CORAMTHE HONOURABLE MR v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.11.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NOs.29809 of 2004 and 12909 of 2009andW.P.M.P.NO.36204 OF 2004 AND M.P.NO.1 OF 2009Chennai Retail Flower Merchant'sWelfare Association,(Reg.No.134 of 2000)rep. By its President,No.29, Bathriyan Street,Chennai-600 001... Petitioner in W.P.No.29809 of 2004Chennai Koyambedu MalarMotha Vyabarigal Sangam,rep. By its President,M.D.Arul Viswasam,F/C 119, Kamarajar Market,KoyambeduChennai-600 092... Petitioner in w.P.No.12909 of 2009Vs.1.The Commissioner, Corporation of Chennai, Ripon Building, Chennai-600 003... Respondent No.1 in w.P.No.12909 of 20092.The Member Secretary, Chennai Metropolitan Development Authority, Thallamuthu Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008.. Respondent in W.P.No.29809 of 2004 and 2nd respondent in W.P.No.12909 of 2009 https://hcservices.ecourts.gov.in/hcservices/

3.The Chief Administrative Officer, Management Committee, Koyambedu Market Complex, Koyambedu, Chennai-600 092... Respondent No.3 in W.P.No.12909 of 2009W.P.No.29809 of 2004 is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theorder passed by the respondent in Lr.No.K1/1194/2004, dated7.10.2004 and to quash the same and to forbear the respondentfrom in any manner interfering with the retail trade in flowersby the members of the petitioner Association in private propertyand in particular at No.29, Badrian Street, Chennai-600 001.W.P.No.12909 of 2009 is preferred under Article 226 of theConstitution praying for the issue of a writ of mandamusdirecting the respondents 1 to 3 not to permit the wholesaletrade of perishable goods in Chennai Metropolitan area except inthe Koyambedu Wholesale Market Complex which is speciallynotified as the Market Area under Section 2(7) read with Section4 of the Tamil Nadu Specified Commodities Markets (Regulationof location) Act 1996.For Petitioners : Mr.R.Gandhi, SC for Mr.R.G.Narendhiran in W.P.No.29809 of 2004 Mrs.Nalini Chidambaram, SC for Ms.C.Uma in W.P.No.12909/2009For Respondents : Mr.I.Paranthaman for CMDA in both W.Ps. Mr.Md.Ghouse for Chennai Corporation in WP No.12909/2009- - - - COMMON ORDERHeard Mr.R.Gandhi, learned Senior Counsel leadingMr.R.G.Narendran counsel for petitioner in W.P.No.29809 of 2004,Mrs.Nalini Chidambaram, learned Senior Counsel leading Ms.C.Uma,learned counsel appearing for petitioner in W.P.No.12909 of2009, Mr.I.Paranthaman, learned counsel for CMDA andMr.Md.Ghouse, learned counsel for Chennai Corporation.2.W.P.No.29809 of 2004 is filed by Chennai Retail FlowerMerchant's Welfare Association represented by its PresidentP.Dhanraj, having his office at No.20, Bathriyan Street,Chennai-600 001. The prayer in the writ petition was to setaside the order, dated 7.10.2004 passed by the respondent CMDA,wherein and by which the members of the petitioner Association https://hcservices.ecourts.gov.in/hcservices/ were directed to stop the wholesale trade inflower/fruit/vegetable immediately and shift the same to theKoyambedu Wholesale Market complex in terms of the notificationissued under the Tamil Nadu Specified Commodities Markets(Regulation of location) Act 1996 (Tamil Nadu Act 24 of 1996). 3.The writ petition was admitted on 14.10.2004. Pending thewrit petition, this Court passed the following orders inW.P.M.P.No.36204 of 2004, dated 14.10.2004:"On an earlier occasion whenchallenge was made to the proceedings ofthe Commissioner abandoning selling ofperishable items in Koyambedu MarketComplex, this Court quashed the saidproceedings by order dated 14.11.2002 inW.P.No.1272 of 2002 with a direction tothe respondent to pass fresh orders. Bythe impugned order, the Member Secretary,Chennai Metropolitan DevelopmentAuthority, placed reliance inW.P.No.26053/2004 dated 13.9.2004 passedby the Division bench to consider therepresentation of the petitioner thereinfor direction to stop the wholesale tradein perishable goods in ChennaiMetropolitan Area except in Koyambeduwholesale Market Complex. The DivisionBench has directed only reconsideration ofthe application. The impugned order hasbeen passed without notice to thepetitioner. Hence, there will be interimstay. Notice."4.Though the interim order was granted at the stage ofadmission, the respondents have not so far filed any counteraffidavit and had not taken any steps to vacate the staygranted.5.It is at this juncture, Chennai Koyambedu Malar MothaVyabarigal Sangam represented by its President M.D.Arul Viswasamhad filed W.P.No.12909 of 2009 seeking for a prayer to therespondent CMDA and the Commissioner of Chennai Corporation notto permit the wholesale trade of perishable goods in ChennaiMetropolitan area