Madras High Court
The Executive Officer Vadakku Valliyur ... vs M. Mattar Mohideen And Anr. on 14 March, 1990
Equivalent citations: (1990)1MLJ433
ORDER Abdul Hadi, J.
1. This Civil Revision Petition by the Valliyur Town Panchayat is against the order in C.M.A.No. 61 of 1989 on the file of the District Judge, Tirunelveli, confirming the interim injunction granted in I.A.No. 856 of 1989 in O.S.No. 255 of 1989 on the file of the District Munisif's Court, Valliyur, restraining the said panchayat from collecting the water tax on the basis of the bye-laws, which were amended pursuant to the resolution of the panchayat dated 14.9.1988.
2. The main suit has been filed by the respondents 1 and 2, for themselves and on behalf of the residents of the said panchayat, for a declaration that the said resolution and the consequent amendment of the relevant bye-law are invalid and for a consequential permanent injunction. By the resolution dated 23.11.1987, the said panchayat resolved to increase the water tax (1) for domestic purpose from 75 paise per every 1000 litres or part thereof to Rs. 1.50 per 1000 litres beyond 8000 litres of consumption, while below the said 8000 litres limit a minimum charge of Rs. 10 was to be collected and (2) for nondomestic purpose from Rs. 1.50 per 1000 litres or part thereof to Rs. 3 per 1000 litres beyond 8000 litres of consumption, while below the said 8000 litres limit a minimum charge of Rs. 20 was to be collected. The said resolution dated 23.11.1987 was placed before the concerned Superintending Engineer, Tamil Nadu Water and Drainage Board as contemplated by paragraph 89(2) of the Manual of Panchayat Administration as amended by G.O.Ms.No. 1105 dated 22.7.1980 Rural Development and Local Administration Department. The said Engineer made corrections to the said resolution, whereby the minimum rate for the supply of 8000 litres was deleted and uniformly fixed the rate at Rs. 1.50 for 1000 litres irrespective of the quantum of supply subject to a general minimum of Rs. 10 for domestic purpose and likewise for non-domestic purpose also the minimum rate for the supply of 8000 litres was fixed at Rs. 3 per 1000 litres irrespective of quantum of consumption, subject to a general minimum of Rs. 20. The resolution dated 14.9.1988 resolved to increase the water tax as suggested by the said Engineer and it was sought to be implemented from 1.9.1989. It is against this resolution dated 14.9.1988 and the consequent amendment of relevant bye-law, the suit was filed and the interim injunction was sought for. Interim injunction was granted by the trial Court and it was also confirmed by the lower appellate Court. The defendants have filed this revision.
3. The main objection by the plaintiffs-respondents to the said resolution dated 14.9.1989 and the amended bye-law is that the said Engineer has no jurisdiction to alter or modify the resolution passed by the panchayat and that he can only approve or disapprove what the panchayat has done.
4. The learned Counsel for the petitioners initially argued that the Courts below should not have passed the impunged order of injunction since no permission was granted under order 1, Rule 8, C.P.C. for the respondents-plaintiffs to sue in a representative capacity. I.A.No. 257 of 1989 was filed along with the suit seeking permission under Order 1, Rule 8, C.P.C.; the said I.A. is dated 24.5.1989. Notice was ordered in the said petition on the same day publication in one issue of Dinathanthi was also ordered. On 26.6.1989 it was recorded that paper publication was made. Thereafter the said I.A. was posted for enquiry subsequently on several days and so far no order has been passed finally in the said I.A. This is borne out from the certified copy of the said I.A. and the orders passed thereon till 15.11.1989. In view of the above said facts, the learned Counsel for the petitioners contended that no interim order, giving relief to the entire resident of the said panchayat on the footing that the suit was on behalf of all of them, could have been passed in such a suit when the permission under Order 1, Rule 8, C.P.C. had not been obtained. According to him, if at all, the Court could have granted injunction only in favour of the two plaintiffs in their respective individual capacities and not as representing the entire residents of the said panchayat. In support of his contention he cited the following passage in Sri Ram Krishna Mission v. Paramanand :
Unlike Order 33, Rule 8, C.P.C. which provides that where the application for permission to sue as a pauper has been granted it shall be numbered and registered and shall be deemed the plaint in the suit, Order 1 Rule 8, C.P.C. contemplates a suit from the very inception. It is true that a representative character is imparted to the suit only after the requisite procedure has been complied with; but it would be erroneous to hold that no suit has been instituted until permission has been granted by the Court.
