High Court · 2008

In the High Court of Judicature at MadrasDated :- 8.1.2008Coram :The Honourable Mr.Justice K.RAVIRAJA PANDIANandThe Honourable Mrs.Justice CHITRA VENKATARAMANW.P.No.21484 of 2007 and W.A.Nos.1291 and 1292 of 2007M.P.No.2 of 2007 in W.P.No. 21484 of 2007 and M.P.No.1 of 2007 in W.A.No.1291 of 2007 and M.P.Nos.1 and 2 of 2007 in W.A.No.1292 of 2007W.P.No.21484 of 2007 Vriddhachalam Town Vegetable Daily MarketMerchants Welfare Association (Regn.No.36 of 93)Rep by its President, V.Pakkirisamy65-C, Kattugudalur RoadVriddhachalam Town & Taluk,Cuddalore District. .. Petitioner Vs. 1. State of Tamil Nadurep. By The Secretary to GovernmentMunicipal Administration & Water Supply DepartmentFort St. George, Chennai 9.2. The Municipal CommissionerVriddachalam MunicipalityVriddhachalam3. The ChairmanVriddhachalam Municipal CouncilVriddhachalam Town& Taluk.. RespondentsW.A.Nos.1291 and 1292 of 20071. The Municipal CommissionerVriddachalam MunicipalityVriddhachalam Town & TalukCuddalore District.... AppellantVs. https://hcservices.ecourts.gov.in/hcservices/

1. Vriddhachalam Town Vegetable Daily MarketMerchants Welfare Association (Regn.No.36 of 93)Rep by its President, V.Pakkirisamy65-C, Kattugudalur RoadVriddhachalam Town & Taluk,Cuddalore District.2. The State of Tamil Nadurep. By The Secretary to GovernmentMunicipal Administration & Water Supply DepartmentFort St. George, Chennai 9.3. The ChairmanVriddhachalam Municipal CouncilVriddhachalam Town& TalukCuddalore District. ... RespondentsPrayer: Writ Appeals filed under Clause 15 of the Letters Patentagainst the order of the learned single Judge dated 24.7.2007 made inM.P.Nos. 2 and 3 in W.P.No.21484 of 2007. Writ Petition filed under Article 226 of The Constitution of Indiafor the relief of issuance of a writ of certiorari to call for therecords of the first respondent in G.O.Ms. 78 Municipal Administrationand Water Supply Department of the Government of Tamil Nadu dated7.6.2007 and quash the said G.O. dated 7.6.2007. For Petitioner : Mr.K.Kannan (for R1 in W.As)in W.P.For Respondents : Mr.R.Thirugnanam, in W.P. Spl.Govt. Pleader (for R1 in W.P.and R2 in W.A) Mr.AR.L.Sundaresan, Senior Counsel for Mrs.AL.Ganthimathi and L.Palanimuthu (For R2 in W.P.and for appellant in writ appeals)JUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.)The Vriddhachalam Town Vegetable Daily Market Merchants WelfareAssociation, represented by one V.Pakkirisamy has filed thepresent writ petition in W.P.No. 21484 of 2007 seeking for the reliefof issuance of writ of certiorari to call for the records of the firstrespondent the State of Tamil Nadu represented by the Secretary toGovernment, Municipal Administration & Water Supply Department inG.O.Ms. 78 dated 7.6.2007 and quash the said G.O. dated 7.6.2007. https://hcservices.ecourts.gov.in/hcservices/

