w.P.No.12909 of 2009
2.The Member Secretary, Chennai Metropolitan Development Authority, Thallamuthu Natarajan Building, No.1, Gahdi Irwin Road, Egmore, Chennai-600 008 .. Respondent in W.P.No.29809 of 2004 and 2nd respondent in W.P.No.12909 of 2009
3.The Chief Administrative Officer, Management Committee, Koyambedu Market Complex, Koyambedu, Chennai-600 092. .. Respondent No.3 in W.P.No.12909 of 2009 W.P.No.29809 of 2004 is preferred under
Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order passed by the respondent in Lr.No.K1/1194/2004, dated 7.10.2004 and to quash the same and to forbear the respondent from in any manner interfering with the retail trade in flowers by the members of the petitioner Association in private property and in particular at No.29, Badrian Street, Chennai-600 001.
W.P.No.12909 of 2009 is preferred under
Article 226 of the Constitution praying for the issue of a writ of mandamus directing the respondents 1 to 3 not to permit the wholesale trade of perishable goods in Chennai Metropolitan area except in the Koyambedu Wholesale Market Complex which is specially notified as the Market Area under Section 2(7) read with Section 4 of the Tamil Nadu Specified Commodities Markets (Regulation of 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.12909/2009 For Respondents : Mr.I.Paranthaman for CMDA Mr.Md.Ghouse for Chennai Corporation
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COMMON ORDER Heard Mr.R.Gandhi, learned Senior Counsel leading Mr.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 of 2009, Mr.I.Paranthaman, learned counsel for CMDA and Mr.Md.Ghouse, learned counsel for Chennai Corporation.
2.W.P.No.29809 of 2004 is filed by Chennai Retail Flower Merchant's Welfare Association represented by its President P.Dhanraj, having his office at No.20, Bathriyan Street, Chennai-600 001. The prayer in the writ petition was to set aside the order, dated 7.10.2004 passed by the respondent CMDA, wherein and by which the members of the petitioner Association were directed to stop the wholesale trade in flower/fruit/vegetable immediately and shift the same to the Koyambedu Wholesale Market complex in terms of the notification issued 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 the writ petition, this Court passed the following orders in W.P.M.P.No.36204 of 2004, dated 14.10.2004:
"On an earlier occasion when challenge was made to the proceedings of the Commissioner abandoning selling of perishable items in Koyambedu Market Complex, this Court quashed the said proceedings by order dated 14.11.2002 in W.P.No.1272 of 2002 with a direction to the respondent to pass fresh orders. By the impugned order, the Member Secretary, Chennai Metropolitan Development Authority, placed reliance in W.P.No.26053/2004 dated 13.9.2004 passed by the Division bench to consider the representation of the petitioner therein for direction to stop the wholesale trade in perishable goods in Chennai Metropolitan Area except in Koyambedu wholesale Market Complex. The Division Bench has directed only reconsideration of the application. The impugned order has been passed without notice to the petitioner. Hence, there will be interim stay. Notice."
4.Though the interim order was granted at the stage of admission, the respondents have not so far filed any counter affidavit and had not taken any steps to vacate the stay granted.
5.It is at this juncture, Chennai Koyambedu Malar Motha Vyabarigal Sangam represented by its President M.D.Arul Viswasam had filed W.P.No.12909 of 2009 seeking for a prayer to the respondent CMDA and the Commissioner of Chennai Corporation not to permit the wholesale trade of perishable goods in Chennai Metropolitan area except in Koyambedu Wholesale Market Complex which is specially notified as the 'Market Area' under
Section 2(7) read with Section 4 of the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (Tamil Nadu Act 24/1996).
6.When that writ petition came up for hearing, on behalf of the respondent CMDA, the Commissioner for Corporation, notice was taken. Though an interim injunction was sought for restraining the respondents from permitting the wholesale trade of perishable goods in Badhrian Street and Muchi Street in George Town area, no order was given. However, a counter affidavit, dated 24.9.2009 was filed by the CMDA.
7.In that case, it was stated that flower traders in Badrian Street are carrying flower wholesale trade against the statutory prohibition under the provisions of the Tamil Nadu Act 24/1996. Once trade of a particular commodity is prohibited under the statute, no one can carry on such trade in a prohibited area. Permitting to carry on such wholesale flower trade either by direct consumption or purchase or sell will also be against the provisions of the Act. The Act has come into force with effect from 26.8.1996.
8.It was also stated that pursuant to the directions issued by 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 shift it to Koyambedu. However, an association called Chennai Retail Flower Merchants Welfare Association (registration No.134/2000), had filed W.P.No.29809 of 2004 against CMDA and also had obtained an interim stay on 14.10.2004. Therefore, the respondent CMDA was unable to take any action against the Flower Merchants of Bardian Street.
