Madras High Court
S.Chellapandi vs The Assistant Director Of Panchayat on 17 November, 2021
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
W.P.(MD).No.21616 of 2021 and batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 03.01.2022
DELIVERED ON: .01.2022
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD).Nos.21616 to 21625, 21670 to 21683, 21736 to 21749, 21848 ,
22490 to 22492, 22347 to 22356, 23171 and 23173 of 2021
and
W.M.P.(MD).Nos.18176 to 18195, 18252, 18253, 18255 to 18275, 18277,
18283, 18285, 18287, 18288, 18317 to 18344, 18437 to 18439, 18900 to
18919, 19018 to 19023, 19607, 19609, 19610 and 19612 of 2021
W.P.(MD).No.21736 of 2021
S.Chellapandi ... Petitioner
Vs.
1.The Assistant Director of Panchayat,
O/o.the Assistant Director of Panchayat,
Collector Office Campus,
Madurai District.
2.The Commissioner,
O/o.the Panchayat Union Office,
Usilampatti Panchayat Union,
Madurai District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, calling for the records relating
to the impugned order passed by the first respondent in his proceedings in
e.f.vz;.351/2021/m2 dated 17.11.2021 and quash the same as illegal.
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W.P.(MD).No.21616 of 2021 and batch
In W.P.(MD).Nos.21616 to 21625 of 2021:
For Petitioner : Mr.V.Raghavachari
for Mr.K.R.Laxman
In W.P.(MD).Nos.21670 to 21683 of 2021:
For Petitioner : Mr.A.R.L.Sundaresan,
Senior Counsel,
for Ms.A.L.Ganthimathi.
In W.P.(MD).Nos.21736 to 21749 of 2021:
For Petitioner : Mr.M.Ajmal Khan,
Senior Counsel,
for M/s.Ajmal Associates.
In W.P.(MD).Nos.21848 of 2021 and 22490 to 22492 of 2021:
For Petitioner : Mr.T.K.Gopalan
In W.P.(MD).Nos.22347 to 22356 of 2021, 23171 and 23173 of 2021 :
For Petitioner : Mr.S.Deenadhayalan
For Respondents : Mr.Veerakathiravan,
Additional Advocate General.
Assisted by Mr.P.Thilak Kumar,
Government Pleader.
(In all Writ Petitions)
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W.P.(MD).No.21616 of 2021 and batch
COMMON ORDER
All these Writ Petitions have been filed seeking identical reliefs in the nature of Certiorarified Mandamus calling into question an order passed by the first respondent / the Assistant Director of Panchayat, Madurai District in Na.Ka.No.351/2021/A2 dated 17.11.2021 claiming that the same had been issued without jurisdiction and that therefore, this Court should interfere with the said order.
2. In view of the fact that the writ petitioners have assailed the same impugned order on similar grounds, a common order is passed.
3. For the sake of convenience, I shall take up W.P(MD).No.21736 of 2021 filed by S.Chellapandi, as a sample case to state the facts.
4. In the affidavit filed in support of the Writ Petition, it had been stated that the petitioner has been a lease holder under the Usilampatti Panchayat Union with respect to a property at Bazar Stall. Originally, the Usilampatti Panchayat Union by proceedings dated 26.03.2010 had leased out a small area of land to the petitioner and the petitioner was permitted to put up a construction for a shop at his own expense. The petitioner put up the construction and has been doing business in the shop as a lessee for the land https://www.mhc.tn.gov.in/judis 3/48 W.P.(MD).No.21616 of 2021 and batch leased out by the Panchayat Union. The lease had been extended every three (3) years and there was also a condition that there should be an increase in the lease amount to the extent of 15 % whenever such extension is granted. The petitioner claims that the period of lease is still subsisting.
5. In the meanwhile, W.P.(MD).No.12372 of 2021 came to be filed by a Councillor in the Panchayat Union, as a Public Interest Litigation questioning the change in the name of the lessee with respect to nine (9) specific shops. It was alleged that the Panchayat President had, without any authority, changed the lessees for gain.
6. A Division Bench while examining the case of that particular Writ Petition, observed that the Panchayat President had exceeded jurisdiction and therefore, called upon the Assistant Director of Panchayat to close down the shops and let them out for auction.
7. It is claimed by the petitioner that such order was directed only against those specific nine (9) shops. It is also claimed that the said Assistant Director of Panchayat, who is the first respondent herein, had, taking advantage of that authority granted by the Division Bench, issued Show Cause Notice to the petitioner on 23.09.2021 calling upon the petitioner to show cause why the https://www.mhc.tn.gov.in/judis 4/48 W.P.(MD).No.21616 of 2021 and batch shop should not be auctioned and granted three (3) days' time to reply to the said Show Cause Notice. The petitioner had given his reply.
8. Thereafter, on 17.11.2021, the impugned order was passed by the first respondent / the Assistant Director of Panchayat, rejecting the reply given and stating that a decision had been taken to auction the shop and granted permission to the petitioner to participate in the auction. This impugned order has been challenged in the present Writ Petition.
9. In all the other Writ Petitions in which this common order is passed, the same impugned order is questioned and challenged by the writ petitioners. They are all similarly placed, being original lessees by grant of lease of a land with permission to construct shops, with a covenant to continue as lessees with extension once every three (3) years with an increase of 15% in the rent.
