passengers are fleeced to pay more than what had been notified and the licensees are not maintaining any receipts with continuous serial numbers and are charging more than what has been stipulated therein and that they do not contain the seal of the Corporation was found proved during the inspection. It cannot be presumed that there was no material or that the petitioners have been unlawfully dealt with by the Commissioner of the Corporation.
22. The Supreme Court vide its decision in
21. This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case1 there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in "other authority" for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the "authority" or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field.
22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple - Radhakrishna Agarwal v. State of Bihar2, Premji Bhai Parmar v. Delhi Development Authority3 and DFO v. Biswanath Tea Company Ltd. 4
23. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for
23. The said judgment came to be quoted and followed in a decision of this Court in a case involving a license granted to collect fees for maintaining a public toilet of the municipality. This Court held that the right granted is a license and not a lease and it was further held that such condition cannot be enforced in a petition under Article 226 of the Constitution. The said decision reported in 1990 Writ L.R 105 ( Pandara Pandian Vs.The Commissioner, Tirunelveli Municipality), M. Srinivasan, J (as he then was) in Paragraphs 3 and 4 had observed as follows:
3. By the very nature of the property involved being a lavatory, there cannot be a lease as such in favour of the petitioner. The conditions of the auction under which the petitioner became highest bidder in 1989 as well as the form of licence agreement under Art.176 make it clear that it is only a licence for a specific period, namely from 05.06.1989 to 31.03.1990. Having agreed to these conditions and taken the licence right in the auction, it is not open to the petitioner now to raise a contention that it is a lease and that he cannot be disturbed.
4. Moreover, the Supreme Court has recently held in
24. The right of the petitioners being the licensees that too holding a licence on a renewal basis is not affected. A show cause notice was given to them and natural justice was fulfilled in respect of cancellation of licence. Their replies to show cause notices were considered by the concerned authorities and a final revocation of licence was made.
25. The argument is that they must be given three chances and only as a last chance, the extreme step of cancellation of licence was to be made is not borne out by any provisions of the Act. Even the Auction condition No. 19, as referred by Mr.M.E.Ilango, learned counsel appearing for the petitioners is an enabling provision for the Corporation. Further, the Act itself provides for a remedy in case of any claim for unlawful cancellation of licence as referred to in Section 480 of the Madurai City Municipal Corporation Act. Section 480 reads as follows:
480.Determinatin by District Munsif of sums payable:
Where in any case not provided for in section 488 any municipal authority or any person is required by or under this Act or any rule, by-law, regulation or contract made under it to pay any costs, damages, penalties, compensation, charges, fees, rents, expenses, contributions, or other sums referred to in Section 479 the amount or apportionment of the same shall, in case of dispute, be ascertained and determined as is otherwise provided in sections 202, 417, 469 or 509 or in the Land Acquisition Act, 1894 (Central Act I of 1894) by the district munsif on application made to him for this purpose at anytime within six months from the date when such costs, damages, penalties, compensation, charges, fees, rents, expenses, contributions or other sums first become payable.
26. Therefore, the Act itself contemplates in cases of auction by a Corporation the claim of damages or compensation or refund or fees only by filing an application before the District Munsif concerned in terms of the Act. The question of the petitioners approaching this Court for continuation of the licences till the end of the licence period through the aegis of this Court under Article 226 of the Constitution does not arise. The licences cannot be elevated to a level of lease or any other proprietoral right. This Court is satisfied that the Corporation had enough materials for issuing the show cause notices and passing final orders after receipt of the explanation from the licensees.
27. It must be also noted that u/s 133 of the Code of Criminal Procedure, the District Collector being an Executive Magistrate is also empowered to order or removal of nuisance either on receiving report or on his own. The term "public place" under the section is defined to include also properties belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
28. In view of the above, this Court do not think that any case made to entertain these writ petitions. Hence, all the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
