Madras High Court
State Of Tamil Nadu vs M.Pandian ... Plaintiff/Appellant/ on 16 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)No.1050 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.1050 of 2005
State of Tamil Nadu
rep. by the District Collector,
Karur. ... Defendant/Respondent/
Appellant
Vs.
M.Pandian ... Plaintiff/Appellant/
Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree made in A.S.No.9/2002
dated 31.10.2002 on the file of the Sub-Court, Kulithalai reversing the
judgment and decree made in O.S.No.300/1998, dated 20.02.2002, on
the file of the District Munsif Court, Kulithalai.
For Appellant : Mr.R.Ragavendran
Government Advocate
For Respondent : No appearance
JUDGMENT
The appellant, who is the defendant in the suit, filed the present
appeal against the judgment and decree, dated 31.10.20024 made in
A.S.No.9 of 2002, on the file of the Sub-Court, Kulithalai reversing the
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judgment and decree, dated 20.02.2002 made in O.S.No.300 of 1998,
on the file of the District Munsif Court, Kulithalai.
2. For the sake of convenience, the appellant and the respondent
shall be referred to as per their ranks in the plaint, as the defendant
and plaintiff respectively.
3. The plaintiff, who is the respondent in the present appeal,
filed a suit in O.S.No.300 of 1998 before the District Munsif Court,
Kulithalai, for declaration and permanent injunction.
4. On analyzing documentary and oral evidence, the learned
District Munsif, Kulithalai, has dismissed the suit. Aggrieved by the
judgment and decree of the trial Court, the plaintiff filed an appeal
before the Sub-Court, Kulithalai which is taken on file in A.S.No.9 of
2002. Considering the pleadings evidences, judgment and decree of
the trial Court, the learned Sub-Judge, Kulithalai has allowed the
appeal by reversing the judgment and decree of the trial Court.
Aggrieved over the same, the defendant has filed the present appeal.
5. The case set-up by the plaintiff in the plaint is as under:-
The plaintiff is doing various social activities in Kulithalai Town.
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He is the State Organiser of Social Vigilance Flying Squad. He is also
the Government Registered Contractor for the supply of vegetables,
provisions and fuel to the various Sub-Jails, Government Head
Quarters Hospital and various other Government Hospitals and he is
also a building contractor. He wants a corrupt free and clean
administration in all Government departments and working for it.
(ii) The District Collector of Karur, after being satisfied with the
integrity and respectability of the plaintiff, was pleased to nominate
the plaintiff as a member of the Advisory Committee on Public
Distribution System at the Division level in respect of Kulithalai
Revenu Division in his proceedings in R.C.K1/19648/97, dated
22.12.1997. The Xerox copy of the order is produced herewith as
document No.1. According to him, there are various functions have
been allotted by the Advisory Committee including to prevent
malpractices in the Fair Price Shops. The plaintiff has received the
order only on 28.03.1998 and from that day, he started his work. One
Thiru.R.Somu, who is a very affluent person of Kulithalai has taken an
arrack vending shop on licence for Rs.5 lakhs, was also given the
licence to vend coloured kerosene through a Fair Price Shop. His son-
in-law Thiru.Rajendran is a dealer in white kerosene.
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(iii) Thiru.R.Somu has given the coloured kerosene stock to his
son-in-law to be sold by one and the same person and thus the card
holders are deprived of the lawful supply. The plaintiff could not
tolerte this malpractice, hence, he sent a complaint to the District
Collector, Karur against the said Somu by a registered post soon after
the Parliamentary election, on 03.03.1998 requesting him to take
immediate action against the erring individual. The District Collector,
Karur received the same on 04.03.1998, but he did not take any action
against the said Somu. The District Collector instead of giving reward
to the plaintiff, he has illegally removed the plaintiff from his
membership of the Advisory Committee. No charge was framed
against the plaintiff by the defendant. No charge memo was served
upon the plaintiff. No explanation was called for from him. No
personal enquiry was held by the defendant. To his knowledge, he did
not commit any wrong which will disqualify him to hold the
membership of the Committee. The plaintiff is still kept in the dark as
to why he was removed from the post of member of the Advisory
Committee on Public Distribution System at Division level.
(iv) The plaintiff files this suit for a declaration that the order of
defendant in his R.C.K1/19648/97, dated 24.11.1998 is non-est,
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arbitrary, illegal and void and for the consequential relief of
permanent injunction to restrain the defendant from implementing the
order against the plaintiff.
