Madras High Court
S.Sasikumar vs Government Of Tamil Nadu on 19 January, 2021
Author: G.R.Swaminathan
Bench: R.Mahadevan, N.Seshasayee, G.R.Swaminathan
WA.Nos.2295 of 2018 etc., batch
THE HIGH COURT OF JUDICIATURE AT MADRAS
RESERVED ON : 14.12.2020
PRONOUNCED ON : 19.01.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
AND
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.A Nos.2295 to 2308, 2325 to 2327, 2330 to 2333, 2350 to 2352,
2354 to 2365, 2367, 2373 to 2376, 2433, 2452 to 2460, 2466,
2467, 2472, 2473 & 2481 to 2483 of 2018
and
Connected Civil Miscellaneous Petitions
In WA(MD)No.2295 of 2018 :
S.Sasikumar ... Appellant
Vs.
1.Government of Tamil Nadu,
Rep.by the Secretary,
Housing and Urban Development Department,
Fort St.George, Chennai – 600 009.
2.The Member Secretary,
Chennai Metropolitan Development Agency,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
3.The Chief Executive Officer,
Chennai Metropolitan Development Authority,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
1/28
https://www.mhc.tn.gov.in/judis/
WA.Nos.2295 of 2018 etc., batch
4.Chennai Pushpa Viyabarigal and
Commission Agentugal Sangam,
Rep.by its President Mr.Uthappan,
No.18/2, Gangaiamman Koil Street,
T.Nagar, Chennai – 600 017. ... Respondents
(4th Respondent is impleaded as per the
order of the court made in CMP No.6107 of 2020)
dated 14.12.2020)
Prayer : Writ Appeal is filed under Clause 15 of the Letters Patent, to
set aside the order passed in WP No.2392 of 2016 dated 09.10.2018
and pass such such further or other orders as this Court may deem fit
and proper and render justice.
For Appellant Mr.S.Sadasharam
For Respondent No.1 Mr.J.Pothiraj, Special Government
Pleader
For Respondent No.2 Mr.P.H.Aravind Pandian,
Additional Advocate General -II,
assisted by Mr.S.Thiruvenkadam,
Special Government Pleader
For Respondent No.3 Mr.R.Arunmozhi, Standing
Counsel
For Respondent No.4 Mr.V.Lakshminarayanan
for Mr.M.V.Seshachari
ORDER ON REFERENCE
G.R.SWAMINATHAN, J.
A Division Bench of this Court vide order dated 30.11.2018 made in W.A No.2295 of 2018 etc., referred the following questions for determination by a Larger Bench :
2/28
https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch “(i)Whether the provisions of the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996, in particular, Section 21 authorise the authorities, namely, the Market Committee to lock and seal the premises which are otherwise in lawful occupation of the appellants and dispossess the persons who are otherwise in lawful occupation thereof for contravention of the provisions of the Act? and
(ii)Whether the determination of the factual question is as to whether the appellants are carrying on wholesale trade is left to the domain of the Market Committee or it should be preceded by a criminal prosecution as contemplated under Section 47 of the Act.?” Pursuant to the order of reference, the Hon'ble Chief Justice constituted this Full Bench for answering the same.
What led to the reference ?
2.In George Town area in Chennai, wholesale trade in various commodities was carried on. Badrian Street was known for wholesale trade in flowers. Even the jurisdictional police station is known as Flower Bazaar Police Station. With rapid growth of population and commercial activities, the place became crowded leading to traffic congestion and gave rise to host of civic issues. Therefore, the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 3/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch (Tamil Nadu Act 24 of 1996) (hereinafter called as “the Act”) was enacted to deal with the situation not only in Chennai but also in other parts of Tamil Nadu. Vide G.O (Ms) No.523, Housing and Urban Development Department, dated 17.12.1996, the Government of Tamil Nadu notified Koymbedu Market Complex as the wholesale market area. George town which includes Badrian street became out of bounds for wholesale business in perishable items such as flowers. Though a number of wholesale merchants shifted to Koyambedu Market Complex, there were many who continued to do wholesale business in flowers in Badrian street. This led to institution of number of proceedings by both the parties. At the instance of the wholesale traders in flowers based at Koyambedu, the Commissioner of Corporation of Chennai initiated action in the year 2002. Earlier, they had filed WP No.9633 of 1999 before the Madras High Court seeking direction for removal of shops put up by wholesale flower merchants in Badrian street. The matter was eventually dealt with by the Hon'ble Division Bench in WA No.1990 of 2001. The Division Bench by order dated 04.10.2001 held that if a person is engaged in retail trade, he can continue to do so in George town area. But one cannot engage in wholesale trade in specified commodities such as flowers outside the Koyambedu market complex. If they did, action can be taken. Pursuant to the direction from the Hon'ble Division Bench, the Commissioner of Corporation of Chennai 4/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch issued proceedings dated 18.01.2002 rejecting the request of Badrian street traders to continue to sell perishable items at Badrian street.
