Madras High Court
D.Bakthavachalu & Co vs The Member Secretary on 10 January, 2025
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
W.P.No. 37950 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 10.01.2025
Coram:
THE HONOURABLE Mrs.V.BHAVANI SUBBAROYAN
W.P.No. 37950 of 2016 &
W.M.P.Nos.32544 and 32545 of 2016
D.Bakthavachalu & Co.,
rep. By its Partner
E.thanigaimalai
No.32/50, Gandhi Road,
Jagnathan Nagar, Arumbakkam,
Chennai – 600 106 ...Petitioner
Vs.
1. The Member Secretary
Chennai Metropolitan Development Authority
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008
2. The Chief Executive Officer,
Chennai Metropolitan Development Authority,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008
3. N.Indra ...Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India for issuance of
Writ of Certiorarified Mandamus calling for the records of the impugned order
passed by the 1st respondent in letter no.K2/2794/2003 dated 05.10.2015 and
ending with the sale deed in favour of 3rd respondent dated 22.07.2016,
registered as Document No.3313 of 2016 in the office of Sub Registrar, Anna
Page 1 / 19
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W.P.No. 37950 of 2016
Nagar and quash the same as illegal and consequently bring auction of the shop
no.J-112 in Periyar Vegetable Market at Koyambedu Market Complex as per
orders of the Hon'ble Supreme Court in the Special Leave to Appeal (Civil)
Nos.8202 / 2011 with SLP(C) No.36488 of 2011 dated 26.11.2013.
For Petitioner : Mr. K.R.A.Muthukirushnan
For Respondents : Mr.P.Kumaresan,
Additional Advocate General for
Mrs.P.Veenasuresh for R1 and R2
Standing Counsel – CMDA
Mr.K.V.Sathiamurthy for R3
ORDER
This Writ Petition has been filed for issuance of Writ of Certiorarified
Mandamus calling for the records of the impugned order passed by the 1st
respondent in letter no.K2/2794/2003 dated 05.10.2015 and ending with the sale
deed in favour of 3rd respondent dated 22.07.2016, registered as Document
No.3313 of 2016 in the office of Sub Registrar, Anna Nagar and quash the same
as illegal and consequently bring auction of the shop no.J-112 in Periyar
Vegetable Market at Koyambedu Market Complex as per orders of the Hon'ble
Supreme Court in the Special Leave to Appeal (Civil) Nos.8202 / 2011 with
SLP(C) No.36488 of 2011 dated 26.11.2013.
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2. The brief facts of the case, as averred by the petitioner is as follows:
(i) According to the petitioner, 1st respondent, advertised in its notification
for the allotment of 2400 Sq.ft., shops and in pursuant to that, the petitioner made
an application in No.K1070 for shop No. E-98 and obtained registration No.
127051 dated 26.09.2002. The said shop was allotted to Mrs. Jeyanthi by draw
conducted on 27.01.2003. Thereafter, the petitioner made representation on
03.02.2003 for the allotment of Shop No. J-112 on the ground it remind vacant.
Similarly one Mrs. P.Chellammal also represented to the 1st respondent to allot
ShopNo.J-112, since her request for allotment of shop No.E-98 had not been
considered. Then petitioner filed writ petition in W.P.No.5836 of 2003 to direct the
respondents to allot the shop bearing No.J-112 (A type) wherein the court by its
order dated 21.06.2023 directed the respondents to consider the representation
of the petitioner and pass orders on merits and in accordance with law. To
comply the order of this court the 1st respondent rejected the application by its
order dated 23.02.2009 stating that the petitioner did not produce the registered
partnership deed. Then the petitioner filed another Writ Petition No.3698 of 2009
challenging the rejection order, wherein by order dated 03.04.2009 quashed the
impugned order dated 23.02.2009 passed by 1st respondent and directed the
respondent to allot the shop No. J-112 to an extent of 2400 Sq.ft. Challenging
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the said writ petition order, an appeal was preferred by P.Chellammal in
W.A.No.562 of 2009 wherein by order dated 07.02.2011 the Hon'ble Division
Bench of this Court allowed the appeal by setting aside the order of the learned
single judge and order of 3rd respondent in allotting the shop to petitioner by
giving liberty to respondent 2 and 3 to make fresh advertisement calling for
application to allot the said shop J-112 to an eligible person.