6. The defence set-up by the defendant in the written statement
is as under:-
(i) The defendant after being satisfied with the integrity and
respectability of the plaintiff was pleased to nominate the plaintiff as a
member of the Advisory Committee is not correct. On enquiry, the
defendant came to know that the plaintiff is the State Organiser of
Tamil Nadu Consumer Social Vigilance Flying Squad since a person
belonging to consumer organisation was to be nominated, the plaintiff
was chosen and there are no other considerations for his nomination.
(ii) As per the directions of the Government in G.O.Ms.No.203,
Co-operation Food and Consumer Protection Department, dated
29.07.1997, the District Level Advisory Committee and Revenu
Divisional Advisory Committee be constituted Kulithalai Advisory
Committee comprising of R.D.O. as its Chairman, Head Quarter's
Taluk Supply Officer as Secretary M.P and M.L.A's of this Division,
other Taluk Supply Officer of the Revenue Division, Co-operative Sub-
Registrars (P.D.S) Civil Supplies Godown Superintendent/Assistant
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Manager Municipal Chairman of all Panchayat Unions, three Town
Panchayat Presidents nominated by the Collector and two persons
belonging to Consumer organisation nominated by the Collector as its
members.
(iii) The main purpose for formation of such advisory Committee
is:-
(a) To monitor the proper functioning of the fair price shop.
(b) To suggest measures to prevent malpractices in fair prices
shops.
(c) To give suggestions to prevent diversion of public
Distribution system commodities, black marketing and hoardings etc.,
(d) To suggest ways and means for detecting and eliminating
bogus family Cars.
(e) To ensure the quality of the commodities issue in the fair
price shops and to offer suggession for the equitable distribution of
commodities.
(f) To suggest ways and means for transparency in fair price
shops.
(g) To offer suggestions for adequate vigilance over fair price
shops.
(h) To review the functioning of the fair price shops of the
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previous month in the committee meeting.
(i) To ensure whether the details regarding number of family
Cards attached to each shop, working hours, scale of supply stock on
hand, name of the kerosene whole sellers has been displayed in the
shop as per Government Orders and also to ensure whether the details
of the Telephone numbers of the Taluk Supply Officers, District Supply
Officers and Deputy Registrars (PDS) are exhibited in the notice
board.
(j) To function only as advisory committee without any statutory
powers.
(iv) The averments itself clearly ventilates the personal business
enmity between one Somu, Rajendran and this plaintiff. The main
function is to monitor the proper functioning of the fair price shops,
prevents malpractice in it and to suggest better ways etc., alone.
Thiru.R.Somu was granted Retails Registration Certificates under
Tamil Nadu Kerosene (Regulation of Trade) Order 1973 to sell
Kerosene in Retail at Door No.59E. New Court street after observing
all terms and conditions of the Government by the then R.D.O. Karur
in his D.Dis 14008/78 dated 09.11.1978 and R.C.No.14/78 and 500
Family Cards are alloted to him.
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(v) The defendant states that the member of the Committee may
brought to the notice of the Committee the malpractice committed in
distribution system if committed by Somu or any vendor. But, he
cannot question/challenge the granting license which is purely
administrative one. But in this case no report was received for
malpractice against Somu from any of the Family Card holders. The
averment that Mr.Rajendran is a dealer in white Kerosene is also not
correct. From Ex.A2 is appears that the plaintiff is having personl
enmities with Somu. The averment that because of his complaint
against Somu, this plaintiff was removed from his membership is utter
false. In fact, during the District Level Consumer Protection
Committee and District Advisory Committee meetings held on
13.10.1998 and 17.11.1998 the number of allegations were made
against this plaintiff for his mis-use and misappropriation of this
Honorary nominated post by way of collection of amount in the form of
enrolment fee, Annual subscription amount and by threatening the
merchants etc., for his own benefits.
(vi) The plaintiff being a nominated member, he has to
discharged his duties upto the satisfaction of the defendant. Since the
activities of the plaintiffs were against the public interest this
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defendant cancelled the nomination of the plaintiff. The plaintiff is not
legally entitled for any notice prior to the cancellation of the
nomination. Natural Justice also does not required any notice prior to
that order of the cancellation. The plaintiff infact, has no Civil Right
to file any suit. The suit itself is not maintainable. Since the
nomination is the pleasure and satisfaction of the defendant, the
plaintiff has no statutory protection. The defendant has not violated
any principles of natural justice. Since immediate action needed
against the plaintiff to safe guard the public interest the defendant has
cancelled the nomination with any prior intimation.
(vii) This defendant states that if such unlawful activities are not
nipped in the butt it will in due course be de-protected and cannot be
eradicated in the later stage and already the public is suffering
because of the deep rooted unscrupulous activities of such mongers.
There is no cause of action to the suit. The suit has not been properly
valued. Hence, he prayed for dismissal of the suit.
