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2012 DIGILAW 2913 (MAD)

E. Manoharan v. Chief Executive Officer

2012-07-10

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner, being aggrieved by the order, issued vide Letter No.MEC/A2/1783/2012, dated 20.02.2012, passed by the first respondent, directing sealing of his shop, has invoked the extraordinary equitable jurisdiction of this Court under Article 226 of the Constitution of India. 2. The facts leading to filing of this writ petition are: (i) that Chennai Metropolitan Development Authority (CMDA) has constructed Koyambedu whole sale market complex, Koyambedu for dealing with perishable goods and also developed the complex for flower, fruits and vegetable market. (ii) that the market is regulated by the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (hereinafter referred to as the 'Act'). (iii) that the CMDA allotted these shops in the vegetable market to whole sale traders on hire purchase agreement. (iv) that the shop originally known as A5 type shop, New No.G-128 measuring 203.15 sq.ft at Periyar Vegetable Market at Koyambedu Whole-Sale Market Complex, was allotted to Thiru Arumugam/respondent No.3, (v) that Thiru Arumugam executed an agreement for sale dated 03.02.1989 in favour of respondent no.4 along with an indemnity bond and affidavit dated 03.02.1989 in favour of respondent no.4 as also Madras Metropolitan Development Authority. This fact is disputed by the respondent No.3 and a civil suit regarding dispute of title is pending in the Civil Court. (vi) that on 23.01.1992, Thiru S.Arumugam executed a general power of attorney in favour of respondent No.4, and gave him full authority to deal with the shop bearing No.G-128. (vii) that the respondent no.4 executed a lease agreement with the petitioner for running the business of whole sale onion business under the name and style of Raj Traders (viii) that the petitioner is paying the lease rent to the respondent No.4 regularly and the Tamil Nadu Electricity Board also has installed electricity connection No.176-049-795 in the name of the third respondent. This connection has been disconnected on the instruction of respondent No.1. (ix) that on 29.10.2011, the respondent no.4 informed the petitioner, that all the installments under the hire purchase agreement stood paid to the Chennai Metropolitan Development Authority and a sale deed also was executed in favour of the respondent no.3. Therefore, it is the admitted case of the parties, that as on date, respondent no.3, is the registered owner. (ix) that on 29.10.2011, the respondent no.4 informed the petitioner, that all the installments under the hire purchase agreement stood paid to the Chennai Metropolitan Development Authority and a sale deed also was executed in favour of the respondent no.3. Therefore, it is the admitted case of the parties, that as on date, respondent no.3, is the registered owner. This fact is disputed by respondent no.6, who claims to be registered owner in pursuance to the registered sale deed dated 31.10.2011, executed by respondent no.3 in favour of respondent no.6. This dispute is also pending in the Civil Court. 3. In view of pendency of civil suit with regard to the title of property, the question regarding title cannot be adjudicated in exercise of writ jurisdiction. It shall be open to the parties to get their dispute regarding title and right of possession adjudicated in the Civil Court, without any reference to the observation made in this judgment. 4. The grievance of the petitioner is that the respondent No.1, in violation of the provisions of the Act, stopped the business of the petitioner by sealing the shop. 5. It is also submitted, that after illegally sealing the shop, now steps are being taken to hand over the possession to the respondents, without any authority of law. 6. The action of the respondent in sealing the petitioner's shop is challenged, being arbitrary and being violative of the provisions of the Act, therefore, not sustainable in law. 7. The writ petition is contested by the respondents. The third respondent has disputed the transfer of title in favour of the fourth respondent as also his right to lease out the property to the petitioner. 8. It is contended by learned counsel for the respondent no.3, that in the civil suit, regarding title is pending, in which an order of status quo has been ordered, therefore, this writ petition, as framed, is not competent. 9. This contention cannot be gone into, as this Court is not deciding the dispute regarding title or with regard to the rights of parties under the sale deed or settlement deed, or as to who is entitled to possession. The parties are to maintain status quo as ordered. 10. 9. This contention cannot be gone into, as this Court is not deciding the dispute regarding title or with regard to the rights of parties under the sale deed or settlement deed, or as to who is entitled to possession. The parties are to maintain status quo as ordered. 10. Learned counsel appearing on behalf of the respondent no.6 contends, that Thiru C.Manimaran is the registered owner of the property, who has been granted license to run the business in the shop, therefore, the petitioner cannot claim possession of the shop in dispute in absence of any title to the property. 11. This question again cannot be gone into in this writ petition, as it is for the respondent no.6 to take possession of the property from petitioner in accordance with law, nor it is within the jurisdiction of respondent no.1 to decide about the title or with regard to possession. 12. It is not in dispute, that the possession of the shop was taken from petitioner, when it was sealed by respondent no.1. 