Madras High Court
Mr.P.Balachandar vs State Of Tamilnadu on 21 September, 2011
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21-9-2011
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
W.P.No. 20209 of 2011
Mr.P.Balachandar ... Petitioner
Versus
1.State of Tamilnadu,
Rep. by its Principal Secretary,
Municipal Administration & Water
Supply Department,
Fort St. George,
Chennai-600 009.
2.Commissioner of Municipal Administration,
Having his office at
Ezhilagam, Annexe Building,
VIth Floor, Chepauk,
Chennai-600 005.
3.The Commissioner,
Tiruchirapalli City Municipal Corporation,
Contonment,
Trichy-1. ... Respondents
This writ petition is filed under Article 226 of the Constitution of India praying for the Writ of Certiorari to call for the records relating to G.O.Ms.No.218 Municipal Administration and Water Supply dated 28.09.2010. G.O.Ms.No.244 Municipal Administration and Water Supply Department dated 15.10.2010 and G.O.Ms.No.4 Municipal Administration and Water Supply Department dated 3.1.2011 in so far as it relates to merger of Tiruverumbur Town Panchayat with Trichy City Municipal Corporation on the file of the Ist respondent and quash the said G.Os. As void and against the law.
For Petitioner :Mr.Raja Kalifullah
for Mr.Rahmansheriff
For Respondents :Mr.A.Navaneethakrishnan
Advocate General assisted
by Mr.K.V.Dhanapalan Addl.Govt.Pleader
for respondents
ORDER
The petitioner has challenged the merger of Thiruverumbur Town Panchayat with the Trichy Municipal Corporation. The case of the petitioner is that he is residing at Thiruverumbur ,which is a Town Panchyatat. By merging the Thiruverumbur Panchayt with Trichy Municipalilty, the Town Panchayat will loose its identity and the Panchayats will be deprived of several beneficial schemes and it would result in affecting the agricultural operation. Therefore, the petitioner challenges the merger.
2. Mr.Raja Kalilfullah, learned counsel appearing for the petitioner submitted the contentions:
1) A notification which is required to be given under Section 3(1) of the Trichirapalli City Municipal Corporation Act 1994 is subject to previous publication. However, no previous publication has been made.
2) No paper Publication was effected as per Section 461 of Coimbatore City Municipal Corporation Act.
3) The proposal for merger, as per Section 3(1) has to start from the Government, whereas, the process in this case was started by the Commissioner of Trichy Municipality.
4) No area has been mentioned in the notification under Section 3(1) of the Act.
5) The resolution of the Thiruverumbur Town Panchayat and the general public opposing the merger was totally ignored and no opportunity was given to explain about the objections.
3. The learned counsel pointed out from the G.O.Ms.No.218 that a decision has already been taken to merge on 28.9.2010, whereas G.O.Ms.No.244 seeking objection from the public was issued only on 15.10.2010. Having taken a decision to merge, the subsequent government order inviting objection is only a formality. He further submitted that even though there was a resolution by the Thiruverumbur Town Panchayat, it has been stated in G.O.Ms.No.4 dated 3.1.2011 that no objection was received. In fine he submitted that merger is in violation of Section 3(1) of the Trichirapalli City Municipal Corporation Act and also in violation of Sections 459 and 461 of the Coimbatore City Municipal Corporation Act. He relied upon a judgement in State of Orissa vs. Sridhar Kumar Mallik and others reported in (1985) 3 SCC 697 and stressed that the government notification should mention about the area which is intended to be merged and there should be a paper publication. Referring to the other judgement in State of Madras vs. V.G.Row reported in AIR 1952 SC 196, he would submit that there is inadequacy of publication of notification. The other judgement referred is Sonik Industries Rajkot vs. Municipal Corporation of the City of Rajkot reported in (1986) 2 SCC 608 to contend that the news paper publication should have been made. If the publication is effected, the general public would have been put on notice and in the absence of paper publication, the merger proceedings are not valid.
4. On the other hand the learned Advocate General appearing for the State submitted that the Government started the process to extend the territory of Trichy Municipal Corporation as early as 2007 itself. He submitted that by G.O.(D)No.131 Rural Development and Panchayat Raj (C1) Department dated 16.3.2007, the Government initiated the process of Merger by giving procedures for amalgamation of local bodies. By the above said G.O., the Government directed the District Collector to have public hearing regarding the proposal for merger . Pursuant to that, a public hearing was conducted on 22.12.2007 and the public meeting was held by the Collector. The response of all, including the people, was received on that day. As per letter dated 3.8.2010 written by the Director of Municipal Administration and the review meeting conducted by the Principal Secretary on 9.8.2010, the Commissioner of Trichy Municipality wrote on 18.8.2010 to the Executive Officer, Thiruverumbur Town Panchayat seeking remarks regarding merger. Again on 23.8.2010 a review meeting was conducted by the Principal Secretary and thereafter only the Trichy Municipal Corporation by its resolution dated 27.8.2010, requested the merger of Thiruverumbur Town Panchayat with the Trichirapalli Municipality.