9.In paragraph 9 of the counter affidavit, it was averred as follows:
"9.I further submit that presently, the Koyambedu Planning Division of CMDA inspected the entire Badrian Street consisting of varying width of 16 feet to 20 feet gaining access from N.S.C. Bose Road in George Town area. The predominant activity is wholesale flower trade housed in Ground floor of the existing old buildings and few shops are trading stationeries, crackers and other goods. I further state that there are 138 shops of wholesale flower shops and the shops size vary from 10 sq.ft. to 200 sq.ft. Retail flower trade is also going on in the Bardian Street by vendors on the road margins."
10.In the light of the stand taken by the CMDA, when the matter came up on 22.7.2009, the earlier writ petition was directed to be heard along with the present writ petition. Thus, both writ petitions were heard together and a common order is being passed.
11.It is seen from the records that under the provisions of the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996, the term wholesale trade has been defined under
Section 2(14) of the Act. It was stated that the persons who are carrying on trade at Badrian Street come within the definition of wholesale trader. It was also stated that flower business at Badrian street is a wholesale business. If retail flower trader measures the goods in terms of litres and kilograms, then it will amount to a wholesale trade. The retail business in flower trade consists of making garlands, knitting and tying flowers in a string. The flower traders in Badrian Street are buying and selling flowers in bulk. Therefore, under the notification issued in terms of 1996 Act under
Section 7(1), any trade in the specified commodity has to be carried out actually in the market area notified under the Act and not in any other place.
12.Penal provisions are provided under Section 21 for any violation of the provisions of the Act. By the same section, Chennai City Municipal Corporation was also prohibited from establishing any market other than the specified market. But, the present case has got a long history.
13.For the purpose of convenient reference, the petitioner in the first writ petition will be referred as Flower Bazar merchants. The second writ petitioner will be referred as the Koyambedu merchants. The Koyambedu merchants filed W.P.No.9633 of 1999 before this Court, seeking for similar direction to CMDA to remove wholesale flower merchants from Badrian Street. In that writ petition, Flower Bazaar merchants got themselves impleaded as third respondent styling themselves as Chennai Malar Vyabarigal Sangam. In that writ petition, the Flower bazaar merchants contended that their trade at Badrian Street will not come under the term wholesale trade. The Act will not apply to them as they are not carrying on wholesale business. The said writ petition came to be disposed of by an order, dated 1.10.2001 on the ground that this Court had already passed an order in W.P.No.10636 of 1999, dated 1.10.2001. That writ petition was filed by the flower bazaar merchants represented by its President, which was also claimed to be a registered Association.
14.The prayer in that writ petition was to set aside the proceedings, dated 21.6.1999, by which the flower trade in the flower bazaar area was ordered to be stopped. This Court had passed the final order, dated 1.10.2001. In paragraphs 4,5 and 6 of the order, it was observed as follows:
"4.In the present case, admittedly, there is no licence issued to carry on the business by the members of the Petitioner-Sangam in the land bearing No.55, Bathrian Street, Chennai-1. It is admitted in paragraph 4 of the affidavit that the members of the Petitioner-Sangam are conducting their trade in the said place and also at Door No.7, Bathirian Street. When the members of the Petitioner Sangam are carrying business in a particular place as a group, it has to be construed that the said place is only a market.
5.As per Oxford University Dictionary, the word "market" has been defined as the meeting together of people for purchase and sale of provisions or livestock, publicly exposed at a fixed time and place, which also meets on open place or cover building in which cattle, provision etc., are exposed for sale. So, even according to the Petitioner-sangam, their place of business as stated in the affidavit has to be construed only as a market. If it is so, it is unlawful under Sec.305 of the Madras City Municipal Corporation Act. Sec.305 of the said Act prohibits persons to sell or expose for sale an article in any unlicensed private market. Private market can be established only in accordance with Sections 303 and 304 of the said aCt.
6.In view of the fact that the members of the Petitioner Sangam are carrying on the business in an unlicensed place, the 2nd respondent Commissioner is having power to ask the members of the petitioner Sangam, exercising powers under Sec.379(A) of the said Act to stop the business. So, it cannot be said that the 2nd respondent Commissioner has no power to issue the impugned proceedings. Since, the Commissioner has such power under Sec.379(A) of the said Act, I need not go into the other issue raised by the learned Senior Counsel appearing for the petitioner to the effect that provisions of the Act 24 of 1996 will not apply to the members of the Petitioner-Sangam, as they are only retailers."
