Sivagangai Municipality, rep. by its President, Sivagangai Municipality, Sivagangai v. C. Meenakshisundaram
2009-01-20
N.PAUL VASANTHAKUMAR
body2009
DigiLaw.ai
JUDGMENT N. PAUL VASANTHAKUMAR, J. By consent of both sides, both the Civil Revision Petitions are taken up for final disposal. 2. C.R.P. (PD) (MD) No. 2479 of 2008 is filed under Article 227 of Constitution of India, challenging the order made in LA. No. 963 of 2008 in O.S. No. 170 of 2008 on the file of the District Munsif Court, Sivagangai, by order dated 26.11.2008. 3. LA. No. 963 of 2008 in O.S. No. 170 of 2008 is filed seeking interim injunction restraining the petitioners herein from preventing or cancelling the collection of licence amount from the daily market, 61 stalls and 10 shops for the year 2008-2009, till the disposal of the original Suit. Prayer in O.S. No. 170 of 2008 is for temporary injunction restraining the petitioners herein from cancelling the licence and not to prevent the peaceful collection of licence fee from the daily market, 61 stalls and 10 shops. 4. C.R.P. (PD) (MD) No. 2480 of 2008 is filed under Article 227 of Constitution of India, challenging the order made in I.A. No. 965 of 2008 in O.S. No. 171 of 2008 on the file of the District Munsif Court, Sivagangai, by order dated 26.11.2008. 5. In I.A. No. 965 of 2008 in O.S. No. 171 of 2008 the respondent prayed for an ad interim injunction restraining the petitioners herein from preventing or cancelling the collection of licence amount from the weekly market for the year 2008-2009, till the disposal of the Suit. Prayer in O.S. No. 171 of 2008 is for temporary injunction preventing the petitioners herein from cancelling the agreement granting licence till 31.3.2009 and not to prevent the respondent from collecting the fee as per the agreement. 6. The case of the respondents in these Civil Revision Petitions are that they have been granted licence to collect the fee for the year 2008-2009 pursuant to the auction conducted and they have deposited the full licence amount. The period of licence is from 1.4.2008 to 31.3.2009. According to the respondents herein, the said licence was sought to be cancelled without any reason based on the alleged Complaints and if the same is allowed to be cancelled, irreparable loss would be sustained by the respondents as the period of licence is to expire only on 31.3.2009. Hence, the Original Suits and the Injunction Applications were filed by the respective respondents. 7.
Hence, the Original Suits and the Injunction Applications were filed by the respective respondents. 7. The learned District Munsif ordered notice in the Interim Applications and the petitioners were served with notices in the Injunction Applications on 20.10.2008. 8. It is the case of the petitioners that since injunction was not granted, the licences were cancelled on 10.11.2008 and when the enquiry was conducted in the Injunction Applications on 26.11.2008, the licences having been already cancelled, the Suits themselves have become infructuous and therefore the grant of interim injunction by the learned District Munsif in the above Suits is unsustainable. 9. Mr. G.R. Swaminathan, learned counsel for the Revision Petitioners argued that since power is vested with the petitioner Municipality by the State Government to suspend, cancel or modify the licence in terms of Section 36 of the Tamil Nadu District Municipalities Act, 1920, the original Suits cannot lie. The learned counsel further argued that on the date when the interim injunction was granted i.e., on 26.11.2008, the licences themselves were cancelled and therefore there is no cause of action to grant injunction as on 26.11.2008. 10. Mr. A.S. Vijayaraghavan, learned counsel for the respondent in these Revision Petitions on the other hand submitted that the Suits were filed on the basis of the rights of the respondents herein to collect licence fee till 31.3.2009 without any interruption and the Civil Court having entertained the Suits and having ordered notice in the Injunction Applications, which were also received by the petitioners as early as on 20.10.2008, the petitioners ought not to have cancelled the licences by resolution dated 10.11.2008 as the same amounts to over-stepping/frustration of the Court proceedings and taking note of the above facts, the Court below ordered injunction by a detailed order and there is no illegality in the said order. The learned counsel also submitted that the allegation that the respondents are collecting more than the prescribed fee than the one authorised by the Municipality is imaginary and no excess collection as alleged is made and if any excess collection is made, the petitioners can issue show cause notice and take appropriate action.