5. Though the Thiruverumbur Town Panchayat passed a resolution against the merger on 30.8.2010, the District Collector by his report dated 7.9.2010 recommended inclusion of Town Panchayat with Trichy Municipal Corporation. Thereafter a proposal regarding merger was notified by G.O.Ms.No.218 Municipal Administration and Water Supply (Election) Department dated 28.9.2010. By placing the above facts, he would contend that the proposal emanated only from the Government and not from the Commissioner as contended by the petitioner. Later objections were called for by G.O.Ms.No.244 Municipal Administration and Water Supply (Election) Department dated 15.10.2010 within a period of six weeks. As there was no objection received, the notification in G.O.Ms.No.4 Municipal Administration and Water Supply (Election) Department, merging Thiruverumbur Town Panchayat with the City of Tiruchirappalli was issued on 3.1.2011. Consequently by G.O.Ms.No.89 Municipal Administration and Water Supply (Election) Department dated 28.6.2011, number of wards were increased and boundaries were fixed by delimiting the Corporation limit by G.O.Ms.No.108 dated 19.8.2011.
6. The learned Advocate General would submit that a final order under Section 3(1) was issued on 3.1.2011 and the writ petition was filed only on 27.8.2011 after a lapse of eight months. Therefore, the writ petitioner is guilty of laches. He would contend that there is no necessity for paper publication under Section 461 in view of compliance of Section 459 of Coimbatore City Municipal Corporation Act. He relied on Section 21 of the Tamil Nadu General Clauses Act 1891 and would submit that gazette notification is enough. Regarding agricultural operations, learned Advocate General submitted that by a survey it was found that only 1.26 percent of the public are engaged in agricultural operations. Regarding welfare measures, he submitted that all the welfare measures would be implemented. Election for local body is to be conducted in every five years under Article 243(u) of the Constitution of India and the present local body period expires on 24.10.2011. Finally he submitted that, the Madurai Bench has jurisdiction to entertain the writ petition.
7. Heard the parties and perused the records carefully. A perusal of the records would show that by Government Order No.131 Rural Development and Panchayat Raj ( C1 ) Department dated 16.3.2007, the government directed the District Collector to hold a public meeting about the extension. Pursuant to that the Collector held a meeting on 22.12.2007. After the said public hearing, as per letter dated 3.8.2010 written by the Director of Municipal Administration, the Principal Secretary, Municipal Administration held a review meeting on 9.8.2010. Based on the above, Trichirapalli Municipality passed a resolution on 27.8.2010 for inclusion of Thiruverumbur Town Panchayat with the Trichi Municipality. The communication dated 18.8.2010 written by the Commissioner, Trichi Municipality to the Executive Officer, Thiruverumbur reads as follows:
VERNACULAR (TAMIL) PORTION DELETED
8. In view of Commissioner Municipal Administration letter dated 3.8.2010 and letter dated 9.8.2010 written by Principal Secretary, Municipal Administration, it cannot be said that the proposal emanated from the Commissioner, whereas as per record it is seen that the government initiated the process and followed by a public hearing and review meeting by the authorities. Therefore, there is no question of violation under Section 3(1) of Trichirapalli City Municipal Corporation Act 1994, Section 3(1) reads as as follows:
"3. Establishment of Municipal Corporation for the City of Tiruchirappalli:-
(1) With effect on and from the date of the commencement of this Act, the local area included in the Tiruchirappalli Municipality shall constitute the City of Tiruchirappalli for purposes of this Act; and from such date of the commencement, a Municipal corporation shall be deemed to have been established for the said City by the name of Tiruchirappalli Municipal Corporation:
Provided that the Government may, from time to time, after consultation; with the corporation, by notification, alter the limits of the city constituted under this sub-section so as to include therein or to exclude therefrom the areas specified in the notification.
Provided further that the power to issue a notification under this sub-section shall be subject to previous publication.
(2) The corporation shall, by the said name, be a body corporate, having perpetual succession and a common seal with power to acquire, hold and dispose of property and to enter into contracts and may by its corporate name, sue and be sued.
(3) The Tiruchirappalli Municipality, functioning immediately before the date of the commencement of this Act, shall be deemed to have been abolished from such commencement."
As per the above Section only, the Government took the initiative after the consultation with the Corporation.