3.The said order was set aside in WP No.1272 of 2002 on 14.11.2003 on the ground of violation of principles of natural justice. The Commissioner of Chennai Corporation was directed to hold enquiry and give a specific finding as to whether what is being carried on in Badrian street is retail business or wholesale business. The Koyambedu wholesalers filed WP No.26053 of 2004 for directing the authorities to stop the wholesale trade in perishable goods in Chennai Metropolitan Area except in Koyambedu Wholesale Market Complex. The said writ petition was disposed of by directing the Chennai Metropolitan Development Authority (hereinafter called as “CMDA”) to consider the representation made by the Koyambedu wholesalers. Thereupon, the Member-Secretary, CMDA issued order dated 07.10.2004 directing the Badrian street traders to stop wholesale trade in perishable items and shift to Koyambedu wholesale market complex. This order was put to challenge in WP No.29809 of 2004. The said Writ Petition was taken up along with WP No.12909 of 2009 filed by the Koyambedu wholesalers. Both the writ petitions were disposed of by a common order dated 27.11.2009. In the said order, the CMDA was directed to issue show cause notice as well as public notice and pass 5/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch final orders after giving opportunity of hearing to the affected parties. While passing the said order, it was observed that traders found to carry on wholesale trade in flowers in Badrian street are bound to be evicted.
4.Pursuant to the said direction, the Member-Secretary, CMDA issued eviction notice dated 12.02.2010 after conducting public hearing. The aggrieved persons filed appeals before the Government under Section 45 of the Act. The Appeals were dismissed vide G.O (Ms) No.10, Housing and Urban Development Department (UD3-1) dated 06.01.2012. The Government instructed the Member-Secretary, CMDA to take further action along with the Chennai Corporation and Police Department for eviction of the wholesale traders at Badrian street, George Town, Chennai-1. This was put to challenge in WP No.1589 of 2012. In the meanwhile, the Koyambedu wholesalers filed WA No.693 of 2011 questioning the common order dated 27.11.2009 made in WP Nos.29809 of 2004 and 12909 of 2009. The Hon'ble Division Bench closed the Writ Appeal since in the meanwhile the authorities had concluded the enquiry and arrived at a finding that what was being carried on in Badrian street was only wholesale trade and not retail trade. Citing the said order dated 07.07.2011 made in WA No.693 of 2011, the challenge to G.O (Ms) No.10 dated 06.01.2012 was repelled and WP No.1589 of 2012 was dismissed. 6/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch
5.The grievance of the Koyambedu wholesalers was that the directions issued to or by the authorities remained only on paper and not implemented on ground. Hence, they filed WP No.10852 of 2015 for implementation of G.O (Ms) No.10 dated 06.01.2012. The said writ petition was disposed of on 15.04.2015 with a direction to the Member- Secretary, CMDA to look into their representation. Alleging that the said order was not complied with, Contempt Petition No.2406 of 2015 came to be filed. CMDA filed “Action Taken Report” in the said contempt petition. It was pointed out therein that number of shops were locked and sealed and that the eviction process was very much on. Recording the said development, the contempt petition was closed. Alleging that Badrian street traders have broken open the locks and re- entered the premises after removing the seals, Koyambedu wholesalers filed WP No.10113 of 2016. Badrian street traders filed a number of individual Writ Petitions challenging the action taken by CMDA. All the Writ Petitions were taken up together for disposal and vide order dated 09.10.2018, the learned Single Judge passed the following directions :
“27.This being the factum of the case, this Court has no hesitation in passing the following orders : -
(i)The relief as such sought for in all these writ petitions stand rejected.