10. The writ petitioner claims that the first respondent / the Assistant Director of Panchayat, has no jurisdiction to issue the impugned order since it was the Usilampatti Panchayat Union which had originally granted the lease and right was vested only with the said Panchayat Union to take a decision to either extend the lease or to even terminate the lease or to bring up https://www.mhc.tn.gov.in/judis 5/48 W.P.(MD).No.21616 of 2021 and batch the shops for auction. It is claimed that the Panchayat had not passed any such resolution and therefore, the impugned order suffers as a colourable exercise of power.
11. It has also been uniformly claimed by all the writ petitioners that the first respondent / the Assistant Director of Panchayat, had misinterpreted the direction of the Division Bench in W.P(MD).No.12372 of 2021, which was focused only on those nine (9) specific shops, as having granted him the power to issue notices to all the shops and also to direct the petitioners to vacate the shops and to bring them on auction, even if the Panchayat had not passed any such resolution. The petitioners, therefore claimed that this Court should interfere with the impugned order and set aside the same.
12. A common counter-affidavit had been filed by the first respondent / the Assistant Director (Panchayat), who was the official, who had issued the impugned order and also the Show Cause Notice. He pointed out the order of the Division Bench in W.P(MD).No.12372 of 2021 and stated that, as directed, he had closed down the nine (9) specific shops and brought them to auction after following due procedure. He further stated that the auction amount fetched was substantially far higher than the monthly rents which the https://www.mhc.tn.gov.in/judis 6/48 W.P.(MD).No.21616 of 2021 and batch petitioners are paying. It was stated that, from the nine (9) shops alone, the total monthly rent determined through auction was Rs.2,61,100/- , which was nearly four times the rental amount per month paid by the lessees of those nine (9) shops. The concept to bring the shops to auction to generate funds for the Panchayat was therefore justified.
13. It was also stated that the original period of lease was only for three years with one renewal for a further period of three years. It was contended that after those two successive terms, the possession of the writ petitioners was unlawful. They cannot claim a right to continue to be termed as lessees and it was alleged that they had been granted that privilege by the Panchayat and such extension of lease was, in fact, a colourable exercise of power.
14. He further stated that the impugned order had been passed keeping in mind the interest of the Panchayat which would obtain substantial funds and therefore, stated that the petitioners' shops should be put to auction. The petitioners can very well participate in the auction. He also pointed out the order of the Division Bench, wherein, he had been given the authority to close the shops and bring them to auction. He, therefore, claimed that the Court had granted him the power to issue both the Show Cause Notice and the impugned order.
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15. He justified the impugned order claiming that necessary reasons have been given. He further stated that the Panchayat Union is being put to loss month after month owing to the extremely low rent paid by the petitioners. He therefore urged that this Court should dismiss the Writ Petitions.
16. Heard arguments advanced by Mr.M.Ajmal Khan, learned Senior Counsel, Mr.A.R.L.Sundaresan, learned Senior Counsel, Mr.V.Raghavachari, learned counsel, Mr.T.K.Gopalan, learned counsel and Mr.S.Deenadhayalan, learned counsel on behalf of the petitioners and Mr.Veerakathiravan, learned Additional Advocate General, assisted by Mr.P.Thilak Kumar, learned Government Pleader on behalf of the respondents.
17. It is the contention of Mr.M.Ajmal Khan, learned Senior Counsel, that the petitioners were not parties to W.P(MD).No.12372 of 2021 and therefore, the order passed in that particular Writ Petition could not be applied to the petitioners. The order was not directed at the petitioners.
18. Learned Senior Counsel pointed out that the petitioners had been in lawful possession having been granted lease of the lands by the Panchayat after following proper procedure. Thereafter, the petitioners had put https://www.mhc.tn.gov.in/judis 8/48 W.P.(MD).No.21616 of 2021 and batch up construction and had been doing business peacefully and lawfully. They have been paying rent as directed and determined by the Panchayat. Their period of lease was also determined only by the Panchayat. Extension of lease was granted only by the Panchayat.
19. Learned Senior Counsel stated that the first respondent had misconstrued the authority given to him in the order in W.P.(MD).No.12372 of 2021 and had usurped the authority of the Panchayat and had issued both the Show Cause Notice and the impugned order, even though he was not authorised by the Panchayat.
20. Learned Senior Counsel pointed out that the constitution of Panchayat had been recognised and Part IX of the Constitution had been introduced by the 73rd and 74th Amendments to the Constitution. The Panchayat is an independent body exercising power and learned Senior Counsel further pointed out that the Tamil Nadu Panchayats Act, 1994 and the Tamil Nadu Panchayats (Procedure for conducting Public Auction of Leases and Sales in the Panchayats) Rules, 2001 governed lease or auction of the lands of the Panchayat and to take any decision in that regard. Learned Senior Counsel stated that it is imperative that the Panchayat passes a resolution in that regard. https://www.mhc.tn.gov.in/judis 9/48 W.P.(MD).No.21616 of 2021 and batch
21. Learned Senior Counsel, therefore, stated that the first respondent, who had not been authorised by the Panchayat to act on behalf of the Panchayat, has no authority to issue either the Show Cause Notice or the impugned order. It was further contended that the petitioners are lessees and not licensees.
22. Learned Senior Counsel further pointed out that Article 19 (1)
(g) of the Constitution guarantees every citizen a fundamental right to carry on trade or business with reasonable restrictions. But the fundamental right still exists and the petitioners therefore cannot be faulted for continuing their business when the lease period had been extended by the Panchayat. Learned Senior Counsel, therefore, stated that the impugned order should be struck down by this Court.
