High Court · 2011

IN THE H IGH COURT OF JUDICATURE AT MADRASDATED: 12.01.2010CORAMTHE HONOURABLE Mr. JUSTICE T.RAJAW.P.Nos.4150, 4153, 4142, 4340,4915 and 4916 of 20101. S.Loganathan... Petitioner in WP No.4150/2010 S/o.Subramani2. J.Adikesavan ... Petitioner in WP No.4153/2010 S/o. P.M.Jayaram Pillai3. S.Govindaraj ...Petitioner in WP No.4142/2010 S/o.R.Santhanam Naidu4. Chennai Retail Flower Merchant's Welfare Association, rep. by its President ...Petitioner in WP No.4340/20105. Mani ...Petitioner in WP No.4915/2010 S/o. Vellaichamy6. Lingappan ...Petitioner in WP No.4916/2010 S/o. Krishnasamy Vs.1. The Chennai Metropolitan Development Authority, rep. by its Member Secretary, No.1, Gandhi Irwin Salai, Chennai - 600 008.2. Corporation of Chennai, rep. by its Commissioner, Ribbon Building, Chennai - 600 003. ... Respondents No.1 and 2 in all the Writ Petitions https://hcservices.ecourts.gov.in/hcservices/

3. Chennai Koyambedu Malar Motha Vyabarigal Sangam, rep. by its President M.D.Arul Viswasam ..Respondent NO.3 in WP No.4340/2010PRAYER IN ALL THE WPs: Writ Petition filed under Article 226 of theConstitution of India praying to issue a writ in the nature ofCertiorari, to call for the records relating to the impugned orderspassed by the 1st respondent in his letter dated K1/1194/2004, dated12.02.2010 and quash the same and pass such further orders.For Petitioner in W.P.Nos.4150, 4153 & 4142/2010:Mr.S.Srinivasanin W.P.No.4340/2010:Mr.V.Manoharin W.P.Nos.4915 & 4916/2010:No AppearanceFor Respondents in all writ petitions:Mr.P.S.Raman, AG Assisted by Mr.I.Paranthaman, AGP for R1 Mr.T.Mathi for R2in W.P.No.4340/2010:Mr.S.Silambanan, SC For Ms.C.Uma for R3COMMON ORDERAs the facts leading to all the writ petitions are identical,they are disposed of by this common order.2. The writ petitioners, S.Loganathan, J.Adikesavan andS.Govindaraj in W.P.Nos.4150, 4153 and 4142 of 2010 respectively arebeing the farmers, cultivating various flowers like, Jasmine, Jathiand Mullai from their own agricultural lands at Kavanur Village,Arakonam Taluk, Vellore District. After harvesting them, transportedthe same from Kavanur Village, Arakonam Taluk to Chennai for thepurpose of selling the same to the consumers. The petitioner inW.P.No.4142/2010 is the tenant in respect of shop portion in thepremises bearing Door No.6/1 and 18-B, Badrian Street, Chennai - 600001 and selling his own agricultural produce of flowers from thispremises. The Tamil Nadu Government, after enacting the Tamil NaduSpecified Commodities Market (Regulation of Location) Act, 1996, toregulate the location of market areas and wholesale markets inrespect of specified commodities in the Metropolitan Planning Area,notified the Koyambedue Area as a special market as per Section 19 ofthe said Act and all the wholesale traders of flowers, vegetables,fruits and other perishable goods were shifted to Koyambedue market.In view of the shifting of the place from city area to Koyambedue https://hcservices.ecourts.gov.in/hcservices/ area, some of the flower vendors filed a writ petition inW.P.No.29809 of 2004 challenging the eviction drive of therespondents, but the same was dismissed. Pursuant to the orderpassed by this Court on 27.11.2009, a meeting was also conducted inrespect of the members of the said association, who filed the writpetition, but the petitioners being the non member of the saidassociation, no intimation was served on them by the respondentsherein. However, on coming to know the steps taken by therespondents herein for evicting the flower vendors from the BadrianStreet, Chennai, the petitioners gave a representation to the 1strespondent by speed post with acknowledgement card due, requestingthem to give notice in the above said address in respect of theproposed eviction drive. But, the 1st respondent, by letter dated12.02.2010, informed the petitioner that he is a wholesale trader offlowers and as he is not directly selling flowers to the consumers,the respondent imposed ban from selling flowers with effect from01.03.2010 from the premises at Door. No.6/1 and 18-B, BadrianStreet, Chennai and further, the petitioner was warned not to sellthe flowers in the said place, failing which, his scale and otherinstruments including the vehicles transporting flowers, would beseized without any further notice to him. As the petitioner was notwholesale trader, but the primary producer, he sent anotherrepresentation to the 1st respondent requesting him to hold theproper enquiry and afford reasonable opportunity to put forth hisgrievance, by clearly informing that he is selling his agriculturalproduce of all these years and thus, leading his livelihood. But,thereafter, there was no response from the respondents. However, thepetitioner has filed the present writ petition challenging the orderpassed by the 1st respondent dated 12.02.2010, as illegal, arbitraryand