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M.Ingaci vs The Commissioner on 5 February, 2010

Madras High Court
M.Ingaci vs The Commissioner on 5 February, 2010
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05/02/2010

CORAM
THE HONOURABLE MRs.JUSTICE PRABHA SRIDEVAN
and
THE HONOURABLE MR. JUSTICE B.RAJENDRAN

WRIT APPEAL (MD) No.38 OF 2010
and
M.P.(MD)No.1 of 2010

M.Ingaci                                 ..  Appellant

vs

1.The Commissioner,
  Devekottai Municipality,
  Devekottai,
  Sivagangai District.

2.The Revenue Divisional Officer,
  Devakottai,
  Sivagangai District.

3.The Sub Collector,
  Sivagangai District,
  Sivagangai.

4.The Deputy Director of
   Health Services,
  Sivagangai District.

5.T.Ramasamy

6.M.Jacquline Dulice

7.M.S.Periyasamy

8.N.Subramanian

9.K.R.Rajathi

10.Velvizhi                           ..   Respondents



Writ Appeal filed under Clause 15 of the Letters Patent against the order
of this Court dated 30.10.2009 made in W.P.(MD)No.4214 of 2009.


!For appellant	        ... Mr.D.Sadiq Raja
^For respondents 2 to4  ... Mr.R.Janakiramulu,
                            Spl.Govt.Pleader

For 1st respondent      ... Mr.M.C.Swamy
For 5th respondent      ... Mr.J.Anand Kumar
	

:JUDGMENT

(Judgment of the Court was delivered by PRABHA SRIDEVAN, J)

The Writ Petition of the writ petitioner/appellant was allowed but yet, he
is aggrieved. According to him, certain factors were not taken note of, by the
learned single Judge, which has resulted in directions being issued to the first
respondent.

2. The appellant is running a cement sales shop. It is evident from the
typedset of papers that he is not allowed one moment of peace because of the
fifth respondent.

3. The fifth respondent filed several Writ Petitions and finally, by order
dated 17.3.2007 in Writ Petition (MD) No.10799 of 2006, he was severely
reprimanded by the Division Bench. Perhaps, sensing the mood of the Court, the
fifth respondent, who was the petitioner there sought permission to withdraw the
Writ Petition. While dismissing the Writ Petition as withdrawn, the Division
Bench observed as follows:

“2. Accordingly, the Writ Petition is dismissed as withdrawn. Considering
the facts and circumstances of the case, we are of the clear view that the
present Writ Petition is frivolous and vexatious one and the same has been filed
by abuse of due process of law. In our opinion, this is the fit case where the
petitioner should be mulcted with heavy cost for filing such frivolous petition
under the grab of public interest litigation. However, in view of the request
made by the learned counsel for the petitioner, we only observe that the
petitioner should desist from filing such frivolous and vexatious petition under
the grab of public interest litigation. We make it clear that if the petitioner
continues to file such frivolous and vexatious petition in future, the same
would be viewed seriously and appropriate action would be taken against the
petitioner. No costs.”

The word “petitioner” in the above extracts actually, refers to the fifth
respondent herein.

4. Thereafter, the Commissioner of Devakottai Municipality/1st respondent
issued a letter in Na.Ka.No.91/2008/H1, dated 9.4.2008 stating that on 17.7.2009
the Tamil Nadu Pollution Control Board had inspected the shop in person and
found that around the cement godown, there were vacant sites and in one portion
alone, there was the house of the fifth respondent and that the fifth respondent
had made complaints. But on personal inspection, it was found that the writ
appellant herein had put up a barricade to prevent the dust from floating over
to the complainant’s house and the Commissioner/first respondent also
specifically recorded that only when unloading the cement, there was a slight
emission of dust and no one is affected thereby.

5. Notwithstanding the reprimand of the Division Bench that was cited
earlier, the fifth respondent again filed Writ Petition (MD) No.9066 of 2008 and
that was disposed of directing the Sub-Collector to consider the representation
of the petitioner.

6. By obtaining the seemingly innocuous order “to consider” the fifth
respondent, achieved his object, which he could not achieve in his earlier
attempts which met with dismissal.

