Madras High Court
M/S.German Trading Corporation vs The Secretary To Government Of Tamil ... on 30 April, 2013
Bench: R.K. Agrawal, N. Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 30..04..2013
C O R A M
The Honble Mr. R.K. AGRAWAL, ACTING CHIEF JUSTICE
and
The Honble Mr. Justice N. PAUL VASANTHAKUMAR
Writ Petition Nos.22604 & 9164 of 2010
W.P. No.22604 of 2010 :
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M/s.German Trading Corporation,
Rep. by its Proprietor,
R.Velumani,
S/oR.Rangasamy,
No.14/1B, Athanur Village,
Rasipuram Taluk,
Namakkal District. .. Petitioner
Vs.
1. The Secretary to Government of Tamil Nadu,
Municipal Administration & Water Supply Department,
Fort.St.George, Secretariat,
Chennai.
2. The Director of Town Panchayats,
Kuralagam, Chennai.
3. The District Collector,
Namakkal District,
Namakkal.
4. The Superintendent of Police,
Namakkal District,
Namakkal 636 301.
5. The Inspector of Police,
Venathur Police Station,
Namakkal District 636 301.
6. The Athanur Town Panchayat,
Rep. by its Executive Officer,
Athanur Village,
Raasipuram Taluk,
Namakkal District.
7. The President,
Athanur Town Panchayat,
Athanur, Rasipuram Taluk,
Namakkal District.
(R-7 impleaded as per order dated
9.12.2010 in M.P.No.3/2010 in
W.P.No.22604/2010) .. Respondents
W.P. No.9164 of 2010
--------------------
V. Jalandar .. Petitioner
Vs.
1. The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Municipal Administration & Water Supply Department,
Fort.St.George, Chennai.
2. The Director of Town Panchayats,
Directorate of Town Panchayats,
Kuralagam, Chennai.
3. Athanur Town Panchayat,
Represented by its Executive Authority,
Athanur, Rasipuram Taluk,
Namakkal District.
4. German Trading Corporation,
Represented by its Proprietor M.R.Velumani,
Kattukottaidasanpudur,
Athanur Town Panchayat,
Rasipuram Taluk,
Namakkal District 636 301. .. Respondents
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Prayer : W.P. No.22604 of 2010 filed under Article 226 of the Constitution of India praying for the issue of a Certiorarified Mandamus to call for the records culminating in Resolution No.189(1) dated 06.05.2010 passed by the sixth respondent Town Panchayat by cancelling the building plan approval granted to the petitioners concern on 28.04.2010, quash the same and consequently direct the fourth and fifth respondents herein to grant police protection to the petitioners concern for establishing its unit in S.No.14/1B of Athanur Village, Rasipuram Taluk, Namakkal District.
W.P. No. 9164 of 2010 filed under Article 226 of the Constitution of India praying for the issue of a Writ of Declaration declaring G.O.Ms.No.67, Municipal Administration and Water Supply Department dated 20.04.2010 as illegal and wholly without jurisdiction.
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For Petitioner in
W.P.No.22604/2010 ::: Mr.K.Doraisami, Senior Counsel
for Mr.Kandhan Doraisami
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For Respondents 1to 5 ::: Mr.T.N.Rajagopalan,
in W.P.No.22604/2010 Additional Government Pleader
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For Respondent 6
in W.P.No.22604/2010 ::: Mr.L.P.Shanmugasundaram
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For Respondent 7
in W.P.No.22604/2010 ::: Mr.N.G.R.Prasad
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For Petitioner in
W.P.No.9164/2010 ::: Mrs. D.Nagasaila
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For Respondents 1&2 ::: Mr. T.N.Rajagopalan,
in W.P.No.9164/2010 Additional Government Pleader
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For Respondent 3
in W.P.No.9164/2010 ::: Mr. L.P.Shanmugasundaram
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For Respondent 4 ::: Mr.K.Doraisami, Senior Counsel
in W.P.No.9164/2010 for Mr.Kandhan Doraisami
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O R D E R
R.K. Agrawal, Acting Chief Justice W.P. No.22604 of 2010 has been filed seeking issue of a Certiorarified Mandamus to call for the records in Resolution No.189(1) dated 06.05.2010 passed by the sixth respondent Town Panchayat by cancelling the building plan approval granted to the petitioners concern on 28.04.2010, quash the same and consequently direct the fourth and fifth respondents herein to grant police protection to the petitioners concern for establishing its unit in S.No.14/1B of Athanur Village, Rasipuram Taluk, Namakkal District.
2. W.P.No.9164 of 2010 has been filed seeking issue of a Writ of Declaration declaring G.O.Ms.No.67, Municipal Administration and Water Supply Department dated 20.04.2010 as illegal and wholly without jurisdiction.
Facts of the case
3. Briefly stated the facts giving rise to the filing of W.P.No.22504 of 2010 are as follows:-
The petitioner, namely M/s.German Trading Corporation, had proposed to establish a factory for manufacturing granulated manure, which does not involve any chemical process nor does it involve any process emitting pollution, in his land in S.No.14/1B of Athanur Village, Rasipuram Taluk, Namakkal District. The petitioner also obtained necessary clearance from the Deputy Director of Town and Country Planning stating that the land is not coming under the prohibited zone, and also obtained necessary permission from the statutory authorities like Director of Industries and Commerce, Joint Director of Town and Country Planning, Deputy Chief Inspector of Factories and the Joint Director of Fire Services. The petitioners application was processed through the Single Window System for the approval of building plan. The petitioner also obtained approval from the Health Department, though not necessary, besides permission from the Tamil Nadu Pollution Control Board under the Air and Water Acts to establish the unit and for installation of the machineries.
According to the petitioner, it had approached the sixth respondent seeking approval for construction of building. However, the sixth respondent by its letter dated 29.04.2007 informed that it can go ahead with the construction only after getting approval from the sixth respondent. The petitioner filed W.P.No.12770 of 2007 before this Court to direct the sixth respondent herein to issue a formal order of approval to the petitioner for establishing and running the mechanized fertilizer mixing unit. The said writ petition was disposed of on 05.04.2007 by directing the sixth respondent herein to consider the application filed by the petitioner within a period of 12 weeks.
It is the case of the petitioner that the sixth respondent however by Resolution No.116(4) dated 20.04.2007 rejected its application for approval referring to the interim order passed by the Tamil Nadu Pollution Control Board to stop the construction pending appeal Nos.14 & 15 of 2007 filed by one P.Muthusamy against granting permission by the Pollution Board. But the petitioner took up the issue with the single window committee, and the Committee, after getting necessary opinion, directed the sixth respondent to consider its application for approval of building plan. However, the sixth respondent again by resolution No.133(3) dated 17.5.2007 rejected the application. In the meanwhile, the interim stay granted was vacated by the Appellate Authority on 11.6.2007 and thereafter, the petitioner again approached the sixth respondent seeking approval of building plan. Yet again, the application was rejected, without citing any reason, by resolution no.144(7) dated 25.06.2007.