violative of the principles of natural justice.3. Mr.S.Srinivasan, learned counsel appearing for thepetitioners put forth three fold arguments. Firstly, it was pleadedthat the 1st respondent did not issue any notice before passing theimpugned order of eviction. Therefore, he was contended that theimpugned order is liable to be set aside for violation of theprinciples of natural justice. Secondly, it was pleaded that sellingof agricultural produce by a primary producers will not come underthe definition of wholesale trader as per Section 2(14) of the Act 24of 1996. Therefore, any action taken by exercising power under theAct is unsustainable in law. Thirdly, it was also contended that theimpugned order is non speaking order and it was sterio-typed andcyclostyled order without any discussion about the nature of businesscarried on by the petitioners and on that basis, prayed for quashingof the impugned order dated 12.02.2010.4. Mr.V.Manohar, the learned counsel appearing for thepetitioner/Chennai Retail Flower Merchant's Welfare Association, inW.P.No.4340/2010, also challenging very same impugned order dated12.02.2010 passed by the 1st respondent, contended to quash the https://hcservices.ecourts.gov.in/hcservices/ impugned order on the ground that the members of the petitioner'sassociation are the retail vendors of the flowers in the BadrianStreet, George Town, Chennai and they have got no other income fortheir livelihood as they are solely depending on the said business ofretail vending of flowers on day to day basis. When there was awholesale business of flowers just opposite to their place, the saidbusiness was stopped by shifting to the Koyambedu wholesale market.But the members of the petitioner's association are noway comingunder the category of the wholesale vendor, as they are carrying onthe business by purchasing their produce from the wholesale vendorslocated in the place meant for this. Therefore, he pleaded thatthere is no question in comparing members of the petitioner'sassociation to that of the wholesale dealers. Hence, the petitionerscannot be removed, as they are all retail vendors, like removing thevendors carrying on wholesale business in flowers. However, withoutgiving any opportunity, when the respondents had directed the membersof the petitioner's association to evict their business from theirrespective business place, the petitioner's association has filed awrit petition in W.P.No.29809 of 2004 and 12909 of 2009 before thisCourt and this court, by order dated 27.11.2009, has passed adetailed order. In paragraph 24 of the said order, this Court hasdirected the respondents to give notice and further directed the CMDAto hold an enquiry by giving reasonable opportunity to those personseither individually or to a nominee of the association and afterhearing them, to pass appropriate order. Therefore, when this Courthas already directed to give them proper notice to hold an enquiryand to pass appropriate order, but, without complying the said order,the respondent/CMDA has passed the impugned order, which is notsustainable in the eye of law and on that basis, prayed for settingaside the impugned order.5. Further, the learned counsel appearing for the petitioner inW.P.No.4340/2010, has submitted that if the respondent/CMDA hasfollowed the direction of this Court properly, all the members of thepetitioner's association could have availed the appeal remedy underSection 45 of the Act and thereafter, the benefit of revisionprovided under Section 46 of the Act. Since the respondent has notconsidered in passing the appropriate order dealing with their cases,whether they are retail vendors or wholesale vendors, the impugnedorder without dealing their cases, has deprived of the appeal as wellas revision remedy as mentioned above.6. Mr.P.S.Raman, learned Advocate General, appearing for the 1strespondent submitted that the Chennai Metropolitan DevelopmentAuthority, after developing the wholesale market as per the provisionof the Tamil Nadu Specified Commodities Market (Regulation ofLocation) Act, 1996, at Koyembedue, directed the shifting of all thewholesale trade activities specified in the Act to the Koyembeduewholesale market complex. Thereafter, the wholesale trade in flowerhas been prohibited in any other area within Chennai city except in https://hcservices.ecourts.gov.in/hcservices/ the notified market place. After the notification of the above saidAct, some of the traders continued to do their wholesale flowerbusiness in Bathriyan Street, which again caused heavy vehicularproblems to the road users in that area and due to this trafficproblems caused by them, the CMDA forced to initiate the action toprohibit the wholesale flower business at Bathriyan Street. On thatbasis, when the action was taken, by issuing notices, the saidcommunication dated 07.10.2004 was challenged by way