Madras High Court
Kings India Chemicals Corporation ... vs The District Collector on 23 December, 2009
Author: D.Murugesan
Bench: D.Murugesan, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/12/2009
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
and
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.A.(MD) No.655 of 2009
and
W.P.(MD) No.9912 of 2009
Kings India Chemicals Corporation Limited
rep.by its Chairman R.B.Raj Kumar
No.272, Avvai Shanmugham Road
Royapettah, Chennai 600 086 .. Appellant/Writ Petitioner
versus
01. The District Collector
cum Inspector of Panchayats
Thanjavur District, Thanjavur
02. The Vadaseri Village Panchayat
represented by its President
Orathanadu Taluk
Thanjavur District
03. A.R.Thangavel
04. P.N.S.Raja
05. Tmt.Barathi Manivasagam
06. J.Bakthavatchalam
07. Tmt.M.Parvathi
08. A.L.Kannan
09. P.R.Manikandan Thevar
10. Tmt.P.M.Santhi
11. The Vadaseri Village Farmers Association
rep.by its Secretary Mr.T.N.Selvam
No.762/6, Bus Stand, Vadaseri
Orathanadu Taluk, Thanjavur District
12. T.M.Mathivanan
13. S.Elangovan
14. V.Pandian
15. K.Annadurai
16. P.Kannagi
17. S.Masilamani
18. Vasanthi Raveendran
(R3 to R18 have been impleaded as per
order of Court dt.18.11.09 in M.P.(MD)
Nos.2 to 4 of 2009 in
W.P.(MD) No.9912 of 2009) .. Respondents/Respondents
Appeal under Clause 15 of the Letters Patent against the order dated
08.12.2009 made in M.P.(MD) No.1 of 2009 in W.P.(MD) No.9912 of 2009.
Petition under Article 226 of the Constitution of India for the issue of a
Writ of Mandamus directing the respondents herein to forbear from cancelling,
rescinding or withdrawing the unanimous resolution of the Vadaseri Panchayat in
Resolution No.74 dated 13.7.2009 granting no objection certificate to the
petitioner for establishment of the distillery by the petitioner in their
premises at Vadaseri Village, Orathanadu Taluk, Thanjavur District.
!For Appellant/Petitioner ... Mr.V.T.Gopalan
Senior Counsel for
Mr.Veera Kathiravan
^For Respondents ... Mr.P.Wilson
Additional Advocate General
assisted by
Mr.R.Janakiramulu
Special Government Pleader
and Mr.P.Arun
Addl. Government Pleader
for R1
Mr.K.Balasubramanian
for R2
Mr.R.Muthukumaraswamy
Senior Counsel for
Mr.D.Srinivasa Raghavan
for R3 to R10
Mr.T.Mohan for
Ms.D.Geetha for R11
Mr.A.Balaguru for R12 to
R18
:JUDGMENT
D.MURUGESAN, J.
Both the writ appeal and the writ petition raise the following issues for consideration:-
"(a) Whether a resolution passed by a Village Panchayat could be reconsidered at the request of the members of the council? and
(b) If so, whether this Court could issue directions to the council not to call for the meeting for such reconsideration?
2. For deciding the said issues, the facts as pleaded in the writ petition can be stated as follows. The petitioner company, namely, M/s Kings India Chemicals Corporation Limited was established with an object to promote an alcohol based chemical project for the manufacture of Acetaldehyde, Acetic Acid, Acetic Anhydride and Ethyl Acetate at Vadaseri Village, Orthanadu Taluk. It was granted with DL-2 licence by the excise authorities of Tamil Nadu. Therefore, the petitioner thought that in order to have an uninterrupted supply of raw material necessary for the manufacture of chemicals, it should have a distillery of its own for the purpose of captive consumption and started making applications and was trying to have the formalities completed.