7. Before the trial Court, the plaintiff was examined as P.W.1 and
Exs.P1 to P9 were marked. On the side of the defendant, one witness
was examined as D.W.1 and Ex.D1 to Ex.D6 were marked.
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8. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both
oral and documentary evidence, had dismissed the suit.
9. Aggrieved by the judgment and decree of the trial Court, the
plaintiff filed an appeal before the Sub-Court, Kulithalai which is taken
on file in A.S.No.9 of 2002.
10. The first appellate Court, after hearing both sides and upon
re-appreciating the evidence available on record, has allowed the
appeal by setting aside the judgment and decree of the trial Court.
11. Challenging the said reversal judgment and decree passed
by the first appellate Court, the defendant has filed the present
appeal.
12. At the time of admitting the present second appeal, this
Court had formulated the following substantial questions of law for
consideration:
"1) Whether the lower appellate Court was right
in allowing the appeal when the respondent has not
challenged the G.O.No.203, dated 29.07.1997 based
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on which the consequential order of termination was
passed?
2. Whether the lower appellate Court was right
in allowing the appeal, when the respondent suit is hit
by principles of estoppel, i.e., as per the terms of the
G.O., the Collector viz., the appellant need not assign
any reasons for terminating any members from the
Advisory Committee remains valid and unchallenged?
3) Whether lower appellate Court was right in
allowing the appeal, when the respondent/plaintiff had
not proved the case pleaded by him by adducing any
evidence?
13. The learned counsel appearing for the appellant would
submit that the lower appellate Court ought to have seen that as per
the term of appointment, the Collector has right to appoint or
terminate any member without assigning any reason. Therefore, the
respondent if really aggrieved ought to have challenged the particular
clause in the appointment order. However, instead of challenging the
appointment order, he is challenging the consequential order of
termination, which is not valid in law. The lower appellate Court
ought to have seen that the respondent had accepted the terms of
G.O., and the appointment order at the time of his appointment as the
member of the Advisory Committee can not challenge the same on the
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ground that the same was against the principles of natural justice and
no opportunity was given to him. The lower appellate Court ought to
have seen that the respondent is estopped from challenging the
termination order. The lower appellate Court ought to have seen that
the suit is bad for non-joinder of necessary parties viz., one
Thiru.Somu against whom he had many allegations in the plaint.
14. The lower appellate Court ought to have dismissed the suit
when admittedly the respondent/plaintiff had not proved the case
pleaded by him and his conspiracy theories. The lower appellate Court
ought to have confirmed the decree when the appellant/defendant was
not appointed as a member of the Advisory Committee only on
honarary basis and not on a permanent staff. Therefore, the
appointment or termination is not bound by the principles of natural
justice, but as per the terms of G.O.No.203 which cannot be found
fault with. The lower appellate Court has erred in holding that the
impugned order is bad in law for want of enquiry and charge memo
etc., The respondent cannot approbate and reprobate the orders
suiting his convenience. The lower appellate Court has not properly
considered the oral and documentary evidence in its proper
perspective. Hence, he prayed for allowing the second appeal.
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15. Though notice served on the respondent and his name also
printed in the cause list, there is no repesentation on his behalf.
16. I have heard the learned counsel for the appellant and the
respondents and also perused the materials on record carefully. There
is no representation for the respondents.
17. The defendant appointed the plaintiff as a Member of the
Kulithalai Public Distribution Advisory Committee as per the order in
G.O.No.203 – Ex.P.1. In the said Committee, the persons belonging to
that Constituency, namely, the Member of the Parliament, Member of
the Legislative Assembly, Circle Supply Officer, Deputy Registrar of
the Co-operatives, Civil Supply Superintendent/Assistant Manager,
Municipal President, All Panchayat Union Presidents, three Panchayat
Presidents and two persons from Consumer Protection Movement,
have been appointed. In the said order, the duties of the plaintiff have
been stated in detail. As per Ex.P.1, the said Committee is constituted
only to give an advice and there is no legal power to the members of
the said Committee. It is seen from Ex.P.2, that based on the
complaint received from the Consumer Forum against the plaintiff
regarding the collection of subscription amount, in the meeting of the
Consumer Protection Committee held on 13.10.1998, the Kulithalai
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Taluk Supply Officer was directed to enquire on the said complaint
and submit the report. Similarly, it is seen from Ex.P.3 that in the
meeting held on 17.11.1998, the Taluk Supply Officer was directed to
submit a report on the complaint that the plaintiff received money
from the shopkeepers as if he is the office bearer of the Consumer
Forum and it was decided to take action against the plaintiff through
police.