of filing writpetition in W.P.No.12909/2009 and 29809/2004 and this Court, by orderdated 27.11.2009 directed to hold an enquiry by giving reasonableopportunity. In pursuant to the order passed by this Court,inspection was conducted in the early hours to find out whether thewholesale business of flower is carried out in the Bathriyan Street.The Inspection Team found that even in the early hours, thepetitioners herein have carried on their wholesale business,therefore, photographs were taken to evidence their activities toshow that they are all not retail traders, but wholesale dealers.Thereafter, notices were given to the members of the association. Onreceipt of the notices by the office bearers of the association, theyattended the meeting on 31.12.2009 at 11 a.m. at the office of theChief Executive Officer, Chennai Metropolitan Development Authorityand further, as per the direction of this Court, the office bearersof the Chennai Retail Flower Merchant Association, submitted a listof members and requested to grant some more time for furnishing thelist of other members, since the Pongal festival was nearing. Again,an enquiry date was fixed on 18.01.2010 and on that date, an enquirywas conducted. Thereafter, on 02.02.2010 and 03.02.2010, therespondents officials as well as the corporation officials jointlycarried out the survey to verify the business done by the members ofthe association. When the said place was visited in the early hours,it was found that the members of the petitioner's association are alldoing wholesale business, therefore, the impugned order came to bepassed. Hence, as directed by this Court in the above said writpetitions, reasonable opportunity was given and only after holdingenquiry, the impugned order came to be passed. Therefore, there isno basis for the petitioner's association to challenge the impugnedorder on the ground of non-compliance of the principles of naturaljustice as well as direction issued by this Court and on that basis,prayed for dismissal of the present writ petitions.7. Heard the learned counsel appearing on either side andperused the materials available on record.8. The impugned order deals with the case of both primaryproducers of flowers in Bathriyan street as well as the retailvendors of flowers. Section 2(14) of the Tamil Nadu SpecifiedCommodities Markets (Regulation of Location) Act, 1996, is extractedas under:-14. "Wholesale trade" means sale or purchase ofany specified commodity for purposes other than direct https://hcservices.ecourts.gov.in/hcservices/ consumption or use by the purchaser, and shall includeholding of stocks or warehousing of such specifiedcommodity at any place in the market area (but does notinclude any sale or purchase by any primary producer orretail trader, as the case may be, of such specifiedcommodity); and any such seller, buyer, holder of stock orwarehouse-keeper shall be deemed to be a "wholesaletrader".A close reading of the above provision clearly excludes both theprimary producers as well as retail traders from the scope of theAct. Therefore, when the wholesale dealers carrying on the flowersfrom the Bathriyan Street are relocated to Koyembedu market, as perthe notification of the above said Act, the said claim of thepetitioners herein is that they are not the wholesale traders in theflower business, but being retail vendors and primary producers fromtheir own agricultural lands in Kavanur Village, Arakonam Taluk,Vellore District, they cannot be dealt with under the same Act.However, whether they are retail vendors or primary producers have tobe identified, for which, if I look at the impugned order, therespondent has not assigned any reason, on what basis, thepetitioners are identified as wholesale dealers. Therefore, when theorder dated 27.11.2009 passed in W.P.Nos.29809 of 2004 and 12909 of2009 had clearly directed to give notice to Chennai Retail FlowerMerchants Welfare Association with registration No.139/2000,represented by its President, Badrian Street, within one week, so asto enable the said association to inform all its members to furnish alist of members with addresses to CMDA for enabling the CMDA to fix adate for enquiry, though the record shows that notices were issued tosome of the members, the case of primary producers, namely thepetitioners herein, have not been discussed anywhere, which indicatesthat no reasonable opportunity was given as directed by this Court tothe petitioners herein. Though notices were issued to the similarretail vendors like that of the petitioners herein, there is noproceedings appeared to have been passed by the respondent/CMDA norserved upon them.9. There are situations which demand the exclusion of the rulesof natural justice by reason of diverse factors like time, place, theapprehended danger and so on. The ordinary rule which regulates allprocedure is that persons who