However, as pointed out by the learned Counsel for the respondents, in the said decision, the Allahabad High Court also observed as follows:
I think that when a court issues notice on an application for leave under Order 1; Rule 8 made after the presentation of the suit, it should be inferred that the Court has by implication granted a conditional permission.
It has also been held by a Divisional bench of this Court in a case reported in Sankiah v. Vadakasi 1980 T.L.N.J. 86 as follows:
However it is not necessary that a formal order should be passed by the Court. From the circumstances of the case and from the fact that the Court had ordered publication of the notice it can be presumed that the Court had granted the necessary permission under Order 1, Rule 8...The provisions of Order 1, Rule 8 do not enjoin that the plaintiffs should obtain before hand the authority of those whom they seek to represent, the reason being that it will be open to all person having the same interest to get themselves impleaded and either support the plaintiff or oppose him in the suit...on the other hand, when the plaintiffs have filed the necessary application and the court has ordered the necessary notice to be published in the dailies, it is for the other residents of Chellam North and South Streets, if/they were so inclined to have come and opposed the plaintiffs. In the absence of any such opposition from any of the residents of' Chellam North and South Streets it is not for the defendants 1 and 2 to say that the plaintiffs are not entitled to file the suit in a representative capacity. We therefore set aside the finding of the trial court on issue No. 1 that the plaintiffs 1 to 3 cannot represent the entire people in the locality.
The said decision considered many of the decisions cited by both the Counsel before me like Kumaravelu Chettiar v. Ramaswami Ayyar 65 M.L.J.87 A.I.R.1933 Privy Council 183, Narayani Kamalakshi v. Kunchiyan Bahula Yan A.I.R.1959 Kerala 269, and the above referred to Sri Ram Krishna Mission v. Pramanand . In the present case, notice was issued in the application under Order 1, Rule 8, C.P.C. As stated above, even publication has been done. Further, it should be noted that the above said objection by the petitioners Counsel was not taken up in the petition in the Courts below. No doubts in Assistant Commissioner, H.R. & C.E. Salem etc. v. Nattamdi K.S. Ellappa, etc. 100 L.W.240 it was held by a learned single Judge of this Court as follows:
...the procedure under Order 1 Rule 8, Code of Civil procedure has to be followed and without doing so, no relief could be granted to the individual concerned.
But, in the present case, the procedure no doubt has been followed. The only thing is that final order granting permission has not been expressly passed. But, in view of the above said observations in Sankiah v. Vada kasi 1980 T.L.N.J.86 and Sri Ramakrishna v. Paramanand referred to above, I think it should be presumed that a conditional permission has been given by implication. The following passage in Narayani Kamalakshi v. Kunchiyan Bahulayan is significant:
Notwithstanding the failure of a Court to pass an order on a petition under Order 1, Rule 8 the Court shall assume such permission being granted to the parties where the Court has directed publication...The view that mere omission to pass a formal order granting sanction would not vitiate the decree was expressed by the Division Bench of the Lahore High Court in Punjab Co-Operative Bank v. Hari Singh A.I.R.1933 Lah 749...That such a formal order giving permission under Order 1, Rule 8 is not necessary is the view expressed by Justice Gokhale of the Bombay High Court in Kumaravelu v. Chhagan Kisan . In fact, the learned Judge took the view that the permission under Order 1, Rule 8 can be granted even at the appellate stage. Referring to the decision of the Madras High Court in Muthukaruppa v. Appavoo (1943) 1 M L J 453 : A.I.R. 1943 Mad. 161...Mathew, J. said in Kunhalavi Musaliar v. Abdullah 1965 Ker. LT.907...thus:
...that the Court must be deemed to have given its permission when it ordered the publication of the notice in the paper.
Therefore, the above said objection filed by the petitioners' Counsel based an Order 1, Rule 8, C.P.C. cannot be sustained.
