{"id":181867,"date":"2010-02-05T00:00:00","date_gmt":"2010-02-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-ingaci-vs-the-commissioner-on-5-february-2010"},"modified":"2014-01-19T13:31:24","modified_gmt":"2014-01-19T08:01:24","slug":"m-ingaci-vs-the-commissioner-on-5-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-ingaci-vs-the-commissioner-on-5-february-2010","title":{"rendered":"M.Ingaci vs The Commissioner on 5 February, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Ingaci vs The Commissioner on 5 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 05\/02\/2010\n\nCORAM\nTHE HONOURABLE MRs.JUSTICE PRABHA SRIDEVAN\nand\nTHE HONOURABLE MR. JUSTICE B.RAJENDRAN\n\nWRIT APPEAL (MD) No.38 OF 2010\nand\nM.P.(MD)No.1 of 2010\n\nM.Ingaci                                 ..  Appellant\n\nvs\n\n1.The Commissioner,\n  Devekottai Municipality,\n  Devekottai,\n  Sivagangai District.\n\n2.The Revenue Divisional Officer,\n  Devakottai,\n  Sivagangai District.\n\n3.The Sub Collector,\n  Sivagangai District,\n  Sivagangai.\n\n4.The Deputy Director of\n   Health Services,\n  Sivagangai District.\n\n5.T.Ramasamy\n\n6.M.Jacquline Dulice\n\n7.M.S.Periyasamy\n\n8.N.Subramanian\n\n9.K.R.Rajathi\n\n10.Velvizhi                           ..   Respondents\n\n\n\nWrit Appeal filed under Clause 15 of the Letters Patent against the order\nof this Court dated 30.10.2009 made in W.P.(MD)No.4214 of 2009.\n\n\n!For appellant\t        ... Mr.D.Sadiq Raja\n^For respondents 2 to4  ... Mr.R.Janakiramulu,\n                            Spl.Govt.Pleader\n\nFor 1st respondent      ... Mr.M.C.Swamy\nFor 5th respondent      ... Mr.J.Anand Kumar\n\t\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by PRABHA SRIDEVAN, J)<\/p>\n
\tThe Writ Petition of the writ petitioner\/appellant was allowed but yet, he
\nis aggrieved.  According to him, certain factors were not taken note of, by the
\nlearned single Judge, which has resulted in directions being issued to the first
\nrespondent.\n<\/p>\n
\t2. The appellant is running a cement sales shop.  It is evident from the
\ntypedset of papers that he is not allowed one moment of peace because of the
\nfifth respondent.\n<\/p>\n
\t3. The fifth respondent filed several Writ Petitions and finally, by order
\ndated 17.3.2007 in Writ Petition (MD) No.10799 of 2006, he was severely
\nreprimanded by the Division Bench.  Perhaps, sensing the mood of the Court, the
\nfifth respondent, who was the petitioner there sought permission to withdraw the
\nWrit Petition.  While dismissing the Writ Petition as withdrawn, the Division
\nBench observed as follows:\n<\/p>\n
\t“2. Accordingly, the Writ Petition is dismissed as withdrawn.  Considering
\nthe facts and circumstances of the case, we are of the clear view that the
\npresent Writ Petition is frivolous and vexatious one and the same has been filed
\nby abuse of due process of law.  In our opinion, this is the fit case where the
\npetitioner should be mulcted with heavy cost for filing such frivolous petition
\nunder the grab of public interest litigation.  However, in view of the request
\nmade by the learned counsel for the petitioner, we only observe that the
\npetitioner should desist from filing such frivolous and vexatious petition under
\nthe grab of public interest litigation.  We make it clear that if the petitioner
\ncontinues to file such frivolous and vexatious petition in future, the same
\nwould be viewed seriously and appropriate action would be taken against the
\npetitioner.  No costs.”\n<\/p>\n
\tThe word “petitioner” in the above extracts actually, refers to the fifth
\nrespondent herein.\n<\/p>\n
\t4. Thereafter, the Commissioner of Devakottai Municipality\/1st respondent
\nissued a letter in Na.Ka.No.91\/2008\/H1, dated 9.4.2008 stating that on 17.7.2009
\nthe Tamil Nadu Pollution Control Board had inspected the shop in person and
\nfound that around the  cement godown, there were vacant sites and in one portion
\nalone, there was the house of the fifth respondent and that the fifth respondent
\nhad made complaints.  But on personal inspection, it was found that the writ
\nappellant herein had put up a barricade to prevent the dust from floating over
\nto the complainant’s house and the Commissioner\/first respondent also
\nspecifically recorded that only when unloading the cement, there was a slight
\nemission of dust and no one is affected thereby.\n<\/p>\n
\t5. Notwithstanding the reprimand of the Division Bench that was cited
\nearlier, the fifth respondent again filed Writ Petition (MD) No.9066 of 2008 and
\nthat was disposed of directing the Sub-Collector to consider the representation
\nof the petitioner.\n<\/p>\n
\t6. By obtaining the seemingly innocuous order “to consider” the fifth
\nrespondent, achieved his object, which he could not achieve in his earlier
\nattempts which met with dismissal.\n<\/p>\n
\t7. In A.P.SRTC v. G. Srinivas Reddy,<\/a>(2006) 3 SCC 674, it was observed as
\nfollows:\n<\/p>\n
“13. Learned counsel for the respondents made an alternative submission that the
\nrelief granted to the respondents may be sustained on the reasoning adopted by
\nthe learned Single Judge. He submitted that having regard to the order in WP No.