(ii) The respondents are directed to lock and seal the 7/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch premises of the whole sale traders including the premises of the writ petitioners in Badrian Street, George Town, Chennai
-1 within a period of 48 hours from the date and time of the receipt of the copy of this order through the official website of the Hon'ble High Court of Madras.
(iii)The respondents are directed to take videograph of the implementation of the above directions.
(iv)The Commissioner of Police, Greater Chennai Corporation is directed to provide adequate Police Protection for the competent officials for lock and seal the premises of the wholesale traders in Badrian Street, George Town, Chennai - 1.
(v)The Commissioner of Police, Greater Chennai Police, Chennai - 7, is directed to install a Police booth in the vicinity of Badrian Street to ensure that no further wholesale trade business is allowed either by the writ petitioners or by any other vendors.
(vi)The Commissioner of Police, Greater Chennai Police, Chennai - 7, is directed to intensify the Police Patrolling in that locality till the normalcy arrived in that locality.
(vii)The Inspector of Police, C-1, Flower Bazaar Police Station, Chennai is directed to continue the investigation in respect of the FIR registered and proceed with the prosecution by following the procedures as contemplated.
(viii)In the event of any such further continuance of wholesale business by breaking open the official lock and seal in that locality, the Inspector of Police shall register 8/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch complaints and prosecute the offenders by following the procedures as contemplated under law.”
6.Even though the stand of the Koyambedu wholesalers had been upheld by the learned Single Judge, Para 27(i) of the order dated 09.10.2018 read that “the relief as such sought for in all these writ petitions stand rejected”. That made it appear as if the relief sought for by the Koyambedu wholesalers had also been rejected. Aggrieved by the same, Koyambedu wholesalers filed WA No.2601 of 2018. Badrian street traders also filed Writ Appeals. WA Nos.2295 to 2308 of 2018 etc., were listed before the Hon'ble Division Bench comprising Their Lordships Hon'ble Mr.Justice K.K.Sasidharan and Hon'ble Mr.Justice R.Subramanian on 11.10.2018. It was taken up on 12.10.2018 along with the connected appeals and after hearing the learned counsel on either side, orders were reserved. However, an interim order was issued to de-seal the premises. Thereafter, WA Nos.2393 to 2399 of 2018 filed by a few other Badrian street traders came up for admission before the Hon'ble Division Bench comprising Their Lordships Hon'ble Mr.Justice M.Sathyanarayanan and Hon'ble Mr.Justice P.Rajamanickam. By order dated 09.11.2018, the order passed by the learned Single Judge was confirmed and the writ appeals were dismissed. The very same Hon'ble Division Bench also took up WA 9/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch No.2601 of 2018 filed by Koyambedu wholesalers and allowed the same vide order dated 29.11.2018 setting aside Paragraph No.27(i) of the order of the learned Single Judge dated 09.10.2018 insofar as they were concerned. WP No.10113 of 2016 filed by Koyambedu wholesalers was allowed in terms of the directions issued by the learned Single Judge.
When this was brought to the notice of the Hon'ble Division Bench comprising Their Lordships Hon'ble Mr.Justice K.K.Sasidharan and Hon'ble Mr.Justice R.Subramanian on 30.11.2018, Their Lordships expressed their disagreement and the aforementioned reference was made.
