Madras High Court
S.Parthiban vs The District Collector / ... on 30 October, 2021
W.P.(MD)No.20544 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 04.01.2022
PRONOUNCED ON : 12.01.2022
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD)No.20544 of 2021
and
W.M.P.(MD)No.17181 of 2021
S.Parthiban ... Petitioner
vs.
1.The District Collector / Inspector of Panchayat,
Office of the District Collectorate,
Thoothukudi District.
2.The Commissioner and Block Development
Officer (Panchayat),
Alwarthirunagari Panchayat Union,
Thoothukudi District.
3.The Chairperson,
Alwarthirunagari Panchayat Union,
Thoothukudi District.
4.The President,
Meerankulam Panchayat,
Meerankulam Village, Thoothukudi District. ... Respondents
1/13
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W.P.(MD)No.20544 of 2021
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari, to call for the records relating to
the impugned order of the second respondent in his proceedings in
A2/2438/2021, dated 30.10.2021 and quash the same as illegal.
For Petitioner :Ms.Jasima Yasmin
for M/s.Ajmal Associates
For R1 :Mr.S.Kameswaran
Government Advocate
For R2 to R4 :Mr.D.Ghandiraj
Special Government Pleader
*****
ORDER
This Writ Petition has been filed in the nature of Certiorari calling
for the records relating to the impugned order of the second
respondent/Commissioner and Block Development Officer, dated
30.10.2021 and to set aside the same.
2.The petitioner, S.Parthiban, is the owner of the lands in S.No.
987/21 in Meerankulam Village, Alwarthirunagari Panchayat Union,
Tuticorin District. He sought licence to run a vegetable and cattle
market in the aforesaid lands. The second respondent by proceedings,
dated 29.06.2021 had directed the petitioner to obtain no objection
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W.P.(MD)No.20544 of 2021
certificate from the Police Department, Fire Department and Health
Department. The petitioner claims that he had obtained necessary no
objection certificate from the concerned departments and thereafter, on
the basis of the resolution passed by the third respondent/Chairperson,
Alwarthirunagari Panchayat Union and on the basis of the no objection
certificates received and also on the basis of a report from the Regional
Deputy Block Development Officer, dated 26.10.2021, the second
respondent/Commissioner and Block Development Officer (Panchayat),
Alwarthriunagari Panchayat Union, by proceedings in A2/2438/2021,
dated 05.10.2021, but signed on 28.10.2021 had granted licence to run
vegetable and cattle market in the aforementioned lands. Conditions
were also imposed.
3.Within two working days, ie., on 30.10.2021, the second
respondent cancelled the licence of the petitioner claiming that the
petitioner had not made any arrangement to establish the market and was
actually trying to put up a bar in the said area. It was also stated that the
petitioner had not obtained permission from the Meerankulam Village
Panchayat. It had been also stated that there was apprehension of law
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W.P.(MD)No.20544 of 2021
and order problem. Claiming that the petitioner was not put on notice
prior to such cancellation of the licence, the Writ Petition has been filed
seeking interference with the said order.
4.A counter affidavit had been filed by the second
respondent/Commissioner and Block Development Officer (Panchayat),
Alwarthirunagari Panchayat Union, justifying the impugned proceedings.
It had been stated that only a conditional permission had been granted to
the petitioner to run vegetable and cattle market and the right to cancel
the licence was reserved with the respondents, if there was violation of
any of these conditions. It was also stated that the petitioner had
suppressed the fact that the villagers of Meerankulam Village as well as
the President of Meerankulam Village Panchayat had raised objections
stating that the petitioner in the guise of establishing a vegetable and
cattle market, was actually attempting to run a liquor bar.
5.It was also stated that for the past 40 years, the villagers have
their own market every Wednesday. It was stated that the Village
Panchayat Council had passed a resolution on 29.10.2021 protesting
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W.P.(MD)No.20544 of 2021
against the licence granted to the petitioner to run a private market. In
order to maintain peace, the second respondent had with no other option,
withdrawn the earlier permission granted to the petitioner. A Peace
Committee Meeting was held by the Tahsildar on 01.11.2021 and it was
evident that there was an underlying unrest justifying the cancellation of
licence in the interest of public.
6.It had been stated that the fundamental right to do lawful
business as envisaged under Article 19(1)(g) of the Constitution of India
was subject to restrictions. In the counter affidavit, reference was also
made to Section 148 of the Tamil Nadu Panchayats Act, 1994, which
contemplates granting of licence to run a private market and Rule 7 of
Tamil Nadu Panchayats (Opening and Maintenance of Market) Rules
2000, which also regulates the manner in which a private market should
be run. It was therefore, stated that the cancellation is justified and the
Writ Petition should be dismissed.
7.Rejoinder was filed by the petitioner herein, wherein, he had
stated that the complaints given by the villagers or by the President of
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W.P.(MD)No.20544 of 2021
Meerankulam Village Panchayat had not been served on the petitioner
and he had not been heard. He further stated that the respondents had not
stated the specific condition, which the petitioner is alleged to have
violated. It was stated that the petitioner was not afforded with
reasonable opportunity prior to cancellation.
8.Heard arguments advanced by Ms.Jasima Yasmin, learned
Counsel for the petitioner, Mr.S.Kameswaran, learned Government
Advocate for the first respondents and Mr.D.Ghandiraj, learned Special
Government for second to fourth respondents
9.The petitioner had sought permission to run a vegetable and
cattle market in a premises, which he owns at S.No.987/21 in
Meerankulam Panchayat, Alwarthirunagari Panchayat Union in Tuticorin
District. He is the owner of the said land. The second respondent by
proceedings, dated 29.06.2021, had directed the petitioner to obtain no
objection certificates from the Police department, Fire department and
Health department. The petitioner had obtained permission on
26.08.2021 from the District Fire and Rescue Officer, Tuticorin District
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W.P.(MD)No.20544 of 2021
and also from the Deputy Director, Health Services, Tuticorin on
12.10.2021. The Panchayat Union Council by resolution, dated
30.09.2021, granting concurrence for running the private market. Based
on those documents, the second respondent by proceedings, dated
05.10.2021 but signed signed on 28.10.2021 granted permission to the
petitioner to run the private market.