\n30220 of 1997 which had attained finality, the Corporation had no choice but to
\nconsider the cases of the respondents for absorption by treating them as casual
\nlabour employed by the Corporation. This takes us to the effect of the orders
\ndated 5-11-1991 and 17-3-1998 made in the earlier writ petitions, directing the
\nCorporation to “consider” the cases of the respondents.\n<\/p>\n
14. We may, in this context, examine the significance and meaning of a direction
\ngiven by the court to “consider” a case. When a court directs an authority to
\n“consider”, it requires the authority to apply its mind to the facts and
\ncircumstances of the case and then take a decision thereon in accordance with
\nlaw. There is a reason for a large number of writ petitions filed in the High
\nCourts being disposed of with a direction to “consider” the
\nclaim\/case\/representation of the petitioner(s) in the writ petitions.\n<\/p>\n
15. Where an order or action of the State or an authority is found to be
\nillegal, or in contravention of the prescribed procedure, or in breach of the
\nrules of natural justice, or arbitrary\/unreasonable\/irrational,or prompted by
\nmala fides or extraneous consideration, or the result of abuse of power, such
\naction is open to judicial review. When the High Court finds that the order or
\naction requires interference and exercises the power of judicial review, thereby
\nresulting in the action\/order of the State or authority being quashed, the High
\nCourt will not proceed to substitute its own decision in the matter, as that
\nwill amount to exercising appellate power, but require the authority to
\n“consider” and decide the matter again. The power of judicial review under
\nArticle 226 concentrates and lays emphasis on the decision-making process,
\nrather than the decision itself.\n<\/p>\n
16. The High Courts also direct the authorities to “consider”, in a different
\ncategory of cases. Where an authority vested with the power to decide a matter,
\nfails to do so in spite of a request, the person aggrieved approaches the High
\nCourt, which in exercise of the power of judicial review, directs the authority
\nto “consider” and decide the matter. In such cases, while exercising the power
\nof judicial review, the High Court directs “consideration” without examining the
\nfacts or the legal question(s) involved and without recording any findings on
\nthe issues. The High Court may also direct the authority to “consider” afresh,
\nwhere the authority had decided a matter without considering the relevant facts
\nand circumstances, or by taking extraneous or irrelevant matters into
\nconsideration. In such cases also, the High Court may not examine the validity
\nor tenability of the claim on merits, but require the authority to do so.\n<\/p>\n
17. Where the High Court finds the decision-making process erroneous and records
\nits findings as to the manner in which the decision should be made, and then
\ndirects the authority to “consider” the matter, the authority will have to
\nconsider and decide the matter in the light of its findings or observations of
\nthe court. But where the High Court without recording any findings, or without
\nexpressing any view, merely directs the authority to “consider” the matter, the
\nauthority will have to consider the matter in accordance with law, with
\nreference to the facts and circumstances of the case, its power not being
\ncircumscribed by any observations or findings of the court.\n<\/p>\n
18. We may also note that sometimes the High Courts dispose of the matter merely
\nwith a direction to the authority to “consider” the matter without examining the
\nissue raised even though the facts necessary to decide the correctness of the
\norder are available. Neither pressure of work nor the complexity of the issue
\ncan be a reason for the court to avoid deciding the issue which requires to be
\ndecided, and disposing of the matter with a direction to “consider” the matter
\nafresh. Be that as it may.\n<\/p>\n
19. There are also several instances where unscrupulous petitioners with the
\nconnivance of “pliable” authorities have misused the direction “to consider”
\nissued by court. We may illustrate by an example. A claim, which is stale, time-
\nbarred or untenable, is put forth in the form of a representation. On the ground
\nthat the authority has not disposed of the representation within a reasonable
\ntime, the person making the representation approaches the High Court with an
\ninnocuous prayer to direct the authority to “consider” and dispose of the
\nrepresentation. When the court disposes of the petition with a direction to
\n“consider”, the authority grants the relief, taking shelter under the order of
\nthe court directing him to “consider” the grant of relief. Instances are also
\nnot wanting where authorities, unfamiliar with the process and practice relating
\nto writ proceedings and the nuances of judicial review, have interpreted or
\nunderstood the order “to consider” as directing grant of relief sought in the
\nrepresentation and consequently granting reliefs which otherwise could not have
\nbeen granted. Thus, action of the authorities granting undeserving relief, in
\npursuance of orders to “consider”, may be on account of ignorance, or on account
\nof bona fide belief that they should grant relief in view of the court’s
\ndirection to “consider” the claim, or on account of collusion\/connivance between
\nthe person making the representation and the authority deciding it.