except in Koyambedu Wholesale Market Complexwhich is specially notified as the 'Market Area' under Section 2(7) read with Section 4 of the Tamil Nadu Specified CommoditiesMarkets (Regulation of Location) Act, 1996 (Tamil Nadu Act24/1996).6.When that writ petition came up for hearing, on behalf ofthe respondent CMDA, the Commissioner for Corporation, notice https://hcservices.ecourts.gov.in/hcservices/ was taken. Though an interim injunction was sought forrestraining the respondents from permitting the wholesale tradeof perishable goods in Badhrian Street and Muchi Street inGeorge Town area, no order was given. However, a counteraffidavit, dated 24.9.2009 was filed by the CMDA. 7.In that case, it was stated that flower traders inBadrian Street are carrying flower wholesale trade against thestatutory prohibition under the provisions of the Tamil NaduAct 24/1996. Once trade of a particular commodity is prohibitedunder the statute, no one can carry on such trade in aprohibited area. Permitting to carry on such wholesale flowertrade either by direct consumption or purchase or sell will alsobe against the provisions of the Act. The Act has come intoforce with effect from 26.8.1996. 8.It was also stated that pursuant to the directions issuedby this Court, dated 13.9.2004, the CMDA had issued notice,dated 17.10.2004 to all the wholesale traders of Badrian Street,George Town to stop wholesale trade in flower market and shiftit to Koyambedu. However, an association called Chennai RetailFlower Merchants Welfare Association (registration No.134/2000),had filed W.P.No.29809 of 2004 against CMDA and also hadobtained an interim stay on 14.10.2004. Therefore, therespondent CMDA was unable to take any action against the FlowerMerchants of Bardian Street. 9.In paragraph 9 of the counter affidavit, it was averredas follows:"9.I further submit that presently,the Koyambedu Planning Division of CMDAinspected the entire Badrian Streetconsisting of varying width of 16 feet to20 feet gaining access from N.S.C. BoseRoad in George Town area. The predominantactivity is wholesale flower trade housedin Ground floor of the existing oldbuildings and few shops are tradingstationeries, crackers and other goods. Ifurther state that there are 138 shops ofwholesale flower shops and the shops sizevary from 10 sq.ft. to 200 sq.ft. Retailflower trade is also going on in theBardian Street by vendors on the roadmargins."10.In the light of the stand taken by the CMDA, when thematter came up on 22.7.2009, the earlier writ petition wasdirected to be heard along with the present writ petition. Thus,both writ petitions were heard together and a common order isbeing passed. https://hcservices.ecourts.gov.in/hcservices/

11.It is seen from the records that under the provisions ofthe Tamil Nadu Specified Commodities Markets (Regulation ofLocation) Act, 1996, the term wholesale trade has been definedunder Section 2(14) of the Act. It was stated that the personswho are carrying on trade at Badrian Street come within thedefinition of wholesale trader. It was also stated that flowerbusiness at Badrian street is a wholesale business. If retailflower trader measures the goods in terms of litres andkilograms, then it will amount to a wholesale trade. The retailbusiness in flower trade consists of making garlands, knittingand tying flowers in a string. The flower traders in BadrianStreet are buying and selling flowers in bulk. Therefore, underthe notification issued in terms of 1996 Act under Section 7(1),any trade in the specified commodity has to be carried outactually in the market area notified under the Act and not inany other place. 12.Penal provisions are provided under Section 21 for anyviolation of the provisions of the Act. By the same section,Chennai City Municipal Corporation was also prohibited fromestablishing any market other than the specified market. But,the present case has got a long history.13.For the purpose of convenient reference, the petitionerin the first writ petition will be referred as Flower Bazarmerchants. The second writ petitioner will be referred as theKoyambedu merchants. The Koyambedu merchants filed W.P.No.9633of 1999 before this Court, seeking for similar direction to CMDAto remove wholesale flower merchants from Badrian Street. Inthat writ petition, Flower Bazaar merchants got themselvesimpleaded as third respondent styling themselves as ChennaiMalar Vyabarigal Sangam. In that writ petition, the Flowerbazaar merchants contended that their trade at Badrian Streetwill not come under the term wholesale trade. The Act will notapply to them as they are not carrying on wholesale business.The said writ petition came to be disposed of by an order, dated1.10.2001 on the ground that this Court had already passed anorder in W.P.No.10636 of 1999, dated 1.10.2001. That writpetition was filed by the flower bazaar merchants represented byits President, which was also claimed to be a registeredAssociation. 