It is stated by the petitioner that the Executive Officer of the sixth respondent by his proceedings bearing R.C.No.138 of 2006 dated 25.6.2007 sent a communication to the third respondent, who in turn approved its proposal and forwarded the same to the Government through the second respondent. Since the sixth respondent failed to grant permission, in spite of the petitioner taken all mandatory permissions, the second respondent had recommended taking appropriate action against the sixth respondent. Thereafter, a meeting was convened by the third respondent, in which the President of the fifth respondent did not participate. In the said meeting it was concluded by the third respondent that the sixth respondent deliberately refused to accord planning permission, and communicated the same to the Government by its letter dated 12.03.2008. The third respondent had also recommended that appropriate action may be taken under Section 252 of the Tamil Nadu District Municipalities Act, 1920 (hereinafter referred to as the Act) against the sixth respondent. The appeals (Nos.14 & 15 of 2007) filed by Muthusamy were dismissed by the Appellate Authority on 18.09.2008 upholding the consent given by the Tamil Nadu Pollution Control Board for commencing the granulated maure factory. The said order has become final, since no appeal has been preferred.
It is stated by the petitioner that taking into consideration the recommendation of the third respondent, second respondent and the findings of the appellate authority, the Government by letter bearing No.37713/Town Panchayats-2/2008-1 dated 03.12.2008 directed the sixth respondent to grant its consent. Subsequently, a meeting was convened by the sixth respondent and the Executive Officer submitted a note before the Council. In the said meeting, 15 councilors were present and out of the 15 councilors, majority of them gave their approval for sanction of the building plan. However, the President of the sixth respondent panchayat created false records stating that 15 members were present and out of 15 members, 10 of them have opposed the move to grant planning permission and recorded the resolution to the effect that permission for building plan is rejected.
The petitioners case is that against the said rejection, it had preferred appeal before the Government under Section 252 of the Act seeking to set aside the resolution No.15(5) dated 26.06.2009 and also filed a writ petition being W.P.No.5643 of 2009 before this Court, which writ petition was disposed of by this Court on 03.04.2009 directing the Government to consider the appeal preferred by it. The Secretary to the Government by letter dated 01.03.2010, called upon the sixth respondent to explain as to why building plan permission should not be granted to its concern, to which the sixth respondent by letter dated 23.03.2010 submitted its objection. Thereafter, the sixth respondent by G.O.Ms.No.67, MAWS Department dated 20.04.2010 directed the Executive Officer of the sixth respondent to grant permission to establish the unit. Pursuant to the order passed by the Government, the executive officer of the sixth respondent granted permission by his proceedings in Na.Ka.No.138 of 2006 dated 28.04.2010, and the petitioner also remitted a sum of Rs.2,01,083/- to the sixth respondent and went ahead with the construction.
It is stated by the petitioner that one Mr.Jalandar filed a writ petition being W.P.No.9164 of 2010 before this Court challenging G.O.Ms.No.67 dated 20.04.2010. According to the petitioner, the objections being made by a few members of the sixth respondent, including its president, is only at the instance of its business rivalries, who are having their units in other Districts and marketing their products in Namakkal and other adjacent Districts. Therefore, the petitioner filed writ petition being W.P.No.18019 of 2010 seeking police protection for establishing its unit, which also granted by this Court on 19.08.2010.
It is further stated by the petitioner that, in the meantime, the petitioner in W.P.No.9164 of 2010 filed a review petition being R.P.No.133 of 2010 against the order passed in W.P.No.18019 of 2010, in which he has alleged that the petitioner had suppressed the resolution dated 06.05.2010 passed by the sixth respondent cancelling the permission granted to its concern on 28.04.2010. However, it is stated by the petitioner that it was never put on notice about the said resolution, and the resolution was received by the petitioner by speed post on 07.09.2010, which is subsequent to the order passed in W.P.No.18019 of 2010. This Court by order dated 22.09.2010 allowed the said review petition and recalled its earlier dated 19.8.2010.
As the resolution dated 06.05.2010 passed by the sixth respondent is in a way supersedes G.O.Ms.No.67 dated 20.04.2010, the petitioner has filed this writ petition seeking the aforementioned prayer.
4. The facts of the case leading to filing of W.P.No.9164 of 2010 are as follows:-
a) The petitioner, who is a resident of Athanur Town Panchayat, and a serving Councilor of the Panchayat, has stated that the fourth respondent herein had applied to the third respondent-Athanur Town Panchayat under Section 250 of the Act seeking permission to establish a Fertilizer Mixer Unit in S.No.14/1B, Athanur Village, Rasipuram Taluk. The mixing of fertilizer would require heating of the various components at a very high temperature in order to granulate them and mix it. The intense heat will cause emission of lot of smoke, which will be let out through Chimneys.
b) It is stated by the petitioner that the land situated in S.No.14/B is an agricultural land, which is located near to the residential area. There are more than 150 houses within a radius of 100 meters of the proposed site where the factory is to be established. Further, temples are also situated nearby. The villagers predominantly depend on agriculture for their livelihood. The fourth respondent even before getting approval from the Panchayat Council for establishing the factory, had started putting up construction illegally. Hence, the third respondent issued an order on 29.3.2007 to stop the construction.
c) The petitioner has stated that by Resolution No.133(2) passed by the Panchayat Council on 17.05.2007, the fourth respondents application has been rejected by the third respondent. However, the fourth respondent renewed his application seeking permission before the third respondent, after obtaining consent from the Tamil Nadu Pollution Control Board, which was again rejected by the third respondent vide Resolution No.144(7) dated 25.06.2007.
d) It is stated by the petitioner that thereafter the first respondent directed the District Collector by letter dated 04.12.2007 to convene a meeting of all the officials along with the fourth respondent and take a decision. The meeting was convened, but the third respondent did not attend. The District Collector recommended to the Government to issue direction Town Panchayat under Section 252 of the Act, pursuant to which the first respondent directed the Executive Officer of the third respondent-Panchayat to consider the application of the fourth respondent.
e) The petitioner has stated that the Council of the Athanur Town Panchayat met on 26.02.2009, in which meeting, out of 15 council members, 8 members attended the meeting. But 10 members sent their views, in writing, opposing the establishment of the Fertilizer unit. At the meeting, an unanimous resolution was passed rejecting the application of the fourth respondent, to which the petitioner was also a party. All the councilors were of the opinion that establishment of the unit will be detrimental to the public health and will be a nuisance to the local residents, and that it was felt larger public interest of the residents would prevail over the individual interest of the fourth respondent.