\nRepresentations of daily-wagers seeking regularisation\/absorption into regular
\nservice is a species of cases, where there has been a large-scale misuse of the
\norders “to consider”.\n<\/p>\n
20. Therefore, while disposing of the writ petitions with a direction to
\n“consider”, there is a need for the High Court to make the direction clear and
\nspecific. The order should clearly indicate whether the High Court is recording
\nany finding about the entitlement of the petitioner to the relief or whether the
\npetition is being disposed of without examining the claim on merits. The court
\nshould also normally fix a time-frame for consideration and decision. If no
\ntime-frame is fixed and if the authority does not decide the matter, the
\ndirection of the court becomes virtually infructuous as the aggrieved petitioner
\nwill have to come again to court with a fresh writ petition or file an
\napplication for fixing time for deciding the matter.”\n<\/p>\n
\t8. Why we are extracting this judgment in such detail is that we should be
\naware of the consequences of our order when we direct the authorities to
\n“consider”.  In the aforesaid situation, if the learned Judge, before directing
\nthe authorities to consider, had heard the petitioner herein, then the order of
\nthe Division Bench reprimanding the 5th respondent would have been brought to
\nthe notice of the learned Single Judge.  Some time, we also come across cases
\nwhere our directions is to an authority who cannot really pass an effective
\norder and the effective order can only be passed by an authority superior to the
\none to whom we issue directions.  Obviously, when the order is not complied
\nwith, since it cannot be complied with because of the hierarchy discipline, the
\nofficer has to face the contempt.  All these can be avoided if we only bear in
\nmind the guidelines given in the above case by the Supreme Court before we
\ndirect the respondent to “consider and pass orders”.\n<\/p>\n
\t\t9. In this case, we are closing the writ appeal giving liberty to
\nthe appellant to raise all the objections and grounds in the writ petition he
\nhas already filed.  But, yet we felt that it was very vital and important to
\nconsider the duty of the Court when a request is made by the Bar to give a
\ndirection to “consider”.  In this case, it is the apparently harmless order
\ndirecting the respondents to consider, which gave the leverage to the 5th
\nrespondent to proceed in his usual course notwithstanding the warning given by
\nthe Division Bench, which we have extracted earlier.\n<\/p>\n
\t10. On 13.1.2009, a notice was issued by the Commissioner to the
\npetitioner asking him to show cause why criminal proceedings should not be
\ninitiated against him.  A copy of this notice was marked to the fifth respondent
\nherein.  This makes it abundantly clear at whose instance, this complaint was
\ntaken on file.  On 17.4.2009 another order was passed wherein the appellant
\nherein was directed to operate his shop through eastern door and to close down
\nnorthern door and other directions.  Against this order, the Writ Petition was
\nfiled.  The order passed therein is under challenge.\n<\/p>\n
\t11.  An Advocate Commissioner was appointed by this Court and a detailed
\nreport had also been filed by him, a copy of which is enclosed in the typedset
\nof papers.  The Advocate Commissioner’s report deals with in detail regarding
\nphysical aspects of the property.  It appears that pursuant to the direction
\npassed by the learned single Judge, an order has been passed.\n<\/p>\n
\t12. Learned counsel for the appellant submitted that the Pollution Control
\nBoard had given its report and no opportunity was given to him and this order
\nhas been passed without any opportunity and arbitrarily and that the same has
\nbeen challenged in W.P.(MD)No.723 of 2010. Since order has been passed and it is
\nnow separately challenged in the Writ Petition, we do not think any orders need
\nbe passed in this Writ Appeal.\n<\/p>\n
\t13. We are closing this Writ Appeal not because we find the grievance of
\nthe appellant has no substance but only because of the subsequent events.  It is
\nopen to the writ appellant to bring to the notice of this Court which hears
\nW.P.(MD) No.723 of 2010 all the grounds available viz., the details set out in
\nthe Advocate Commissioner’s report and the contradictions that are pointed out
\nbetween the earlier order and the subsequent order, the order of the Division
\nBench dated 07.3.2007 in W.P.(MD)No.10799 of 2006 and the fact that the
\nPollution Control Board had not given any opportunity.  We have not  given our
\ndecision on merits but we had to narrate the facts that led to our closing the
\nappeal.  The closing of this Writ Appeal is not to be construed as rejection of
\nthe other grounds that are raised in this Writ Appeal and it will not in any way
\nprejudice the writ appellant, while pursuing his remedy in W.P.(MD)No.723 of
\n2010.\n<\/p>\n
\t14. With the above observation, the Writ Appeal is  closed.  Connected
\nMiscellaneous Petition is closed.  No costs.\n<\/p>\n
asvm<\/p>\n
To<\/p>\n
1.The Commissioner,
\n  Devekottai Municipality,
\n  Devekottai,
\n  Sivagangai District.\n<\/p>\n
2.The Revenue Divisional Officer,
\n  Devakottai,
\n  Sivagangai District.\n<\/p>\n
3.The Sub Collector,
\n  Sivagangai District,
\n  Sivagangai.\n<\/p>\n
4.The Deputy Director of
\n   Health Services,
\n  Sivagangai District.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-181867","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Ingaci vs The Commissioner on 5 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-ingaci-vs-the-commissioner-on-5-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Ingaci vs The Commissioner on 5 February, 2010 - 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