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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
S.Chellapandi - Petitioner
Vs.
The Assistant Director of Panchayat, O/o.the Assistant Director of Panchayat – Respondent
W.P.(MD).Nos.21616 to 21625, 21670 to 21683, 21736 to 21749, 21848, 22490 to 22492, 22347 to 22356, 23171 and 23173 of 2021 And W.M.P.(MD).Nos.18176 to 18195, 18252, 18253, 18255 to 18275, 18277, 18283, 18285, 18287, 18288, 18317 to 18344, 18437 to 18439, 18900 to 18919, 19018 to 19023, 19607, 19609, 19610 and 19612 of 2021 W.P.(MD).No.21736 of 2021
Decided on : 03-01-2022
Tamil Nadu Panchayats Act, 1994 - Section 202 - Lease - Extension of Lease - Seeking identical reliefs in the nature of Certiorarified Mandamus - Petitioner has been a lease holder under Usilampatti Panchayat Union with respect to a property at Bazar Stall, Panchayat Union by proceedings had leased out a small area of land to petitioner and the petitioner was permitted to put up a construction for a shop at his own expense - Petitioner put up the construction and has been doing business in shop as a lessee for the land leased out by the Panchayat Union - Lease had been extended every three (3) years and there was also a condition that there should be an increase in the lease amount to the extent of 15 % whenever such extension is granted - Petitioner claims that the period of lease is still subsisting - Courts cannot create rights where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. (Para 77).
Finding of the Court: Courts cannot create rights where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles - With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint - They must remember that judicial activism is not an unguided missile failure to bear this in mind would lead to chaos. Public adulation must not sway the judges and personal aggrandizement must be eschewed - It is imperative to preserve the sanctity and credibility of judicial process - It needs to be remembered that courts cannot run the government - In this case, it is only the Panchayat which has power to pass a resolution with respect to the lease or continuation of lease or extension of lease or frustration of the lease - They should be permitted to pass a resolution - An official can never step into the shoes of the Panchayat - In this case, the official had misinterpreted and misconstrued the order of the Division Bench - It cannot be an innocent ventureenor of the counter sends a troubling message that this was a deliberate usurpation of power.
Result: Petitions allowed.
ORDER :
1. All these Writ Petitions have been filed seeking identical reliefs in the nature of Certiorarified Mandamus calling into question an order passed by the first respondent / the Assistant Director of Panchayat, Madurai District in Na.Ka.No.351/2021/A2 dated 17.11.2021 claiming that the same had been issued without jurisdiction and that therefore, this Court should interfere with the said order.
2. In view of the fact that the writ petitioners have assailed the same impugned order on similar grounds, a common order is passed.
3. For the sake of convenience, I shall take up W.P(MD).No.21736 of 2021 filed by S.Chellapandi, as a sample case to state the facts.
4. In the affidavit filed in support of the Writ Petition, it had been stated that the petitioner has been a lease holder under the Usilampatti Panchayat Union with respect to a property at Bazar Stall. Originally, the Usilampatti Panchayat Union by proceedings dated 26.03.2010 had leased out a small area of land to the petitioner and the petitioner was permitted to put up a construction for a shop at his own expense. The petitioner put up the construction and has been doing business in the shop as a lessee for the land leased out by the Panchayat Union. The lease had been extended every three (3) years and there was also a condition that there should be an increase in the lease amount to the extent of 15 % whenever such extension is granted. The petitioner claims that the period of lease is still subsisting.
5. In the meanwhile, W.P.(MD).No.12372 of 2021 came to be filed by a Councillor in the Panchayat Union, as a Public Interest Litigation questioning the change in the name of the lessee with respect to nine (9) specific shops. It was alleged that the Panchayat President had, without any authority, changed the lessees for gain.
6. A Division Bench while examining the case of that particular Writ Petition, observed that the Panchayat President had exceeded jurisdiction and therefore, called upon the Assistant Director of Panchayat to close down the shops and let them out for auction.
7. It is claimed by the petitioner that such order was directed only against those specific nine (9) shops. It is also claimed that the said Assistant Director of Panchayat, who is the first respondent herein, had, taking advantage of that authority granted by the Division Bench, issued Show Cause Notice to the petitioner on 23.09.2021 calling upon the petitioner to show cause why the shop should not be auctioned and granted three (3) days' time to reply to the said Show Cause Notice. The petitioner had given his reply.
8. Thereafter, on 17.11.2021, the impugned order was passed by the first respondent / the Assistant Director of Panchayat, rejecting the reply given and stating that a decision had been taken to auction the shop and granted permission to the petitioner to participate in the auction. This impugned order has been challenged in the present Writ Petition.
9. In all the other Writ Petitions in which this common order is passed, the same impugned order is questioned and challenged by the writ petitioners. They are all similarly placed, being original lessees by grant of lease of a land with permission to construct shops, with a covenant to continue as lessees with extension once every three (3) years with an increase of 15% in the rent.
10. The writ petitioner claims that the first respondent/the Assistant Director of Panchayat, has no jurisdiction to issue the impugned order since it was the Usilampatti Panchayat Union which had originally granted the lease and right was vested only with the said Panchayat Union to take a decision to either extend the lease or to even terminate the lease or to bring up the shops for auction. It is claimed that the Panchayat had not passed any such resolution and therefore, the impugned order suffers as a colourable exercise of power.
11. It has also been uniformly claimed by all the writ petitioners that the first respondent/the Assistant Director of
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