f) It is stated by the petitioner that the fourth respondent gave a representation dated 27.03.2009 to the first respondent to set aside the resolution dated 26.02.2009 passed by the third respondent. This representation is more or less an appeal under Section 252 of the Act, though the said section does not provide for an appeal. The first respondent by letter dated 01.03.2010 requested the second respondent-Panchayat to submit its objections to the aforesaid representation of the fourth respondent. In turn, the second respondent replied by stating that within 100 meters from the disputes site, people belonging to Adi Dravida community, Arundhatiyar community and Boyar community reside. Further, agricultural activities are being carried on in close proximity to the site. It was also pointed out by the second respondent that the machineries, which are going to be used, will create noise pollution and disturb the peace of the residents, and will pose health hazards to the children and aged people. Further, within 137 meters from the site, a Government bore well is located. The said bore well supplies drinking water to three colonies of Arundhatiyar, Adidravidar and Boyar residents.
g) The petitioner has stated that the Town Panchayat Council has also pointed out that the site is located on the foot hills of Manju Karadu Hills, and the slope of the land is such that water will flow downwards from the site in question towards the village thereby giving scope for contamination of ground water in the villages. The water in the neighbouring villages is already contaminated on account of pollution from industries and factories. It is the responsibility of the Town Panchayat to protect the water resources and Athanur Town Panchayat is supplying water for irrigation to the neighboring villages. During drought period, the local residents are totally dependent on the ground water for drinking purposes. Moreover, being a predominantly agricultural area, the Panchayat Council was of the opinion that it was not an appropriate site for locating any factory. Further, local residents have expressed their strong opposition to the location of the factory, and have also expressed fear that they will be forced to vacate their houses and move into the hills. Taking into account the above circumstances, the Town Panchayat requested the first respondent to give personal hearing before any decision is taken.
h) It is further stated by the petitioner that the first respondent has now passed the impugned G.O.Ms.No.67 dated 20.04.2010 directing the Commissioner of Town Panchayat to cancel the earlier resolutions dated 20.04.2007, 17.05.2007, 25.06.2007, 07.02.2009 and 26.02.2009 passed by the Athanur Town Panchayat rejecting the permission sought by the fourth respondent and to advise the Executive Officer of the Town Panchayat to grant permission to the fourth respondent to establish the factory at Athanur Town Panchayat.
i) Questioning the action of the first respondent, the petitioner has come forward with this writ petition seeking Writ of Declaration to declare G.O.Ms.No.67, Municipal Administration and Water Supply Department dt.20.04.2010 as illegal and wholly without jurisdiction.
Counter Affidavit
5. A counter affidavit has been filed by the seventh respondent-President Athanur Town Panchayat in W.P.No.22604 of 2010 stating inter alia as follows :-
(a) The allegations of mala fide made against him are strongly denied; that the statement of the petitioner that he instigated the petitioner in W.P.No.9164 of 2010 namely, Jalandar to file the writ petition is not only untrue, but far fetched; and that Jalandar, being an elected Councilor, has got right to file the writ petition espousing the grievance of the public of the area. It is stated that M/s.German Trading Corporation applied to the Athanur Town Panchayat under Section 250 of the Act to establish a fertilizer mixer unit in S.No.14/1B, Athanur Village, Rasipuram Taluk; that the mixing of fertilizer would require the heating of various components to a very high temperature in order to granulate them and mix it and the intense heat will cause emission of lot of smoke which be let out through Chimneys; that as per Section 250(3)(b) of the Act, the Municipal Council can refuse permission, if it is of the opinion that such construction, establishment or installation is objectionable by reason of the density of the population in the neighbourhood or that it is likely to cause a nuisance. It is stated that S.No.14/1B situated in Athanur Village is an agricultural land and more than 150 houses are located within 100 meters of the proposed site where the Unit has to be started and temples are also situated nearby the site.
(b) It is stated that the statement of the petitioner that he gave application on 3.7.2006, and since no order was passed in the said application, the deeming provision in sub-clause(7) of Section 250 of the Act will come into operation is untenable. The application should have been addressed to the Executive Authority, which is the appropriate authority, and not to the Council. The Executive Authority only has the powers to grant approvals for huts and dwelling houses, and further, the application was never even brought to the notice of the Council. Hence, the deeming provision will not apply. The subsequent applications by the petitioner, which were placed before the Council, were considered and rejected. Further, even before grant of permission for establishing the factory, the petitioner has started to put up construction illegally, which was stopped by the petitioner by order dated 29.03.2007.
(c) It is stated that M/s.German Trading Corporation filed a writ petition being W.P.No.12770 of 2007 before this Court, and this Court directed the Athanur Town Panchayat to consider the application for construction; that the Council by resolution 133(2) dated 17.5.2007 rejected the application; that the application which was renewed by M/s.German Trading Corporation before the Athanaur Town Panchayat after obtaining consent from the Tamil Nadu Pollution Control Board; that the Panchayat by Board Resolution No.144(7) dated 25.06.2007 again rejected the permission; that thereafter the first respondent directed the District Collector to convene the meeting; that the meeting was convened and in the said meeting the representative of Athanur Town Panchayat could not attend; that the District Collector recommended to the Government to issue direction to the Athanur Town Panchayat under Section 252 of the Act ; and that thereafter, the first respondent, by letter dated 03.12.2008, directed the Executive Officer of the Athanur Town Panchayat to do the needful in respect of the application filed by M/s.German Trading Corporation. It is further stated that the Council met on 07.01.2009 and discussed the matter. Since no decision could be reached, the meeting was adjourned; that he does not have knowledge about the letter dated 07.01.2009 said to have been signed by 9 council members and addressed to me and that he did not receive such a letter. In fact, this was clearly an attempt to mislead the Secretary and favour the petitioner. It is stated that the Council again met on 26.02.2009, in which meeting 8 members, out of 15 members, attended. But 10 members gave their views in writing opposing the establishment of fertilizer unit taking into consideration the larger public interest.
(d) It is stated that mixing takes place at very high temperatures and there is bound to be lot of air pollution and heat generated as a result of the process. The No Objection Certificate granted by various other departments have no bearing on the decision to be taken by the Panchayat. The Panchayat Council, taking into consideration all relevant materials and factors, has come to an independent decision not to grant approval to the fourth respondent. In fact, a delegation was sent to a similar fertilizer mixing unit at Tiruvannamalai and it found that even after pollution control measures, as suggested by the Pollution Control Board are adopted, the fumes from the unit caused a lot of irritation to the nose and eyes of the persons, who went on a visit, and the mixing unit also caused lot of noise pollution when in operation. It was only after getting the first hand information, the Council decided not to grant approval to the fourth respondent. It is stated that G.O.Ms.No.67 dated 20.04.2010 is illegally and without jurisdiction. In the counter affidavit, the powers of the Panchayat under the Act have been stated. The resolutions dated 20.04.2007, 17.05.2007, 25.06.2007, 07.02.2009 and 26.02.2009 have been legally passed and not in excess of power conferred by the Act or under any other law. By granting permission to M/s.German Trading Corporation, the health and safety of the residents would be in peril.