7.We heard Shri.V.Karthick, the learned Senior Counsel and the other learned counsel including Mr.S.Sadasharam, Mr.K.Shivakumar, Mr.N.Manoharan for the appellants, the learned Additional Advocate General Mr.P.H.Aravind Pandian appearing for the CMDA/R2. Koyambedu wholesalers wanted to get themselves impleaded in the reference. Since they have been involved in the contest right from inception and have been seeking strict enforcement of the statute, they are definitely interested parties. We therefore thought it fit to hear Mr.V.Lakshminarayanan, their learned counsel. 10/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch
8.Mr.V.Lakshminarayanan, the learned counsel appearing for the impleaded respondent contended that this reference has to be rejected as bad in law. He drew our attention to Paragraph No.8 of the order of reference and contended that the learned Judges had made the reference on the ground that the scope of the provisions of the Tamil Nadu Act 24 of 1996, particularly, Section 21(8) of the Act was not brought to the notice of the Division Bench which disposed of the appeals on 09.11.2018. According to him, a Bench of co-equal strength can make a reference only if there is disagreement on a question of law and not on the ground that certain contentions were not considered by the earlier Bench.
9.We are unable to sustain the aforesaid objection raised by the learned counsel. A judgment must be read as a whole. The learned Judges in their order dated 30.11.2018 have repeatedly voiced their disagreement with the approach and reasoning of the learned Single Judge as well as that of the other Division Bench. There was a clear divergence of opinion between them. While the earlier Bench sustained the order of the learned Single Judge directing locking and sealing of the premises, the referring Judges took the view that Tamil Nadu Act 11/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch 24 of 1996 did not authorise such a course of action. Whether the said Act enables the authority to lock and seal is certainly a question of law. Since the two Benches were not on the same page, making a reference was the only course of action open to the later Bench. It was observed in Kamalammal and Ors. vs. Venkatalakshmi Ammal and Ors. (AIR 1965 SC 1349) that not merely convention but rules framed by several High Courts require that where a learned Single Judge or a Division Bench does not agree with a Full Bench decision he or they either make a reference to the Full Bench or place the papers before the Chief Justice for such a reference being made. In our view, the Hon'ble referring Judges have acted with utmost propriety in making the order of reference. We, therefore, reject the preliminary objection made by the learned counsel appearing for the impleaded respondent.
10.To answer the question referred to us, we have to necessarily undertake a careful study of the statutory scheme. It was enacted in the year 1996 and came into force in Chennai City on 26.08.1997. It has IX Chapters and 67 Sections. The Act was brought to decongest parts of the city and to shift as many commercial activities as possible outside the congested areas and to pave way for planned development and better public health. Based on the recommendation of the local authority, the Government could declare a given area within the local 12/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch area as a market area in respect of the commodities specified in the schedule. After the market area is declared and a market committee is established, the wholesale business in the said specified commodities could take place only in the market area and not outside the same. In order to ensure the regulation of activities in the market area, the statute contemplates establishment of market committee with defined powers and functions. The wholesale traders carrying on their business in the market area will have to register with the market committee and the wholesale trading in specified market area is to be regulated by licence. The Act also provides for offences and penalties. While the Act overrides other laws that are inconsistent with it, its provisions are to be in addition to and not in derogation of any other Act. The following provisions are relevant for the present discussion :
“Sec.2(5) “local authority” means-
(a)the Chennai Metropolitan Development Authority established under Section 9-A of the Tamil Nadu Town and Country Planning Act, 1971 ;
(b)the Municipal Corporations of Madurai, Coimbatore, Tiruchirappalli, Tirunelveli, Salem or Any other Municipal Corporation constituted under any law for the time being in force ; or
(c) a muncipal council constituted under the Tamil Nadu District Municipalities Act, 1920;13/28
https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch Sec.2(7) “market” means any area declared under Section 4 to be market area.
Sec.2(14)“wholesale trade” means sale or purchase of any specified commodity for purposes other than direct consumption or use by the purchaser, and shall include holding of stocks or warehousing of such specified commodity at any place in the market area (but does not include any sale or purchase by any primary producer or retail trader, as the case may be, of such specified commodity) ; and any such seller, buyer, holder of stock or warehouse-keeper shall be deemed to be a “wholesale trader”.
Sec.21.Wholesale trading in specified commodity in market area to be regulated by licensee.- 1 ...
2...
3...
4...
5...
6...
7...
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 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 14/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch 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 license already granted by such local authority shall stand cancelled on the notified date.