9. With regard to jurisdiction it is contended on behalf of the Government that Madurai Bench of this Court alone has got jurisdiction to entertain the writ petition, as Trichy and Tiruverumbur fall within its jurisdiction. The said contention is not tenable as the respondents 1 and 2 are having office at Chennai and the first respondent only issued the impugned notifications. The Apex Court in Kusum Ingots & Alloys Ltd. vs. Union of India and another reported in (2004) 6 SCC 254 held in paragraph 10 as follows:
"10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. "
The Full Bench of this Court, in M/s. Sanjos Jewellers represented by M.J.Jose, Bangalore and others vs. Syndicate Bank, rep. by its Assistant General Manager, Bangalore and another reported in (2007) 6 MLJ 755, followed the above Supreme Court judgement and held that when part of cause of action arises this court definitely can issue a writ. Therefore, cause of action partly arises at Chennai and this Court has jurisdiction to entertain the writ petition.
10. The next contention of the petitioner is that there is no previous publication as per Section 3(1) of the Act. G.O.Ms.No.218 Municipal Administration and Water Supply (Election) Department dated 28.9.2010 speaks about the proposal of the Government to initiate proceedings under Section 3(1) of the Trichirapalli City Municipal Corporation Act for extension of territory limit. Though the learned counsel appearing for the petitioner submitted that a decision has been taken and thereafter only G.O.Ms.No.218 Municipal Administration and Water Supply (Election) Department dated 28.9.2010 was issued, it is seen no decision was taken. Paragraph 7 of the said G.O reads as follows:
@muR ,r;braw;Fwpg;g[ bjhlh;ghd ftdkhd ghprPyidf;Fg; gpd;dh; efuhl;rp eph;thf ,af;Fehpd; ghpe;Jiuia Vw;W. fPH;f;fhdqk; 5 cs;shl;rp mikg;g[fs; jpUr;rpuhg;gs;sp kheful;rpa[ld; ,izf;fg;glyhk; vd Kot[ bra;J mt;thnw MizapLfpwJ.@ Therefore, it is clear that what is intended is only a proposal and no decision was taken.
11. Before going into other aspects, it is appropriate to consider whether paper publication of notifications with regard to merger of Town Panchayat with the Municipal Corporation is mandatory or not? Admittedly, all notifications including G.O.Ms.No.244 Municipal Administration and Water Supply (Election) Department dated 15.10.2010 seeking objections from the public within six weeks were published only in Official Gazette.
12. Publication of notification is covered by Sections 459 and 461 of the Coimbatore City Municipal Corporation Act 1981. Section 461 deals with publication in news papers. It is useful to refer Sections 459 and 461 of the Act.:
"459. Publication of notifications- Save as otherwise provided, every notification issued under this Act shall be published also in Tamil:
Provided that the Government shall have the power to direct that any such notification-
(i) shall be published either in Tamil or in English only.
(ii) shall, instead of being published in the Tamil Nadu Government Gazette, be published in any other manner specified by them.
461. Publication in newspapers Whenever it is provided by this Act or by any rule, by law, or regulation made under it that notice shall be given by advertisement in the local newspapers, or that a notification or any information shall be published in the same, such place, such notice, notification or information shall be inserted in atleast one Tamil and one English newspaper, if any, published in the city.
13. The provision regarding publication of notification is covered by Section 459 of the Act. As per Section 459, every notification issued shall be published in Tamil also. Section 461 makes it very clear that notice shall be given by advertisement in the local news papers and notification shall be inserted in atleast one Tamil and one English newspaper, if any, published in the city. The aforesaid provisions abundantly make it clear that notification under the Act is required to be published in the news papers. When Section 3 of the Act which deals with merger speaks about notification and previous publication, paper publication as per Section 461 is mandatory. In this case admittedly no paper publication was effected. In the absence of paper publication, the merger proceedings suffer.
14. With regard to reliance upon Section 21 of the Tamilnadu General Clauses Act 1891 by the learned Advocate General contending that the publication of notification in the official gazette is enough, Section 21 of the Act has to be considered. Section 21 reads as follows:
"21. Publication of orders and notifications in the Official Gazette. --- Where, in any Act, or in any rule passed under any Act, it is directed that any order, notification or other matter shall be notified or published, such notification or publication shall, unless the Act otherwise provides, be deemed to be duly made if it is published in the (Official Gazette)."
15. A perusal of Section 21 of the General Clause Act 1821 would reveal that Section 21 would be applicable, when there is a statutory direction for publication in official gazette only and not any modes of publication contemplated under the Act, whereas Section 261 of the Coimbatore City Municipal Corporation Act, 1981 mandatorily requires publication of notification in Tamil and English news papers. Therefore, Section 21 of the Tamil Nadu General Clauses Act 1891 does not support the respondent.