(e) It is further stated that immediately after the news for issuance of permission for starting the fact spread among the local villagers, they all assembled near the Panchayat Office and that fearing problems, the emergency meeting of the Council was convened on 06.05.2010 and the permission granted by the Executive Authority was cancelled vide Resolution No.189(1) dated 06.05.2010. It is finally stated that the Constitution 73rd and 74th has been enacted only for the purpose of coferring more powers to the local body so that the interests of the local communities are not sacrificed and hence, the approval of the local body cannot be treated as a mere formality.
6. A counter affidavit has been filed by the Executive Officer, Athanur Town Panchayat stating inter alia as follows :-
(a) There is no dispute with regard to M/s.German Trading Corporation proposal to establish a factory for manufacturing granulated mixture; that the public of Athanur opposed to establishment of such a factory; that after peoples anger and opposition, the Director of Town Panchayat-second respondent sent notice viz., ROC No.207/2007 dated 29.03.2007 to stop the construction; that the petitioner concern filed a writ petition being W.P.No.12770 of 2007 to quash the said notice; that this Court passed an order directing the Government to consider and pass orders on merits; that, in the meantime, the application of the petitioner concerns planning permission was placed before the Panchayat Council, which was rejected; that pursuant to the order of this Court, the sixth respondent directed the Chairman, Town Panchayat to convene an urgent meeting on 17.05.2007, in which meeting the subject was again placed, and the Panchayat Council once again rejected the resolution viz., Resolution No.133(2) dated 17.05.2007; that pursuant to the order of this Court to consider the application of the petitioner concern, the Urgent Meeting was called on 25.06.2007, and the Town Panchayat Council once again rejected the application through its Resolution No.144(7) dated 25.6.2007; that sixth respondent sent his letter to the third respondent vide Roc.No.138/2006 dated 25.06.2007 explaining the full details of the matter; that the third respondent sent a detailed letter to the second respondent and the second respondent, in turn, forwarded it to the Government; that the Government sent a letter vide Roc No.31753 (TP2) dt..04.12.2007 to the third respondent directing it to convene a meeting of the Council to discuss the planning permission sought by the petitioner concern; and that the third respondent convened a meeting on 27.02.2008; that the minutes was sent to the Commissioner of Town Panchayat by the third respondent vide Roc No.2219/23007/D dated 12.03.2008, in which letter the third respondent has recommended to take necessary action under Section 252 of the Act.
(b) It is stated that that the second respondent addressed a letter to the sixth respondent bearing RO.No.37713/TP-2/2008-1 dated 03.12.2008 directing the 6th respondent-panchayat to grant planning permission, pursuant to which the meeting of the Council was convened on 07.01.2009. In the said meeting, 9 out of 15 members gave in writing addressed to the President with a copy marked to the Executive Officer that they are in favour of passing resolution to grant approval for establishing a unit by M/s.German Trading Corporation. However, in spite of the majority members voted in favour of the resolution, the then President created a record to the effect that consideration of agenda item no.6 has been postponed to the next meeting. The nine councilors, who were in favour of starting the Unit, addressed to the Government with a copy marked to the Executive Officer of the Town Panchayat, expressing their desire to favourably resolve to grant building planning permission to M/s.German Trading Corporation for establishing its unit. The Government took into consideration the letter addressed by the 9 members and issued letter No.37713/TP2/2008-14 dated 01.03.2010 calling upon the sixth respondent as to why powers of the Government under Sections 252 and 36 of the District Municipalities Act should not be invoked and the resolution of the Town Panchayat dated 07.01.2009 should not be cancelled. Being not satisfied with the reply sent by the then President, the Government passed G.O.Ms.No.67, Municipal Administration and Water Supply dated 20.04.2010, which is the subject matter of W.P.No.9164 of 2010.
7. A reply affidavit has been filed by the petitioner in W.P.No.9164 of 2010 stating that the third respondent, who was employed as Executive Officer of the Panchayat, has all long been working against the interests of the Panchayat and against the specific resolutions of the Council. It is stated that the statement of the third respondent that there is no burial ground in that area is contrary to the certificate issued by the Village Administrative Officer, who has categorically stated that the burial ground is located within 20 feet from the site in question, and that there are photographs to show that there are dwelling houses adjacent to the plot in question. It is stated that the application dated 3.7.2006 received by the third respondent was never placed before the Council, which itself shows that though the third respondent is not the appropriate authority under the Act to process applications relating to construction of factories. It is stated that on 07.01.2009 at the council meeting, the majority of the members present resolved not to grant approval to the fourth respondent. Since the petitioner was present in the meeting, he has full knowledge about the proceedings and it is false to state that the President, adjourned the meeting without any valid reasons. It is stated that third respondent has sworn to an affidavit in June, 2010, wherein he failed to bring to the notice of this Court the fact that as early as on 6.5.2010 itself, the approval granted by him was cancelled by the Town Panchayat Council by Resolution No.189(1). The third respondent has deliberately suppressed the information, though it is a fact that well within his knowledge as all Panchayat Council resolutions are handedover to him in his capacity as an Executive Officer for the purpose of communicating it to the appropriate parties, which reveal the collusion between the third and the fourth respondents.
Rival Submissions
8. We have heard Mr. K. Doraisamy, learned senior counsel appearing for the petitioner in W.P. No.22604 of 2010 and for the fourth respondent in W.P. No.9164 of 2010; Mrs. D. Nagasaila, learned counsel appearing for the petitioner in W.P. No.9164 of 2010; Mr. T.N. Rajagopalan, learned Additional Government Pleader appearing for respondents 1 to 5 in W.P. No.22604 of 2010 and for respondents 1 and 2 in W.P. No.9164 of 2010; Mr. L.P. Shanmugasundaram, learned counsel appearing for the sixth respondent in W.P. No.22604 of 2010 and for the third respondent in W.P. No.9164 of 2010; and also Mr. N.G.R. Prasad, learned counsel appearing for the seventh respondent in W.P. No.22604 of 2010.