(ii) Further, the petitioner filed Special Leave before the Hon'ble Apex court
against the Writ Appeal order in (Civil) No(s). 8202 of 2011. The Hon’ble Apex
Court taken up the special leave (Civil) No(s).8202 of 2011 along with
SLP(C)No.36488 of 2011 and passed final orders on 26.11.2013 dismissing the
special leave and directed the respondent to conduct the fresh allotment as per
law and directed to refund the security deposit amount to the petitioner. As per
the order of the Hon’ble Apex Court, the official respondents had taken over the
possession of the Shop No. J-112 (A/1 Type) from petitioner on 25.05.2014.
Then the petitioner approached the 1st respondent and gave representation
dated 08.07.2015 to refund the security deposit amount, but the 1st and 2nd
respondents have not returned the security deposit amount. Hence the petitioner
filed a Writ Petition No.35564 of 2016 before this Court for refund of the security
deposit amount and the same is still pending. The 1st respondent vide Letter
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No.K2/2794/2003 dated 05.10.2015 allotted the shop J-112 by conversion of
shop from M 11 to J 112 to 3rd respondent. The 1st respondent also executed
sale deed dated 22.07.2016 registered as document No. 3313 of 2016 in the
office of the Sub Registrar, Annanagar. Then the petitioner issued legal notice
dated 25.09.2016 to all the three respondents to cancel the allotment and sale
deed in favour of 3rd respondent. Even after the legal notice the respondents
have not acted as per law. Hence the petitioner filed this present Writ Petition.
3. Per contra, the 1st respondent has filed a detailed counter affidavit,
wherein it is averred as follows:-
(i) The petitioner's firm who initially applied for shop No.E-98 and draw was
conducted on 27.01.2003 for the said shop and was allotted to one L.Jayanthi.
The petitioner was kept in the waiting list for Shop No.E-98, then the petitioner
had requested for allotment of the shop No.J-112 on 03.02.2003 on first cum first
serve basis. The said shop was listed for allotment on conversion vide
advertisement dated 30.10.2001 and the petitioner filed Writ Petition before this
Court in W.P.No.5836 of 2003 for directing the respondents to allot the shop
based on the representation given by petitioner on 03.02.2003. This Court vide
order dated 23.01.2009 directed the respondents to consider the petitioner's
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representation and pass orders. As per the order of this Court, the respondents
considered and rejected the petitioner’s representation on the ground that the
petitioner did not produce the registered partnership deed. Against the said
rejection order Letter No.K2-2794-03 dated 23.02.2009, the petitioner filed
W.P.No.3698 of 2009 before this Court and this Court vide order dated
23.02.2009 directed the respondents to allot the shop to the petitioner if the
petitioner had produced the firm Registration Certificate. At this point of time it is
to be noted that the petitioner supressing the fact that he is in the waiting list for
the shop E-98 had obtained the order before this Court to allot the shop J-112. By
then the shop J-112 was already allotted to one Gnanasekaran, wherein
Chennammal and Pachayiyappan were alredy in the waiting list. However, it is
submitted that the said Gnanasekaran did not pay the initial deposit and
approached this Hon’ble Court to reduce the deposit amount. Then the allotment
was cancelled in favour Gnanasekaran and it was alloted to Chennamal on
05.10.2015.
(ii) Aggrieved against the order dated 23.02.2009 in W.P.No.3698 of 2009
[wherein the rejection order of the petitioner was setaside] , P.Chennammal filed
a Writ Appeal No. 562 of 2009 before the Hon'ble Division Bench of this Court by
order dated 07.02.2011, the Hon'ble Division Bench allowed the appeal by setting
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aside the order of the learned Single Judge and also directed to make fresh
advertisement calling for application to allot the said shop No.J-112 to an eligible
person. Against the said order the petitioner in the present writ petition and the
appellant in the writ appeal filed SLP(C) No.8202 of 2011 and SLP(C).No.36488
of 2011 wherein the Apex Court passed an order indicating that there are not
inclined to interfere with the order passed by the High Court and dismissed the
Special Leave Petitions, however, a direction was issued to surrender the vacant
possession within a period of two months.
(iii) Based on the order of the Hon'ble Apex Court, sanction was accorded
for Rs.16,72,428/- towards refund of the amount remitted for the allotment of
shop No.J-112 deposited by the petitioner and the cheque was sent by post
which was not received by the petitioner. Further, Chennammal applied for Shop
No. J-112 on conversion basis within the time limit fixed by CMDA, ie.,12.11.2001
and the same allotted to her. Thereafter, the said Chennammal registered the
power of attorney to one P.Natrajan vide Doc.No.1969 of 2008 dated 07.07.2008.
