C.A. Balakrishnan v. Commissioner, Corporation of Madras AIR 2003 Mad. 170

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A. KULASEKARAN, J. – In this writ petition, the petitioner seeks for the issuance of writ
of mandamus to the respondents to restore possession of the premises to the petitioner housing
‘Udipi Canteen’ in the Rippon Building Compound, Madras 3 and also for an order awarding
exemplary costs and damages computed at the rate of Rs. 500/- per day from 25.5.1995 till
restoration of possession.

2. The case of the petitioner was that he was a lessee in respect of a canteen premises to an
   extent of 1839 sq. feet of land and building thereon comprised in R.S. 1269 PT located within
   Rippon Building complex for a monthly rent of Rs. 766.25. The said rent was fixed by the
   Corporation Special Officer in Resolution No. 4945/93 dated 16.12.1993 in modification of the
   earlier rent of Rs. 200/- fixed by Resolution 225/89 dated 14.3.1989. The lessee code number
   is 420. A demand notice dated 31.3.1989 was sent to the petitioner by the Corporation for
   payment of arrears totalling Rs. 36,780/- at the revised rate of Rs. 766.25 retrospectively from
   1.4.1989. The petitioner has paid the said arrears in two instalments and to continue to pay the
   monthly rent periodically. The petitioner was running the said canteen under the name and style
   of “Udipi Canteen.” Originally, one Seetharama Uduppa was the lessee under the respondent,
   subsequently, petitioner’s father became the lessee. After his father, the petitioner was running
   the said canteen for about 16 years which catered the needs of the employees in the Rippon
   Building.
3. On 23.1.1985, the petitioner has applied for No Objection Certificate from the District
   Revenue Officer enabling him to obtain Police Licence for running the said canteen and the
   certificate dated 16.3.1995 was issued by the District Revenue Officer. The petitioner has also
   obtained necessary certificate from the Labour Officer of that area to engage workers not
   exceeding 20 persons for the said business. The receipts were issued by the respondent for rents
   paid by the petitioner in his name. When things are such, on 25.5.1995 at about 12.30 p.m. peak
   hours of lunch, the Junior Engineer of the respondent Corporation, without any notice or
   warning, came to his canteen ordered the workers and the customers to leave. Eatables and milk
   worth more than Rs. 6000/-, Tea, Coffee, Horlicks, Beetal nuts and other materials worth about
   Rs. 20,000/- were lying in the hotel, but the said person had arbitrarily locked the canteen and
   affixed seal on it. The petitioner has issued lawyer’s notice dated 27.5.1995 to the respondent
   narrating the said illegal action of the Junior Engineer and demanded for restoration of
   possession and payment of damages. During the period, the High Court was on vacation, the
   petitioner has also filed suit in O.S. No. 3743 of 1995 before the City Civil Court for mandatory
   injunction and for restoration of possession. The City Civil Court by order dated 10.7.1995
   ordered the delivery of movables without ordering restoration of possession. Later, the suit was
   also decreed as ex parte in favour of the petitioner.
4. Mr. A. Sadanand, the learned counsel appearing for the petitioner has submitted that
   resorting to a suit during vacation would not disentitle the petitioner in filing the writ petition
   as he sought for enforcement of guaranteed right and protection from arbitrary action of the
   respondent. It is argued by the learned counsel that the petitioner was a statutory tenant of the
   Corporation in accordance with the Tamil Nadu Lease and Rent Control Act, the illicit action

according to the counsel which was commando action violative of fundamental rights
guaranteed under the Constitution. Having been given No-objection certificate for obtaining
Police licence, the respondent was estopped from dispossession the petitioner without any
notice. According to the learned counsel, notice under Section 374 of the Madras City
Municipal Corporation Act, has four modes each after exhausting the other in the serial order
of Section 374(a) to (d), but, none of the four modes of service of notice was followed by the
respondent before locking the premises. No inspection preceded the said commando action.
The learned counsel submitted that no notice to the petitioner or to the previous licenssee,
Seetharam Uduppa was issued prior to the action. Denial of natural justice vitiated the action
of the respondent. The learned counsel also further canvassed under Tamil Nadu Public Health
Act, 1939, a licence granted under Section 107(A) can be cancelled under Section 107(B) only
after the notice. The learned counsel further submitted that there are two elements in the
episode, namely, (i) Lessee’s right, (ii) The licensee’s right, both the rights are guaranteed by
the respective statutes, which was taken away by the respondent, flouting the provisions of the
law.