The learned counsel also submitted that the allegation that the respondents are collecting more than the prescribed fee than the one authorised by the Municipality is imaginary and no excess collection as alleged is made and if any excess collection is made, the petitioners can issue show cause notice and take appropriate action. The learned counsel pointed out that in the Undertaking Affidavit filed in this Court on 7.1.2009, the respondents undertook not to collect any excess amount other than the amount authorised by the Municipality as per the notification issued by the Municipality, from the vendors in the weekly market as well as in daily market, 61 stalls and 10 shops, respectively, and also undertook to issue receipts immediately after collecting the amount. The learned counsel further submitted that the period of licence is yet to be over, which extends upto 31.3.2009, the respondents are entitled to collect the licence fee as authorised by the revision petitioner Municipality. The learned counsel also argued that the cancellation order having been made during pendency of the Injunction Applications as well as the main Suits, the same will be subject to the result of the Injunction Applications as well as the main Suits and the respondents are also taking steps to amend the prayer in the Suits in view of the resolution passed by the petitioner-Municipality. 11. I have considered the rival submissions made by the learned counsel for the petitioners as well as respondents. 12. Admittedly, the respondents are given the right to collect the licence fee for the year 2008-2009 i.e., from 1.4.2008 to 31.3.2009. The respondents, apprehending interference by the Municipality in their collection of licence fee, have chosen to file Original Suits as well as Interim Injunction Applications before the Distirct Munsif Court, Sivagangai. The Suits were taken on file by the learned District Munsif and ordered notice in the Injunction Applications, which was admittedly served on the petitioner Municipality on 20.10.2008. As on 20.10.2008, admittedly the licence was not cancelled. The hearing date was also given as 23.10.2008 and on the said date the first petitioner failed to appear and he was set ex parte. The second petitioner appeared and filed vakalat through his counsel and the learned District Munsif granted time till 30.10.2008 for filing counter affidavit.
As on 20.10.2008, admittedly the licence was not cancelled. The hearing date was also given as 23.10.2008 and on the said date the first petitioner failed to appear and he was set ex parte. The second petitioner appeared and filed vakalat through his counsel and the learned District Munsif granted time till 30.10.2008 for filing counter affidavit. The first petitioner alsb filed Application to set aside the order declaring the first petitioner as ex parte, which was also allowed. Thus, it is clear that the matter in issue as to whether the respondents are entitled to get interim injunction was pending and the petitioners herein took time to file counter. 13. It is also on record that without filing counter affidavits before the learned District Munsif, Sivagangai, and after seeking time to file counter affidavit, the Municipality passed resolution to cancel the licences on 10.11.2008, which is to be treated as over-stepping to frustrate the Court proceedings and to non-suit the respondents, who are plaintiffs in the original suits. The Chairman of the Sivagangai Municipality has filed an affidavit stating that the Municipality sought for legal opinion and no prohibitory order of injunction having been passed, the Municipality proceeded with the proposed Municipal Council Meeting and cancelled the licences granted to the petitioners. The said affidavit also discloses the fact that during pendency of the Injunction Applications, resolution was passed cancelling the grant of licences. The said action of the Municipality cannot be condoned and if such kind of over-reaching the Court proceedings are allowed, the litigants may tend to ignore the Court proceedings and act according to their whims and fancies. Such kind of action of the petitioners cannot be condoned as rightly held by the learned District Munsif. 14. The learned District Munsif also took note of the period of licence granted from 1.4.2008 till 31.3.2009 and the respondents were collecting the licence fee pertaining to the weekly market as well as daily market, 61 stalls and 10 shops. The learned District Munsif further noted that the show cause notice issued to the respondents are to place the price list at the entrance of the weekly market within three days and to issue receipts with the seal of the Municipality, failing which further action would be taken.