7. In A.P.SRTC v. G. Srinivas Reddy,(2006) 3 SCC 674, it was observed as
follows:

“13. Learned counsel for the respondents made an alternative submission that the
relief granted to the respondents may be sustained on the reasoning adopted by
the learned Single Judge. He submitted that having regard to the order in WP No.
30220 of 1997 which had attained finality, the Corporation had no choice but to
consider the cases of the respondents for absorption by treating them as casual
labour employed by the Corporation. This takes us to the effect of the orders
dated 5-11-1991 and 17-3-1998 made in the earlier writ petitions, directing the
Corporation to “consider” the cases of the respondents.

14. We may, in this context, examine the significance and meaning of a direction
given by the court to “consider” a case. When a court directs an authority to
“consider”, it requires the authority to apply its mind to the facts and
circumstances of the case and then take a decision thereon in accordance with
law. There is a reason for a large number of writ petitions filed in the High
Courts being disposed of with a direction to “consider” the
claim/case/representation of the petitioner(s) in the writ petitions.

15. Where an order or action of the State or an authority is found to be
illegal, or in contravention of the prescribed procedure, or in breach of the
rules of natural justice, or arbitrary/unreasonable/irrational,or prompted by
mala fides or extraneous consideration, or the result of abuse of power, such
action is open to judicial review. When the High Court finds that the order or
action requires interference and exercises the power of judicial review, thereby
resulting in the action/order of the State or authority being quashed, the High
Court will not proceed to substitute its own decision in the matter, as that
will amount to exercising appellate power, but require the authority to
“consider” and decide the matter again. The power of judicial review under
Article 226 concentrates and lays emphasis on the decision-making process,
rather than the decision itself.

16. The High Courts also direct the authorities to “consider”, in a different
category of cases. Where an authority vested with the power to decide a matter,
fails to do so in spite of a request, the person aggrieved approaches the High
Court, which in exercise of the power of judicial review, directs the authority
to “consider” and decide the matter. In such cases, while exercising the power
of judicial review, the High Court directs “consideration” without examining the
facts or the legal question(s) involved and without recording any findings on
the issues. The High Court may also direct the authority to “consider” afresh,
where the authority had decided a matter without considering the relevant facts
and circumstances, or by taking extraneous or irrelevant matters into
consideration. In such cases also, the High Court may not examine the validity
or tenability of the claim on merits, but require the authority to do so.

17. Where the High Court finds the decision-making process erroneous and records
its findings as to the manner in which the decision should be made, and then
directs the authority to “consider” the matter, the authority will have to
consider and decide the matter in the light of its findings or observations of
the court. But where the High Court without recording any findings, or without
expressing any view, merely directs the authority to “consider” the matter, the
authority will have to consider the matter in accordance with law, with
reference to the facts and circumstances of the case, its power not being
circumscribed by any observations or findings of the court.

18. We may also note that sometimes the High Courts dispose of the matter merely
with a direction to the authority to “consider” the matter without examining the
issue raised even though the facts necessary to decide the correctness of the
order are available. Neither pressure of work nor the complexity of the issue
can be a reason for the court to avoid deciding the issue which requires to be
decided, and disposing of the matter with a direction to “consider” the matter
afresh. Be that as it may.

19. There are also several instances where unscrupulous petitioners with the
connivance of “pliable” authorities have misused the direction “to consider”
issued by court. We may illustrate by an example. A claim, which is stale, time-
barred or untenable, is put forth in the form of a representation. On the ground
that the authority has not disposed of the representation within a reasonable
time, the person making the representation approaches the High Court with an
innocuous prayer to direct the authority to “consider” and dispose of the
representation. When the court disposes of the petition with a direction to
“consider”, the authority grants the relief, taking shelter under the order of
the court directing him to “consider” the grant of relief. Instances are also
not wanting where authorities, unfamiliar with the process and practice relating
to writ proceedings and the nuances of judicial review, have interpreted or
understood the order “to consider” as directing grant of relief sought in the
representation and consequently granting reliefs which otherwise could not have
been granted. Thus, action of the authorities granting undeserving relief, in
pursuance of orders to “consider”, may be on account of ignorance, or on account
of bona fide belief that they should grant relief in view of the court’s
direction to “consider” the claim, or on account of collusion/connivance between
the person making the representation and the authority deciding it.
Representations of daily-wagers seeking regularisation/absorption into regular
service is a species of cases, where there has been a large-scale misuse of the
orders “to consider”.