9. Mr. Doraisamy, learned senior counsel submitted that the petitioner-company had obtained No Objection/Permission from all the statutory authorities except the Athanur Town Panchayat, the sixth respondent in W.P. No.22604 of 2010. The President of Athanur Town Panchayat was acting against the wishes of the Members, which would be evident from the averments of the Executive Officer, Athanur Town Panchayat in paragraph 10 of the counter affidavit filed in W.P. No.9164 of 2010, wherein he has stated that nine Board Members, including the Vice President, have given a written consent to grant building plan permission to the petitioner, even though in the meeting held on 26.2.2009, the Panchayat Board had refused such permission. According to the learned senior counsel, in the Fertilizer Factory to be established by the petitioner, only granules of two or more fertilisers were to be mixed and no chemical reaction would take place. The petitioner was to manufacture granulated mixture as defined in Clause 2(k) of The Fertiliser (Control) Order, 1985 and thus, there was no question of any pollution or any threat to the environment on account of the factory. Moreover, the Tamil Nadu Pollution Control Board had already granted no objection for setting up the factory. Learned senior counsel further submitted that the Town Panchayat had refused permission by exercising the powers conferred upon it under Section 250(3)(b) of the Act, which empowers the Town Panchayat to refuse permission on the ground that it is objectionable by reason of the density of the population in the neighbourhood or that it is likely to cause a nuisance. The State Government has been given the power under Section 252 of the Act to pass any order or give any direction as it deems fit in respect of any action taken under Section 250 of the Act. The State Government had exercised its powers under Sections 36 and 252 of the Act and had dealt with all the objections raised by the Town Panchayat. It had cancelled the resolutions passed by the Town Panchayat on 20.4.2007, 17.5.2007, 25.6.2007, 7.1.2009 and 26.2.2009 and directed the Director of Town Panchayats to issue instructions to the Executive Officer of the Athanur Town Panchayat to take action for issuance of permission for the above factory. In pursuance of the aforesaid order, the Director of Town Panchayats, vide his letter dated 1.4.2010, issued directions to the Executive Officer, Athanur Town Panchayat to pass an order in the light of the directions given by the State Government. The Executive Officer, Athanur Town Panchayat, vide order dated 28.4.2010, had granted permission for building permit to the petitioner, with certain conditions. The said order had been cancelled by the Athanur Town Panchayat vide the resolution taken at its emergency meeting held on 6.5.2010. Learned senior counsel, therefore, submitted that the Town Panchayat could not have sat in appeal over the directions issued by the State Government under Section 252 of the Act and therefore, the resolution dated 6.5.2010 is liable to be set aside.
10. Mr. T.N. Rajagopalan, learned Additional Government Pleader appearing for the State, as also Mr. L.P. Shanmugasundaram, learned counsel appearing for the Athanur Town Panchayat, supported the order passed by the State Government, as also by the Panchayat. However, Mr. N.G.R. Prasad, learned counsel appearing for the seventh respondent submitted that the State Government, while exercising the powers under Section 252 of the Act, can only remand the matter to the Town Panchayat and could not have issued a specific direction to grant the permission.
11. Mrs. D. Nagasaila, learned counsel for petitioner in W.P. No.9164 of 2010 submitted that the Parliament has given a constitutional status to the Town Panchayats by inserting Part IX-A in the Constitution of India by the Constitution 73rd Amendment Act, 1992, which came into effect from 24.4.1993. According to the learned counsel, the Athanur Town Panchayat has been given a constitutional status and the State Government cannot interfere in its working. Under Article 243-Q, the municipalities are constituted and under Article 243-W, the municipality draws its powers, authorities and responsibilities in respect of the items mentioned in the XII Schedule. However, the legislature of the State has been empowered by law to provide all these powers, authorities and responsibilities. She thus submitted that the order passed by the State Government under Section 252 of the Act was not at all proper and in any event, the wishes of the Town Panchayat ought to have been accepted. She has placed reliance on the following decisions :-
Action Council vs. Benny Abraham, (2002) 9 S.C.C. 493 Suresh Manohar vs. State of Tamil Nadu, 2003 (IV) C.T.C. 1 Jayaram Touring Talkies vs. V. Sudhakar, 1995 (II) C.T.C. 73 P. Ganesan vs. District Collector, 2011 W.L.R. 62 Kings Indian Chemicals Corporation Limited vs. District Collector, C.D.J. 2010 MHC 764 Coimbatore Super Alloys Pvt. Ltd. vs. District Collector, Tiruppur, W.P. Nos.16438, 17098 to 17100 of 2009 Village Panchayat, Calangute vs. Addl. Director of Panchayat-II, (2012) 7 S.C.C. 550 Mrs. Pitchammal vs. Collector, Kanyakumari District, Nagercoil, 2000 (III) C.T.C. 636
12. In reply, Mr. K. Doraisami, learned senior counsel appearing for the fourth respondent in W.P. No.9164 of 2010 submitted that the Athanur Town Panchayat does not exercise any independent power. The State Legislature has to make laws to provide the powers, responsibilities etc. to the Panchayat and it is circumscribed by the statutory provisions so enacted. It is bound by the order passed by the State Government under Section 252 of the Act and cannot defy or take any decision contrary to the directions so issued. Otherwise, it would result in an anomalous situation.
Statutory Provisions
13. Before proceeding to consider the submissions advanced by rival sides, for a better understanding of the issues involved in the case, we feel it appropriate to reproduce below the relevant statutory provisions applicable to this case :-
Tamil Nadu District Municipalities Act, 1920 36. Power to suspend or cancel resolutions, etc. under Act. (1) The State Government may, by order in writing
(i) suspend or cancel any resolution passed, order issued, or licence or permission granted, or
(ii) prohibit the doing of any act which is about to be done or is being done in pursuance or under colour of this Act, if, in their opinion,
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorized, or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or of any other law, or
(c) the execution of such resolution or order, the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray:
Provided that the State Government shall before taking action under this section on any of the grounds referred to in clauses (a) and (b) give the authority or person concerned an opportunity for explanation.
Provided further that nothing in this sub-section shall enable the State Government to set aside any election which has been held.
(2) If, in the opinion of the District Collector, immediate action is necessary on any of the grounds referred to in clause (c) of sub-section (1) he may suspend the resolution, order, licence, permission or act, as the case may be, and report to the State Government who may thereupon either rescind the Collector's order or after giving the authority or person concerned a reasonable opportunity of explanation, direct that it continues in force with or without modification permanently or for such period as they think fit. * * * 250. Application to be made for construction, establishment or installation of factory, workshop or work-place in which steam or other power is to be employed. (1) Every person intending
(a) to construct or establish any factory, workshop or work-place in which it is proposed to employ steam-power, water-power, or other mechanical power or electrical power, or
(b) to install in any premises any machinery or manufacturing plant driven by steam, water or other power as aforesaid, not being machinery or manufacturing plant exempted by rules shall, before beginning such construction, establishment or installation, make an application in writing to the municipal council for permission to undertake the intended work.
(2) The application shall specify the maximum number of workers proposed to be employed on any day in the factory, workshop, work-place or premises and shall be accompanied by-
(i) a plan of the factory, workshop, work-place or premises prepared in such manner as may be prescribed by rules made in this behalf by the State Government, and
(ii) such particulars as to the power, machinery, plant or premises as the municipal council may require by by-laws made in this behalf.
(3) The municipal council shall, as soon as may be after the receipt of the application,
(a) grant the permission applied for, either absolutely or subject to such conditions as it thinks fit to impose, or
(b) refuse permission, if it is of opinion that such construction, establishment or installation is objectionable by reason of the density of the population in the neighbourhood or that it is likely to cause a nuisance.