Sec.45.Appeal.- (1). Save as otherwise provided in this Act, an appeal from every original order passed under this Act or the rules or by laws made thereunder shall be -
(i)if the order is made by the Chief Administrative Officer or any other officer of the market committee;
(ii)If the order is made by the market committee, to the local authority ; and
(iii)if the order is made by the local authority to the Government.
(2)In the case of an order passed in appeal by the market committee or the local authority, a second appeal shall lie to the Government.
(3)No appeal or second appeal shall be entertained unless it is filed within such period as may be prescribed.
(4)No order prejudicial to any person shall be passed in any appeal or second appeal unless the person concerned is given an opportunity of being heard.
Sec.46.Revision.-(1)The Government may, at anytime, call for and examine the record of any market committee or local authority in respect of any proceeding to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any 15/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch decision or order passed therein, and if, in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted to in consideration, then, the Government may pass orders accordingly:
Provided that before passing any order under this sub- section, the Government-
(a)shall, if such order is likely to be prejudicial to any person, give such person a reasonable opportunity of making his representations ; and
(b)may consult such authority or officer as they deem fit.
(2)The Government may stay the execution of any, such decision or order pending the exercise of their powers under sub-section (1) in respect thereof.
Sec.47.Penalties.-(1)Any person who,-
(a)evades the payment of any fee or other amount due from him by or under this Act, or
(b)when required by or under this Act to make any statement or furnish any information, makes any statement or furnishes any information which he knows or has reasonable cause to believe to be false, or not true, in any material particular, or
(c)prevents or obstructs inspection of vehicles, boat, or other conveyance carrying or believed to be carrying any specified commodity or verification, search or seizure by any officer or servant of the market committee, or 16/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch
(d)contravenes any of the provisions of section 21, or false to obtain a licence for the wholesale trade of any specified commodity as required by or under this Act or any of the terms and conditions of any such licence, shall on conviction, be punishable with fine which shall not be less than five hundred rupees, but may extend to two thousand and five hundred rupees in the case of a continuing contravention, with a further fine which may extend to five hundred rupees for every day during which the contravention is continued after conviction therefor.
(2)Whoever contravenes any provision of this Act or any rule or any by law shall, if no other penalty is provided for such contravention elsewhere in this Act, or in the rules or by laws, on Conviction be punishable with fine which may extend to one thousand and five hundred rupees.?
Sec.63.Act to override other laws.-(1) The provisions of this Act shall have effect (only with regard to its decongestion objective) notwithstanding anything inconsistent therewith contained in the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 or any other law for the time being in force.
(2)Save as otherwise provided in sub-section (1), the provisions of this Act shall be in addition to, and not in derogation of, any other Act.”
11.Thus, if a market area is earmarked and notified and declared under Section 4 of the Act, then wholesale trading in the specified commodity shall be and can be carried on only in the market area and 17/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch not outside it. If any person continues to carry on the wholesale trade in respect of any specified commodity outside the market area, then the local authority is obliged to ensure that it is discontinued. This is the plain mandate of Section 21(8)(a) of the Tamilnadu Act 24 of 1996. In fact, none of the counsel raised the contention that the appellants are entitled to carry on wholesale trading in flowers in Badrian street. The debate was all about who is competent to take action and the legal process that should be followed in the manner of implementing the provisions of the Act. The learned Senior Counsel and other counsel contended that the provisions of the Act do not authorise the respondent authorities to resort to coercive measures such as “lock and seal”. They would also point out that the Act does not spell out who can decide the dispute if the trader takes the stand that he is carrying only retail trade and not wholesale trade. There are no clear or definite parameters. As a result, the authority if conferred with the power to decide as to whether the noticee carries on wholesale trade or not, it would be an unbridled one. Since the statute also provides for prosecution, the authority after issuing notice under Section 21(8)(a) of the Act must institute complaint before the jurisdictional magistrate.