23. Mr.A.R.L.Sundaresan, learned Senior Counsel pointed out the impugned order and stated that there has been no independent application of mind by the first respondent with respect to each shop holder. The impugned order is a stereotyped order and only the name of the shop keeper had been changed. Learned Senior Counsel pointed out that the issue before the Division Bench was only with respect to change in the name of nine (9) specific shops https://www.mhc.tn.gov.in/judis 10/48 W.P.(MD).No.21616 of 2021 and batch and the Division Bench had certainly not granted the authority to the first respondent to evict all the shop keepers without following due process or without any authority or resolution of the Panchayat. Learned Senior Counsel also pointed out that the lease periods still subsist and till that time, unless the Panchayat takes a decision, possession cannot be interfered with. Learned Senior Counsel also pointed out that a resolution of the Panchayat is imperative and also pointed out Section 202 of the Tamil Nadu Panchayats Act, 1994, which granted the District Collector / Inspector of Panchayat to suspend or cancel a resolution passed by the Panchayat. But first, there must be a resolution passed. Without that, the first respondent has no authority to issue the Show Cause Notice or the impugned order. Learned Senior Counsel stated that self governance and democracy at the grass root level is the fulcrum of the Constitution and such power vested with the Panchayat should not be interfered with by the Executive. Learned Senior Counsel also stated that, since the Panchayat had extended the lease periods, they must also be heard before issuing any order interfering with resolutions passed by them. It was also pointed out that the order should have been passed on a case to case basis. Learned Senior Counsel also urged that the impugned order should be struck down.
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24. Mr.T.K.Gopalan, learned counsel, also pointed out the very same facts and also the gazette notification issued. Learned Senior Counsel pointed out that the petitioners in the petitions he represented, had also filed O.S.No.247 of 2004 before the Sub-Court and had also obtained a decree on 22.11.2004. It was therefore pointed out that the impugned order will necessarily have to be interfered with.
25. Mr.V.Raghavachari, learned counsel, pointed out that the first respondent cannot take an order of a Court as the basis to issue either a Show Cause Notice or the impugned order. Learned counsel stated that such Show Cause Notice or impugned order should be passed on subjective satisfaction of the official who issues such notice or order and that personal subjective satisfaction is lacking when either the notice or the order is passed on the basis of a Court order which basis is actually wrong. Learned Counsel, stated that neither possession nor the fact that the petitioners were paying rent are in controversy. Learned counsel also stated that, since the period of lease is subsisting, unless the Panchayat passes necessary resolution, the possession of the petitioners cannot be interfered with in an arbitrary manner. Learned counsel also urged that the impugned order should be struck down by this Court.
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26. Mr.S.Deenadhayalan, learned counsel who also appeared on behalf of some of the petitioners stated that the allegations that rents have not been paid are not correct and also pointed out that receipts had been enclosed as documents. Learned counsel also adopted the aforesaid arguments and stated that the impugned order had been passed without jurisdiction and should be struck down.
27. Mr.Veerakathiravan, learned Additional Advocate General, took the Court through the order of the Division Bench in W.P(MD).No.12372 of 2021 and stated that the Division Bench had found, as a fact, that the Panchayat President had acted arbitrarily and therefore, could not be trusted and hence, had specifically granted authority to the first respondent / the Assistant Director of Panchayat, to close and vacate the shops and bring them to auction. Learned Additional Advocate General pointed out that the fundamental concept was that all the writ petitioners have taken undue advantage of the grant of lease / possession about 10 to 20 years back and have continued to be in possession claiming practically ownership rights. Learned Additional Advocate General lamented that owing to such continuous possession by paying a very meagre amount as rent, substantial loss had accrued to the Panchayat and consequently welfare schemes could not be initiated by the Panchayat for the benefit of the general public. The https://www.mhc.tn.gov.in/judis 13/48 W.P.(MD).No.21616 of 2021 and batch shopkeepers have practically taken control of a huge area in central Usilampatti, where the land value have gone up multiple times, but are still paying rents at far less rate than the market value and this has directly affected the functioning of the Panchayat in even taking up decisions to implement any beneficial scheme for the public.
28. Learned Additional Advocate General also pointed out the value for which the nine (9) shops had been bid and stated that the loss to the Panchayat far outweighs every other consideration and since the bona fide of the Panchayat President has been suspected by the Division Bench, the Assistant Director of Panchayat, who is also a competent official exercising jurisdiction, had issued the Show Cause Notice and the impugned order. Learned Additional Advocate General also stated that the petitioners, having enjoyed continuous and long possession at very minimal rent, should now permit the Panchayat to bring to auction the shops and they can even participate in the auction. It was only with the sole aim of benefitting larger public interest that the shops are brought to auction.
29. Learned Additional Advocate General denied and disputed the claim that there was arbitrary or colourable exercise of jurisdiction. The first respondent / the Assistant Director of Panchayat was under compulsion to issue https://www.mhc.tn.gov.in/judis 14/48 W.P.(MD).No.21616 of 2021 and batch both the Show Cause Notice and the impugned order, since the Panchayat, though vested with power, had not taken any action for nearly 10 to 20 years, in spite of the fact that every individual knows that the rents paid by the petitioners is far less than the benefits they gain from the business in that shop.
30. Learned Additional Advocate General also pointed out the provisions of the Tamil Nadu Panchayats (Procedure for conducting Public Auction of Leases and Sales in the Panchayats) Rules, 2001 and stated that bringing to auction the shops was a lawful decision and the Court should permit the auction to proceed. He also pointed out that there cannot be any perpetuity in lease and asserted that the petitioners were squatting on the property. There cannot be extension of lease for more than one term, but, the petitioners have been in possession for nearly a decade and more.
