Madras High Court
S.Sasikumar vs Government Of Tamil Nadu on 19 September, 2023
W.A.Nos.2295 of 2018 etc.batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2023
CORAM :
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
W.A.Nos.2295, 2296, 2297, 2298, 2307, 2303, 2301, 2306, 2304, 2300,
2305, 2308, 2302, 2299, 2332, 2331, 2330, 2333, 2325, 2327, 2326, 2374,
2373, 2376, 2375, 2352, 2358, 2356, 2351, 2355, 2363, 2350, 2362, 2365,
2354, 2357, 2359, 2367, 2433, 2360, 2364, 2361, 2455, 2482, 2481, 2453,
2483, 2452, 2457, 2472, 2460, 2458, 2473, 2456, 2467, 2459, 2454, 2466 of
2018 & 42 of 2019
S.Sasikumar .. Appellant in WA.2295/2018
O.Veeran .. Appellant in WA.2296/2018
K.Palpandy .. Appellant in WA.2297/2018
P.Sankar .. Appellant in WA.2298/2018
K.Lingappan .. Appellant in WA.2307/2018
P.Dhanaraj .. Appellant in WA.2303/2018
S.M.Sivasamy .. Appellant in WA.2301/2018
O.Ilayaraja .. Appellant in WA.2306/2018
K.Viswasam .. Appellant in WA.2304/2018
K.P.Murugan .. Appellant in WA.2300/2018
R.Sekar .. Appellant in WA.2305/2018
M.P.Muthuraj .. Appellant in WA.2308/2018
P.S.Balan .. Appellant in WA.2302/2018
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Mahesh Kumar .. Appellant in WA.2299/2018
M/s JPM Retail Flower Shop
rep.by its sole proprietor Mr.A.Jahan .. Appellant in WA.2332/2018
P.Perumal .. Appellant in WA.2331/2018
R.Rajan .. Appellant in WA.2330/2018
S.Sathish .. Appellant in WA.2333/2018
T.N.Nagarajan .. Appellant in WA.2325/2018
K.T.Raja .. Appellant in WA.2327/2018
M.K.Nagaraj .. Appellant in WA.2326/2018
M/s S.Nagarathinam and Sons
Flower Retailers rep.by its
Manager S.Ganesan .. Appellant in WA.2374/2018
B.Subash .. Appellant in WA.2373/2018
R.Panner Selvam .. Appellant in WA.2376/2018
G.Narayanan .. Appellant in WA.2375/2018
A.Palanisamy .. Appellant in WA.2352/2018
A.Anaikutty .. Appellant in WA.2358/2018
S.Dharmaraj .. Appellant in WA.2356/2018
R.Murugavel .. Appellant in WA.2351/2018
V.Murugan .. Appellant in WA.2355/2018
M.Sivakumar .. Appellant in WA.2363/2018
N.Arumugam .. Appellant in WA.2350/2018
J.Thomas Peter .. Appellant in WA.2362/2018
S.Gopalakrishnan .. Appellant in WA.2365/2018
S.Rajamani .. Appellant in WA.2354/2018
S.William Eliyas .. Appellant in WA.2357/2018
Muthuraman .. Appellant in WA.2359/2018
S.Selvam .. Appellant in WA.2367/2018
Dinesh .. Appellant in WA.2433/2018
Selvakumar .. Appellant in WA.2360/2018
K.Kathirvel .. Appellant in WA.2364/2018
P.Desilva Daniel Raj .. Appellant in WA.2361/2018
P.Thanasekar .. Appellant in WA.2455/2018
T.Alagarsamy .. Appellant in WA.2482/2018
K.A.Gopi .. Appellant in WA.2481/2018
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K.Muralimohan .. Appellant in WA.2453/2018
A.Nithyanandam .. Appellant in WA.2483/2018
G.Balaji .. Appellant in WA.2452/2018
S.V.Shanmugavel .. Appellant in WA.2457/2018
R.Velmurugan .. Appellant in WA.2472/2018
A.Manivannan .. Appellant in WA.2460/2018
S.Loganathan .. Appellant in WA.2458/2018
P.Muthukumar .. Appellant in WA.2473/2018
A.Varadaraj .. Appellant in WA.2456/2018
R.Rajendran .. Appellant in WA.2467/2018
K.G.Chandrasekar .. Appellant in WA.2459/2018
C.Settu .. Appellant in WA.2454/2018
S.Venkatesan .. Appellant in WA.2466/2018
K.Ravi .. Appellant in WA.42/2019
v.
