1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.03.2011 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.3386 of 2011 and M.P(MD)No.1 of 2011 Tmt.Sumathi .. Petitioner Vs. 1.The District Manager, Tasmac, Manalur, Ramnad Road, Madurai. 2.Senior Regional Manager(Excise), Anna Nagar, Madurai. 3.The Assistant Commissioner(Excise), O/o.The District Collector, Madurai. .. Respondents Prayer:- Writ petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus to direct the respondents to vacate the Shop No.5148 situated in New Door No.31, Sivagangai Road, Saathamangalam, Madurai and handover the possession to the petitioner. For Petitioner:M/S.K.Rama Bharathi O R D E R According to the petitioner, he is the purchaser of the subject property and there is a dispute in respect of the same among the erstwhile owners and a criminal case is also pending. 2. The petitioner's only contention is that one of the erstwhile owners had executed a lease agreement in favour of the TASMAC in respect of the subject property and the TASMAC has also pursuant to the lease agreement, has opened the shop. Therefore, he would contend that as the lease agreement has been executed only by alleged one of the co-owners he has come forward with this Writ Petition seeking for a Mandamus to direct the respondents to vacate the Shop No.5148 situated in New Door No.31, Sivagangai Road, Saathamangalam, Madurai and hand over the possession to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2 3. At the outset, the Writ Petition seeking for a Mandamus as regards purely a civil dispute is not at all maintainable. It is clear that what the petitioner could have sought for before the Civil Court, he has now made it in the form of representation and thereafter seeks a direction from this Court as if to consider and pass orders. Though it is a innocuous prayer it is only circumventing the legal process in civil court and seeks for a direction from this court without any basis. In this connection, it is worthwhile to mention a Division Bench decision of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, wherein it has been culled out when Mandamus is to be given and on what occasions the innocuous prayer to consider and pass orders on representations leads to drastic consequences. Unfortunately, in spite of the ruling passed, this kind of frivolous petitions are being filed in huge numbers, time and again. The Supreme Court in the case of A.P.SRTC Vs. G.Srinivas Reddy, reported in (2006) 3 SCC 674 = 2006-3-L.W.170, had observed as follows:- “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 to1.75" "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". 4. Following the Apex Court's judgment cited supra, a Division Bench of this Court, in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, had in para 8 observed:- “.... 8. Why we are extracting this judgment in such detail is that we should be aware of the https://hcservices.ecourts.gov.in/hcservices/ 3 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". 6. In view of the above, this Writ Petition stands dismissed in limine as it is not maintainable. Consequently, the connected miscellaneous petition is closed. No costs. It is open to the petitioner to seek remedy before the Civil Court. Sd/- Assistant Registrar(P&A) /True Copy/ Sub-Assistant Registrar To 1.The District Manager, Tasmac, Manalur, Ramnad Road, Madurai. 2.Senior Regional Manager(Excise), Anna Nagar, Madurai. 3.The Assistant Commissioner(Excise), O/o.The District Collector, Madurai. +One cc to Mr.L.Madhusudhanan, Advocate, SR.No.7627 +One Cc to The Spl Govt. Pleader, SR.No.7812 pm rl/6c – 21.4.2011 W.P.(MD).No.3386 of 2011 23.03.2011 https://hcservices.ecourts.gov.in/hcservices/