31. With respect to the suit referred by Mr.T.K.Gopalan, the learned Additional Advocate General stated that it was a consent decree and would not be binding on the decision taken to auction the shops. Learned Additional Advocate General also stated that at least in 11 specific cases, the petitioners therein, had sub-leased the shops without authority. https://www.mhc.tn.gov.in/judis 15/48 W.P.(MD).No.21616 of 2021 and batch
32. The contentions of the learned Additional Advocate General were refuted in reply arguments advanced by Mr.M.Ajmal Khan, learned Senior Counsel and by Mr.A.R.L.Sundaresan, learned Senior Counsel. They again reiterated that the Panchayat Council alone had the power to take any decision with respect to the shops to lease or auction of the shops of the petitioners. The Panchayat was an independently elected body. It was also stated that if a decision had to be taken in a particular manner, it should be taken only in that particular way and the Assistant Director of Panchayat, having no authority, had issued the Show Cause Notice and the impugned order in a stereotype manner and therefore, learned Senior Counsels again urged that the Writ Petitions should be allowed and the impugned orders should be struck down.
33. I have carefully considered the arguments advanced and perused the material records available.
34. Let me begin with two verses of wisdom by the Father of the Nation.
“When the Panchayat raj is established, public opinion will do what violence can never do” “The voice of the people may be said to be God's voice, the voice of the Panchayat” https://www.mhc.tn.gov.in/judis 16/48 W.P.(MD).No.21616 of 2021 and batch
35. Article 40 of the Constitution of India enshrining one of the Directive Principles of State Policy is as follows:
Organisation of village panchayats: The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government.
Thus, it is the obligation of the State to ensure that Panchayats are organised and endowed with such powers to function as units of self government. It begs an answer when an allegation is levelled that a State's action has frustrated such powers and such action is called in question.
36. By the 73rd Amendment in 1992 to the Constitution of India, Part IX was introduced containing Articles 243, 243A to 243O.
37. “Panchayat” had been defined in Article 243 (d) as “(d) 'Panchayat' means an institution (by whatever name called) of self-government constituted under article 243B, for the rural areas;” https://www.mhc.tn.gov.in/judis 17/48 W.P.(MD).No.21616 of 2021 and batch Article 243B is as follows:
“(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.....” Article 243G is as follows:
“Powers, authority and responsibilities of Panchayats: Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats 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 Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to
(a)the preparation of plans for economic development and social justice;
(b)the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.” https://www.mhc.tn.gov.in/judis 18/48 W.P.(MD).No.21616 of 2021 and batch
38. In the statement of objects and reasons introducing Part IX, the then Union Minister of State, Rural Development, Thiru.G.Venkatswamy, had stated as follows on 10.09.1991 while introducing the Constitution (73rd Amendment Act, 1992):
“Though the Panchayati Raj Institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people's bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.
2. Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
In the light of the experience in the last forty years and in view of the short-comings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic https://www.mhc.tn.gov.in/judis 19/48 W.P.(MD).No.21616 of 2021 and batch and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them.
3. Accordingly, it is proposed to add a new Part relating to Panchayats in the Constitution to provide for among other things, Gram Sabha in a village or group of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of Chairpersons of Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of Chairpersons in Panchayats at each level;
reservation of not less than one-third of the seats for women; fixing tenure of 5 years for Panchayats and holding elections within a period of 6 months in the event of supersession of any Panchayat;
disqualifications for membership of Panchayats; devolution by the State Legislature of powers and responsibilities upon the Panchayats with respect to the preparation of plans for economic developments and social justice and for the implementation of development schemes; sound finance of the Panchayats by securing authorisation from State Legislatures for grants-in-aid to the Panchayats from the Consolidated Fund of the State, as also https://www.mhc.tn.gov.in/judis 20/48 W.P.(MD).No.21616 of 2021 and batch assignment to, or appropriation by, the Panchayats of the revenues of designated taxes, duties, tolls and fees; setting up of a Finance Commission within one year of the proposed amendment and thereafter every 5 years to review the financial position of Panchayats; auditing of accounts of the Panchayats; powers of State Legislatures to make provisions with respect to elections to Panchayats under the superintendence, direction and control of the chief electoral officer of the State; application of the provisions of the said Part to Union territories; excluding certain States and areas from the application of the provisions of the said Part; continuance of existing laws and Panchayats until one year from the commencement of the proposed amendment and barring interference by courts in electoral matters relating to Panchayats.
4. The Bill seeks to achieve the aforesaid objectives.”
39. The Tamil Nadu Panchayats Act, 1994 had been introduced consequent upon the changes proposed by a Constitution (73rd Amendment Act, 1992). It established a three tier system with elected bodies at the village, intermediate and district levels for greater participation of the people and more effective implementation of rural development programmes. https://www.mhc.tn.gov.in/judis 21/48 W.P.(MD).No.21616 of 2021 and batch
40. Chapter 3 of the said Act deals with constitution of Village Panchayats, Panchayat Union Councils and District Panchayats.