13. The respondent no.1 contested the writ petition, on the ground that the writ, as framed, is not maintainable, as the petitioner cannot claim the right to run the business in the market in violation of the provisions of the Act. 14. In support of this contention, learned counsel for respondent no.1 referred to Sections 20 and 21 of the Act, which read as under: "20. Registration of wholesale traders:-The Chief Administrative Officer of every market committee shall maintain a register, for every specified commodity for registering the wholesale traders, in such form and in such manner as may be prescribed. (2) As soon as may be, after any area is declared to be a market area for any specified commodity, the Chief Administrative Officer shall issue a notice in such form and publish it in such manner as may be prescribed, inviting all the wholesale traders actively engaged in the wholesale trade of such specified commodity in the local area immediately before the date of publication of the notification under sub-section (1) of section 4. (3) Every person other than the persons referred to in sub-section (2) intending to carry on the wholesale trade of such specified commodity in any market area shall also apply to the Chief Administrative Officer for registering his name with the market committee. (3) Every person other than the persons referred to in sub-section (2) intending to carry on the wholesale trade of such specified commodity in any market area shall also apply to the Chief Administrative Officer for registering his name with the market committee. (4) The application for such registration shall be made in such form and shall be accompanied by such fees and documents as may be prescribed. (5) The Chief Administrative Officer shall consider all applications received by him and if he is satisfied on making such further inquiry, if any, as he may deem fit that n applicant was actively engaged, in or intending to carry on the wholesale trade, he shall include his name in the register maintained by him under sub-section (1) and inform the applicant accordingly. Even such registered wholesale trade shall be eligible to get a licence as provided in section 21. (6) If the Chief Administrative Officer refuses to register the name of the person who has applied for the same, he shall communicate his decision in writing with reasons therefor to such person; Provided that no order under this sub-section shall be passed unless the person concerned is given a reasonable opportunity of being heard. (7) If the Chief Administrative Officer, on application make to him or information received by him or on his own motion, is satisfied after such inquiry as he deems fit, that any entry in the register is erroneous or defective in any particular or should be omitted on the ground that the person concerned has ceased to carry on the wholesale trade in such specified commodity, he may, after giving the affected person a reasonable opportunity of being heard, amend or omit the entry in the register. (8) Any person aggrieved by any decision of the Chief Administrative Officer in regard to the refusal of registration or amendment or omission of any entry of his name in the register, may make an appeal in writing to the local authority within such period as may be prescribed. (9) The decision of the Chief Administrative Officer, in regard to such registration, and where an appeal is made against such decision, the decision of the local authority, shall be final. (9) The decision of the Chief Administrative Officer, in regard to such registration, and where an appeal is made against such decision, the decision of the local authority, shall be final. 21.Wholesale trading in specified commodity in market area to be regulated by licence:- (1) On and after the date specified by the local authority, by notification (hereafter in this section referred to as the notified date), no person shall, within a market area:- (a) set up, establish or use, or continue or allow to be continued, any place for the wholesale trade of any specified commodity; or (b) operate as weighman, measurer, trader, warehouseman or in any other capacity in relation to the wholesale trading of any specified commodity; or (c) carry on any wholesale trade of any specified commodity in any place in the market area other than in the market or special market, as the case may be, except under, and in accordance with the conditions of, a licence granted to him in that behalf by the market committee under this Act: Provided that: (i) all others granting, renewing, refusing to grant or refusing to renew, cancelling or suspending any licence shall be in writing and no order refusing to grant or renew or cancelling or suspending a licence shall be made without giving the person concerned a reasonable opportunity of stating his case; (ii) the reasons for any such refusal, cancellation or suspension of a licence shall be recorded in writing; (iii)the market committee shall not refuse to grant an initial licence to any registered wholesale trader. (2) Nothing contained in sub-section(1) shall apply to a Warehousing Corporation established or maintained by the State or Central Government or a warehouseman licensed under the Tamil Nadu Warehouses Act, 1951 (Tamil Nadu Act XV of 1951) in respect of storage, weighment or measurement of any specified commodity accepted for warehousing. (2) Nothing contained in sub-section(1) shall apply to a Warehousing Corporation established or maintained by the State or Central Government or a warehouseman licensed under the Tamil Nadu Warehouses Act, 1951 (Tamil Nadu Act XV of 1951) in respect of storage, weighment or measurement of any specified commodity accepted for warehousing. (3) A licence under sub-section (1) may be refused to a person:- (a) whose licence was cancelled, and a period of three years has not elapsed since the date of the cancellation; or (b) who has been convicted of an offence where such offence relates to his business or his integrity as a man of business; or (c)in regard to whom the market committee is satisfied, after such enquiry as it considers adequate, that he is a benamidar for, or a partner with, any other person to whom a licence may be refused under clause (a) or clause(b). (4) If a market committee is satisfied, either on a reference made to it in this behalf, or otherwise, that- (a) a licence granted under sub-section (1) has been obtained by misrepresentation or fraud, or (b)the holder of a licence has contravened, or failed to comply with, any of the provisions of this Act or the rules or by-laws made under this Act, the market committee may, subject