are likely to be affected by theproposed action must be afforded an opportunity of being heard as towhy that action should not be taken. The hearing may be givenindividually or collectively, depending upon the facts of eachsituation. A departure from this fundamental rule of natural justicemay be presumed to have been intended by the legislature only incircumstances which warrant it. Such circumstances must be shown toexist, when so required, the burden being upon those who affirm theirexistence. Event after the direction of the this Court directing therespondents to give an opportunity to those persons eitherindividually or to a nominee of the association and after hearing https://hcservices.ecourts.gov.in/hcservices/ them, to pass an appropriate order, the respondents in the impugnedorder has not dealt with the case of the petitioners individuallymentioning whether they are not primary producers or retail vendorsof flowers. It is settled law that an executive action must beinformed by reason. An unfair executive action can only survive fora potent reason. An action which is simply unfair or unreasonablewould not be sustained. Objective satisfaction must be the basis foran executive action. Even subjective satisfaction on the part of aState is liable to judicial review. When this Court in the earlier order dated 27.11.2009 passed inW.P.Nos.29809 of 2004 and 12909 of 2009 has laid emphasis onreasonable action on the part of the respondents to give reasonablehearing and to pass an order, the impugned order must have reflectedthe compliance of the direction issued by this Court mentioned above.10 The Apex Court also in the case of Swadeshi Cotton Mills v.Union of India((1981) 1 SCC 664) has held thus:-“Rules of natural justice are not embodied rules. Beingmeans to an end and not an end in themselves, it is notpossible to make an exhaustive catalogue of such rules. Butthere are two fundamental maxims of natural justice viz. (i)audi alteram partem and (ii) nemo judex in re sua. The audialteram partem rule has many facets, two of them being (a)notice of the case to be met; and (b) opportunity toexplain. This rule cannot be sacrificed at the altar ofadministrative convenience or celerity. The generalprinciple—as distinguished from an absolute rule of uniformapplication—seems to be that where a statute does not, interms, exclude this rule of prior hearing but contemplates apost-decisional hearing amounting to a full review of theoriginal order on merits, then such a statute would beconstrued as excluding the audi alteram partem rule at thepre-decisional stage. Conversely if the statute conferringthe power is silent with regard to the giving of a pre-decisional hearing to the person affected and theadministrative decision taken by the authority involvescivil consequences of a grave nature, and no full review orappeal on merits against that decision is provided, courtswill be extremely reluctant to construe such a statute asexcluding the duty of affording even a minimal hearing,shorn of all its formal trappings and dilatory features atthe pre-decisional stage, unless, viewed pragmatically, itwould paralyse the administrative process or frustrate theneed for utmost promptitude. In short, this rule of fairplay must not be jettisoned save in very exceptionalcircumstances where compulsive necessity so demands. Thecourt must make every effort to salvage this cardinal ruleto the maximum extent possible, with situational https://hcservices.ecourts.gov.in/hcservices/ modifications. But, the core of it must, however, remain,namely, that the person affected must have reasonableopportunity of being heard and the hearing must be a genuinehearing and not an empty public relations exercise.” 11. In the light of the above settled position, when this Courtin W.P.Nos.29809 of 2004 and 12909 of 2009, dated 27.11.2009, hadalready directed the respondents to give reasonable opportunity tothose persons either individually or to a nominee of the associationand thereafter, to pass an appropriate order, the respondent/CMDAhaving not done the said exercise as directed by this Court, thisCourt directs the respondents to hold an enquiry by giving notice toall the members and pass orders in accordance with law.12. With the above observations, the present writ petitions areallowed by setting aside the impugned orders. No Costs.Consequently, all the connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrkmTo1. The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Salai, Chennai - 600 008.2. The Commissioner, Corporation of Chennai, Ribbon Building, Chennai - 600 003.1 cc To Mr.K.Premkumar, Advocate, SR.26811 cc To M/s.Uma, Advocate, SR.27991 cc To Mr.T.Mathi, Chennai Corporation Standing Counsel, Advocate, SR.29331 cc To Mr.I.Parantham, Advocate, SR.3129 W.P.Nos.4150, 4153, 4142, 4340,4915 and 4916 of 2010PUR (CO)RH (31.1.11)