18. It is also clearly seen from Exs.P.6 to P.9 that the plaintiff
collected money as annual subscription and entry fee from the
consumers. Based on the complaint given against the plaintiff, the
defendant, by order dated 24.11.1998 – Ex.P.2, removed him from the
Kulithalai Division Advisory Committee. The defendant has appointed
the plaintiff as member of the Advisory Committee as per the
Government Order. He was not appointed in the salary receiving post.
The plaintiff has not disclosed the complaints given against him. If the
enquiry has been conducted with regard to the complaint given
against the plaintiff, he has to prove his innocence. The complaints
given against the plaintiff have been discussed in the District
Consumer Protection Committee and based on that, on 24.11.1998 the
defendant has issued an order under Ex.P2 by removing him in the
said post. It is clearly stated in the Ex.D5 that the Chairman of the
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District Level Advisory Committee on Public Distribution System and
the Chairman of the Divisional Level Advisory Committee on Public
Distribution System shall nominate, appoint any member to the
Committee or remove from the membership of the committee suo-
motu without assigning reason therefore to ensure the proper function
of Advisory Committee. It shows that the member can be removed
from the post at any point of time without assigning any reason.
Therefore, the plaintiff did not say state the order of the defendant
Ex.P2 is not maintainable as the defendant has not explained the
details of the complaint against him and he has not given an
opportunity of hearing. It is seen from Ex.D5 that there is no necessity
for giving prior notice before removing the plaintiff from the post of
member. It is not accepted the allegation of the plaintiff that he has
been removed from the post because of the intention that he has taken
the action against the Somu. It is clearly seen from Ex.P6 to Ex.P9 that
the plaintiff has acted as against the G.O.203. The plaintiff has not
been appointed as a permanent member of the Advisory Committee in
the Division. Therefore, the plaintiff has not seek for injunction as the
order of the defendant Ex.P2 is not maintainable.
19. It is seen that the respondent/plaintiff has sent a notice on
04.01.2002 under Section 80 CPC for defamation made against the
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plaintiff in paras 12,13 & 14 of the written statement. Member of the
Committee may brought to the notice of the committee regarding the
malpractice committed in the Distribution system if committed by
Somu or any vendor, but he cannot question/challenge the granting of
license which is purely administrative one. But in this case no report
was received for malpractice against Somu. During the District Level
Consumer Protection Committee and District Advisory Committee
meetings held on 13.10.1998 and 17.11.1998 the number of
allegations were made against the plaintiff for his mis-use and
misappropriation of this honourery nominated post by way of
collection of amount in form of enrolment fee, annual subscription
amount and by threatening the merchants etc., for his own benefits.
Since the activities of the plaintiff were against the public interest, the
defendant cancelled the nomination of the plaintiff. The plaintiff is not
legally entitled for any notice prior to the cancellation of the
nomination. Natural Justice also does not required any notice prior to
the order of the cancellation. The plaintiff has no civil right to file any
suit. The suit itself is not maintainable. Since the nomination is the
pleasure and satisfaction of the defendant, the plaintiff has no
statutory protection. The defendant has not violated any principles of
natural justice.
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20. It is seen that the petitioner has not challenged the said
Government Order. In other words, the appointment itself is only for a
period of three years. The Collector has a right to appoint or remove
any members and that particular clause was found in the appointment
order. He has not challenged the said appointment order or the
Government Order. It is not a permanent job and honorary post. But
now he has challenged the removal order, the same is not correct.
Therefore, the trial Court has rightly dismissed the suit. In view of the
above, the substantial questions of law are answered in favour of the
appellant as against the respondent. Further the suit is of the year
1998, now nothing survives for adjudication at this length of time as
no such committee members are continued to serve.
21. Regarding the first question of law, as the Government Order
in G.O.No.203 was not challenged, based on which, the plaintiff was
terminated, the lower appellate Court proceeded on the ground that
violation of principles of natural justice. It is to be noted that it is only
a honourary post and administering in nature.
22.Regarding the second question of law, the power granted to
Collector to remove any person, hence there is an estoppel on the part
of plaintiff to raise this issue.
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23. Regarding the third question of law, the Court found to have
proceeded only on the ground of violation of natural justice, has not
seen the evidence and facts appropriate to come to the conclusion of
allowing the appeal.
24. In the result, the Second Appeal is allowed by setting aside
the judgment and decree, dated 31.10.2002 made in A.S.No.9 of 2002,
on the file of the Sub-Court, Kulithalai. However, there shall be no
order as to costs.
16.10.2024
Index : Yes/No
Internet : Yes/No
am
To
1.The Sub-Court,
Kulithalai.
2.The District Munsif Court,
Kulithalai.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN, J.
am
Judgment made in
16.10.2024
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