14.The prayer in that writ petition was to set aside theproceedings, dated 21.6.1999, by which the flower trade in theflower bazaar area was ordered to be stopped. This Court hadpassed the final order, dated 1.10.2001. In paragraphs 4,5 and 6of the order, it was observed as follows:"4.In the present case, admittedly,there is no licence issued to carry on thebusiness by the members of the Petitioner-Sangam in the land bearing No.55, Bathrian https://hcservices.ecourts.gov.in/hcservices/ Street, Chennai-1. It is admitted inparagraph 4 of the affidavit that the membersof the Petitioner-Sangam are conducting theirtrade in the said place and also at DoorNo.7, Bathirian Street. When the members ofthe Petitioner Sangam are carrying businessin a particular place as a group, it has tobe construed that the said place is only amarket.5.As per Oxford University Dictionary,the word "market" has been defined as themeeting together of people for purchase andsale of provisions or livestock, publiclyexposed at a fixed time and place, which alsomeets on open place or cover building inwhich cattle, provision etc., are exposed forsale. So, even according to the Petitioner-sangam, their place of business as stated inthe affidavit has to be construed only as amarket. If it is so, it is unlawful underSec.305 of the Madras City MunicipalCorporation Act. Sec.305 of the said Actprohibits persons to sell or expose for salean article in any unlicensed private market.Private market can be established only inaccordance with Sections 303 and 304 of thesaid aCt.6.In view of the fact that the membersof the Petitioner Sangam are carrying on thebusiness in an unlicensed place, the 2ndrespondent Commissioner is having power toask the members of the petitioner Sangam,exercising powers under Sec.379(A) of thesaid Act to stop the business. So, it cannotbe said that the 2nd respondent Commissionerhas no power to issue the impugnedproceedings. Since, the Commissioner has suchpower under Sec.379(A) of the said Act, Ineed not go into the other issue raised bythe learned Senior Counsel appearing for thepetitioner to the effect that provisions ofthe Act 24 of 1996 will not apply to themembers of the Petitioner-Sangam, as they areonly retailers."15.Aggrieved by the same, the Flower Bazaar merchants inthe name of Chennai Malar Vyabarigal Sangam filed a writ appealbeing W.A.No.1990 of 2001. The Division Bench of this court byits final order, dated 4.10.2001 disposed of the writ appealand observed as follows:"In the impugned notice dated 21.6.99, https://hcservices.ecourts.gov.in/hcservices/ the members of the appellant associationare directed to stop trading in flowers onthe ground that they do trade as wholesalerand in order to remove the congestion, awholesale market has been constructed atKoyambedu for wholesale trading in flower.Hence, wholesale trading in flowers inGeorge Town area is prohibited. We aredealing with other aspects as Mr.R.Gandhi,learned Senior Counsel appearing for theappellant submits that not all the membersof the appellant association are wholesaletraders in flowers, but they are onlyretailers. It is not disputed that if oneis retailer, then he can trade in theGeorge Town area. The requirement ofobtaining licence will be decided by thestatutory authority who is empowered toissue such licence. But one submitted factis that before issuing the impugned noticedated 21.6.99 no prior notice was issued soas to decided whether some of the membersof the appellant association arewholesalers or retailers in flowerbusiness. Only the retailer, the issueregarding the issuance of licence canarise. If really some of the members of theappellant association are wholesalers inflowers trading, even the authority underthe Madras City Municipal Corporation Act,1919, cannot grant licence for the reasonthat they had to shift their business toKoyambedu where a provision is made forwholesalers in flower trading. On the otherhand, if some of the members of theappellant association are retailers, then,such measures, as provided under the Actregarding the requirement of licence can beenforced against the members of theappellant association, who are retailflower traders. In the circumstances, thisWrit Appeal is disposed of with a directionthat a notice be issued to the appellantassociation, which in turn, will inform allits members and submit a reply. Afterfixing a date for enquiry and after givingopportunity to such persons nominated bythe appellant association of being heard,an order be passed by the respondents inaccordance with the observations madesupra. The above exercise shall be madewithin a period of one month from the date https://hcservices.ecourts.gov.in/hcservices/ of receipt of a copy of this judgment. Tillthen, the action mentioned in the noticedated 21.6.99 issued by the ChennaiCorporation, Division-II shall not beenforced. No costs. Connected MiscellaneousPetition is closed as unnecessary."