2. The said writ petition came to be filed on the ground that themembers of the Petitioner association were having their shops in themarket conducted by the second respondent Municipality in the land ownedby Arulmigu Vridhagiriswarar Temple. The land was leased out by thetemple to the Municipality upto the year 1999 . After the expiry ofthe lease period in the year 1999, the Municipality handed overpossession of the market to the Vridhagiriswarar Temple and a publicmarket has been constructed at Kattukoodalur Road by the Municipality.The shopkeepers, who were doing vegetable vending in the earliermarket were continuing their business in the land owned by theVridhagiriswarar Temple. Now, the Municipality has constructed a newmarket. The Municipality directed the shopkeepers to shift their shopsto the new market. However, the members of the petitioner Associationwere not inclined to shift their shops to the new market and thatcaused the petitioner Association to file writ petition inW.P.No.16351 of 1997 for issuance of mandamus not to dispossess themfrom the market located in the land, which belongs to the temple. Thewrit petition was disposed of on the ground that the Municipality isnot closing the market where the shopkeepers are doing vegetablevending but only they are shifting the market of the Municipality fromthe land of the Vridhagiriswarar temple to the newly constructedmarket. That cannot legally be interfered with. That order has beenconfirmed by the Division Bench of this Court in the writ appeal inW.A.No.1560 of 1999 dt. 24.8.1999 which was filed at the instance ofthe writ petitioner herein. In the meanwhile, the members of thepetitioner Association also filed civil suit in O.S.No.469 of 1999 onthe file of the District Munsif Court, Vridhachalam for permanentinjunction restraining the Municipality from evicting the members of thepetitioner association from the shops located in the market, whichis functioning in the land belonging to the Vridhagiriswarar Templewithout obtaining any permission from the Government. That suit wasdecreed on 30.6.2004. The appeal filed by the Municipality againstthe said decree was also dismissed. In the aforesaid circumstances, theGovernment has passed the G.O.Ms.No.78 dated 7.6.2007 givingpermission to the Municipality to close the public market, which isbeing run by the members of the petitioner Association at the landbelonging to the Vridhagiriswarar Temple. This Govt. Order was put inissue in the writ petition on the ground that the market referred to inthe Government Order is not a public market, but a private market andhence the Government Order is not in accordance with the statutoryprovisions. In the writ petition interim order came to be passed on24.7.2007 to the effect that the respondents 2 and 3 in the writpetition were permitted to open the new market complex constructed atKattukoodalur Road and also to lease out the shops either by way ofconducting public auction or otherwise, but not to disturb thepetitioner's members in carrying of their business in the existing oldmarket. The correctness of the said order is now canvassed by filingthe writ appeals. https://hcservices.ecourts.gov.in/hcservices/

3. We heard Mr.AR.L.Sundaresan learned counsel appearing for theMunicipality and also Mr.Kannan appearing for the writ petitioner/thefirst respondent in the writ appeals.4. The point in issue in the writ petition is that the GovernmentOrder referring the old market as a public market is not correct andit is a private market run by the members of the writ petitionerassociation and the Government Order referring the old Market as apublic market is not correct , which aspect of the matter is nowdisputed by the learned counsel appearing for the writ petitionerAssociation. It is manifestly clear from the facts as stated above thatthe property in which the old market was conducted has been handed overby the Municipality to the owner of the property viz., VridhagiriswararTemple in the year 1999 and the members of the petitioner associationhave been running their shops by vending vegetables in the oldmarket. When the factual position as admitted by the learned SeniorCounsel for the Municipality is like that, we are of the view that theGovernment Order in G.O.Ms.No.78 dated 7.6.2007 referring the oldmarket, in which the members of the petitioner association arerunning their shops is a public market cannot be legally correct and onthat simple fact alone the Government Order has to be set aside andaccordingly, the same is set aside. However the learned Senior Counselfor the Municipality submits that the members of the Petitionerassociation are running the private market without any licence and theMunicipality may be allowed to proceed against the petitionerassociation in accordance with the statutory provisions. The requestof the learned Senior Counsel for the Municipality is nothing butseeking permission from this Court to do the statutory function inaccordance with law. It is always open to the respondent Municipalityto enforce its right under the the statutory provisions, which requiresno permission from this Court. 5. With these observations, the writ petition is allowed.Consequently, the connected M.P.is closed. In view of the order passedin the writ petition by setting aside the Government order, the writappals are closed. Consequently, the connected M.Ps are closed. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkrr/ https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to GovernmentMunicipal Administration & Water Supply DepartmentFort St. George, Chennai 9.2. The Municipal CommissionerVriddachalam MunicipalityVriddhachalam3. The ChairmanVriddhachalam Municipal CouncilVriddhachalam Town& Taluk2 cc To Mr.AL.Gandhimathi, Advocate, SR.1732.1 cc To Mr.K.Kannan, Advocate, SR.1534.1 cc To The Government Pleader, SR.1537.W.P.No.21484 of 2007 and W.A.Nos.1291 and 1292 of 2007BV(CO)RVL 04.02.2008