1. Government of Tamil Nadu
represented by its Secretary
Housing and Urban Development Department
Fort St.George
Chennai 600 009
2. The Member Secretary
Chennai Metropolitan Development Authority
No.1, Gandhi Irwin Road
Egmore, Chennai 600 008
3. The Chief Executive Officer
Chennai Metropolitan Development Authority
No.1, Gandhi Irwin Road
Egmore, Chennai 600 008 .. Respondents 1 to 3 in all
the WA's, except WA.2332/18
4. Chennai Pushpa Viyabarigal and
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Commission Agentugal Sangam
represented by its President Mr.Uthappan
No.18/2, Gangaiamman Koil Street
T.Nagar, Chennai 600 017 .. R4 in WA.2295/2018
(R4 impleaded vide order of Court
dt. 19.09.2023 in CMP.6107/2020 in
WA.2295/2018)
5. J.Vasudevan
(R5 impleaded vide order of Court
dt. 19.09.2023 in CMP.13624/2022 in
WA.2295/2018) .. R5 in WA.2295/2018
6. S.Govindaraj
(R4 impleaded vide order of Court
dt. 19.09.2023 in CMP.9769/2020
in WA.2361/2018) .. R4 in WA.2361/2018
7. Chennai Metropolitan Development Authority
represented by its Member Secretary
No.1, Gandhi Irwin Road
Egmore, Chennai 600 008
8. The Chief Executive Officer I/c
Chennai Metropolitan Development Authority
No.1, Gandhi Irwin Road
Egmore, Chennai 600 008
9. The Commissioner
Corporation of Chennai
Rippon Building
Chennai 600 003 .. R1 to R3 in WA.2332/2018
Writ Appeals are filed under Clause 15 of the Letters Patent, against
the common order dated 09.10.2018 made in W.P.No.2392, 2399, 4662 of
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2016, 3715 of 2018, 2394, 2393, 2139, 2226, 2117, 2822, 2144, 2140, 2138,
2137, 4632, 3712, 2398, 2388, 1135, 2385, 2386, 3462, 3477, 3463, 3461,
2389, 4664, 6080, 5254, 5244, 4663, 5242, 5249, 2397, 5245, 2395, 4666 of
2016, 6086 of 2018, 2395, 6081, 7107, 6839, 6084, 5248, 5252, 5251, 5250,
3716, 2390, 5253, 3714, 2391, 4665, 7591, 7108, 7106, 6082, 5247, 5246
of 2016, respectively.
For Appellants :: Mr.S.Sadasharam in WAs.2295 to
2298, 2307, 2303 of 2018
Mr.R.Nalliyappan in WAs.2301,2306,
2304, 2300, 2305, 2308, 2302, 2299
of 2018
Mr.R.Veeramani in WA.2332/2018
Mr.N.Manokaran in WAs.2331, 2330,
2333, 2325, 2327, 2326 of 2018
Mr.V.Nicholas in WA.2374/2018
Mr.Adithya Varadarajan
for M/s K.V.Law Firm in WA's.2373,
2376, 2375 of 2018
Mr.T.S.Kani in WAs.2352, 2358,
2356, 2351, 2355 of 2018 & 42/2019
Ms.Shobana.R in WAs. 2363, 2350,
2362, 2365, 2354, 2357 of 2018
Mr.K.Shivakumar in WAs.2359,
2367, 2433, 2360, 2364, 2361, 2455,
2482, 2481, 2453, 2483, 2452, 2457,
2472, 2460, 2458, 2473, 2456, 2467,
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2459, 2454, 2466 of 2018
For Respondents :: Mr.P.Kumaresan
Additional Advocate General
assisted by Mrs.P.Veena Suresh
Standing Counsel for CMDA
Mrs.Geetha Thamaraiselvan
Special Government Pleader
for the State
Mr.V.Raghavachari, Senior Counsel
for Mr.M.V.Seshachari for R4
in WA.2295/2018
Mr.M.Rajasekar for
R5 in WA.2295/2018
Mr.T.Kishorekumar for
R4 in WA.2361/2018
COMMON JUDGMENT
(Judgment of the Court was made by D.KRISHNAKUMAR,J.)