(emphasis added) 16.As can be seen from the above, notice was to be givenonly to the Chennai Malar Vyabarigal Sangam, which in turn willhave to inform to all their members. Accordingly, theCorporation on 18.1.2002 passed an order. In the operativeportion of the order it was observed as follows:"It is further pointed out thatyourself and members of your sangam aredoing wholesale flower trade at BardianStreet, Chennai. Since the area has beenbanned by the CMDA for selling perishableitems and Koyambedu Market Complex isdeclared as market for wholesale tradingyou have no locus standi to sell perishableitems on wholesale basis. Hence yourrequest for permitting the selling of theflower at Badrian Street is not consideredand rejected. Hence you and the members ofyour sangam are requested to close thebusiness immediately, failing which, thisoffice will take action to seal thepremises by due process of law."17.Once again, the Flower Bazaar merchants in the name ofChennai Malar Viyabarigal Sangam filed another writ petitionbeing W.P.No.1272 of 2002. This Court observed that whilepassing the order, no enquiry was held as directed by theearlier Division Bench. Therefore, in the order dated14.11.2003, it was directed as follows:"11....As observed in the decision ofthe Supreme Court, in the light of theobjection of the members of the petitionerSangam, it is but proper for respondents,particularly first respondent to afford anopportunity, receive oral and documentaryevidence if any and give a specificfinding, namely, whether the members of thePetitioner Sangam are doing retail or wholesale business in flowers at BadriyanStreet. As observed earlier, the reading ofthe impugned proceedings does not show thatrespondents 1 and 2 have resorted to suchrecourse. In such a circumstance, in the https://hcservices.ecourts.gov.in/hcservices/ light of the specific order of the DivisionBench dated 04.10.2001, this Court has noother option, except to quash the impugnedproceedings of the first respondent dated18.01.2002 and the matter is remitted tothe first respondent for passing freshorders as directed in the Division Benchorder dated 04.10.2001."18.In the meanwhile, an Association named as Chennai RetailFlower Merchants Welfare Association with registrationNo.134/2000 came to be registered on 31.1.2000 under the TamilNadu Societies Registration Act. When that association whosemembers were operating from Badrian Street and George Town wasgiven notice on 7.10.2004 asking them to stop their wholesaletrade in flower and shift their business to Koyambedu WholesaleMarket Complex, they have come forward to file the writ petitionNo.29809 of 2004.19.It is also seen that one General Pushpa Vyabarigal andCommission Agentugal Sangam represented by its PresidentT.M.Gnanam had filed a writ petition in W.P.No.26053 of 2004,seeking for a direction to respondent to stop the wholesaletrades in perishable goods in Chennai Metropolitan area exceptin Koyambedu wholesale market complex and the same was disposedof by this court with a direction to consider the representationof that association. Permission was granted to give notice toaffected persons. Pursuant to the same, the notice dated7.10.2004 was given to Flower Bazaar merchants asking them toappear in the meeting under the Chairmanship of Chief Planner,CMDA. 20.Mr.R.Gandhi, learned Senior Counsel for the FlowerBazaar merchants contended that on the same day, i.e. on7.10.2004, CMDA cannot pass final orders contrary to the earlierorder passed by this Court in W.P.No.1272 of 2002 and yet askthe members to appear for a meeting convened by CMDA and theCorporation. This contradictory stand of the respondents forcedthem to approach this court to enforce order gained by themerchants at Badrian Street. 21.However, Mrs.Nalini Chidambaram, learned Senior Counselappearing for the Koyambedu merchants stated that in the guiseof an interim order, the Flower Bazaar merchants are carryingout an illegal trade. Therefore, the matter should be disposedof expeditiously. Their purpose of filing the writ petition wasto expedite the disposal of the writ petition filed by theFlower Bazaar merchants who are happily carrying on their tradefor the last 5 years thanks to the interim order. If that writpetition is disposed of one way or other, the Koyambedumerchants' grievance will be solved. https://hcservices.ecourts.gov.in/hcservices/