(4) Before granting permission under sub-section (3), the municipal council-
(a) shall if more than nine workers are proposed to be employed on any day in the factory, workshop, work-place or premises obtain the approval of the Inspector of Factories appointed under the Indian Factories Act, 1911, having jurisdiction in the area of the municipality, or if there is more than one such inspector, or the inspector designated by the State Government in this behalf by general or special order, as regards the plan of the factory, workshop, work-place or premises with reference to-
(i) the adequacy of the provision for ventilation and light,
(ii) the sufficiency of the height and dimensions of the rooms and doors,
(iii) the suitability of the exits to be used in case of fire, and
(iv) such other matters as may be prescribed by rules made by the State Government: and
(b) shall consult and have due regard to the opinion of the municipal health officer where the municipal council employs such an officer and of the district health officer in other cases, as regards the suitability of the site of the factory, workshop, work-place or premises for the purpose specified in the application.
(5) More than nine workers shall not be employed on any day in any factory, workshop, work-place or premises, unless the permission granted in respect thereof under sub-section (3) authorizes such employment, or unless fresh permission authorizing such employment has been obtained from the municipal council. Before granting such fresh permission, the council shall obtain the approval of the Inspector of Factories referred to in clause (a) of sub-section (4) as regards the plan of the factory, workshop, work-place or premises, with reference to the matters specified in that clause.
(6) The grant of permission under this section-
(a) shall, in regard to the replacement of machinery, the levy of fees, the conditions to be observed and the like, be subject to such restrictions and control as may be prescribed; and
(b) shall not be deemed to dispense with the provisions of sections 197 and 199 or sections 208 and 209, as the case may be.
Explanation.- The word "worker" in sub-sections (2), (4) and (5) shall, in relation to any factory, workshop, workplace or premises, have the same meaning as in the Factories Act, 1934.
(7) Save as otherwise specially provided in this Act, if orders on an application for permission under sub-section (1) are not received by the applicant within sixty days after the receipt of the application by the executive authority, permission shall be deemed to have been granted subject to the law, rules, by-laws, regulations and all conditions ordinarily imposed.
(8) Nothing contained in clause (a) of sub-section (4) and sub-section (5) shall apply if the approval to the factory, work-shop work-place or premises, referred to therein has already been obtained under the provisions of any law relating to factories for the time being in force. * * * 252. Power of the State Government to pass orders or give directions to municipal council. The State Government may, either generally or in any particular case, make such order or give such directions as they may deem fit in respect of any action taken or omitted to be taken under Section 250 or Section 251. * * * Constitution of India Article 243-Q. Constitution of Municipalities : (1) There shall be constituted in every State, -
A Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
A Municipal Council for a smaller urban area; and A Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.
(2) In this article, a transitional area, a smaller urban area or a larger urban area means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part. * * * Article 243-W. Powers, authority and responsibilities of Municipalities, etc. Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow
(a) The Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to-
(i) The preparation of plans for economic development and social justice;
(ii) The performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) The Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule. * * * TWELFTH SCHEDULE [Article 243-W] ...
2. Regulation of land use and construction of buildings. ...
6. Public health, sanitation conservancy and solid waste management. ...
8. Urban forestry, protection of the environment and promotion of ecological aspects. * * * Discussion
14. From a perusal of Section 36 of the Act reproduced above, we find that the State Government has been empowered to suspend or cancel any resolution passed, order issued, or licence or permission granted, or prohibit the doing of any act which is about to be done or is being done, if in its opinion, such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorized, or is in excess of the powers conferred by the Act or the execution of such resolution or order, the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray. The proviso to sub-section (1) enjoins upon the State Government to give an opportunity to the authority or person concerned for giving an explanation. However, this power cannot be exercised for setting aside any election which has been held. Under sub-section (2), the District Collector has been empowered to take immediate action in respect of the execution of any resolution or order, which if continued in force, is likely to cause danger to human life, health or safety or is likely to lead to a riot or an affray, he may suspend the resolution or licence, permission or act and report the matter to the State Government, which may either rescind the Collectors order or after giving the authority or person concerned a reasonable opportunity of explanation, continue it with or without modification for the entire period or for such period as it thinks fit.
15. Under Section 250 of the Act, every person intending to construct or establish any factory, workshop or work-place in which it is proposed to employ steam-power, water-power, or other mechanical power or electrical power, or desires to install in any premises any machinery or manufacturing plant driven by steam, water or other power as aforesaid, before such construction, establishment or installation, has to make an application in writing to the municipal council for permission to undertake the intended work. Under sub-section (2), the particulars of workers along with the plan of the factory, workshop, work-place or premises and the particulars as to the power, machinery, plant or premises have to be furnished to the municipal council. Under sub-section (3), the municipal council has been given the power either to grant the permission applied for, either absolutely or subject to such conditions as it thinks fit to impose, or refuse permission, if such construction, establishment or installation is objectionable by reason of the density of the population in the neighbourhood or that it is likely to cause a nuisance. Under sub-section (4), the municipal council, before granting such permission, has to obtain the approval of the Inspector of Factories if more than nine workers are proposed to be employed on any day in the factory, workshop, work-place or premises, as also consult and have due regard to the opinion of the Municipal Health Officer as regards the suitability of the site for the factory, workshop, work-place or premises. Sub-section (5) enjoins that more than nine workers shall not be employed on any day in any factory workshop, work-place or premises unless the permission granted specifically authorises such employment or unless fresh permission has been obtained for such employment. If fresh permission is to be obtained for such employment, the council has to obtain the approval of the Inspector of Factories. Under sub-section (6), grant of permission shall be subject to the levy of fees and the conditions regarding restrictions and control as may be prescribed. The permission shall not be deemed to dispense with the necessity for compliance with Sections 197, 199, 208 and 209, as the case may be. Sub-section (7) provides that if the orders on an application for permission under sub-section (1) is not received by the applicant within 60 days after the receipt of the application by the Executive Authority, the permission shall be deemed to have been granted subject to the laws, rules, bye-laws, regulations and all conditions ordinarily imposed. Sub-section (8) provides that if the approval to the factory, work-shop work-place or premises has already been obtained under the Factories Act, then the provisions of clause (a) of sub-section (4) and sub-section (5) shall not apply.
16. Section 252 of the Act gives the State Government the power to pass orders or directions to the municipal council in certain situations. It provides that the State Government may either issue a general order or a specific order in a particular case or give such directions as it deems fit in respect of any action taken or omitted to be taken under Section 250 or Section 251 of the Act.
17. From the aforesaid discussion, it would be seen that the State Government has been given the supervisory powers in respect of the decisions taken by the municipal council under Section 250 of the Act. We may mention here that under Section 250(3)(b) of the Act, the municipal council has declined to grant permission to the petitioner in W.P. No.25156 of 2010. Therefore, such an order can be subject matter of consideration by the State Government and any order passed by the State Government is binding upon the municipal council, which in the present is the Athanur Town Panchayat.