The learned District Munsif further noted that the show cause notice issued to the respondents are to place the price list at the entrance of the weekly market within three days and to issue receipts with the seal of the Municipality, failing which further action would be taken. No explanation was sought for by the petitioners from the respondents as to why the licences granted to collect the licence fee shall not be cancelled. The same could be found from Exihibit R-4. The materials relied on to cancel the licences viz., the Complaints of the Council Exhibit R-7 is also dated 16.10.2008 i.e. after filing of the Suits. 15. Taking note of all the above facts and having regard to the documents above referred relied on by the revision petitioners, which are all subsequent to filing of the Suits, which cannot be relied on as per the judgment of the Supreme Court in AIR 2002 SC 1428 : (2002) 3 SCC 634 : (2002) 2 MLJ 198 : 2002 (2) CTC 173 (SC), the learned District Munsif has chosen to grant interim injunction in favour of the respondent in these Revision Petitions. 16. The orders passed in the Interlocutory Applications under Order 39, Rules 1 and 2 of the Code of Civil Procedure are appealable orders. Admittedly Appeal lies before the District Court under Section 96 of the Code of Civil Procedure. It is well settled in law that Revision under Article 227 of the Constitution of India is maintainable only if no other remedy is available to the party filing the Revision Petition. In the decision in (2008) 2 MLJ 139 : 2008 (1) CTC 22 5, this Court held that if an effective alternate remedy is available, the party cannot file Revision Petition under Article 227 of the Constitution of India. 17. In the cases on hand, the action of the Municipality in cancelling the licences granted to the respondents herein when the Civil Court is seized of the matter, is an act of interference in the administration of justice. The contention of the Municipality that it has no other option except to cancel the licences, cannot be accepted. Nothing prevented the Municipality to file a detailed counter affidavit in the Interlocutory Applications and pray for dismissal of the injunction applications.
The contention of the Municipality that it has no other option except to cancel the licences, cannot be accepted. Nothing prevented the Municipality to file a detailed counter affidavit in the Interlocutory Applications and pray for dismissal of the injunction applications. Enquiry in the Interlocutory Applications could not be conducted due to the non-filing of counter affidavit by the petitioners. Therefore, the Municipality is not justified in blaming the Court for not conducting enquiry in the Interlocutory Applications. While considering the supervisory jurisdiction of this Court, this Court is also bound to take note of the attitude of the Municipality, namely the defendants in the Suit. There is no error of jurisdiction or any perversity in the finding given by the Court below to interfere with the said finding. 18. The finding of fact cannot be interfered with by the High Court exercising the power of supervisory jurisdiction since the same can be gone into only by the Appellate Court. In the decision in AIR 2000 SC 3495 : (1999) 9 SCC 264 , the Honourable Supreme Court considered the said aspect and in paragraph 5 held thus: "......findings of fact could not have been interfered by the High Court (in exercise of its jurisdiction under Article 227 of the Constitution. Jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an Appellate Court only. This High Court, thus, exceeded the jurisdiction vested in it by upsetting finding of fact and the impugned order, suffers from a jurisdictional defect. On this short ground, the Appeals must succeed and are allowed. The judgment of the High Court is set aside. The eviction ordered against the respondent is maintained." 19. Considering the fact that the respondent in these Revision Petitions have filed Undertaking Affidavit stating that they will collect only the authorised fee and also issue receipts and also of the fact that the period of licence is available till 31.3.2009,1 do not find any illegality in the orders of the Court below. The Civil Revision Petitions are dismissed. No costs. Connected Miscellaneous Petitions are also dismissed. Petitions dismissed.