15.Aggrieved by the same, the Flower Bazaar merchants in the name of Chennai Malar Vyabarigal Sangam filed a writ appeal being W.A.No.1990 of 2001. The Division Bench of this court by its final order, dated 4.10.2001 disposed of the writ appeal and observed as follows:
"In the impugned notice dated 21.6.99, the members of the appellant association are directed to stop trading in flowers on the ground that they do trade as wholesaler and in order to remove the congestion, a wholesale market has been constructed at Koyambedu for wholesale trading in flower. Hence, wholesale trading in flowers in George Town area is prohibited. We are dealing with other aspects as Mr.R.Gandhi, learned Senior Counsel appearing for the appellant submits that not all the members of the appellant association are wholesale traders in flowers, but they are only retailers. It is not disputed that if one is retailer, then he can trade in the George Town area. The requirement of obtaining licence will be decided by the statutory authority who is empowered to issue such licence. But one submitted fact is that before issuing the impugned notice dated 21.6.99 no prior notice was issued so as to decided whether some of the members of the appellant association are wholesalers or retailers in flower business. Only the retailer, the issue regarding the issuance of licence can arise. If really some of the members of the appellant association are wholesalers in flowers trading, even the authority under the Madras City Municipal Corporation Act, 1919, cannot grant licence for the reason that they had to shift their business to Koyambedu where a provision is made for wholesalers in flower trading. On the other hand, if some of the members of the appellant association are retailers, then, such measures, as provided under the Act regarding the requirement of licence can be enforced against the members of the appellant association, who are retail flower traders. In the circumstances, this Writ Appeal is disposed of with a direction that a notice be issued to the appellant association, which in turn, will inform all its members and submit a reply. After fixing a date for enquiry and after giving opportunity to such persons nominated by the appellant association of being heard, an order be passed by the respondents in accordance with the observations made supra. The above exercise shall be made within a period of one month from the date of receipt of a copy of this judgment. Till then, the action mentioned in the notice dated 21.6.99 issued by the Chennai Corporation, Division-II shall not be enforced. No costs. Connected Miscellaneous Petition is closed as unnecessary." (emphasis added)
16.As can be seen from the above, notice was to be given only to the Chennai Malar Vyabarigal Sangam, which in turn will have to inform to all their members. Accordingly, the Corporation on 18.1.2002 passed an order. In the operative portion of the order it was observed as follows:
"It is further pointed out that yourself and members of your sangam are doing wholesale flower trade at Bardian Street, Chennai. Since the area has been banned by the CMDA for selling perishable items and Koyambedu Market Complex is declared as market for wholesale trading you have no locus standi to sell perishable items on wholesale basis. Hence your request for permitting the selling of the flower at Badrian Street is not considered and rejected. Hence you and the members of your sangam are requested to close the business immediately, failing which, this office will take action to seal the premises by due process of law."
17.Once again, the Flower Bazaar merchants in the name of Chennai Malar Viyabarigal Sangam filed another writ petition being W.P.No.1272 of 2002. This Court observed that while passing the order, no enquiry was held as directed by the earlier Division Bench. Therefore, in the order dated 14.11.2003, it was directed as follows:
"11....As observed in the decision of the Supreme Court, in the light of the objection of the members of the petitioner Sangam, it is but proper for respondents, particularly first respondent to afford an opportunity, receive oral and documentary evidence if any and give a specific finding, namely, whether the members of the Petitioner Sangam are doing retail or whole sale business in flowers at Badriyan Street. As observed earlier, the reading of the impugned proceedings does not show that respondents 1 and 2 have resorted to such recourse. In such a circumstance, in the light of the specific order of the Division Bench dated 04.10.2001, this Court has no other option, except to quash the impugned proceedings of the first respondent dated 18.01.2002 and the matter is remitted to the first respondent for passing fresh orders as directed in the Division Bench order dated 04.10.2001."
18.In the meanwhile, an Association named as Chennai Retail Flower Merchants Welfare Association with registration No.134/2000 came to be registered on 31.1.2000 under the Tamil Nadu Societies Registration Act. When that association whose members were operating from Badrian Street and George Town was given notice on 7.10.2004 asking them to stop their wholesale trade in flower and shift their business to Koyambedu Wholesale Market Complex, they have come forward to file the writ petition No.29809 of 2004.
19.It is also seen that one General Pushpa Vyabarigal and Commission Agentugal Sangam represented by its President T.M.Gnanam had filed a writ petition in W.P.No.26053 of 2004, seeking for a direction to respondent to stop the wholesale trades in perishable goods in Chennai Metropolitan area except in Koyambedu wholesale market complex and the same was disposed of by this court with a direction to consider the representation of that association. Permission was granted to give notice to affected persons. Pursuant to the same, the notice dated 7.10.2004 was given to Flower Bazaar merchants asking them to appear in the meeting under the Chairmanship of Chief Planner, CMDA.