10.A perusal of the impugned order, dated 30.10.2021, shows that
even in the subject, there is reference to complaints received from the
general public and also from the Village Council. It was stated that the
licence granted in favour of the petitioner has been cancelled owing to
law and order situation. In the references, reference No.6 was a letter
from the President, Meerankulam Village Panchayat, dated 29.10.2021
and a complaint from the general public of Meerankulam Panchayat,
dated 29.10.2021. In the impugned order, after extracting the conditions
under which the licence was granted to the petitioner, it had been stated
that the petitioner had not taken any steps to set up vegetable market and
had also not obtained permission from the Meerankulam Panchayat
Council.
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W.P.(MD)No.20544 of 2021
11.It was also stated that the petitioner was taking steps to set up a
liquor bar. It was also stated that the petitioner was trying to shift the
weekly market run on all Wednesday by the villagers to another place. It
was also stated that complaints in these regards have been received. It
was therefore stated that the permission granted to the petitioner had
been cancelled. A caveat was also placed that if the petitioner complies
with the rules and regulations and the conditions in future and obtains
permission from the Meerankulam Village Panchayat, then he may run
the market.
12.It is clearly evident that the complaints alleged against the
petitioner by the village people and by the President of Meerankulam
Village Panchayat, were not forwarded to the petitioner. He was not
heard. Further, when serious allegations have been made that he was
trying to run a liquor bar, the petitioner should have been put on notice of
such allegations and explanations should have been received from him
and thereafter, an order either accepting the explanation or rejecting the
explanation or finding that as a matter of fact he was actually taking steps
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W.P.(MD)No.20544 of 2021
to run a liquor bar should have been passed. These are all exercises
which the respondents should have undertaken before issuing the notice
cancelling the licence of the petitioner. Violation of principles of natural
justice stares in the face of the order of the second respondent.
13.The learned Counsel for the petitioner had placed reliance on
two judgments of two learned Single Judges of this Court in the case of
E.Thanga Raja vs the Executive Officer, Ettayapuram Selection Grade
Town Panchayat, reported in 2004 SCC Online Mad 302. and
E.Thanga Raja vs the Executive Officer, Ettayapuram Selection Grade
Town Panchayat, reported in (1998) 1 MLJ 103. A perusal of those
judgments reveal that E.Thanga Raja, the petitioner therein had been
engaged in long winding struggle to establish a private market. He had
applied for licence and it was granted. Its renewal was rejected.
Renewal was directed by a learned Single Judge. A Division Bench
however directed the respondents to consider renewal. After inspection,
the renewal was again rejected. A learned Single Judge again held that
the rejection of renewal was not justified. Again, the matter went before
the Division Bench, which set aside the rejection and directed fresh
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W.P.(MD)No.20544 of 2021
consideration and thereafter, since the period had run out, a further
application for renewal was filed and it was again rejected and it came up
before another learned Single Judge of this Court. The principles laid
therein need not be examined by me at this juncture. But let me rest with
reiterating the fact that to fulcrum of any administrative act or
proceedings is to ensure that the order was passed keeping in mind the
principles of natural justice.
14.It is a principle and a binding principle laid down in Maneka
Gandhi v. Union of India, reported in AIR 1978 SC 597, wherein, the
Honourable Supreme Court significantly expanded the interpretation of
Article 21 of the Constitution of India. The judgment overruled A. K.
Gopalan v. State of Madras, reported in AIR 1950 SC 27, which had
implied the exclusiveness of fundamental rights, and the judgment
established a relationship between Articles 14, 19, and 21 of the
Constitution, the 'golden triangle' or 'trinity' and held that a law depriving
a person of 'personal liberty' must not violate any of them. It was also
held that a procedure under Article 21 cannot be arbitrary, unfair and
reasonable.
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W.P.(MD)No.20544 of 2021
15.In this case, the petitioner was not served with copies of the
complaints referred in the impugned order. He was not even put on
notice. There was no possibility of him being heard. There was no
intention of hearing him or giving an opportunity to be heard. The
proceedings are certainly vitiate on this one ground itself. The impugned
order is therefore set aside.
16.The second respondent is directed to proceed in manner known
to law by forwarding copies of the complaints received to the petitioner
and thereafter, make a spot inspection of the land in which the petitioner
proposes to set up a private market and after receiving an explanation
from the petitioner and after coming to an independent subjective
satisfaction, take a decision in manner known to law. The entire exercise
must be completed within a period of twelve weeks from the date of
receipt of a copy of this order. Till such further order is passed in manner
known to law and after following the aforementioned procedure, the
petitioner shall also await such order and shall not open the market.
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W.P.(MD)No.20544 of 2021
16.Though the impugned order is set aside, since observations are
made, the Writ Petition stands disposed of. No order as to costs.
Consequently, connected miscellaneous petition is closed.
Index :Yes / No 12.01.2022
Internet :Yes
To
1.The District Collector / Inspector of Panchayat,
Office of the District Collectorate,
Thoothukudi District.
2.The Commissioner and Block Development
Officer (Panchayat),
Alwarthirunagari Panchayat Union,
Thoothukudi District.
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W.P.(MD)No.20544 of 2021
C.V.KARTHIKEYAN, J.
cmr
Order made in
W.P.(MD)No.20544 of 2021
12.01.2022
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