Madras High Court
P.Sekar vs The Commissioner on 8 February, 2021
1 W.P.(MD)Nos.12455 of 2010 & 2548 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.02.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)Nos.12455 of 2010 & 2548 of 2011 and
M.P.(MD)Nos.1 of 2010 & 1 of 2011
W.P.(MD)No.12455 of 2010
P.Sekar ... Petitioner
Vs.
1. The Commissioner,
Madurai Corporation,
Madurai.
2. The Assistant Commissioner(Revenue),
Madurai Corporation,
Madurai. ... Respondents
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified
Mandamus, calling for the records relating to the impugned
order passed by the first respondent in Mava3/20364/09 dated
30.08.2010 quash the same and consequently directing the
respondents to allot the shop to the petitioner in Mattuthavani
Central Market.
For Petitioner : Mr.K.Mahendran
For Respondents : Mr.R.Murali
***
http://www.judis.nic.in
W.P.(MD)No.2548 of 2011
J.Natarajan ... Petitioner
Vs.
1. The Commissioner,
Madurai Corporation,
Madurai.
2. The Assistant Commissioner,
Madurai Corporation,
Madurai.
3. P.Sekar ... Respondents
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Mandamus, directing
the respondents to allot the shop to the petitioner in the new
central market situated in K.K.Nagar, Madurai in terms of the
order passed by the first respondent in his proceedings
Mava3/20364/09 dated 13.09.2010 within the period that may
be stipulated by this Court.
For Petitioner : Mr.Mohamed Imran,
for M/s.Ajmal Associates.
For R-1 & R-2 : Mr.R.Murali
For R-3 : Mr.K.Mahendran
***
http://www.judis.nic.in
COMMON ORDER
Heard the learned counsel on either side.
2. Thiru.P.Sekar, petitioner in W.P.(MD)No.12455 of
2010 was granted license to run a vegetable shop in Shop
No.935 at Central Market from the year 1993. The Central
Market was subsequently shifted and it is presently
functioning near Mattuthavani bus stand. Those who were
having licenses already in the said Central Market were
allotted shops in the newly constructed Central Market. In the
case of Thiru.P.Sekar, it was not done. That was because one
J.Natarajan raised a claim that Thiru.Sekar had entered into
an agreement with him on 02.07.1993 and that on 20.11.1996,
he executed a release deed in favour of Natarajan. Therefore,
according to Natarajan, he had stepped into the shoes of
Thiru.Sekar and that the shop in the newly constructed
Central Market should be allotted in his favour. In this regard,
he had sent a representation dated 25.06.2010. Since the
same was not considered, he filed W.P.(MD)No.8655 of 2010.
The writ petition was dismissed vide order dated 08.07.2010.
Questioning the same, Thiru.Natarajan filed W.A.(MD)No.434
http://www.judis.nic.in
of 2010. The Hon'ble Division Bench vide Judgment dated
09.08.2010, allowed the writ appeal and called upon the
Commissioner of Madurai Corporation to hold an enquiry in
this regard to consider the claim of Thiru.Natarajan. Pursuant
to the said direction, the Commissioner of Madurai
Corporation held an enquiry. Thiru.Sekar was asked to appear
before the Commissioner on 30.08.2010 at 4.00 p.m. On the
said date, Thiru.Sekar appeared before the Commissioner and
asked for adjournment. His request was rejected and the
license granted in his favour was also cancelled vide order
dated 30.08.2010. Challenging the same, W.P.(MD)No.12455
of 2010 came to be filed. On the same date, the Commissioner
of Madurai Corporation also passed another order effecting
name transfer in favour of Thiru.Natarajan. Since such
proceedings were not implemented, Thiru.Natarajan filed W.P.
(MD)No.2548 of 2011 for enforcing the said proceedings and
for consequential allotment of a shop in the newly constructed
Central Market in his favour.
3. The case of Thiru.Sekar was that Thiru.Natarajan
was employed under him and that at no point of time, he
http://www.judis.nic.in
entered into any agreement with Thiru.Natarajan. The case of
Thiru.Natarajan is that on 02.07.1993, Thiru.Sekar entered
into a partnership agreement and that on 20.11.1996,
Thiru.Sekar exited from the said arrangement. In this regard,
certain documents are placed for my perusal.
4. A mere look at the said documents would indicate
that something is fishy. They do not inspire my confidence.
This is for more than one reason. Page No.1 in both the
documents do not bear the signatures of both the parties.
Page No.1 alone is typed on a stamp paper. Page No.2 is not
typed on a stamp paper. Of course in page No.2, the
signatures of both Thiru.Natarajan and Thiru.Sekar are found.