to such rules as ay be made in this behalf, cancel or suspend the licence, after giving the holder of the licence a reasonable opportunity of showing cause against such cancellation or suspension. (5) Any person aggrieved by the decision of the market committee- (a) refusing to grant, or (b) cancelling or suspending, a licence may, within such time as may be prescribed, appeal to the local authority and the local authority may make such order in the case as it may think fit. (6) A license granted under sub-section (1) shall be valid for a period of three years and may be renewed, from time to time, and the provisions of this Act shall, so far as may be, apply in relation to the renewal of a licence as they apply in relation to the grant of licence. (7) Every person to whom a licence is granted under sub-section(1) shall comply with the provisions of this Act, the rules and by-laws made under this Act and the conditions specified in the licence. (7) Every person to whom a licence is granted under sub-section(1) shall comply with the provisions of this Act, the rules and by-laws made under this Act and the conditions specified in the licence. (8) (a) Notwithstanding anything contained in any law for the time being in force, no local authority, including the (Chennai City Municipal Corporation constituted under the Chennai City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) having jurisdiction over the market area, shall, on and after the notified date, establish, authorise or continue, or allow to be established, authorised or continued, any place in the local area including the market area as a market or a place to carry on the wholesale trade in respect of any specified commodity and any permission or licence already granted by such local authority shall stand cancelled on the notified date. (b) Upon such cancellation of any permission or licence, if the holder of such permission or licence refuses to discontinue his wholesale trade in respect of any specified commodity in the place referred to in clause(a), the market committee may, by notice in writing, direct such person, within a period of one month or such further period as may be specified therein, to stop carrying on the wholesale trade in such place. (c) f any direction given under clause (b) is not complied with, within the time specified in the notice, the market committee may, without prejudice to any penalty that may be imposed for any contravention of the provisions of this section, have such direction carried into effect at its cost and have the amount thereof recovered from the defaulter in the same manner as arrears of land revenue. (d) Upon such cancellation of any permission or licence, the holder of such permission or licence shall not be entitled to claim and receive any compensation, but shall be entitled to claim and receive such amount towards refund of the fees paid by hi, as is proportional to the unexpired period of such permission or licence." 15. The reading of Sections 20 and 21 shows, that learned counsel is right in contending, that the petitioner does not have any right to run the business in the premises in dispute, as admittedly he does not have valid licence under the Act to run the business. The reading of Sections 20 and 21 shows, that learned counsel is right in contending, that the petitioner does not have any right to run the business in the premises in dispute, as admittedly he does not have valid licence under the Act to run the business. The contention of learned Senior Counsel for the petitioner, that the petitioner has applied for licence also cannot entitle him to run the business, till the licence is granted. 16. Learned senior counsel for the petitioner challenged the action of the respondents in stopping the business of petitioner, on the ground that it was in violation of principle of natural justice, as no notice was issued to petitioner before stopping the business run by the petitioner. This contention cannot be accepted. The petitioner cannot seek the relief in nature of Mandamus, to carry on the business against the provisions of law. It is not disputed that in absence of valid licence, nobody can run the business in the market, therefore, the petitioner has no right to run any business. The setting aside of order would amount to allowing the petitioner to run business without valid license. 17. However, there is force in the contention raised by the learned Senior Counsel for the petitioner, that it was not open to the respondent no.1 to seal the shop. As there is no provision under the Act, which authorizes respondent no.1 to seal the premises for violation of the provisions of the Act. The respondent no.1 can only stop the business being run in violation of the provisions of the Act, and take other steps under Act, for violating the provisions, but this does not include sealing of shop, as it can only be done by the Civil Court. The prayer of petitioner for prohibiting the respondent from interfering with the running of business by petitioner is declined, it shall be open to the respondent no.1 to stop the business of petitioner in absence of licence. 18. However, the limited prayer of petitioner for removal of seal is accepted, and a writ in the nature of Mandamus is issued, directing the respondent no.1 to remove the seal and hand over the possession of the shop to the petitioner from whom the possession was taken. 19. 18. However, the limited prayer of petitioner for removal of seal is accepted, and a writ in the nature of Mandamus is issued, directing the respondent no.1 to remove the seal and hand over the possession of the shop to the petitioner from whom the possession was taken. 19. It is made clear that it shall be open to the Civil Court to decide the dispute regarding the title of property and also determine the rights of the parties to have possession of the shop, without any reference to the order of this Court. 20. At the sake of repetition, it is ordered, that respondent no.1 shall be entitled to prohibit the petitioner from running the business in the premises in absence of valid license. 21. No costs. Consequently, connected miscellaneous petitions are closed.