5. Mrs. P. Bagyalakshmi, the learned counsel appearing for the respondent based on the
   counter argued that the petitioner has filed O.S. No. 3743 of 1995 on the file of the City Civil
   Court, Chennai in which he filed I.A. No. 8055/95 praying for removal of the lock put up and
   also for direction to supply the electricity and to hand over the possession back to the petitioner
   so as to run the canteen business was heard and dismissed. Another I.A. No. 8056/95 for
   direction to appoint an Advocate Commissioner to take the inventory of the entire articles which
   were lying inside the building has also been dismissed. Another application in I.A. No. 8054/95
   seeking an injunction restraining the respondent from in any manner interfering with the
   petitioner’s possession and enjoyment of hotel premises was also dismissed on 10.7.1995, but
   only ordered delivery of movables in the canteen. It is submitted by the learned counsel for the
   respondent that the said suit was later decreed ex parte. According to the learned counsel for
   the respondent that having resorted to invoke jurisdiction of a competent Civil Court, the writ
   under Art. 226 of the Constitution of India for seeking the similar relief is not at all
   maintainable. According to the learned counsel that the petitioner is an unauthorised occupant
   of the premises in question. He was not a licensee to run the canteen or a lessee to occupy the
   premises, as such he had no right to remain in the premises. It is contended by the learned
   counsel that originally Seetharama Uduppa is the licensee to run the canteen. Under Section
   357 of the City Municipal Corporation Act, the said Seetharama Uduppa was granted licence
   up to the year 1996. The canteen was inspected by the Assistant HealthOfficer-3 and Zonal
   Officer-3 of the respondent Corporation on 15.5.1995 and found some defects as follows:
   (i) White Wash not done.
   (ii) Residual chlorine was not found in the drinking water.
   (iii)Drainage system was not adequately provided and over flow of sewerage water in front
   of the canteen was noticed.
   (iv) Food handlers certificate for the workers were not obtained from the Medical Officer,
   Corporation of Madras.
   (v) Boiling water, sterilisation was not done, and
   (vi) The canteen and entire place was kept in an unhygienic condition.

In view of the said irregularities, a notice was issued to the licensee, Seetharama Uduppa
under Section 379(A) of the Madras City Municipal Corporation Act which was refused to
receive by the petitioner and hence the same was served by affixture on 26.5.1995 as the defects
pointed out on 15.5.1995 were not rectified and hence the premises was sealed on 26.5.1995
and also the licence granted to Seetharama Uduppa for the year 1995-96 was also revoked. No
licence was granted to the petitioner at any point of time, the revocation of licence has not been
challenged by the said Seetharama Uduppa. The demand notice for the payment of arrears
towards the monthly rent was made in the name of the petitioner by the Subordinate Official,
the said demand made by the Subordinate Official is not on the basis of any orders of the
Commissioner, Corporation of Madras as such the demand made by the officials were
unauthorised, therefore the petitioner cannot claim any right as a licensee to run the canteen or
as a lessee of the premises. The Commissioner of Corporation has not issued any No-objection
certificate to the petitioner. It was also denied by the learned counsel for the respondent that on
25.5.1995, at about 12.30 p.m. the Junior Engineer, Corporation of Madras locked and sealed
the premises without notice or warning either to the petitioner or to Seetharama Uduppa as
incorrect. The said Seetharama Uduppa has already been served with the notice as he has failed
to rectify the defects, the premises was sealed on 26.5.1995. At the time of closure, no eatables
were kept inside the canteen. The No-objection certificate not issued by the Commissioner,
Corporation of Madras, but only the District Revenue Officer (Land and Estate Department)
who is not a competent authority to issue such a certificate. Hence, it did not bind the
Corporation of Madras since the petitioner was neither a licensee nor a lessee, the writ petition
is unsustainable in law.