The instant intra-Court appeals are directed against the common order
dated 09.10.2018 passed by the writ Court rejecting the relief sought for by
the appellants/writ petitioners.
2. The learned counsels appearing for the appellants submitted that
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the appellants are running the retail flower vending shops in Badrian Street,
Chennai occupying an extent between 20 and 200 square feet respectively
and they have been regularly paying the tax to the Corporation for the past
several years. It is also their case that more than 130 retail flower vending
shops are doing the retail flower vending business in the area called as
Flower Bazaar Bus Stand/Flower Bazaar Police Station. While so, the third
respondent issued the notice dated 06.10.2015 directing the appellants to
stop the unauthorized wholesale flower business and to vacate the premises
within seven days of the receipt of notice, failing which action would be
initiated for eviction. In the meanwhile, since an order of eviction was
passed, the appellants were constrained to file the Writ Petition Nos.2822 of
2016 etc., batch seeking an order to forbear the respondents from preventing
the appellants to carry on their retail flower vending business in the place in
question, on the ground that they were not provided with an opportunity of
hearing before ordering eviction. However, the writ Court has rejected the
relief sought for by the appellants with a further direction to the respondents
to lock and seal the premises occupied by the appellants. Therefore, the
appellants have filed the instant intra-Court appeals before this Court.
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3. Mr.P.Kumaresan, learned Additional Advocate General appearing
for the respondent-CMDA, strongly objecting to the relief sought for by the
appellants, submitted that in the earlier round of litigation, when the
Chennai Retail Flower Merchants Welfare Association represented by its
President, Badrian Street, Chennai, in which the appellants were also
members, filed W.P.No.1589 of 2012 seeking to quash the G.O.(Ms)No.10,
Housing and Urban Department dated 06.01.2012 and to direct the
respondents to recognize the members of the petitioner Association as retail
flower vendors, the writ Court, by order dated 23.04.2012, did not accept
the contentions of the Association as has been made by the appellants herein
and dismissed the said writ petition. Subsequently, when the Chennai
Pushpa Viyabarigal and Commission Agentugal Sangam represented by its
President Mr.Uthappan filed W.P.No.10852 of 2015 seeking a direction to
the respondents to implement the G.O.(Ms)No.10, Housing and Urban
Department dated 06.01.2012 and also to initiate action under Section
379(a) of the Chennai City Municipal Corporation Act to evict the retailers,
the writ Court, considering the submission of the learned counsel for the
Sangam confining his prayer for a direction to the respondents to consider
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the representation dated 31.01.2015, directed the respondent-CMDA to pass
orders on the said representation on merits and in accordance with law.
Therefore, the learned Additional Advocate General submitted that when
the said orders have attained finality, the appellants have no right to re-
agitate the very same issue before this Court when the respondents have
already taken action for evicting the appellants from the place in question
for running the wholesale flower business. But the appellants, in the second
round of litigation, have again filed the writ petitions seeking the very same
relief and the same has been rightly rejected by the order under appeal,
taking note of the earlier orders passed by this Court, which requires no
interference.