20. Therefore, while disposing of the writ petitions with a direction to
“consider”, there is a need for the High Court to make the direction clear and
specific. The order should clearly indicate whether the High Court is recording
any finding about the entitlement of the petitioner to the relief or whether the
petition is being disposed of without examining the claim on merits. The court
should also normally fix a time-frame for consideration and decision. If no
time-frame is fixed and if the authority does not decide the matter, the
direction of the court becomes virtually infructuous as the aggrieved petitioner
will have to come again to court with a fresh writ petition or file an
application for fixing time for deciding the matter.”

8. Why we are extracting this judgment in such detail is that we should be
aware of the consequences of our order when we direct the authorities to
“consider”. In the aforesaid situation, if the learned Judge, before directing
the authorities to consider, had heard the petitioner herein, then the order of
the Division Bench reprimanding the 5th respondent would have been brought to
the notice of the learned Single Judge. Some time, we also come across cases
where our directions is to an authority who cannot really pass an effective
order and the effective order can only be passed by an authority superior to the
one to whom we issue directions. Obviously, when the order is not complied
with, since it cannot be complied with because of the hierarchy discipline, the
officer has to face the contempt. All these can be avoided if we only bear in
mind the guidelines given in the above case by the Supreme Court before we
direct the respondent to “consider and pass orders”.

9. In this case, we are closing the writ appeal giving liberty to
the appellant to raise all the objections and grounds in the writ petition he
has already filed. But, yet we felt that it was very vital and important to
consider the duty of the Court when a request is made by the Bar to give a
direction to “consider”. In this case, it is the apparently harmless order
directing the respondents to consider, which gave the leverage to the 5th
respondent to proceed in his usual course notwithstanding the warning given by
the Division Bench, which we have extracted earlier.

10. On 13.1.2009, a notice was issued by the Commissioner to the
petitioner asking him to show cause why criminal proceedings should not be
initiated against him. A copy of this notice was marked to the fifth respondent
herein. This makes it abundantly clear at whose instance, this complaint was
taken on file. On 17.4.2009 another order was passed wherein the appellant
herein was directed to operate his shop through eastern door and to close down
northern door and other directions. Against this order, the Writ Petition was
filed. The order passed therein is under challenge.

11. An Advocate Commissioner was appointed by this Court and a detailed
report had also been filed by him, a copy of which is enclosed in the typedset
of papers. The Advocate Commissioner’s report deals with in detail regarding
physical aspects of the property. It appears that pursuant to the direction
passed by the learned single Judge, an order has been passed.

12. Learned counsel for the appellant submitted that the Pollution Control
Board had given its report and no opportunity was given to him and this order
has been passed without any opportunity and arbitrarily and that the same has
been challenged in W.P.(MD)No.723 of 2010. Since order has been passed and it is
now separately challenged in the Writ Petition, we do not think any orders need
be passed in this Writ Appeal.

13. We are closing this Writ Appeal not because we find the grievance of
the appellant has no substance but only because of the subsequent events. It is
open to the writ appellant to bring to the notice of this Court which hears
W.P.(MD) No.723 of 2010 all the grounds available viz., the details set out in
the Advocate Commissioner’s report and the contradictions that are pointed out
between the earlier order and the subsequent order, the order of the Division
Bench dated 07.3.2007 in W.P.(MD)No.10799 of 2006 and the fact that the
Pollution Control Board had not given any opportunity. We have not given our
decision on merits but we had to narrate the facts that led to our closing the
appeal. The closing of this Writ Appeal is not to be construed as rejection of
the other grounds that are raised in this Writ Appeal and it will not in any way
prejudice the writ appellant, while pursuing his remedy in W.P.(MD)No.723 of
2010.

14. With the above observation, the Writ Appeal is closed. Connected
Miscellaneous Petition is closed. No costs.

asvm

To

1.The Commissioner,
Devekottai Municipality,
Devekottai,
Sivagangai District.

2.The Revenue Divisional Officer,
Devakottai,
Sivagangai District.

3.The Sub Collector,
Sivagangai District,
Sivagangai.

4.The Deputy Director of
Health Services,
Sivagangai District.

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