41. Panchayat Union Councils are dealt with in Sections 15 to 23.
42. Section 15 deals with formation of Panchayat Union Council.
43. Section 16 deals with Constitution of Panchayat Union Councils and their incorporation.
Section 16 (2) is as follows:
“(2) Subject to the provisions of this Act, the administration of the panchayat union shall vest in the panchayat union council but the panchayat union council shall not be entitled to exercise functions expressly assigned by or under this Act or any other law to its chairman or the commissioner or to the village panchayat or district panchayat or any other authority:
Provided that if and so long as there is no village panchayat in any part of a panchayat union, the panchayat union council shall exercise all the powers including the power of taxation, discharge the duties, perform the functions and be credited with the receipts and debited with the charges of the https://www.mhc.tn.gov.in/judis 22/48 W.P.(MD).No.21616 of 2021 and batch village panchayat, and the chairman and the commissioner of the panchayat union council shall exercise the powers, discharge the duties and perform the function of the president and the executive authority, respectively, in such part of the panchayat development block.”
44. The definition of “Panchayat” and “Panchayat Union” under the Tamil Nadu Panchayats Act, 1994 is as follows:
Section 2(21) of the said Act:
“(21) 'Panchayat' means a village panchayat, a panchayat union council or a district panchayat constituted under this Act;” Section 2(23) is as follows:
“(23) 'Panchayat Union' means any local area which is declared to be a panchayat union under this Act;” Section 202 of the Tamil Nadu Panchayats Act, 1994 is as follows:
“202. Power to suspend or cancel resolution, etc. under the Act:
(1) The Inspector may, by order in writing,-
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(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 his opinion, ,
(a) such resolution, order, licence, permission or act has not.been legally passed, issued, granted or authorised, or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other law or an abuse of such powers or is considered by the Inspector to be otherwise undesirable, or
(c) the execution of such resolution or order, or 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 nothing in this sub-section shall enable the Inspector to set aside any election which has been held. .
(2) The Inspector shall, before taking action on any of the grounds referred to in clauses (a) and (b) of sub-section (1), give the authority or person concerned an opportunity for explanation.
https://www.mhc.tn.gov.in/judis 24/48 W.P.(MD).No.21616 of 2021 and batch (3) The power conferred on the Inspector under clause (c) of sub-section (I) may be exercised by the Collector in accordance with the provisions of that clause.” It is thus seen that if it is found by the Inspector of Panchayats / District Collector that a resolution has to be re-examined, he/she has the authority to do so.
45. Pursuant to G.O.(Ms).No.277, Rural Development (C-4), dated 22.11.2001, the Tamil Nadu Panchayats (Procedure for conducting Public Auction of Leases and Sales in the Panchayats) Rules, 2001, had been passed.
Rule 3 is as follows:
“3. Properties and rights to be auctioned – (1) The Panchayat sell lease out or sell, in public auction in an open and transparent manner, the right to enjoyment of properties of a Panchayat or right to the collection of fees for the use of public places in the Panchayat for commercial and other purposes, specified in sub – Rule (2). The Panchayat shall also sell in public auction, any unusable or unserviceable article as specified in clause (xi) in sub – rule (2) whose estimated value is more than Rs.100 (Rupees one hundred only) https://www.mhc.tn.gov.in/judis 25/48 W.P.(MD).No.21616 of 2021 and batch (2) The list of items that may be leased out are, -
(i) Own lands and other immovable properties of the Panchayat;
(ii) vested or regulated Poramboke lands under the control of the Panchayat;
(iii) buildings consisting of shops, rooms, rest sheds, carriages, market stalls, canteens, hotels, lodging houses, and other permanent buildings for which rent is payable monthly or for a longer period;
(iv) cutting of grass (vizhal for laying roof for huts) grown in irrigation tanks and other places under the control of Panchayats;
(v) usufructs of trees on the Panchayat roads, topes and on roads belonging to the Highw ays and Rural Works Department. Trees on public Works Department Lands over which the Panchayats has been given control and other Panchayat properties;
(vi) right to collect the fees in the public market, cart- stand, public landing or halting places, bus –stand, slaughter houses, fish markets or ferry places under the control of the Panchayat;
(vii) Collection of minor forest produce as defined in Section 130- A of the Tamil Nadu Forest Code collected in the unreserved forest of the Panchayat and other Panchayat properties;
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(viii) Use of road margins under the control of the Panchayat and street margins for sale of articles;
(ix) Use of public places for erecting advertisement boards, etc;
(x) any other items for which right of enjoyment or collection of fees can be leased out;
(xi) The sale of unusable or unserviceable article are, - i. wind – fallen and withered trees;
ii. sweepings in the Panchayat properties;
iii. unserviceable and wornout machinery tools, plants and electrical fittings;
iv. old newspapers, journals and obsolete records after tearing out them; and v. old newspapers, journals and obsolete records after tearing out them; and vi. any other unserviceable or unusable article which can be sold.
(3) In the case of stalls or bunks or other structures or buildings constructed by the Government from their Funds for rehabilitation of the repatriates from other Countries, if any, handed over to the Village Panchayat or the Panchayat Union Council, as the case may be, for maintenance, they shall be leased out only to such persons according to the instructions of the Government in force at the time of auction.” https://www.mhc.tn.gov.in/judis 27/48 W.P.(MD).No.21616 of 2021 and batch The Rule is exhaustive, but retains the power of the Panchayats to exclusively deal with aforesaid issues.
Rule 4 is as follows:
“4. Lease of land and immovable property belonging to a Panchayat – The Panchayat shall have power to lease out its own land or any other immovable property to it as referred to in Rule 3 above : Provided that no such lease shall be valid in case the period of lease exceeds three years or where the Lessee is permitted to put up any building or structure whether of masonry, brick, wood, mud or of any materials unless the sanction of the Inspector has been obtained therefor.” Again there is an inbuilt check and balance. But still it is the Panchayat which has the power vested in and by its own constitution.