Further, P.Chennammal filed another W.P.No.14096 of 2014 seeking to allot
shop No.J-112/A1 to the petitioner in the place of existing allotted shop No.M-
11/A5 and this Court by its order dated 28.05.2014 directed the authority to pass
orders and allot the shop. Subsequently, based on the Authority meeting on
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24.12.2014, third party name transfer has been issued to one N.Indira (w/o
P.Natrajan) and she has requested for conversion of shop from M-11 to Shop
No.J-112. The 1st respondent submitted letter to Additional Advocate General for
legal opinion for conversion of shop allotted from Shop No.M-11 to shop No.J-112
in the name of Tmt.Indira. Based on the opinion, the allotment order for
conversion has been issued in favour of N.Indira vide order No.K2/2794/2003
dated 05.10.2015 and sale deed came to be executed on 22.07.2016. Further in
order to bring quietus to the issue surrounding allotment of the subject shops, the
Respondent Authority is willing to conduct a public auction upon suitable direction
from this Court, after handing over of the subject shop by the 3rd Respondent.
Hence, pleased to dismiss this writ petition.
4. On the other hand, the 3rd respondent by way of counter stated that the
3rd respondent periodically approaching the respondent-CMDA for allotment of
shop No.J-112 being the only applicant. Further it has also come to light that the
petitioner through other partner had clandestinely obtained an order by
supressing the very fact that he had not even applied under the notification dated
30.10.2001. The petitioner challenged the order of allotment in W.P.No.3698 of
2009 and the same was allowed, further, it was challenged by the respondents in
W.A.No.562 of 2009 and the Hon'ble Division Bench of this Court directed to
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issue fresh advertisement for the shop J-112. Aggrieved against the order,
Special Leave Petition was filed and the Hon’ble Apex Court dismissed the SLP
with specific direction to the CMDA to take possession of shop J-112 from the
petitioner and hand over to the official respondents. As per the direction of the
Hon’ble Apex Court the respondents continued with allotment as per the
notification dated 30.10.2001 in that Shop No.J-112 was part and parcel of the
notification and already applications were called for in a transparent manner and
on evaluation of the applications the 3rd respondent has been alloted the shop J-
112 by order dated 05.10.2015.
5. Further, the learned counsel for the 3rd respondent submits that one
E.Thangaimalai one of the partner of the petitioner, D.Bakthavachalu & Co was
alloted shop No.J-97 under the very same notification dated 30.10.2001 which he
has now challenged. If the petitoner stand is to be taken into consideration then,
the allotment of shop No.J-97 also should be cancelled since the allotment is
under the very same notification, which he has challenged in the present writ
petition. It is submitted that the 3rd respondent's application was considered only
in the year 2015, due to the pendency of several litigations. Due to the frivolous
and vexatious litigations initiated by the petitioner, the respondent obtained order
of allotment only in the year 2015 that too at Rs.7,000 per sq.ft. The 3rd
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respondent was put to unnecessary hardship and loss in paying a higher rate of
40% above to the land price fixed under the notification. Therefore, the 3 rd
respondent prays to dismiss the present writ petition.
6. The learned counsel for the petitioner contends that 3rd respondent
approached the office of 1st and 2ndrespondent by manipulating as if she had
given representation for conversion from shop No. M-11 to J-112 vide Application
No.4143 dated 23.12.1987. Further, the 3rd respondent enriched herself by illegal
occupation of the shop for the past 9 years and also undervaluing the sale
consideration of the shop without any paper publication and thereby denied the
opportunities of 3rd parties in participating public auction.
7. The learned counsel for the respondents-authority contends that the
petitioner supressing the fact he is in the waiting list for the shop E-98, obtained
order before this Court and the same was allotted to him vide Letter
No.K2/2794/2003 dated 28.04.2009 in compliance with the orders passed by this
Court. The shop was already allotted to one Gnanasekaran and two persons
were already in the wait list for the said shop J-112. But the said Gnanasekar did
not pay the allotment deposit amount and approached this Court seeking
reduction of price. Since he did not pay the initial deposit amount, the shop made
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in favour of Gnanasekaran was cancelled and on 05.10.2015 the shop was
allotted to the next person in the waiting list, ie., Chennammal.
9. The learned counsel for the 3rd respondent contends that in the public
notification given by the authorities on 30.10.2001, the L M N block shop owners
will be given preference. The order passed in W.P.No.4004 of 2000 dated
08.03.2000 which remains unchallenged and continues till date was not brought
to the notice of this Court in W.A.No.562 of 2009 and also before the Supreme
Court of India in S.L.P.No.8202 of 2011 dated 26.11.2013, hence the Writ
Petition deserves to be dismissed on the ground of lack of locus standi in as
much as the petitioner- firm itself is in non-existence. One of the partners of the
petitioner firm D.Bakthavachalu died in the year 2017 and the firm has been
dissolved as per the proceedings of the Registrar of Firms.