3. As permission is required for construction of factories and the installation of machineries from the panchayat union council in panchayat villages, in terms of Section 160 of the Tamil Nadu Panchayats Act, 1994 (for short, "the Act"), the petitioner applied for such permission by its application dated 8.7.2009. The Vadaseri Village Panchayat in its resolution dated 13.7.2009 (vide Resolution No.74) resolved to issue No Objection Certificate for establishment of a distillery and to accord approval for the plan for construction of building. By way of carrying out the said resolution of the panchayat, the president, being the executive authority, issued a No Objection Certificate and also issued order approving the building plan. It appears that later on, eight out of ten members of the village panchayat gave a representation to the President calling for the village panchayat meeting to reconsider the said resolution. The petitioner, therefore, has approached this Court with the writ petition seeking for a direction forbearing the Vadaseri Village Panchayat from cancelling, rescinding or withdrawing the unanimous Resolution No.74 dated 13.7.2009 granting no objection certificate to the petitioner for establishment of a distillery.
4. The writ appeal is directed against the interim order of the learned single Judge in directing the writ petition itself to be posted before the Green Bench for deciding the issue raised in the petition. Hence both the writ appeal and the writ petition are disposed of by this judgment.
5. Mr.V.T.Gopalan, learned senior counsel appearing for the petitioner would submit that pursuant to the resolution of the panchayat, the Executive Authority, namely, the President of the Village Panchayat has accorded approval for the building plan and the petitioner has incurred huge expenditure towards the establishment of the distillery and therefore, the District Collector has also recommended to the Government to accord its approval based upon the earlier resolution. At this stage, if the meeting of the village panchayat is convened and a resolution adversely affecting the petitioner is passed, serious prejudice would be caused, apart from heavy financial loss. He would also submit that the respondent panchayat is estopped from reconsidering the earlier resolution. Hence the village panchayat should be restrained from either cancelling or withdrawing the unanimous resolution of the panchayat dated 13.7.2009, it is argued.
6. On the other hand, Mr.R.Muthukumaraswamy, learned senior counsel appearing for the respondents 3 to 10, namely, the eight members who gave representation to reconsider the earlier resolution, would submit that after the resolution dated 13.7.2009 was passed, a request was made to the President of the Panchayat by the eight members on 25.9.2009 to convene the meeting in terms of Rule 9 of the Tamil Nadu Panchayats (Quorum and Procedure for the Convening and Conduct of Meetings of Village Panchayat) Rules, 1999 (for short, "the Rules"). Apart from the above, in terms of sub-section (4) of Section 3 of the Act, recommendations of the Grama Sabha were also made on the basis of its meeting held on 2.10.2009 objecting to the establishment of the distillery, as it would result in environmental pollution. The relief couched in the writ petition, in effect, would amount to restraining the village panchayat even to meet, discuss and resolve on the issue, which the panchayat is duty bound to do in terms of Rules 9 and 15 of the Rules. That apart, the relief prayed for in this writ petition is premature and that too, only on assumption that the members of the village panchayat may go back on the ealier resolution and consequently withdraw the same.
7. As far as the promissory estoppel is concerned, the learned senior counsel would submit that it is a principle on equity and when public interest is involved, the principle of equity claimed by a private individual should yield to the public interest. The establishment of distillery is against the environment and would affect the agricultural operation. There are serious objections to the establishment of the distillery by the villagers involving public interest. That apart, on facts, the petitioner has already established the unit and there is nothing to indicate as to the investment of the petitioner after the resolution was passed by the village panchayat. Hence the petitioner cannot claim the benefit of promissory estoppel.
8. We have also heard Mr.P.Wilson, learned Additional Advocate General appearing for the first respondent. He would submit that on 8.7.2009, an application was made to the District Collector by the petitioner seeking for permission to establish the distillery. That application was forwarded to the panchayat on 16.7.2009. Even before the same, the panchayat has resolved to grant the No Objection Certificate and the letter addressed by the Panchayat to the District Collector was received on 20.7.2009. Thereafter, no objection certificate was issued by the Divisional Officer, Fire and Rescue Services, Thanjavur Division, which was forwarded to the District Collector. The petitioner has also paid the building licence fee of Rs.1,60,600/-, which was accepted by the panchayat in its ordinary panchayat meeting held on 25.9.2009. By Resolution Nos.75 to 93, the village panchayat resolved to approve the receipt of income and expenditure. Though the meeting was convened on 2.10.2009, no resolution of the panchayat was communicated to the District Collector. After all the above developments, the District Collector received the representation from the Vadaseri Village Farmers Association on 5.10.2009 and on the same day, the District Collector has also received the representation given by the eight ward members to cancel the resolution. With the above factual background, the learned Additional Advocate General submitted that in terms of Section 202 of the Act, the District Collector is empowered to consider the resolution and decide whether to approve it or not. Having taken a decision to approve, he sent the same to the Government with his recommendations. Hence it is not now open to the panchayat to go back on the earlier resolution and to pass a fresh resolution to cancel the same.
