Madras High Court
S.M.Ali vs The District Collector on 29 November, 2021
W.P(MD)Nos.19769 etc. batch of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :29.11.2021
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P(MD).Nos.19769,20413, 20417, 20425,
20435, 20442 and 20445 of 2021
and
W.M.P.(MD).Nos.16459, 17064, 17065,
17077, 17076, 17087 and 17090 of 2021
W.P(MD)No.19769 of 2021
S.M.Ali ... Petitioner
Vs.
1.The District Collector
Office of the District Collector,
Collectorate Post, Dindigul – 624 004.
2.The Corporation Commissioner,
Office of the Corporation Commissioner,
Main Road, Dindigul – 624 001. ...Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, directing the second
respondent to allot a shop to the petitioner attached to the complex situated at
Kamarajar bus stand, Dindigul Corporation, Dindigul as per undertaking memo
filed by the second respondent, dated 17.04.2018.
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W.P(MD)Nos.19769 etc. batch of 2021
For Petitioner : Mr.L.Prabhu
For R1 : Mr.N.Satheesh Kumar
Additional Government Pleader
(For W.P(MD)Nos.20417
and 20425 of 2021)
: Mr.D.Gandhiraj
Special Government pleader
(Except W.P(MD)Nos.20417
and 20425 of 2021)
For R2 : Mr.N.Veerkathiraven
Additional Advocate General
(Assisted by Mr.J.Lawrence
Standing Counsel)
(For all Writ Petitions)
COMMON ORDER
In W.P.(MD).Nos.19769, 20413, 20417, 20425, 20435,20442 and 20445,
common arguments were advanced by Mr.L.Prabhu, learned Counsel appearing
on behalf of the petitioners, Mr.Veerkathiraven, learned Advocate General,
appearing on behalf of the second respondent and Mr.N.Satheesh Kumar,
learned Additional Government Pleader, appearing on behalf of the first
respondent(for W.P(MD)Nos.20417 and 20425 of 2021).
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W.P(MD)Nos.19769 etc. batch of 2021
2.In view of the fact that the issues raised are the same, a common order
is passed.
3.The petitioners herein, have had the benefit of being allotted and
running shops at Kamarajar bus stand in Dindigul Corporation, Dindigul. The
said shops were under the control of the second respondent/Corporation
Commissioner, Dindigul. Originally, there were 14 such shops and each one of
them measured about 30 X 11 square feet.
4.Owing to the implementation of the Smart City Project, there was a
proposal for demolition of the shops and to reconstruct shops. The
reconstruction of shops would be 34 in number and would measure about
10 X 11 square feet. The petitioners naturally felt agitated over such decision
being taken to demolish and reconstruct the shops. They wanted some
assurance for continuation of their business.
5.They independently filed civil suits before the District Munsif Court at
Dindigul. Each one of the writ petitioners filed a suit in O.S.Nos.505 of 2017,
473 of 2017, 475 of 2017, 501 of 2017, 493 of 2017, 503 of 2017 and 495 of
2017, for injunction against the second respondent/Corporation Commissioner,
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W.P(MD)Nos.19769 etc. batch of 2021
Dindigul, restraining the said second respondent herein, from interfering with
the peaceful functioning of the petitioner.
6.During the pendency of the suits, it transpired that an official of the
second respondent had filed an affidavit undertaking that if the shops are
demolished or reconstructed, then the petitioners would have the benefit of
being allotted with one such shop. But, the further grievance of the learned
Counsel for the petitioner is that the original area of the shops which were in
their possession was 30 X 11 square feet and in the undertaking affidavit, the
area of shops were reduced to 10 X 11 square feet.
7.The said undertaking memos were recorded and put up in each one of
the suits. Thereafter, the parties naturally went to trial. The writ petitioners in
their capacity as plaintiffs let evidence. The respondents in their capacity as
defendants also let in evidence. The documents were marked, witnesses were
cross-examined. The evidence, was thereafter, analyzed. It consisted of both
the oral and documentary evidence.
8.A perusal of the judgments of the District Munsif Court which were all
dated 27.04.2021, indicate that there was an objection in marking the said
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W.P(MD)Nos.19769 etc. batch of 2021
undertaking Memos. But, however, with objections, they were marked as
documents on behalf of the plaintiffs.