4. Mr.V.Raghavachari, learned Senior Counsel appearing for the
Chennai Puspha Viyabarigal and Commission Agentugal Sangam, which
has been impleaded as the fourth respondent in W.A.No.2295 of 2018,
reiterating the stand of the respondent-CMDA, brought to the notice of this
Court that in the earlier round of litigation, when the Writ Petition No.1589
of 2012 filed by the Chennai Retail Flower Merchants Welfare Association
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was already dismissed by this Court holding that the members of the
Association like the appellants herein are not entitled to run the retail flower
vending shops in the place in question taking note of the earlier orders
passed by this Court, the appellants have once again filed the writ petitions
seeking the very same relief, as though they are distinct and falling in a
separate class. Further, the order under appeal is very clear that the
appellants are running the wholesale flower business and not the retail
business as alleged in the writ petitions/appeals. The learned Senior
Counsel further submitted that when another set of writ appeals in
W.A.Nos.2393 to 2399 of 2018 against the very same impugned order came
up for consideration before this Court, the Division Bench, by order dated
09.11.2018, confirming the order of the writ Court, has observed in
paragraph-13 as follows:-
“13. One more endeavour was made by the Chennai
Retail Flower Merchants Association by filing
WP.No.1589/2012 and it was also dismissed on
23.04.2012 by taking into consideration that the 1st
respondent therein had considered the entire aspect in
issue and passed the impugned order, which does not
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require any interference by this Court in the said writ
petition. The learned Judge, after taking note of the
above cited orders, has recorded the finding that this
Court, through the said orders, has consistently held that
all these vendors in Badrian Street, Chennai-1, are doing
wholesale flower business and the Inspection Report of
the officials of the 2nd respondent/CMDA would also
disclose the said fact and despite repeated directions
passed by this Court for eviction of wholesale traders
and though it was carried out by locking and sealing, the
traders had the audacity to break open the lock and seal
and criminal cases also came to be registered and noted
that FIRs also came to be filed.”
Therefore, the said order is squarely applicable in the present cases.
Moreover, in the present writ appeals, when this Court has raised a query as
to whether the respondent CMDA is the competent authority to initiate
action for eviction of the flower vendors from the place in question, in the
light of Section 2(14) of the Tamil Nadu Specified Commodities Markets
(Regulation of Location) Act, 1996 defining “wholesale trade”, meaning a
sale or purchase of any specified commodity for purpose other than direct
consumption or use by the purchaser and shall include holding of stocks or
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warehousing of such specified commodity at any place in the market area
(but does not include any sale or purchase by any primary producer or retail
trader, as the case may be, of such specified commodity) and any such
seller, buyer, holder of stock or warehouse-keeper shall be deemed to be a
“wholesale trader” or whether the competent authority is the Market
Committee under Section 21 to lock and seal the premises which are
otherwise in lawful occupation of the appellants and dispossess the persons
who are otherwise in lawful occupation thereof for contravention of the
provisions of the Tamil Nadu Act 24 of 1996, referred the said issue for a
decision by the Full Bench of this Court. The said reference was answered
by the Full Bench vide order dated 19.01.2021, in paragraph-18, as
follows:-
“18.Accordingly, we answer the reference in the following
terms :
(i)The provisions of the Tamil Nadu Act 24 of 1996
authorise the local authority as defined in Section 2(5) of
the Act 24 of 1996 and not the market committee to lock
and seal the premises for contravention of the provisions of
the Act.
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(ii)The local authority is empowered to factually
determine whether the persons concerned are carrying on
wholesale trade in the non-market areas. It is not necessary
that this factual determination should be preceded by
criminal prosecution as contemplated under Section 47 of
the Act.”
In the light of the decision of the Full Bench answering the issue that the
provisions of the Tamil Nadu Act 24 of 1996 authorise the local authority as
defined in Section 2(5) of the Act 24 of 1996 and not the Market Committee
to lock and seal the premises for contravention of the provisions of the Act
and that the local authority is empowered to factually determine whether the
persons concerned are carrying on wholesale trade in the non-market areas,
the only question to be considered by the Division Bench, as answered by
the Full Bench in paragraph-18, is whether the persons concerned are
carrying on the wholesale trade in the non market area. In the light of the
aforesaid background, the learned Senior Counsel submitted that no
interference is called for with the impugned order, as the writ petition filed
by the Association on behalf of its members like the appellants on the same
issue has already been dismissed by this Court. Therefore, he sought for
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dismissal of the present writ appeals also.
5. We have heard the respective learned counsels appearing for the
appellants and the respondents and also perused the records.
6. The point for consideration in the present appeals is whether the
appellants are running the wholesale or retail flower vending business in the
place in question or whether there is any violation of the principles of
natural justice as alleged by the appellants.