12.There can be no doubt whatsoever that the market committee established under Section 5 of the Act can have jurisdiction and control 18/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch only over the market area and not on the non-market area. Now, the question is who would be the competent authority to take action against a person found to be engaged in wholesale trade in specified commodities in a non-market area. In our view, Section 21(8)(a) of the Act gives the answer. The local authority has been mandated to ensure the enforcement of the Act in the non-market area. The expression “local authority” has been defined in Section 2(5) of the Act.
As far as the Chennai City is concerned, it is CMDA.
13.The first question that has been referred for our determination is as to whether the authority can lock and seal the premises and dispossess the persons concerned. To answer this question, we have to turn to the provisions of the Tamil Nadu Town and Country Planning Act, 1971. Section 2 (13) of the Tamil Nadu Act 35 of 1972 defines “development”. It includes the making of any material change in the use of any building or land. Section 56 of the Tamil Nadu Act 35 of 1972 confers power to require removal of unauthorised development and Section 57 confers power to stop unauthorised development. Section 57(4) states that the planning authority may also take action to discontinue the development by locking and sealing the premises. Of course, in Tamil Nadu Act 24 of 1996 there is no specific provision enabling the local authority to lock and seal the premises. But, by 19/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch applying the doctrine of implied powers, we can certainly hold that the local authority is possessed of the power to lock and seal the premises that are engaged in wholesale trading business in violation of the provisions of the law.
14.The Hon'ble Supreme Court in the decision reported in AIR 1962 SC 486 (Bidi, Bidi Leaves and Tobacco Merchants' Association v. State of Bombay), held as follows :
“20.“One of the first principles of law with regard to the effect of an enabling act”, observes Craies, “is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view [ Craies on Statute Law, p. 239] ”. The principle on which this doctrine is based is contained in the legal maxim “Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”. This maxim has been thus translated by Broom thus: “whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect”. Dealing with this doctrine Pollock, C.B., observed in Michael Fenton and James Fraser v. John Stephen Hampton [(1857-1859) 117 R.R. 32 at p. 41 : II Moo. PC. 347] “it becomes therefore all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bestow, I take the matter to stand thus: Whenever anything is authorised, and 20/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment”. This doctrine can be invoked in cases “where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution”. In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead-letter and cannot be enforced unless a subsidiary power is implied.” When Section 21(8)(a) of the Tamil Nadu Act 24 of 1996 mandates the local authority to ensure that wholesale trading in specified commodities is not carried on in non-market areas, then it is deemed to confer all incidental powers which would enable it to discharge the said duty. We, therefore, hold that the local authority is definitely possessed of the power to lock and seal the premises where traders are found 21/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch violating the direction issued by the authority under Section 21(8)(a) of the Act 24 of 1996.
15.The second question is whether the local authority has the power to determine as to whether a person is engaged in wholesale trade or retail trade. Adopting the very same reasoning and by invoking the doctrine of implied powers, we hold that the local authority does have the power to determine as to whether an individual is carrying on business in retail trade or wholesale trade. When the local authority has been statutorily tasked to discontinue the carrying on of wholesale trade in specified commodities outside the market area, the function of determining who are indulging in the banned activities cannot be left to any other authority. In the writ petitions filed immediately after the promulgation of the Act, the Hon'ble Division Bench in the decision reported in (2000) 3 CTC 565 (General Merchant Association rep. by Secretary and Treasurer and others), held as follows :
“60.We hold that it is incumbent on the part of each of the wholesale trader to move to the Koyambedu wholesale market and they cannot insist that they would continue to carry on the wholesale trade outside the notified market with respect to the specified commodities. The wholesale trade having already been regulated, this Court holds such a regulatory measure 22/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch being in the interest of public as well as trade, the wholesale traders have to move to the notified market and they cannot continue their wholesale trade in the Corporation Fruit Market or George Town area and their continuance is per se punishable under the Tamil Nadu Act 24 of 1996. In respect of the retail traders we hold that it is open to the retail traders to select a place of their choice and continue their trade but it is always open to the respondent and other appropriate authorities to take action against any trader if they come to the conclusion that the particular shop/stall or establishment being carried on outside the notified market is a wholesale and it is left to the authorities to take appropriate action against those wholesale traders who contravene the provisions of the Tamil Nadu Act 24 of 1996........” The second part of the second question is as to whether the factual determination has to be preceded by a criminal prosecution under Section 47 of the Act. The object of any prosecution is to penalize the offender for having contravened the provisions of the Act. On the other hand, 'Lock and seal' is a coercive measure for preventing the continued commission of the offence. The statute contemplates discontinuance of the offending activity. If we were to hold that criminal prosecution must be the first step, that would certainly defeat the very purpose of the Act.