9.Finally, the learned District Munsif in the course of the judgments, after
taking note of the memos and also framing specific issues with respect to re-
allotment of the shops to the petitioners, found against the petitioners herein,
and in effect, dismissed the suit. One of the main grounds, on which, the suit
was dismissed, was that the petitioners filed suits only for injunction restraining
the second respondent/Corporation Commissioner from interfering with
peaceful possession, but pursuant to the filing of the memo, they had not taken
any steps to amend the plaint seeking re-allotment of shops. That, as a finding
is based on the evidence available before the District Munsif Court, Dindigul.
That is, a finding, based on evidence, and, this Court can neither interfere with
nor examine its correctness or otherwise.
10.Judicial judgments have been passed by the District Munsif Court.
Once a judgment had been passed on the basis of analysis of the evidence, this
Court will necessarily have to give respect to such judgment. It must also be
noted that the petitioners herein, had not chosen to mark the said Memos,
during the cross examination of the witness for the defendant. It was marked
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W.P(MD)Nos.19769 etc. batch of 2021
during the chief examination of the plaintiff witness. Therefore, the memo was
never tested or rather put to the witness for the defendant/Corporation. It only
remains as a document. To be considered as evidence it will necessarily have to
pass through the tests of admissibility, of being proved in manner known to law,
and being relevant and also being genuine.
11.There was an objection raised by the defendants when the plaintiffs
had tried to mark the memos as documents on behalf of the plaintiffs it was
marked as Ex.P.W.6 and it was marked with objections. When a particular
exhibit is marked with objections, there is a duty cast upon on the Trial Court to
explain and give reasons with respect to the objections raised. The judgment in
this point is Bipin Shantilal Panchal Vs. State of Gujarat and another 2001
(3) SCC, wherein, a direction had been given by the Hon'ble Supreme Court, no
doubt in a criminal case, but also incidentally stating that the rule laid would
be applicable even for trial of civil cases that when objections are raised while
marking documents, the trial Court should note down the objections and
address the objections at the time of delivering the final judgment.
12.In the instant case, with respect to issue No.4, which specifically
related to whether the plaintiff was entitled to any further relief particularly,
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W.P(MD)Nos.19769 etc. batch of 2021
since the plaint relief was restricted for injunction not to disturb their peaceful
possession, the learned District Munsif had examined the said document
namely the objection memo and had observed that it was only a part of the
Court records and had also stated that unless the plaintiff had amended the
plaint seeking necessary relief for re-allotment, the Court cannot step-in and
pass any such order.
13.I am conscious of the fact that under Order VII Rule 7 of the Code of
Civil Procedure, whereby every plaint must contain the specific relief asked,
the Code of Civil Procedure also provides that a Court can pass such orders as
it deems fit in the circumstances of the case, but granting allotment of a shop
would be exceeding the jurisdiction of the Court as that would go much far
beyond the relief which had been sought. In any suit for injunction, if there is
threat of dispossession without following due process of law, the Court can
extend its jurisdiction and prevent such dispossession being undertaken even
though the words without due process of law might not have actually been
incorporated in the relief sought. But when the prayer is limited to that
particular aspect, the Court cannot go beyond and grant practically a mandatory
injunction of allotment of a shop.
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W.P(MD)Nos.19769 etc. batch of 2021
14.I am afraid that this Court cannot grant any relief to the petitioners
herein. The learned Additional Advocate General, had made a statement that
whenever the shops namely, new shops, which are reconstructed are put up for
auction, the petitioners can always participate as, any other individual who is
interested in participating in an auction of such nature.
15.A direction is given to the second respondent/Corporation
Commissioner of Dindigul to reconcile the accounts and if payments are to be
paid back to the petitioners herein, such amount should be returned back to the
writ petitioners within a period of six weeks from the date of receipt of a copy
of this order.
16.The Writ Petitions are dismissed. No costs. Consequently, the
connected Miscellaneous Petitions are also closed.
29.11.2021
Index : Yes / No
Internet : Yes/ No
sn/lr
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.19769 etc. batch of 2021
Note : 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.
To
1.The District Collector
Office of the District Collector,
Collectorate Post, Dindigul – 624 004.
2.The Corporation Commissioner,
Office of the Corporation Commissioner,
Main Road, Dindigul – 624 001.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.19769 etc. batch of 2021
C.V.KARTHIKEYAN, J.
sn/lr
W.P(MD).Nos.19769, 20413,
20417, 20425, 20435,
20442 and 20445 of 2021
29.11.2021
https://www.mhc.tn.gov.in/judis