20.Mr.R.Gandhi, learned Senior Counsel for the Flower Bazaar merchants contended that on the same day, i.e. on 7.10.2004, CMDA cannot pass final orders contrary to the earlier order passed by this Court in W.P.No.1272 of 2002 and yet ask the members to appear for a meeting convened by CMDA and the Corporation. This contradictory stand of the respondents forced them to approach this court to enforce order gained by the merchants at Badrian Street.
21.However, Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the Koyambedu merchants stated that in the guise of an interim order, the Flower Bazaar merchants are carrying out an illegal trade. Therefore, the matter should be disposed of expeditiously. Their purpose of filing the writ petition was to expedite the disposal of the writ petition filed by the Flower Bazaar merchants who are happily carrying on their trade for the last 5 years thanks to the interim order. If that writ petition is disposed of one way or other, the Koyambedu merchants' grievance will be solved.
22.It is no doubt true that in passing the order dated 7.10.2004 impugned in W.P.No.29809 of 2004, CMDA did not keep in mind the order passed by this court in W.P.No.1272 of 2002. In that judgment, this court had set out the mode of exercise of power by the respondent before ordering them to restrain from carrying on their trade. Therefore, the order dated 7.10.2004 is clearly in violative of the earlier order passed by this Court. Yet, at the same time, the Flower Bazaar merchants cannot form different associations and claim different rights. By registering a new society, they cannot claim any new right other than the right which had been given by the Division Bench in W.A.No.1990 of 2001, dated 4.10.2001. Therefore, it is necessary that the respondents should be directed to adhere to the order of the Division Bench, dated 4.10.2001 in w.A.No.1990 of 2001 and pass appropriate orders.
23.It must be stated that the show cause notice will be issued on the basis of the stand taken by the respondent in the counter affidavit, dated 24.9.2009 in W.P.No.12909 of 2009 that there are 138 shops of wholesale flower shops in Badrian Street. All those traders are bound to be evicted if they are found to carry on trade in flowers as directed by the Division Bench.
24.Hence notice will be given to Chennai Retail Flower Merchants Welfare Association with registration No.134/2000 represented by its President at No.29, Badrian Street within one week from the date of receipt of the copy of this order. The said association will in turn inform all its members as well as furnish a list of members with addresses to the CMDA. The CMDA on fixing the date for an enquiry, shall give an opportunity to those persons either individually or to a nominee of the association. After hearing them, it can pass an appropriate order. This exercise should be undertaken within one month from the date of receipt of this order. Till such time CMDA passes an order, status quo as on date shall continue. However, CMDA is entitled to utilize the service of the Corporation of Chennai for the purpose of conducting an enquiry including identifying persons and serving notice on respective parties. The CMDA can also cause a public notice in news papers so that no other person can come and claim that he had not been given any notice. Such publication in a prominent news paper will be considered as supplement notice.
25.In view of the above, Writ petition No.29809 of 2004 will stand disposed of on the above terms. In the light of the said direction, there is no necessity to pass any order in W.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 stand dismissed.
26.Before conclusion, it must be observed that it was rather unfortunate that inspite of a specific direction given by the Division Bench followed by another order of this Court in a subsequent writ petition, statutory authorities have not understood the scope of the order. They have deliberately discarded the directions issued by this Court. Further, even though interim stay was obtained restraining them from further acting in the matter as early as in the year 2004, they have not cared to take steps to file a counter affidavit and for vacating the interim order, so that further directions could have been granted by this court at an earlier point of time. One begins to wonder whether behind these moves there is a corrupt motive so that by passing wrong orders, the so called affected parties can move the Court easily and get everything stalled for many years and that the statutory authorities can conveniently shift the blame on court delays. It must be noted that Law cannot be a convenient arm of oppression by the State but at the same time, it cannot be used to achieve some collateral gains never intended by law makers. The respondents should not think that they need the help of some private individual or organizations to come to their rescue in getting the matters decided one way or other.
vvk To
1.The Commissioner, Corporation of Chennai, Ripon Building, Chennai-600 003.
2.The Member Secretary, Chennai Metropolitan Development Authority, Thallamuthu Natarajan Building, No.1, Gahdi Irwin Road, Egmore, Chennai-600 008.
3.The Chief Administrative Officer, Management Committee, Koyambedu Market Complex, Koyambedu, Chennai 600 092