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2010 Supreme(Mad) 1644
Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE R.S. RAMANATHAN
K.M. Meeran Mohideen
Versus
The Secretary to the Government, Municipal Administration and Water Supply Department, Chennai & Others
W.P.(MD)No.1883 of 2010 & M.P.(MD)Nos.1 & 2 of 2010
Decided on : 08-04-2010
For the Petitioner:H. Arumugam, Advocate. For the Respondents:R2 and R3, M. Vallinayagam, Advocate.
The G.O.Ms.No.78 can be given retrospective effect and applied to licenses granted prior to its issuance, as it is declaratory legislation clarifying the real intention of the legislature.
Headnote:
G.O.Ms.No.78 - Extension of License Period - [FACT OF THE CASE] The petitioner was granted a license for one year, and sought extension for two more years based on G.O.Ms.No.78. The respondent Corporation called for a fresh tender for the period 2010 to 2013, leading to the petitioner challenging the auction notice. [FINDING OF THE COURT] The court analyzed the applicability of G.O.Ms.No.78 to existing licensees and the exclusion clause, and concluded that the G.O. applies to all licenses and leases granted for the year 2009-2010. [ISSUES] The main issue was whether the G.O.Ms.No.78 could be given retrospective operation and applied to the licenses granted prior to its issuance. [RATIO DECIDENDI] The court interpreted the G.O.Ms.No.78 as declaratory legislation, clarifying the real intention of the legislature, and held that it can be given retrospective effect. The exclusion clause was interpreted to refer only to licensees continuing the license without participating in the 2009-2010 auction. [FINAL DECISION] The court allowed the writ petition, rejecting the respondent's argument that the G.O.Ms.No.78 was not applicable to existing licensees. The court held that the G.O. applies to all licenses and leases granted for the year 2009-2010.
1. Heard both sides.
2. The petitioner was a successful bidder in the auction held for the year 2009-2010 in respect of collection of toll fee in the daily vegetable market and cattle market situate at Nethaji Road at Melapayalam and he was granted licence from 12.05.2009 to 31.03.2010. According to the petitioner, the auction was called for two items and he was the successful bidder for both the items and he was granted licence for collection of fee from the vegetable sellers on the road side and shop keepers in the vegetable market. Originally, for local bodies tender was called for one year and the authorities found it difficult to conduct tender-cum-auction every year and therefore, after much deliberation, G.O.Ms.No.181, dated 19.09.2008 was issued, directing all local bodies to conduct tender and auction for a block period of three years from 2009-2010 subject to certain conditions stated therein. The said G.O. was specifically made applicable only to the Municipalities and Panchayats and it was not made applicable to the Corporations. Though, the said G.O. was not made applicable to Corporations, some of the Corporations have granted licence and lease for three years from 2009-2010 onwards and some of the prospective bidders also approached this Court and this Court has also directed the local bodies and Corporations to grant lease or licence for three years as stated in the G.O.Ms.No.181, dated 19.09.2008.
3. According to the petitioner, all the Corporations accepted the G.O.Ms.No.181, but the 2nd respondent Corporation called for tender only for a period of one year namely for the year 20092010. A doubt arose among the Corporation administration, whether G.O.Ms.No.181 is applicable to Municipal Corporation or not and to clarify the same, the Government issued G.O.Ms.No.78, dated 25.05.2009 extending the benefits of G.O.Ms.No.181 to all Municipal Corporations and in that G.O, it has been specifically stated that as per the request of the Director of Municipal Administration, the Corporations are also permitted to grant licence or lease for a period of three years from existing one year period to three years. It is further stated that the said G.O. namely G.O.Ms.No.78 shall apply only to the lease or licence taken for the year 2009-2010 and it shall not apply to the existing licensee. It is further stated that in respect of existing licensee or lessee, they are governed by the terms and conditions mentioned in the lease or licence deed and only after the expiry of the date mentioned in those documents, the conditions mentioned in the G.O.Ms.No.78 shall be made applicable to those lessee or licensee.
4. The petitioner on the basis of the aforesaid G.O.Ms.No.78, applied to the 2nd respondent seeking extension of his licence period for two more years and without responding to the representation made by the petitioner, the 2nd respondent called for tender-cum-auction in respect of two items, which were given to the petitioner for the year 2009-2010 and called for fresh tender for those two items also along with other items for the period 2010 to 2013. As the petitioner claims that he is entitled to claim the benefits of G.O.Ms.No.78 and entitled to have the licence period extended for three years, the petitioner challenged the auction notice in this writ petition.
5. The 2nd respondent filed a counter and contended that the licence granted to the petitioner is only for a period of one year and it expires on 31.03.2010 and G.O.Ms.No.181, dated 19.09.2008 is not applicable to the Corporations and therefore, the 2nd respondent called for tender for granting licence only for a period one year and the petitioner knowing fully well that the licence is for a period of one year, participated in the auction and he was declared as a successful bidder and he also executed an agreement for taking the licence for a period of one year and therefore, he is estopped from going beyond the terms and conditions of the licence.
