Dismissed

S. Kumaresan, v. the District Collector

Madras HC21 Sept 2011WP(MD)/10723/2011

Case brief

AI extract

What is this about?

Petitioner challenged the District Collector's order shifting an IMFL shop to a new premises under a lease agreement. The Madras High Court dismissed the writ, holding that mandamus does not lie to enforce contractual rights against public authorities where no statutory duty is involved or alleged breach concerns only private damages.

What did the court decide?

Orrder of the District Collector shifting the IMFL shop and the consequent order of the TASMAC Manager were upheld.

S. Kumaresan, Vs the District Collector — Company and Corporate | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.09.2011 CORAM:

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR

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WP(MD)No.10723 of 2011 and MP(MD)Nos.1 and 2 of 2011

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S.Kumaresan :Petitioner

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-Vs-

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1.The District Collector, Madurai District, Madurai-20.

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2.The District Manager,Tamil Nadu State Marketing Corporation Ltd., Kalugarkadi Vilaku,Madurai Rameswaram Highways,Sivagangai Dt. :Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records relating to the proceedings of the first respondent in Na.Ka.No.46847/11/Madhu 1, dated 12.08.2011 and the consequent order passed by the second respondent in Na.Ka.No.36/2011/H, dated 16.08.2011 and quash the same.

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For Petitioner : Mr.C.Godwin

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For Respondents: Mr.M.Muniasamy

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ORDER

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Perusal of the impugned proceedings shows that the District Collector, Madurai, in his letter in Na.Ka.No.46847/11/Liquor 1, dated 12.08.2011, has ordered for shifting of IMFL Shop No.5197 from Door No.38, South Veli Street, Madurai to Door No.184/100, South Veli Street, Madurai Consequently, the District Manager, TASMAC, Sivagangai District, the second respondent herein has issued orders in Na.Ka.No.36/2011/H, dated 16.08.2011 He has instructed the Shop Supervisor to obtain the building sketch and Stability Certificate from the owner of the new building and also hand over the key to the erstwhile land owner, in whose premises, shop was located Being aggrieved, the petitioner has filed the present Writ Petition for a Writ of Certiorari, to quash the said order, on the ground that earlier his father had entered into a lease agreement with the respondents to run IMFL Shop at Door No.38, New Door No.115, South Veli Street, Madurai and after the demise of his father, a fresh lease agreement dated 17.11.2005 has been entered into between the parties for vending liquor, at the above said premises by paying rent at the rate of Rs.4,000/- per month.

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2.It is further submitted that as per the terms and conditions of the lease agreement, lease can be terminated only after giving three months notice by either of the parties and, therefore, the respondents have no jurisdiction to terminate and shift the shop. It is also contended that shifting of the shop to Door No.184/100 is not conducive for locating an IMFL shop, as it is within the restricted distance, as per Rule 8 of the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003.

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3.The Writ Petition is wholly misconceived. There is no legal or statutory right for any landlord to contend that IMFL shop should be located only in his premises. It is the prerogative of the respondents to locate the IMFL shop, subject to the provisions under the Tamil Nadu Liquor Retail Vending (in Shops and Bars) Rules, 2003. Even assuming that the petitioner's father had entered into an agreement for vending liquor in his premises and https://hcservices.ecourts.gov.in/hcservices/ that the same is extended by a fresh agreement dated 17.11.2005, violation of the terms and conditions of the agreement will not confer any legal or statutory right to the petitioner to contend that the respondents have no

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jurisdiction to shift the IMFL shop, located in his premises. If at all there is any violation or contravention of lease conditions and if the petitioner suffers any damages on account of shifting, it is always open to the petitioner to approach the competent forum, establishing his right, by letting in evidence. A Writ of Certiorari would not lie against the respondents, where there is no right.

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4.Writ of Mandamus cannot be issued merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right, if there is failure on the part of the respondent to discharge his duty. The said position is well settled in many decisions.

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(a) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows:

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10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....

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(b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.

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(c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12, the Supreme Court held thus,

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"11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:

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Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

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Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty https://hcservices.ecourts.gov.in/hcservices/ presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when

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there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

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Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the wellsettled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.

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Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.

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12.These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)

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15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate https://hcservices.ecourts.gov.in/hcservices/ tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in

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order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same.

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Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities ...."

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5.For the reasons stated supra , this Court is of the view that the petitioner is not entitled to the relief sought for. Hence, the Writ Petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs.

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Sd/-

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Deputy Registrar (Writs) / TRUE COPY /

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Assistant Registrar

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To:

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1.The District Collector, Madurai District, Madurai-20.

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2.The District Manager,

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Tamil Nadu State Marketing Corporation Ltd., Kalugarkadi Vilaku,

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Madurai Rameswaram Highways,

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Sivagangai District.

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+1CC to Mr.C.Godwin, Advocate. SR.No.32730.

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+1CC to The Special Government Pleader. SR.No.32643.

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SML Order made in WP(MD)No.10723 of 2011 https://hcservices.ecourts.gov.in/hcservices/ RP/22.09.2011/4P/5C. Dated:- 21.09.2011

S. Kumaresan, v. the District Collector

Case brief

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S. Kumaresan, v. the District Collector

Case brief

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