7. So far as the first part as to whether the appellants are running the
wholesale or retail flower vending business in the place in question, is
concerned, according to the appellants, the Full Bench of this Court has
answered the reference holding that the respondent CMDA is the competent
authority under Section 2(5) of the Act 24 of 1996 and not the Market
Committee for initiating action for eviction of the vendors from the place in
question. Once this has been answered, the next question that arises for our
consideration in the present appeals is whether the appellants are running
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the retail flower vending business in the subject place as claimed by them.
In this context, the learned Additional Advocate General appearing for the
respondent CMDA has drawn our attention to the earlier order passed in
W.P.No.1589 of 2012 dated 23.04.2012, wherein the writ Court has referred
to the earlier order of the Division Bench observing as follows:-
“22. That apart, the Division Bench of this Court, in
Writ Appeal No.693 of 2011, by an order dated
7.7.2011, has clearly held that the CMDA has totally
complied with the directions given by this Court in
W.P.Nos.29809 of 004 and 12909 of 2009. Paragraphs 5
to 7 of the order made therein are usefully extracted
hereunder:-
“5.At the time of admission of the writ
appeal on 9.6.2011, learned Special Government
Pleader appearing for the respondents submits
that in view of the direction given by the learned
Single Judge in a batch of writ petitions in the
impugned order dated 12.1.2011, though
individuals notices were served to attend the
public hearing on 16.5.2011 at 11.30 a.m.,
subsequently, due to non-service of notice on all
the traders, once again notices were served and
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hearing dates were fixed as 10.6.2011 and
13.6.2011 and accordingly requested time to
proceed with the matter after completion of the
public hearing. Subsequently, the matter was
adjourned. Finally, when the writ appeal came
up for final disposal, a status report was filed by
the second respondent/CMDA stating that apart
from other grounds, notices were served to all
the 130 traders in batches, so attend a personal
hearing and out of 130 traders, 53 traders
attended the personal hearing and given their
contentions in writing, stating that they were
doing retail business and requested CMDA not
to vacate them from Badrian Street, George
Town and permit them to continue their retail
business.
6.It is also stated in the status report that
the contentions of the traders have been
examined and it has been concluded that the
traders are doing wholesale business in the
Badrian Street. Further, it is observed that the
individual is not purchasing flower from
Koyambedu Wholesale Market complex, instead
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they are procuring from other places and
transporting the flowers by train, bus, mini vans
to Badrian Street, George Town area.
7.Therefore, a detailed order was passed
on 6.7.2011 after issuing individual notices. In
view of the said individual order passed by the
respondents in accordance with the directions
given by the learned Single Judge, the above
writ appeal is closed. In view of the order passed
by the respondents, we hope that the respondents
will strictly follow the order in the interest of the
public. We are satisfied that the respondents
have totally complied with the directions given
by the learned Single Judge, while quashing the
order passed by the respondents impugned in the
writ petition. Consequently, the connected M.P.
is closed. However, there shall be no order to
costs.”
Subsequently, when the Chennai Pushpa Viyabarigal and Commission
Agentugal Sangam represented by its President Mr.Uthappan filed
W.P.No.10852 of 2015 seeking a direction to the respondents to implement
the G.O.(Ms)No.10, Housing and Urban Department dated 06.01.2012 and
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also to initiate action under Section 379(a) of the Chennai City Municipal
Corporation Act to evict the retailers, the writ Court, considering the
submission of the learned counsel for the Sangam confining his prayer for a
direction to the respondents to consider the representation dated 31.01.2015,
directed the respondent-CMDA to pass orders on the said representation
after putting on notice the persons concerned and to pass orders on merits
and in accordance with law as expeditiously as possible, not later than eight
weeks from the date of receipt of a copy of the order and communicate the
decision taken to the writ petitioner as well as the concerned persons. Now
the grievance of the appellants is that the respondents have not provided the
opportunity to them in the light of the aforesaid order and straightaway
passed the order dated 15.12.2015 for evicting the appellants from the place
in question.
8. We have also perused the order dated 15.12.2015 passed by the
respondents. Even though a reference has been made to the order passed by
this Court, nowhere it indicates of any opportunity granted to the appellants.