Interestingly, the witnesses in both the documents which are
separated by a gap of three years are one and the same. In the
both the documents, the signatures of the attesting witnesses
even on a comparison with naked eye are identical. One's
signature would definitely undergo some change over a period
of few years. That apart, Thiru.Sekar would strongly contend
that the signatures attributed to him are forged. When an
allegation of forgery is made, it would definitely not be open to
http://www.judis.nic.in
the Commissioner of Madurai Corporation to decide on their
genuineness. That would be a matter for adjudication by the
competent Court. Therefore, the said two documents relied on
by Thiru.Natarajan cannot be acted upon by the Corporation.
5. The case of the Corporation as well as
Thiru.Natarajan is that the shop in question was run only by
Thiru.Natarajan, though the license stood in the name of
Thiru.Sekar. The Corporation official is said to have conducted
a field enquiry and a report was submitted to that effect.
Though this report is referred to in the order passed by the
Commissioner, it was not served on Thiru.Sekar. When a
report that is adverse to the interest of Thiru.Sekar is relied
upon, Thiru.Sekar ought to have been served with a copy of
the same and his explanation ought to have been obtained
thereon. This approach was not adopted. This is also a clear
violation of the principles of natural justice.
6. More than anything else, on the enquiry date,
Thiru.Sekar made a request for adjournment. If the
Commissioner was not inclined to grant the said request, he
http://www.judis.nic.in
should have independently disposed of the said request and
called upon Thiru.Sekar to get along with the main matter.
That was not done. Instead while deciding the issue on merits,
the request for adjournment was also rejected. Such a
composite order could not have been passed.
7. Thus the order passed by the Commissioner of
Madurai Corporation suffers from more than one defect. It is
violative of principles of natural justice for not having supplied
the relied upon documents. The request for adjournment was
rejected, even while passing the main order. More than
anything else, the documents alleged to have been forged
were the basis for passing the impugned order.
8. Therefore, the order that is impugned in W.P.
(MD)No.12455 of 2010 is set aside. The matters are remitted
to the file of the Commissioner of Madurai Corporation for
deciding the issue afresh and in accordance with law. The
Commissioner of Madurai Corporation shall issue fresh notice
to Thiru.Sekar for the purpose of deciding as to whether he
was actually running the business or whether he had for all
http://www.judis.nic.in
practical purposes left the business in the hands of
Thiru.Natarajan.
9. If the Commissioner of Madurai Corporation arives
at a finding in favour of Thiru.Sekar, then Thiru.Sekar will
have to be necessarily allotted a new shop in the newly
constructed Central Market. If the finding is adverse to
Thiru.Sekar, the corollary cannot be that Thiru.Natarajan can
be allotted. This is because the license granted in favour
Thiru.Sekar was exclusive to him which could not have been
transferred in favour of Thiru.Natarajan, even if the claim of
Thiru.Natarajan is found to be true. When the Corporation or
the Municipal authorities issued licenses, it can only be for the
benefit of the licensee. Of course if the licensee dies, it can be
transferred in favour of the Class-I legal heirs provided the
license terms and conditions, permits the same. Otherwise the
Municipal authorities ought not to recognize any private
arrangement that may take place between licensee and third
parties. A license of this sort is in the nature of largesse. It
would be beyond the power of the Commissioner or the local
body to recognize such illegal transfers from the licensees to
http://www.judis.nic.in
third parties. That would be a clear violation of Article 14 of
the Constitution of India.
10. In the proposed enquiry, the Commissioner of
Madurai Corporation shall examine Thiru.Natarajan so as to
enable him to place all the relevant materials for
consideration.
11. W.P.(MD)No.12455 of 2010 is allowed with the
aforesaid terms. No costs. Since W.P.(MD)No.12455 of 2010
has been allowed, Thiru.Natarajan does not have any cause of
action to pursue in W.P.(MD)No.2548 of 2011. It stands
dismissed. No costs.
08.02.2021
Index : Yes / No
Internet : Yes/ No
pmu
Note: 1. Registry to mark a copy of this order to
the Secretary/Municipal Corporation of Chennai
for issuing appropriate direction to all the local
bodies in the State of Tamil Nadu.
2.In view of the present lock down owing
to COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
http://www.judis.nic.in
G.R.SWAMINATHAN,J.
PMU
To:
1. The Commissioner,
Madurai Corporation,
Madurai.
2. The Assistant Commissioner(Revenue),
Madurai Corporation,
Madurai.
W.P.(MD)Nos.12455 of 2010 & 2548 of 2011
08.02.2021
http://www.judis.nic.in