46. Now let me examine the facts, the contentions and the arguments advanced in the light of the aforesaid principles. The petitioners herein claim that they had been granted permission by the Usilampatti Panchayat Union pursuant by lawful resolutions passed, to take possession as lessees of land with permission to construct shops. They each constructed a shop and they are doing lawful business in the same.
https://www.mhc.tn.gov.in/judis 28/48 W.P.(MD).No.21616 of 2021 and batch
47.Article 19(1)(g) of the Constitution guarantees every citizen to carry on business or trade so long as the business or trade is lawful. It is as follows:
“19. Protection of certain rights regarding freedom of speech etc. (1)All citizens shall have the right.
......
(g) to practise any profession, or to carry on any occupation, trade or business.”
48. The legality of the initial possession of the petitioners has not been questioned by the respondents. They were inducted as lessees. There were terms and conditions given in the lease. They should put up shops. They should pay the rent. Their business must be lawful. They had been granted extension of the lease period.
49. It is complained by the first respondent that the petitioners could have been granted such extension only for another block of three (3) years and any further extension is unlawful. It is also complained that they are paying very meagre amount as rent and there is only a 15% increase in the rent at the time of renewal and this has directly affected the income which could https://www.mhc.tn.gov.in/judis 29/48 W.P.(MD).No.21616 of 2021 and batch have been generated by the Panchayat. It is also claimed that their possession subsequent to the first extension of the lease period is unlawful. This is contrasted with the income generated by the Panchayat while putting to auction, the nine (9) specific shops, pursuant to directions of the Division Bench in W.P.(MD).No.12372 of 2021.
50. This Court will now have to therefore balance two rival contentions stated, namely, that by the respondents, that the petitioners are squatting in a substantial area of land in central Usilampatti and paying very meagre rent in the teeth of the allegation that their very possession itself is unlawful, since further extension of period is not provided in the aforesaid enactment, and, that by the petitioners, that irrespective of the fact that they are paying meagre rent and that their extensions of lease period are unlawful, interference with continuation with possession and to do business should be only at the instance of a resolution passed by the Panchayat and not at the instance of the first respondent.
51. As lessees, whether as on date, their possession is lawful or not, it cannot be denied that the petitioners are carrying on business in the land belonging to the Usilampatti Panchayat Union. They had been inducted by the Panchayat Union. The issue which arises is to examine whether the first https://www.mhc.tn.gov.in/judis 30/48 W.P.(MD).No.21616 of 2021 and batch respondent / the Assistant Director of Panchayat has the authority to issue notices and act against the petitioner.
52. The first respondent traces such authority to the order of the Division Bench in W.P.(MD).No.12372 of 2021. An examination of that Writ Petition reveals that it emanated owing to the fact that in nine (9) shops, the names of the licensees / lessees had been changed, according to the petitioner therein and affirmed by the Division Bench, arbitrarily by the Panchayat President.
53. The order of the Division Bench dated 22.07.2021 in W.P(MD).No.12372 of 2021 and W.M.P(MD).No.9717 of 2021 in V.P.Ammavasai Vs. the Secretary to Government, Rural Development and Panchayat Raj Department, Secretariat, St.George Fort, Chennai – 600 009 and 19 others is as follows:
“3.It is not clear as to on what basis such name transfer had been done, especially, when the various local bodies have taken consistent stand before this Court in various cases that a license or lease is not transferable to a third party. Only if the licensee dies during the subsistence of the license or lease, name transfer application will be accepted by the legal heirs and not otherwise. Curious enough, the sixth https://www.mhc.tn.gov.in/judis 31/48 W.P.(MD).No.21616 of 2021 and batch respondent appears to have abused her position and transferred the shops in favour of third parties by resolution dated 11.01.2021 in respect of 9 shops and by order dated 25.02.2021 for another 9 shops. The sixth respondent should explain as to under what circumstances such name transfers was effected.” The sixth respondent was the Village Panchayat President.
54. Thereafter, the Division Bench stated as follows:
“5.In our view, even assuming the sixth respondent for some reason cannot pursue the litigation, the Court is very well empowered to examine the correctness of the panchayat union under the chairmanship of the sixth respondent and if any illegality is found, this Court has full powers to strike the same. Mr.R.Baskaran, learned Government Counsel who has accepted notice for respondents 1 to 4 has produced the written instructions given by the fourth respondent dated 21.07.2021, wherein, he had given certain reasons as to why public auction could not be conducted.
6.Since we are prima facie satisfied that the name transfer was illegal and without jurisdiction and there is likelihood that such name transfers were effected for certain other reasons best known to the https://www.mhc.tn.gov.in/judis 32/48 W.P.(MD).No.21616 of 2021 and batch sixth respondent, to ensure that transparency is maintained and the assets of the panchayat union to be preserved, there will be an order of stay of all further proceedings pursuant to the resolutions dated 11.01.2021 and 25.02.2021, until further orders.
Secondly, the Assistant Director of Panchayat, who is the fourth respondent herein is directed to lock and seal all the shops and file a report before this Court. The fourth respondent is directed to strictly enforce the legal provisions and take all effective steps to ensure that the panchayat union properties are protected and adequate income is recovered. We place on record the written instructions which have been given by the fourth respondent to the learned Government Counsel dated 21.07.2021.”