9. Mr.T.Mohan, learned counsel for the respondent no.11 would submit on the same lines as Mr.R.Muthukumaraswamy, learned senior counsel had argued. Mr.A.Balaguru, learned counsel for the respondent nos.12 to 18 has also submitted that once the panchayat has resolved and the matter has been sent to the District Collector, it is subject to the approval of the District Collector and there is no question of reconsideration of the earlier resolution.
10.We have given our anxious consideration to the above contentions. For the disposal of the writ appeal and writ petition, the provisions of Section 160 of the Act are referable and they are extracted below:-
"160. Permission for construction of factories and the installation of machinery.--No person shall, without the permission of the panchayat union council in panchayat villages and except in accordance with the conditions specified in such permission,--
(a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power, or
(b) install in any premises any machinery or manufacturing plant drives by any power as aforesaid, not being machinery or manufacturing plant exempted by the rules."
11. The Government, in exercise of the powers under Section 242(2)(vii) of the Act, is empowered to frame rules providing for the procedure to be followed at meetings of the panchayats and at committees thereof and for the conduct of business and the number of members which shall form a quorum at any meeting. In exercise of such powers, the Government framed the Tamil Nadu Panchayats (Quorum and Procedure for the Convening and Conduct of Meetings of Village Panchayat) Rules, 1999. Rules 4, 9, 14 & 15 of the said Rules are referable and they are extracted as follows:-
"4. Notice of the meeting.--(1) Notice of not less than three clear days shall be given before the day of the meeting specifically indicating the date, and time, the place of meeting and the business to be transacted thereat. (2) In cases of urgency, the president may convene a meeting on giving notice of not less than twenty-four hours, clearly indicating the reasons of such urgency, and the place, date and time of the meeting including the business to be transacted thereat.
9.Requisition meeting.--(1) The president shall, on the requisition in writing, of not less than one-third of the members, convene a meeting of the village panchayat provided that the requisition specifies the date on which and the purpose for which the meeting is to be held. The requisition shall be delivered at the village panchayat office during office hours to the president, or any othe person who may then be in-charge of the office not less than seven clear days before the day of the meeting.
(2) If the president fails within forty-eight hours from the delivery of such requisition to call a meeting on the day specified therein, or within three days thereafter, the meeting may be called by all the members, who signed the requisition on giving the notice as provided in rule 4 of the other members.
14. Passing of resolution.--Every question which may come before the village panchayat at any meeting shall be decided by a majority of the members present and voting at the meeting and in every case of equality of votes, the presiding member shall have and exercise a second or casting vote. In the case of any resolution not carried unanimously, the names of the members who voted for and against it shall be recorded in the minutes.
15. Modification or cancellation of resolution.-- No resolution shall be modified or cancelled within three months after the passing thereof except at a meeting specially convened in that behalf and by a resolution supported by not less than one-half of the sanctioned number of members."
12. In terms of Section 160 of the Act, permission is required for construction of factories and the installation of machineries. For the purpose of consideration, a resolution should be passed by the members of the village panchayat. In terms of Rule 4 of the Rules, notice of not less than three clear days shall be given before the day of the meeting specifically indicating the date and time, place of meeting and the business to be transacted thereat. In terms of Rule 7, service of notice of meeting and agenda is mandatory, as otherwise the entire meeting shall be invalid as per Rule 8 of the Rules. No business shall be transacted at a meeting unless there be present atleast three members or one-third of the number of member then on the village panchayat whichever is higher throughout the duration of the meeting, as required under Rule 12. In terms of Rule 14, resolutions are passed.
13. In terms of Rule 15, no resolution shall be modified or cancelled within three months after the passing thereof except at a meeting specially convened in that behalf and by a resolution supported by not less than one-half of the sanctioned number of members.