Therefore, according to the appellants, when they are running the retail
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flower vending shops in small portions ranging from 20 to 200 square feet
respectively, the said order cannot be given effect to. It is also brought to
our notice that pursuant to the reference being answered by the Full Bench
of this Court, the Division Bench has appointed an Advocate Commissioner
to inspect the shops and the detailed report of the Advocate Commissioner
has also been taken on file on 6.6.2022. Therefore, according to the
appellants, when subsequent events have taken place after the earlier orders
of this Court, the respondents cannot contend that the earlier orders have
become final and the granting of opportunity to the appellants would only
be an useless formality. Though the defence taken by the respondents is
that such opportunity would only be an useless formality, particularly when
the writ Court has already gone into the issue in the earlier writ petition,
however, in the cases on hand, when the Division Bench referred the matter
to the Full Bench for a decision and the Full Bench has also answered the
reference and thereafter an Advocate Commissioner was also appointed to
find out whether the appellants are carrying on the retail business and the
report also says that they are running the shops in portions ranging between
20 and 200 square feet respectively, the said aspects cannot be ignored.
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However, it is the case of the respondents that these appellants are running
wholesale business and not trading in retail as claimed by them. It is also
their case that if the appellants are running only retail business, they have to
place all the materials before the authority to prove that they are doing only
retail business, except placing reliance on the report of the Advocate
Commissioner. To this extent, we are also having some reservation, since it
is the contention of the respondents that after the Advocate Commissioner's
report, the appellants have not produced any material to show that they are
running only the retail business. Therefore, considering the rival
submissions, we are unable to decide the said fact as to the carrying of retail
business by the appellants in the place in question.
9. However, we cannot leave the issue as it is. Therefore, considering
the submissions of the learned counsels for the parties and taking note of the
earlier order passed by this Court in W.P.No.10852 of 2015 dated
15.04.2015, to meet the ends of justice, we are of the considered view that
the appellants shall be granted an opportunity to establish their case before
the authority concerned that they are running the retail flower vending shops
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in the place in question, since the respondents have straightaway passed the
order dated 15.12.2015 for eviction of the appellants.
10. In fine, the writ appeals stand disposed of with the following
directions:-
(i) The order dated 15.12.2015 shall be construed as a show cause notice
and the appellants are directed to submit their individual
objections/reply before the respondent CMDA with all the relevant
records to prove that they are running only the retail business in the
place in question, within a period of four weeks from the date of
receipt of a copy of this order.
(ii)Needless to mention that the authority concerned shall also serve
notice to the impleaded respondents within a period of four weeks
from the date of receipt of the objections from the appellants.
(iii)On receipt of such notice, the impleaded respondents are also entitled
to submit their reply within a period of two weeks therefrom to the
authority concerned.
(iv)Thereafter, the respondent CMDA shall consider the individual
objections made by the appellants as well as the reply of the
impleaded respondents, taking into consideration the earlier order
passed by this Court and if any evidence to show that they are
running retail business in the said area, and pass appropriate orders as
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expeditiously as possible.
(v) It is made clear that the entire exercise shall be completed by the
respondents within a period of four months from the date of receipt of
a copy of this order.
Consequently, all the pending civil miscellaneous petitions shall stand
closed. There shall be no order as to costs.
(D.K.K.,J.) (P.B.B,J.)
Index : yes/no 19.09.2023
Neutral citation : yes/no
ss
To
1. The Secretary to Government of Tamil
Housing and Urban Development Department
Fort St.George
Chennai 600 009
2. The Member Secretary
Chennai Metropolitan Development Authority
No.1, Gandhi Irwin Road
Egmore, Chennai 600 008
3. The Chief Executive Officer
Chennai Metropolitan Development Authority
No.1, Gandhi Irwin Road
Egmore, Chennai 600 008
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4. The Commissioner
Greater Chennai Corporation
Rippon Building
Chennai 600 003
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D.KRISHNAKUMAR,J.
AND
P.B.BALAJI,J.
ss
W.A.Nos.2295 of 2018 etc.batch
19.09.2023
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