10. Heard the learned counsel appearing on either side and perused the
documents placed on record.
11. Admittedly, the petitioner's firm had initially applied for shop No.E-98
and draw was conducted on 27.01.2003 for the said shop and was allotted to one
L.Jayanthi. Since the petitioner's request for allotment of shop viz., J-112 at
Koyambedu Wholesale market complex, koyambedu was rejected on the ground
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that the petitioner did not enclose the registered partnership, the petitioner
challenged the said order in W.P.No.3698 of 2009 and this Court dismissed the
order of the 2nd respondent and directed to allot the said shop, if there is no legal
impediment. Aggrieved by the said order, Chennammal, who is the waiting list
candidate for Shop No.J-112 has preferred W.A.No.562 of 2007 and the Hon'ble
Division Bench of this Court, vide Judgment dated 07.02.2011 directed to issue
fresh advertisement for the shop J-112, wherein the relevant Paragraph Nos.11
to 13 are extracted as follows:-
“11. Undoubtedly, there was no such waiting list of applicants to
be considered including the name of the first respondent as against
shop No.J-112. Therefore, in compliance with the order of this Court,
dated 23.01.2009, the third respondent ought to have rejected the
representation of the first respondent stating there was no waiting list
more particularly, any list including the name of the first respondent
for being considered for allotment of shop No.J-112 . Intead of doing
so, strangely the third respondent had rejected the representation, on
the ground that the first respondent had not produced the deed of
registration of partnership firm; when the said order was questioned in
W.P.No.3698 of 2009, it was not submitted by the third respondent
that the first respondent was not eligible, for appointment as there
was no waiting list. Again the third respondent reiterated before the
learned single judge that the representation of the first respondent
was not considered because the registered deed of partnership firm
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had not been produced. At that time, as we have already stated, the
first respondent submitted to this court that the registration certificate
was ready to be produced and it is in these circumstances, the
learned Single Judge directed for issuance of allotment order inf
avour of the first respondent allotting shop no.J-112. In our
considered opinion, the learned single judge has been mislead by
suppression of facts and by making further misrepresentation both by
the first respondent and the third respondent. Had it been brought to
the notice of the learned Judge that there was neither a waiting list
nor the name of the first respondent in any other list for consideration,
the learned Judge ought not to have issued a direction to the third
respondent to allot the shop no.J-112 in favour of the first respondent.
When there was no advertisement made for shop no.J-112; when
there was no application made by the first respondent for the said
shop; when there was no waiting list of applicants in respect of Shop
No.J-112 it is indeed shocking to note that the third respondent
obviously in collusion with the first respondent has managed to see
Shop No.J-112 is allotted to the first respondent. Fortunately, even
before the possession was handed over to the first respondent,
interim stay was granted by this Court in this Writ Appeal. For these
reasons, we are of the view that the order of the learned single judge
is liable to be interfered with.
12. The learned counsel for the first respondent would question
the locus standi of the appellant. However, in our considered opinion,
we are concerned with the interest of the public. The shop in question
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is admittedly belongs to Chennai Metropolitan Development Authority
and in our considered opinion, if the shop is auctioned for allotment,
surely, the same would have fetch more amount and the same would
have been beneficial for exchequer of the respondents 2 and 3. But
at the same time, it is brought to the notice that the Government had
earlier taken a policy decision that the preference should be given to
those persons who were already being business in the market. In this
case, indisputably, the appellant and the first respondent were also
doing similar business and as a matter of fact, earlier they were
allotted shops but since they were not viale, they did not take the
allotment and instead, they made fresh applications for allotment of
Shop No.E.98. Therefore, in the event of any advertisement being
made and if the appellant and first respondent make any application
for allotment of Shop No.J.112, they need to be given preference over
the other applicants, in view of the policy of the government as
enumerated above.
13.In the result, the writ appeal is allowed and the impugned
order of the learned Single Judge and the consequential proceedings
of the third respondent allotting Shop No.J.112 to the first respondent
are set aside with liberty to the respondents 2 and 3 to make fresh
advertisement calling for applications to allot the said shop no.J.112
to an eligible person. In the event, the appellant and the first
respondent make any application, they shall give preference over the
other applicants, as indicated above. No costs.”