22.It is no doubt true that in passing the order dated7.10.2004 impugned in W.P.No.29809 of 2004, CMDA did not keep inmind the order passed by this court in W.P.No.1272 of 2002. Inthat judgment, this court had set out the mode of exercise ofpower by the respondent before ordering them to restrain fromcarrying on their trade. Therefore, the order dated 7.10.2004 isclearly in violative of the earlier order passed by this Court.Yet, at the same time, the Flower Bazaar merchants cannot formdifferent associations and claim different rights. Byregistering a new society, they cannot claim any new right otherthan the right which had been given by the Division Bench inW.A.No.1990 of 2001, dated 4.10.2001. Therefore, it is necessarythat the respondents should be directed to adhere to the orderof the Division Bench, dated 4.10.2001 in w.A.No.1990 of 2001and pass appropriate orders. 23.It must be stated that the show cause notice will beissued on the basis of the stand taken by the respondent in thecounter affidavit, dated 24.9.2009 in W.P.No.12909 of 2009 thatthere are 138 shops of wholesale flower shops in Badrian Street.All those traders are bound to be evicted if they are found tocarry on trade in flowers as directed by the Division Bench. 24.Hence notice will be given to Chennai Retail FlowerMerchants Welfare Association with registration No.134/2000represented by its President at No.29, Badrian Street within oneweek from the date of receipt of the copy of this order. Thesaid association will in turn inform all its members as well asfurnish a list of members with addresses to the CMDA. The CMDAon fixing the date for an enquiry, shall give an opportunity tothose persons either individually or to a nominee of theassociation. After hearing them, it can pass an appropriateorder. This exercise should be undertaken within one month fromthe date of receipt of this order. Till such time CMDA passes anorder, status quo as on date shall continue. However, CMDA isentitled to utilize the service of the Corporation of Chennaifor the purpose of conducting an enquiry including identifyingpersons and serving notice on respective parties. The CMDA canalso cause a public notice in news papers so that no otherperson can come and claim that he had not been given any notice.Such publication in a prominent news paper will be considered assupplement notice. 25.In view of the above, Writ petition No.29809 of 2004will stand disposed of on the above terms. In the light of thesaid direction, there is no necessity to pass any order inW.P.No.12909 of 2009. Hence W.P.No.12909 of 2009 stands closed.However, there will be no order as to costs in both WPs.Consequently, the connected miscellaneous petitions standdismissed.26.Before conclusion, it must be observed that it was https://hcservices.ecourts.gov.in/hcservices/ rather unfortunate that inspite of a specific direction given bythe Division Bench followed by another order of this Court in asubsequent writ petition, statutory authorities have notunderstood the scope of the order. They have deliberatelydiscarded the directions issued by this Court. Further, eventhough interim stay was obtained restraining them from furtheracting in the matter as early as in the year 2004, they have notcared to take steps to file a counter affidavit and for vacatingthe interim order, so that further directions could have beengranted by this court at an earlier point of time. One begins towonder whether behind these moves there is a corrupt motive sothat by passing wrong orders, the so called affected parties canmove the Court easily and get everything stalled for many yearsand that the statutory authorities can conveniently shift theblame on court delays. It must be noted that Law cannot be aconvenient arm of oppression by the State but at the same time,it cannot be used to achieve some collateral gains neverintended by law makers. The respondents should not think thatthey need the help of some private individual or organizationsto come to their rescue in getting the matters decided one wayor other.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Commissioner, Corporation of Chennai, Ripon Building, Chennai-600 003.2.The Member Secretary, Chennai Metropolitan Development Authority, Thallamuthu Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008.3.The Chief Administrative Officer, Management Committee, Koyambedu Market Complex, Koyambedu, Chennai-600 092.+1cc to Mr.R.G.Narendhiran, Advocate Sr 64395+1cc to Ms.C.C.Uma, Advocate Sr 64237GR(CO)km/9.12.W.P.NOs.29809 of 2004 and 12909 of 2009