6. The prayer in this writ petition is for the issuance of a writ of mandamus directing the
   respondent to restore the possession of the premises to the petitioner and pass such further or
   other orders including an order awarding exemplary costs and damages at the rate of Rs. 500/-
   per day from 25.5.1995 till restoration of possession. It is admitted fact that the petitioner herein
   has filed O.S. No. 3743 of 1995 for mandatory injunction of restoration of possession of the
   premises which is also the subject matter of the writ petition. It is also brought to the notice of
   this Court that the petitioner has filed I.A. No. 8055/95 for a interim relief of restoration of
   possession and for removal of the lock, I.A. No. 8056/95 to appoint an Advocate Commissioner
   to take inventory of the entire articles which were inside the canteen and I.A. No. 8054/95
   restraining the respondents from interfering with the petitioner’s peaceful possession. All the
   said interim applications were dismissed on 10.7.1995. However, the petitioner was permitted
   to take delivery of the movables kept in the canteen by an order dated 10.7.1995. Admittedly,
   the petitioner has not filed any appeal against the orders in the said I.A’s. The writ petition was
   filed by the petitioner on 1.8.1995. Even after filing the writ petition, the petitioner has not
   chosen to withdraw the said suit. Now, it is reported that the said suit was decreed ex parte in
   favour of the petitioner. In the given circumstance, the writ petition is maintainable or not; has
   to be decided as the same is raised by the respondent as preliminary objection. If the said
   objection is sustained, it is unnecessary to decide the other issues involved in this case.
7. Whether Order II, Rule 2 applies to the writ petitions or not? The principle underlying
   Order II, Rule 2 being based upon public policy. A person who files a suit seeking certain relief
   in respect of a cause of action and who is precluded from instituting another suit for seeking
   other reliefs in respect of same cause of action under Order II, Rule 2, CPC.

It is evident from Order II, Rule 2, C.P.C. that the suit shall include the whole claim, the
relinquishment of part of claim is not permissible and omission to sue for one several reliefs
also prohibited. Hence, once a suit is filed for certain relief in respect of a cause of action, the
person who has filed is precluded from instituting another suit for certain other reliefs with
respect to the same cause of action. Hence, the same person cannot be allowed to invoke the
writ jurisdiction of this Court for obtaining the very same reliefs. Indeed, if second suit is
barred, a writ petition would equally be barred, public policy underlying Order II, Rule 2, CPC
is attracted with equal vigour in this situation also.
Apex Court of India in Devilal v. Sales Tax Officer, Ratlam [AIR 1965 SC 1150], has held
in page No. 1153 as follows:
Consideration of public policy and the principle of the finality of judgments are
important constituents of the rule of law, and they cannot be allowed to be violated just
because a citizen contends that his fundamental rights have been contravened by an
impugned order and wants liberty to agitate the question about its validity to by filing
one writ petition after another….If constructive res judicata is not applied to such
proceedings a party can file as many writ petitions as he likes and take one or two
points every time. That clearly is opposed to considerations of public policy on which
res judicata is based and would mean harassment and hardship to the opponent.
Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments
pronounced by this Court would also be materially affected. We are, therefore, satisfied
that the second writ petition filed by the appellant in the present case is barred by
constructive res judicata.
The above said decision was followed by the Division Bench of the Andhra Pradesh High
Court in K. Madhadeva Sastry v. Director, Post Graduate Centre, Anantapur [AIR 1982 AP
176, paras. 11 and 13]:

11. Now, so far as the second situation is concerned here too there cannot be any
    doubt about the general principle that Order II, Rule 2 would apply. A person who files
    a suit seeking certain relief in respect of a cause of action and who is precluded from
    instituting another suit for seeking other reliefs with respect to the same cause of action,
    cannot be allowed to invoke the writ jurisdiction of this Court for obtaining the very
    same reliefs. Indeed, if a suit is barred, a writ petition would equally be barred, public
    policy underlying Order II, Rule 2, CPC is attracted with equal vigour in this situation
    as well.

13. Another factor to be borne in mind is that by 1962, the Supreme Court had not
    even clarified the position about the applicability of the rule of constructive res judicata
    in writ proceedings. Indeed, the very applicability of the rule of res judicata in writ
    proceedings came to be raised and discussed from Daryao case [AIR 1961 SC 1457].
    It is only later that the Supreme Court clarified in Devilal v. Sales Tax Officer, Ratlam
    [AIR 1965 SC 1150] that the rule of constructive res judicata also applies to writ
    proceedings. It observed (at p. 1153).
    In view of the above said decisions of the Apex Court as well as the Division Bench of the
    Andhra Pradesh High Court, the present writ petition is hit by Order II, Rule 2, CPC. For the
    reasons mentioned supra, the above writ petition is dismissed.