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12. Aggrieved against the order, Special Leave to Appeal (Civil) No.8202 of
2011 was filed by the petitioner and the Hon’ble Apex Court dismissed the said
Special Leave to Appeal with specific direction to the CMDA to take possession
of shop J-112 from the petitioner and hand over to the official respondents and
the relevant paragraphs are extracted as under:-
“However, we find that the High Court has unnecessarily
directed that in case the appellant and the respondent no.1, make an
application, they shall be given preference over the other applicants.
We see no reason as to why such preference has been given to any
applicant. Once the allotment hasbeen held to be illegal and set
aside, and the High Curt had directed that a fresh allotment be made
as per law, then all candidates including the previous candidate and
any other new candidate who may apply for the same would be
eligible to be considered at par.
It is also brought to our notice by the learned counsel for the
appellant that he is still in possession of the shop. The High Court,
having quashed the allotment, ought to have issued a further direction
that the possession be surrendered to the respondent-Authority.
Since no direction has been issued, we hereby direct that the
appellant shall surrender vacant possession of the aforesaid shop to
the respondent-authority within a period of two months. The
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Respondent no.2- Corporation is directed to refund the security
amount deposited by the appellant withina period of four weeks of the
receipt of copy of this order”
13. It is to be noted that the respondents continued with allotment, as per
the notification dated 30.10.2001 for the Shop No.J-112 and not by way of fresh
auction, which was part and parcel of the notification and already applications
were called for and on evaluation of the applications, the 3rd respondent has
been alloted the shop J-112 by order dated 05.10.2015, which is against the
order of the Hon'ble Apex Court. Further, one E.Thangaimalai, who is one of the
partner of the petitioner, D.Bakthavachalu & Co., was alloted shop No.J-97 under
the very same notification dated 30.10.2001 which he has now challenged. If the
petitoner stand is to be taken into consideration then, the allotment of shop No.J-
97 also should be cancelled since the allotment is under the very same
notification, which he has challenged in the present writ petition.
14. Besides the above, the learned counsel for the petitioner, at this stage,
seeks permission of this Court to withdraw the petition, this Court is not inclined
to permit the petitioner to withdraw this petition on the ground that several Writ
Petitions, Writ Appeal and SLP were conducted and the matter has also been
conducted before several learned Judges and before this Court and now cannot
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just like that waste the precious timings of the court, by conducting the case and
at the fag end seeking permission to withdraw the same, which is not acceptable.
Also, this Court by an order dated 25.06.2024 in Crl.O.P.No.2485 of 2024 at
Paragraph No.10 held as under:-
“The list of properties furnished to the Investigating Officer does
not show any sign of their intention to settle the due payable to the
depositors and it was not furnished with bonafide intention to take
moral responsibility as conceived by this Court in its order dated
29.02.2024. After misleading the Court, the attempt to withdraw the
Criminal Original Petition is nothing but fraud on the Court.”
13. Considering the above facts and circumstances of the case, and taking
note of the fact that the Hon'ble Apex Court while dismissing the SLP No.8202 of
2011 & SLP (C) No.36488 of 2011 filed by the petitioner & others had clearly
interpreted the Judgment of the Hon'ble Division Bench of this Court in
W.A.No.562 of 2007 by indicating the fact that once the allotment has been held
to be illegal, all the candidates including the previous candidate and any other
new candidate, who may apply for the same would be eligible to be considered at
par, therefore, this Court hereby directs the respondents to conduct fresh auction
in accordance with law after duly complying with the orders passed by the
Hon'ble Apex Court and Hon'ble Divsion Bench of this Court, stated supra, as
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early as possible, preferably within a period of two months from the date of
receipt of copy of this order. It is made clear that all the auctions conducted
earlier with regard to these shops shall stand cancelled. The Officials, who have
colluded with the individuals and shown disregard to the Judgment of the Hon'ble
Apex Court are to be tried with appropriate enquiry and to be proceeded in
accordance with law. Also, the authorities, shall initiate departmental action
against the officials, [either in service or retired] whoever caused loss to CMDA
and recovery shall be initiated for the sustained loss for the above shops. All the
shop owners to be evicted on or before 31st March, 2025.
Accordingly, this Writ Petition is disposed of. Consequently, connected
miscellaneous petition is closed. No costs.
10.01.2025
Index : Yes / No;
Internet : Yes / No
Speaking Order / Non Speaking Order
ssd
To
1. The Member Secretary
Chennai Metropolitan Development Authority
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008
2. The Chief Executive Officer,
Chennai Metropolitan Development Authority,
https://www.mhc.tn.gov.in/judis
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008
V.BHAVANI SUBBAROYAN, J.
ssd
10.01.2025
https://www.mhc.tn.gov.in/judis