5. Coming to the next question whether it can be concluded that the above said resolution passed on 14.9.1988 and the corresponding amendment of the relevant bye-law incorporating the corrections made by the Superintending Engineer are valid. The learned Counsel for respondents contended that as per paragraph 89(2) of the Manual on Panchayat Administration as amended by the above said Government Order, the Superintending Engineer has no power to "alter" the resolution passed by the panchayat on 23.11.1987 and that if at all he can only approve and confirm it or decline to do so. The said paragraph 89(2) runs as follows:
No by-law" or cancellation or alternation made by a panchayat shall have effect, until the same has been approved and confirmed by the Divisional Development Officer concerned...and by The Superintending Engineer, Tamil Nadu Water Supply and Drainage Board or any other technical officer....
Both the Courts below have held that the Superintending Engineer has no such power of alteration. I also think so, Prima facie at least. No doubt, the preamble to the above said Government Order Ms.No. 1105 dated 22.7.1980 which amended the above said paragraph seems to proceed on the" footing that the said Superintending Engineer has power to alter the resolution passed by the panchayat. Anyway, normally the preamble to the rule cannot control the actual rule that was passed when the words of the rule are clear. That apart, the only amendment that was made to the above said paragraph 89(2) seems to be that instead of Sanitary Engineer who was earlier given power to approve and confirm, the Superintending Engineer of Tamil Nadu Water Supply and Drainage is given the said power, consequent on the formation of the said Board form 14.4.1972.
6. At any rate, I find the alteration actually made by the Superintending Engineer is nothing very material. As stated above, he has only deleted the minimum rate of Rs. 10 for domestic purpose and Rs. 20 for non-domestic purpose for the initial 8000 litres of consumption. At the same time he stipulated a general minimum rate of a sum of Rs. 10 and Rs. 20 respectively. The result of the change actually effected by the Superintending Engineer is not any thing significant. For example if 8000 litres are consumed by a domestic consumer according to the original resolution dated 23.11.1987 he has to pay simply Rs. 10. According to the Superintending Engineers alteration, which is incorporated in the subsequent resolution dated 14.9.1988 he should pay Rs. 12. Supposing 6000 litres are consumed by a domestic consumer he has to pay Rs. 10 according to the Original resolution and according to the Superintending Engineer's suggestion also he has to pay only Rs. 10. So, it cannot be said that the residents of Valliyur panchayat would suffer any irreparable injury if the temporary injunction is not granted. Further, the balance of convenience also lies in favour of the petitioners-panchayat. They have alleged in the counter affidavit before the Court below as follows:
It is absolutely impossible to maintain the protected water supply without the enhancement. In the year 1988-89 the respondent nearly spent six lakhs of Rupees towards maintenance and other expenses. Till 30.3.1989 the respondents have to pay to the Government nearly 9 lakhs and odd towards protected water supply. Because of the injunction the financial position of the Panchayat is shaky.
No reply affidavit was filed repudiating these allegations in the counter. So, the grant of injunction will inconvenience the panchayat more than the inconvenience that would be caused to the residents of Valliyur panchayat if injunction is not granted.
7. In granting temporary injunction, it is settled law that not only prima facie case has to be seen, but also the other two factors, viz., (1) in whose favour the balance of convenience lies and (2) whether the plaintiff would suffer irreparable injury if injunction is not granted. Just to illustrate, the decision in Barkat Ali v. Zulfiquar held that with the first condition, viz., whether the petitioners have made out a prima facie case as sine qua non, two other conditions relating to the above said balance of convenience and irrepairable injury should be satisfied by the petitioners conjunctively and a mere proof of one of the three conditions does not entitle them to obtain a temporary injunction in their favour. As stated above, since the alteration made by the Superintending Engineer is very insignificant, it cannot be said that the plaintiffs would suffer irrepairable injury if injunction is not granted. Therefore, I conclude that this not a case for grant of temporary injunction prayed for in favour of the plaintiffs.
8. I, therefore, set aside the orders of Courts below, allow this Civil Revision Petition and dismiss I.A.No. 856 of 1989 in O.S.No. 255 of 1989 on the file of the District Munisif's Court, Valliyur. No costs.