14. Coming to the facts of the present case, the resolution of the panchayat was passed on 13.7.2009. On 25.9.2009, eight out of ten members have requested the president of the panchayat to convene the meeting in terms of sub-rule (1) of Rule 9 of the Rules. That rule requires the president to convene the meeting on such request. In the event the president fails within forty- eight hours from the delivery of such requisition to call for a meeting in terms of sub-rule (2) of Rule 9, such a meeting may be called by all the members who signed the requisition on giving the notice as provided in rule 4 on the other members. In view of the above provision, a village panchayat has the power to reconsider the resolution that was passed earlier. The only requirement is that for such reconsideration, there must be a requisition to the president to convene a meeting by not less than one third of the members. On the facts and circumstances of this case, out of ten members, eight members have made such a requisition and therefore the requisition is well within sub-rule (1) of Rule 9 of the Rules and the president is duty bound to call for the meeting, as otherwise the remaining members are entitled to convene the meeting in terms of sub-rule (2) of Rule 9. In this context, we may also refer to Section 84 of the Act, where the executive authority, namely, the President has a duty to carry into effect the resolution of the village panchayat.
15. This takes us to the next question as to whether this Court would be competent and justified to grant an order of injunction restraining either the President from convening the meeting as required under sub-rule (1) of Rule 9 or the other members to convene such a meeting in terms of sub-rule (2) of Rule 9 of the Rules. Law on this aspect is well settled. In the judgment in Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334, the Apex Court has laid down that there can be no doubt that no Court can direct a legislature to enact a particular law. Similarly, even when the executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. A similar question came up for consideration before the Apex Court in State of Jammu & Kashmir v. A.R.Zakki and others, AIR 1992 SC 1546, where the Apex Court has held that no Court can give a direction to the Government to refrain from enforcing a provision of law.
16. In State of U.P. and others v. Harish Chandra and others, (1996) 9 SCC 309, the Apex Court has held in paragraph 10 as follows:-
"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. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law....."
17. The above authoritative pronouncement of the Apex Court would show that when the power is vested on the members of the village panchayat to convene a meeting in terms of Rule 9 and to reconsider an earlier resolution in terms of Rule 15 of the Rules either for modification or for cancellation, it would not be well within the jurisdiction of this Court to issue a mandamus which would amount to restraining the village panchayat from discharging its functions. That apart, a writ of mandamus is an extraordinary remedy to be invoked only in extraordinary circumstances. A petitioner, seeking such extraordinary remedy, must demonstrate both clearly and indisputably the entitlement to the writ. In the absence of such entitlement, the Court would not be justified to issue such writs. On the given facts and circumstances of the case, we find that when the elected representatives of the people to a village panchayat seek to convene a meeting, such requisition cannot be underestimated by the Court on the ground that if a meeting is convened and a resolution is allowed to be passed, it may go against an individual. In this context, we may also point out that separation of power also precludes this Court from entering into the internal process of the representative bodies and directing them not to discharge their duties, which they are otherwise obligated to do under the relevant provisions. In view of the above, the relief sought for in the writ petition cannot be granted. Accordingly, issue (a) is answered in the affirmative and a resolution passed by a village panchayat can be reconsidered at the request of the members of the council in terms of Rules 9 and 15 of the Rules. For the above forth reasons, the issue (b) is answered in the negative.
18. As we have held that the relief sought for in the writ petition cannot be ordered on the ground that this Court would not be justified in issuing a direction in exercise of the power under Article 226 of the Constitution, the other contention relating to the promissory estoppel need not be gone into. For the same reason, the further action that has been taken by the District Collector on the basis of the resolution dated 13.7.2009 also need not be gone into, as all the subsequent proceedings, be it the grant of building permission by the executive authority or the subsequent action taken by the District Collector and the permission granted by the other authorities for establishment of a distillery, are all after the passing of the resolution dated 13.7.2009. In view of the above, we are not inclined to accept the grievance of the appellant/petitioner. Accordingly, both the writ appeal and the writ petition fail and they are dismissed accordingly. Consequently, the interim order stands vacated and M.P.(MD) Nos.1 & 5 of 2009 are also dismissed. No costs.
ss To
1. The District Collector cum Inspector of Panchayats Thanjavur District, Thanjavur
2. The President Vadaseri Village Panchayat Orathanadu Taluk, Thanjavur District