18. Coming to the constitutional provisions reproduced above, we find that the by the Constitution 74th Amendment, 1992, Part IX-A was inserted into the Constitution, thereby contemplating the powers, composition and functions of local self-government institutions, i.e. the panchayats (for rural areas) and municipalities (for urban areas). The Hon'ble Supreme Court in the case of K. Krishna Murthy (Dr.) vs. Union of India reported in (2010) 7 S.C.C. 202, has held that in pursuance of objectives such as democratic decentralisation, greater accountability between citizens and the State apparatus as well as the empowerment of the weaker sections, these constitutional amendments contemplated a hierarchical structure of elected local bodies. The Statement of Objects and Reasons for the 74th Amendment is reproduced below :-
1. In many States local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self-government.
2. Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for
(i) putting on a firmer footing the relationship between the State Government and the urban local bodies with respect to
(a) the functions and taxation powers; and
(b) arrangements for revenue sharing;
(ii) ensuring regular conduct of elections;
(iii) ensuring timely elections in the case of supersession; and
(iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women.
3. Accordingly, it is proposed to add a new part relating to the urban local bodies in the Constitution to provide for
(a) constitution of three types of municipalities:
(i) Nagar Panchayats for areas in transition from a rural area to urban area;
(ii) Municipal Councils for smaller urban areas;
(iii) municipal corporations for larger urban areas.
* * *
(e) reservation of seats in every municipality
(i) for Scheduled Castes and Scheduled Tribes in proportion to their population of which not less than one-third shall be for women;
19. Article 243-Q of the Constitution of India provides for the constitution of municipalities and Article 243-W provides for the powers, authorities and responsibilities of municipalities etc. The Legislature of the State has been empowered to make law for the purpose, but it is subject to the provisions of the Constitution. The State Legislature can make law and endow the municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon municipalities, subject to such conditions as may be specified therein with respect to the preparation for the plans for economic development and social justice, the performance of functions and the implementation of schemes as may be entrusted to them, including those in relation to the matters listed in the XII Schedule and enabling the committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them, including those in relation to the matters listed in the XII Schedule.
20. Under the XII Schedule, various matters have been enumerated, on which the municipalities can exercise their powers. Three such items are Regulations of land, use and construction of buildings (Entry-2);
Public health, sanitation and conservancy (Entry-6); and Urban forestry, protection of the environment and promotion of ecological aspects (Entry-8).
21. It may be mentioned here that under the constitutional scheme, the municipalities are to function under the statutory provisions enacted by the State Legislatures. The provisions of Sections 36 and 252 in the Act have been enacted to keep a check on the arbitrary exercise of powers, if any, by a local body, which in the present case is Town Panchayat.
22. In the case of Action Council's case (supra), the facts were that a young enterprising entrepreneur wanted to establish an industrial unit in a particular village panchayat in the State of Kerala. He had obtained no objection certificate from the Kerala Pollution Control Board and had also completed the other formalities. The unit to be established was a metal crusher unit. The Village Panchayat decided not to grant any license under the provisions of the Panchayat (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963. A learned single Judge of the Kerala High Court directed the Panchayat to adopt a realistic approach and consider the application de novo positively, getting an assurance from the petitioner that all stipulations would be strictly adhered to. The matter was taken in writ appeal before the Division Bench. The Division Bench, after holding 15. As far as a metal crusher unit is concerned, it is only natural that there are protests. But merely for the reason of public protest it will not be justifiable on the part of the Panchayat to deny license to an entrepreneur in case he is prepared to take appropriate safeguards and in case the competent authorities have cleared the project. Once the concerned authorities under the relevant statutes have assessed the situation and have cleared an industrial project, it will not be proper for the Panchayat to reject licence on the mere pretext of public protest. The protest of the people is from the public health point of view. It is for that, sufficient safeguards are imposed by the Pollution Control Board and other authorities. In such circumstances, as rightly held by the learned single Judge having informed the petitioner in Exhbts.P3 and P4 that in case he is able to obtain NOC from the Panchayat, the Panchayat will grant permission and the competent authorities having issued clearance for the project, it is only proper and reasonable that the Panchayat issues the licence., directed the Panchayat to forthwith issue permission to the petitioner therein to install the machinery, subject to the conditions prescribed by the Pollution Control Board within a time bound period. The matter was taken up in appeal before the Supreme Court and the Hon'ble Supreme Court found that even though the entrepreneur had obtained the necessary No Objection Certificate from the environmental authorities, the Village Panchayat concerned, on consideration of the matter, was of the opinion that the decision not to grant permission to install the metal crusher machine would be in the interest of the public and had ascribed four reasons as to why it would not be in the public interest to grant such licence. These reasons are germane to the issue and cannot be held to be arbitrary or fictitious. The Hon'ble Supreme Court, therefore, held that the High Court seriously erred in law in issuing the impugned direction and in the facts and circumstances of the case, the Panchayat was fully justified in refusing license to the entrepreneur.
23. In the case of Suresh Manohar (supra), a learned single Judge of this Court was considering the powers of the State Government under Sections 14(1)(c), 18(1) and 19(3)(b) of the Tamil Nadu Private Colleges (Regulation) Act, 1976 as well as Rule 13 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 and has held that the teachers working in aided colleges are not Government Servants, though they have to be deemed as public servants and their rights and duties are regulated by the Act and the Rules made thereunder. The Act has conferred on the State Government certain powers for control and supervision. No specific power is given to the Government to prevent a teacher from discharging their work if they are entitled otherwise, and the Government is not the master employer of the teaching staff, as they are having only a controlling power under the Act. The College Committee has been empowered to take disciplinary proceedings, which includes other incidental proceedings against the teacher and the State Government cannot insist the College Committee to pass a particular order preventing the teacher from attending the college.
24. In the case of Jayaram Touring Talkies (supra), a Division Bench of this Court has held that where an Act empowers the State Government to frame rules to carry out the purposes of the Act and further provides that the rules so made shall be published in the Gazette and also empowers the State Government to issue directions, those directions, whether specific or general, cannot be issued in respect of matters covered by the Rules.
25. In the case of P. Ganesan (supra), a Division Bench of this Court, while considering Section 160 of the Tamil Nadu Panchayats Act, 1994, has held as follows:-
A reading of the said Section would show that the competent authority for giving permission for construction of factory in the villages, is the panchayat union council. According to the fourth Respondent, no permission was granted by the panchayat union. Though "no objection certificate" was given initially by the village panchyat, which is not a competent authority to give permission, on 16.11.2010 "no objection certificate" granted by the village panchayat was also cancelled. That apart, the sixth Respondent has not obtained any permission from the other Government agencies. Therefore, this Court is of the opinion that the sixth Respondent has no right to operate his water plant. Moreover, it is the claim of the villagers, if the sixth Respondent is allowed to run the water plant, the water level of the wells in the villages will decrease and it would affect the livelihood of the villagers. Under such circumstances, since the permission is not granted by the Government agencies by considering the apprehension of the villagers, the sixth Respondent is not legally entitled to run the water plant in the subject land. Insofar as the other submission made by the learned Counsel for the Petitioner that the counter affidavit sworn to by his power agent on behalf of the sixth Respondent is not sustainable in law, is only an ancillary submission, therefore, this Court is not inclined to deal with the same.