55. The interpretation of the observations of the Division Bench in Paragraph 6 referred supra, as given by learned Senior Counsels on behalf of the petitioners and as given by the learned Additional Advocate General on behalf of the respondents, will now have to be examined.
56. The relief sought in the said Writ Petition before the Division Bench was as follows:
“Writ Petition filed praying that in the https://www.mhc.tn.gov.in/judis 33/48 W.P.(MD).No.21616 of 2021 and batch circumstances stated therein and in the affidavit filed therewith the High Court may be pleased to issue a Writ of Mandamus directing the Respondent No. 1 to 3 herein to cancel the Shop license granted /transferred to the Respondent 12 to 20 in respect of the Usilampatty panchayat Union Shop Nos. 9, 10, 11, 12 of Theni road, Murugan Temple Complex, Shop Nos. 7 and 17 of Theni road bazaar shops and shop nos. 14, 15, 16 of Theni road complex shops without conducting tender and illegally by falsifying documents transferred to their names as per Section 202 of Tamil Nadu Panchayat Act, 1994 and also take appropriate action against the Respondent No. 6 to 11 herein for indulging in above said illegality, acted for the benefit of the private persons there by caused revenue loss to the Panchayat Union based on the representation given by the Petitioner dated 13.04.2021.”
57. It is seen that specific shop numbers have been given. There were nine (9) specific shops. They were Shop Nos.9, 10, 11 and 12 at Theni Road, Murugan Temple Complex and Shop Nos.7 and 17 at Theni Road Bazaar and Shop Nos.14, 15 and 16 at Theni Road Complex. These are the only shops mentioned in the Writ Petition.
https://www.mhc.tn.gov.in/judis 34/48 W.P.(MD).No.21616 of 2021 and batch
58. In paragraph 6 of the order, the Division Bench had stated as follows:
“Secondly, the Assistant Director of Panchayat, who is the fourth respondent herein is directed to lock and seal all the shops and file a report before this Court.” The word used “all”, has been stated by the petitioners to mean only the aforesaid nine (9) shops, but has been taken as a carte blanche power to proceed against all the remaining 450 odd shops by the first respondent / the Assistant Director of Panchayat.
59. The order of the Division Bench must be further examined because in the very same portions extracted supra, the Division Bench had doubted the bona fide of the sixth respondent and had stated that “there is likelihood that such name transfers were effected for certain other reasons best known to the sixth respondent,”.
Thus, since the sixth respondent was declared disqualified by the Division Bench, as an alternate, for those specific instance of those nine shops, the Assistant Director of Panchayat was given the power to proceed against and I hold only against the said nine shops.
https://www.mhc.tn.gov.in/judis 35/48 W.P.(MD).No.21616 of 2021 and batch
60. The order of the Division Bench, in my opinion, can never be extended to imply that the Assistant Director of Panchayat can act against all the remaining 450 shops. The Division Bench, had taken care to ensure that the affected shopkeepers were also shown as respondents in the Writ Petition, thus, they were conscious as to against whom the order was focused. The word “all” would only imply to the said nine (9) shops.
61. I am extremely confident that no Court much less the Division Bench will pass orders directing eviction against parties who are not present before the Court and without hearing them.
62. The basic and fundamental principle, in any and in every judicial order or in any and in every administrative order, is to follow the principles of natural justice which would imply granting an opportunity of being heard, hearing the party and answering the representations given by the party.
63. The Division Bench was focused only with respect to those nine (9) shops alone. I hold that exercising power and extending it to all the 450 odd shops is a colourable exercise of power by the first respondent. https://www.mhc.tn.gov.in/judis 36/48 W.P.(MD).No.21616 of 2021 and batch
64. This adventurism of the first respondent has to be struck down by this Court.
65. The Executive has to act only when authorised to do so by a specific legislation and only as directed by the specific legislation.
66. Here, the shops were under the control of the Panchayat. The Panchayat should first pass a resolution. The Father of the Nation wanted Panchayats to be created so that the voice of the people would be heard.
67. I hold that in the instant cases, there has been conscious suppression of such voice of the Usilampatti Panchayat Union and one official had taken upon himself to evict nearly about 450 shops. A Frankenstein's Monster had been unwittingly created. It is the sacrosanct duty of this Court to ensure that the monster is curtailed and its wings are clipped. I hold that the first respondent had overreached himself by issuing both the Show Cause Notices and also the impugned orders.
68. The Legislature had laid down the law that the Panchayats are supreme. Even if they had passed a resolution refusing to bring the shops into auction and if it is opined that such resolution has to be interfered, then, under https://www.mhc.tn.gov.in/judis 37/48 W.P.(MD).No.21616 of 2021 and batch Section 202 of the Panchayats Act, 1994, the Inspector of Panchayats / the Distict Collector can always interfere with such a resolution. But the matter should be debated by the people / representatives of the people and a resolution must be passed either way. Without such resolution, the first respondent should not be allowed to usurp such power.
69. The learned Additional Advocate General had repeatedly pointed out economics of financial gain / loss and the bewildering amounts which had been fetched in the auction of the nine (9) shops and the huge amounts of money which could be fetched by auctioning the 450 shops.
70. When financial gain is weighed with Constitutional values, I would hold, forever and ever, that Constitutional values far outweigh any amount of financial gain. Never shall any Court, and certainly not this Court, ever fail to uphold the Constitutional values obtained by distinguished men and women who suffered, sacrificed and struggled.