Though the statute has not specifically named any authority to decide 23/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch the factual issue, by invoking the doctrine of implied powers, we have held that the local authority has the jurisdiction to determine the question as to whether the noticee is engaged in wholesale trade or not.
Once the factual determination is made, the noticee has to be directed to discontinue the banned activity. If the noticee disregards the direction, the local authority has to take appropriate action to effect discontinuance of the activity. The authority may also prosecute the offender. That is a choice open to the authority. Prosecution will follow the factual determination and not precede it.
16.As held by this Court consistently in the series of litigations instituted by the parties, the authority has to observe the principles of natural justice. The orders will have to be well reasoned. Of course, the nature of proceedings would be summary in character. The orders must indicate that there was application of mind. The finding that the trader is a wholesale trader and not a retail trader should be founded on proper materials.
17.We are of the view that the reference was triggered by some of the observations made in the earlier rounds of litigation. It was observed in at least two of the orders that the persons carrying on wholesale trading in flowers in Badrian street will have to be evicted. In 24/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch fact, G.O (Ms) No.10 dated 06.01.2012 also talks about eviction of Badrian street traders by taking the assistance of the corporation officials and the jurisdictional police. We have no doubt whatsoever that nowhere the statute contemplates eviction. The only mandate of law is that wholesale trade in specified commodities should be carried on within the market area and not in non-market areas. If notwithstanding the direction of local authority it is being carried on, then the local authority can take always recourse to coercive measures to enforce its direction. But, if the affected individual is ready to mend his ways and agrees to confine himself to retail trading or if he proposes to shift his trade to non-specified commodities, then the local authority cannot continue to keep the premises under lock and seal. It is possible that in some cases, the trader is only a tenant. Following the sealing of the premises, he might abandon the trade altogether. If the premises remains under lock & seal indefinitely, it is only the landlord who would suffer irreparable hardship. No statutory power can be construed in absolute terms. The doctrine of proportionality will have to be read into the statutory scheme. This doctrine is now an intrinsic part of Indian jurisprudence as held by the Hon'ble Supreme Court in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637. Whether the measure taken by the local authority satisfies the parameters set out above is to be decided in the facts and circumstances of each case. 25/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch
18.Accordingly, we answer the reference in the following terms :
(i)The provisions of the Tamil Nadu Act 24 of 1996 authorise the local authority as defined in Section 2(5) of the Act 24 of 1996 and not the market committee to lock and seal the premises for contravention of the provisions of the Act.
(ii)The local authority is empowered to factually determine whether the persons concerned are carrying on wholesale trade in the non-market areas. It is not necessary that this factual determination should be preceded by criminal prosecution as contemplated under Section 47 of the Act.
(RMD, J), (NSS, J) & (GRS, J)
19.01.2021
Index : Yes / No
Internet : Yes / No
Skm
Note : In view of the present lock down owing to COVID-
19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. 26/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch Note 2: Registry is directed to post these writ appeals before the Division Bench concerned.
To
1.The Secretary, Housing and Urban Development Department, Fort St.George, Chennai – 600 009.
2.The Member Secretary, Chennai Metropolitan Development Agency, No.1, Gandhi Irwin Road, Egmore, Chennai – 600 008.
3.The Chief Executive Officer, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai – 600 008.
27/28 https://www.mhc.tn.gov.in/judis/ WA.Nos.2295 of 2018 etc., batch R.MAHADEVAN, J.
N.SESHASAYEE, J.
AND G.R.SWAMINATHAN, J.
skm WA NO.2295 OF 2018 ETC., BATCH 19.01.2021 28/28 https://www.mhc.tn.gov.in/judis/