16. The learned counsel for the petitioner rightly pointed out that in the absence of publication in the news papers, the notification is invalid. However, the learned Advocate General submitted that no paper publication is required and Section 459 is satisfied, Section 461 is not applicable. The notification is with regard to merging of Thiruverumbur Town Panchayat with Trichirapalli City Municipal Corporation. The general public should know about the proposal of notification of Thiruverumbur Town Panchayat with the Trichirapalli City Municipal Corporation. Otherwise it is not possible for the General Public to raise any objection about the same. Unless, the information is given to the people, there may not be any objection by the public. Therefore, the impugned notifications without paper publications are invalid for violation of Section 461 of the Coimbatore City Municipal Corporation Act 1981. It cannot be expected that the General public would know about the government gazette. Hence, non-publication of notification in Tamil and English news papers as per Section 461 of the Act would make the merger proceedings non-est in law. State of Orissa vs. Sridhar Kumar Mallik and others reported in (1985) 3 SCC 697, the Hon'ble Apex Court insisted about the importance of publication in local language. In that case, the Hon'ble Supreme Court confirmed the judgement of Orissa High Court, which quashed the State Government notification notifying the area under the Orissa Municipal Act 1950. The said notification was quashed on the ground that proclamation requires publication under the Orissa Municipal Act and it must be published in the local language of the area. In para 8 it has been held as follows:
" ... It is apparent that the Legislature attaches serious importance to eliciting the opinion of the residents of the area who will be affected by its constitution as a notified area, and that is why express provision in that behalf was made in sub-section (1) of Section 417-A. The Legislature did not consider it sufficient that the proclamation was published in Official Gazette. It is a notorious fact that few people beyond those who belong to the official community actually read the Official Gazette. Therefore, the Legislature imposed the further requirement that the proclamation should be published in a newspaper circulating in the area. A newspaper today has become a basic medium for communication with the people. Its effectiveness in that regard cannot be disputed, even as its influence in the dissemination of information cannot be underestimated. To reach out to the people, it must be published in a language with which they are familiar. In so fundamental a matter as local self-government the legislature intended that an opportunity should be available to all persons residing with the area to submit their objections. The local language of the area is Oriya, and therefore the State Government should have published the proclamation in that language in the news paper. On this point also we find ourselves in agreement with the High Court."
The aforesaid judgement is squarely applicable to the facts of the case.
17. Moreover, it is a basic principle of law that if the power is given to do certain things in certain way, the thing must be done in that way or not at all. The following judgements laid down the above dictum:
1.Taylor -vs- Tailor reported in 1876 1 Ch.D426,
2.Nazir Ahmad -vs- Emperor reported in AIR 1936 Privy Council 253(1) =(1936) 44 L.W.213, in State of Uttar Pradesh -vs- Singhara Singh and others reported in AIR 1964 SC 358
3. Babu Verghese -Vs- Bar Council of Kerala and others reported in 1999 (3) SCC 422,
4. Ramchandra Muralilal Bhattad and others -vs- State of Maharashtra and others reported in 2007 (2) SCC 588
5. Indian Banks' Association, Bombay and others -vs- Devkala Consultancy Service and others reported in (2004) 11 SC 1,
6. Chandrakishore Jha vs. Mahavir Prasad reported in AIR 1999 SC 3558
7. Gujarat Urija Vikash Nigam Ltd. vs. Essar Power Ltd. reported in 2008 (4) SCC 755
7. Sheeba Philominal Merlin and another vs. The Repatriates Co-op Finance & Development Bank Ltd., (Govt of India Enterprise) and others reported 2010-4-L.W. 497."
18. When the law requires certain acts to do in a particular way, the same is required to be done in the same way and any violation would vitiate the entire action. When the act requires mandatorily, to make paper publication, the respondents cannot ignore the same and issue impugned notification. When the matter involves a major decision of merging Thiruverumbur Town Panchayat with Trichirapalli City Municipal Corporation, the respondents should have been careful enough to see that statutory requirements were complied with. Lack of paper publication as per Section 261 is an incurable defect. Therefore the notifications suffer.
19. Therefore, when the procedure has been prescribed under Section 461 of the Act which mandatorily requires publication of notification in Tamil and English news paper, the non-compliance of the same vitiates the entire merger process. Therefore, all impugned GOs pertaining to merger of Thiruverumbur Town panchayat with Trichirapalli City Municipal Corporation are quashed. Writ Petition is allowed. No costs. Consequently connected M.Ps are closed.
vk To
1.State of Tamilnadu, Rep. by its Principal Secretary, Municipal Administration & Water Supply Department, Fort St. George, Chennai-600 009.
2.Commissioner of Municipal Administration, Having his office at Ezhilagam, Annexe Building, VIth Floor, Chepauk, Chennai-600 005.
3.The Commissioner, Tiruchirapalli City Municipal Corporation, Contonment, Trichy 1