26. In the case of Kings Indian Chemicals (supra), a Division Bench of this Court held that a Village Panchayat has the power to re-consider the resolution that was passed earlier and the only requirement is that for such re-consideration, there must be a requisition to the President to convene a meeting by not less than one-third of the members.
27. In the case of M/s. Coimbatore Super Alloys (supra), a learned single Judge of this Court has held as follows:-
15. The contention that such building must be usable as residence is unwarranted, as the broad definition found does not restrict the scope of the section. Therefore, the petitioners cannot erect wind mills and generator power rooms and thereafter, tell the Panchayat that they are not covered by the provisions of the Act. Such a stand taken by the petitioners is clearly violative of the Act and the Rules framed thereunder. The petitioner utilizing panchayat road for the purpose of establishing electrical poles without permission cannot come forward to contend that they have unlimited right to use such roads without paying any dues to the Panchayat.
28. In the case of Mrs. Pitchammal (supra), a learned single Judge of this Court has held that power to suspend or cancel resolutions of Town Panchayat under Section 36 of the Act can be exercised by the District Collector only where the execution of such resolution or order or discontinuance is likely to cause danger to human life, health or safety or is likely to lead to a riot or an affray and if these things are not present, then the Collector cannot suspend or cancel the licence.
29. In the case of Village Panchayat, Calangute (supra), the Honble Supreme Court has held as follows :-
For achieving the objectives enshrined in Part IX of the Constitution, the State Legislatures have enacted laws and made provision for devolution of powers upon and assigned various functions listed in the Eleventh Schedule to the panchayats. The primary focus of the subjects enumerated in the Eleventh Schedule is on social and economic development of the rural parts of the country by conferring upon the panchayat the status of a constitutional body. Parliament has ensured that the panchayats would no longer perform the role of simply executing the programs and policies evolved by the political executive of the State. By virtue of the provisions contained in Part IX, the panchayats have been empowered to formulate and implement their own programs of economic development and social justice in tune with their status as the third tier of the Government which is mandated to represent the interests of the people living within its jurisdiction. The system of panchayats envisaged in this part aims at establishing strong and accountable systems of governance that will in turn ensure more equitable distribution of resources in a manner beneficial to all.
30. In Union of India vs. Kamlakshi Finance Corporation Ltd., (1992) Supp. (1) S.C.C. 443, the Honble Supreme Court has held as follows :-
The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assesses and chaos in administration of tax laws.
31. In the case of Commissioner of Income Tax, Bhopal vs. Ralson Industries Ltd., (2007) 2 S.C.C. 326, the Honble Supreme Court has held as follows :-
9. When an order is passed by a higher authority, the lower authority is bound thereby keeping in view the principles of judicial discipline. This aspect of the matter has been highlighted by this Court in Bhopal Sugar Industries Ltd. v. ITO, A.I.R. 1961 S.C. 182 in the following terms :
8. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal.
9. It must be remembered that the order of the Tribunal dated 22-4-1954, was not under challenge before the Judicial Commissioner. That order had become final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income Tax had made an application for a reference, which application was subsequently withdrawn. The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier such a view is destructive of one of the basic principles of the administration of justice.
10. This principle has been laid down also in Dharam Chand Jain v. State of Bihar, (1976) 4 S.C.C. 427 stating :
The State Government, being a subordinate authority in the matter of grant of mining lease, was obligated under the law to carry out the orders of the Central Government as indicated above. But the State Government declined to do so on the ground that it had laid down a policy that the mining leases in respect of the area should be given only to those who were prepared to set up a cement factory. It was clearly not open to the State Government to decline to carry out the orders of the Central Government on this ground, particularly because the Central Government was a tribunal superior to the State Government.
32. From the aforesaid discussion, we are of the considered opinion that even though a Constitutional status of an independent local body has been conferred by the provisions of Chapter IX-A of the Constitution of India, yet, the Athanur Town Panchayat can exercise the powers only in accordance with the provisions of the Act. Even though under Section 250 of the Act, it had the power to grant or refuse the permission, but the same is subject to the other provisions of the Act. One such provision is Section 252, which authorises the State Government to exercise supervisory powers and an order passed therein or any direction issued by the State Government is binding on the Athanur Town Panchayat. Thus, the order passed by the State Government under Section 252 of the Act and the positive direction given therein is binding on the sixth respondent-Athanur Town Panchayat, being a subordinate authority to the State. The principles laid down by the Supreme Court in Kamlakshi Finance case (supra) and Ralson Industries case (supra) are squarely applicable to the facts of the present case and therefore, the sixth respondent-Athanur Town Panchayat was not justified in passing the impugned resolution dated 6.5.2010 cancelling the building plan approval granted to the petitioner on 28.4.2010.
33. Insofar as the writ petition preferred by V. Jalandar (W.P. No.9164 of 2010) challenging the order dated 20.4.2010 passed by the Municipal Administration and Water Supply Department is concerned, that has been issued by the State Government in exercise of the powers conferred upon it under Section 252 of the Act. All the respondents have supported the decision taken by the State Government impugned in the present writ petition. The third respondent-Athanur Town Panchayat has not come forward to challenge the decision taken by the State Government. No doubt, in the writ petition preferred by M/s. German Trading Corporation, viz. W.P. No.22604 of 2010, the President, Athanur Town Panchayat has been arraigned as the seventh respondent and his counsel, Mr. N.G.R. Prasad had supported the resolution passed by the Town Panchayat, but had only submitted that the State Government should not have set aside the order passed by the Town Panchayat and pass a positive order. It could have at best only remanded the matter. For the reasons best known, the Town Panchayat had not come forward to challenge the said order of the State Government dated 20.4.2010.
34. The provision of Section 252 of the Act confers wide powers to the State Government to pass any order which it thinks fit. It encompasses within its sweep the power to set aside an order passed by the Town Panchayat and to substitute a fresh order or to give a positive direction, which it had done in the present case. That being the position, we do not find any good ground to interfere with the order dated 20.4.2010 passed by the State Government.
Conclusion
35. In view of the foregoing discussions, Writ Petition No.22604 of 2010 succeeds and is accordingly allowed. The order dated 6.5.2011 passed by the seventh respondent is hereby set aside. Writ Petition No.9164 of 2010 fails and is accordingly dismissed. However, there shall be no order as to costs. Consequently, all the connected miscellaneous petitions in both the writ petitions are closed.
pv/ab To
1. The Secretary to Government of Tamil Nadu, Municipal Administration & Water Supply Department, Fort.St.George, Secretariat, Chennai.
2. The Director of Town Panchayats, Kuralagam, Chennai.
3. The District Collector, Namakkal District, Namakkal.
4. The Superintendent of Police, Namakkal District, Namakkal 636 301.
5. The Inspector of Police, Venathur Police Station, Namakkal District 636 301.
6. The Athanur Town Panchayat, Rep. by its Executive Officer, Athanur Village, Raasipuram Taluk, Namakkal District.
7. The President, Athanur Town Panchayat, Athanur, Rasipuram Taluk, Namakkal District