71. In Halsbury's Laws of England, Vol.I (1) 4th Edition para 81 at page 151-152, it had been held that “A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The https://www.mhc.tn.gov.in/judis 38/48 W.P.(MD).No.21616 of 2021 and batch expectation may arise from a representation or promise made by the authority including an implied representation or from consistent past practice.”
72. The petitioners herein having been inducted as lessees will certainly have harboured a legitimate expectation that even if their possession is unlawful, it would be interfered with only in manner known to law. The manner known to law is for a resolution to be passed by the Panchayat and thereafter, necessary action to be taken. But this Court can never permit an official, much less the first respondent to step into the shoes of the Panchayat and act as if he can override a Panchayat / a constitutionally recognised unit. He should never do so. He can never do so. He will not be permitted to do so. He is prohibited from doing so.
73. In Uttar Pradesh Awas Evam Vikas Parishad vs Gyan Devi, reported in (1995) 2 SCC 326, the Honourable Supreme Court had held as follows:
“No order can be passed without hearing a person if it entails civil consequences. Where even though a person has no enforceable right yet he is affected or likely to be affected by the order passed by a public authority, the doctrine of legitimate expectation come into play and the person may have a https://www.mhc.tn.gov.in/judis 39/48 W.P.(MD).No.21616 of 2021 and batch legitimate expectation of being treated in a certain way by an administrative authority.”
74. In Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248 at page 290, the Hon’ble Supreme Court held as follows :
“14. Now, as already pointed out, the doctrine of natural justice consists principally of two rules, namely, nemo debet esse judex in propria causa : no one shall be a judge in his own cause, and audi alteram partem : no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule…..The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that “natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances”. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.” (Emphasis supplied) https://www.mhc.tn.gov.in/judis 40/48 W.P.(MD).No.21616 of 2021 and batch
75. In the Joint Action Committee of Airlines Pilots Associations of India & Others Vs. the Director General of Civil Aviation and Others, reported in (2011) 5 SCC 435, the Hon'ble Supreme Court had held as follows:
“26. The contention was raised before the High Court that the Circular dated 29.5.2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the Statutory Authority. In a democratic set up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal.
27. Similar view has been re-iterated by this Court in Commissioner of Police, Bombay v.
Gordhandas Bhanji, AIR 1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.Kamalia & Ors., AIR 2004 SC 1159; and Pancham Chand & Ors. v.
https://www.mhc.tn.gov.in/judis 41/48 W.P.(MD).No.21616 of 2021 and batch State of Himachal Pradesh & Ors., AIR 2008 SC 1888, observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law.
It violates the Constitutional scheme.
28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.
It cannot be said that the Circular dated 29.5.2008 was either issued illegally or without any authority. Admittedly, the DGCA is competent to issue special directions and the same had been issued by him, though may be with the consultation of some other authorities.
However, it cannot be denied that the DGCA was involved in the process. The authority which had been in consultation with the DGCA had been provided for under the business rules and it cannot be held by any stretch of imagination that the Ministry of Civil Aviation is not an authority concerned with the safety https://www.mhc.tn.gov.in/judis 42/48 W.P.(MD).No.21616 of 2021 and batch measures involved herein. The authorities are competent to issue the said regulations. Exercise of the power is always referable to the source of power and must be considered in conjunction with it. In view of the fact that the source of power exists, there is no occasion for the Court to link the exercise of power to another source which may invalidate the exercise of power.”
76. In Manohar Lal (D) By Lrs vs Ugrasen (D) By Lrs. & others reported in (2010) 11 SCC 557, the Hon'ble Supreme Court had held as follows:
“23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act” https://www.mhc.tn.gov.in/judis 43/48 W.P.(MD).No.21616 of 2021 and batch
77. In Divisional Manager, Aravali Golf vs Chander Hass & Anr, reported in (2008) 1 SCC 289, the Hon'ble Supreme Court had actually thrown a word of caution on the judiciary and on the Courts, but, had also stated that the judiciary should act as an alarm bell and should ensure that the Executive becomes alive to perform his duties. It was observed as follows:
“Courts cannot create rights where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile failure to bear this in mind would lead to chaos. Public adulation must not sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.”
78. I am confident that every Court would uphold Constitutional https://www.mhc.tn.gov.in/judis 44/48 W.P.(MD).No.21616 of 2021 and batch values rather than to bow down to accept financial considerations throwing the values to the wind. The Executive should be sensitized that they should listen to the voice of the people / the Panchayat.
79. I hold that the authority who has been vested with the power to exercise discretion alone can pass an order. In this case, it is only the Panchayat which has the power to pass a resolution with respect to the lease or continuation of lease or extension of lease or frustration of the lease. They should be permitted to pass a resolution. An official can never step into the shoes of the Panchayat. In this case, the official had misinterpreted and misconstrued the order of the Division Bench. It cannot be an innocent venture. The tenor of the counter sends a troubling message that this was a deliberate usurpation of power. This is dangerous.
80. The assistance of the first respondent was sought by the Division Bench on the sole issue to take action against the nine (9) specifically mentioned shops. If the Show Cause Notices and the impugned orders are brought to the knowledge of the Division Bench, I am sure they would be shocked that the small window which they had opened, had been grabbed by the first respondent to usurp power and act against all the 450 shops. If this is permitted, then in all spheres and in all departments, the Executive will overreach their power. This is a dangerous step taken by the first respondent https://www.mhc.tn.gov.in/judis 45/48 W.P.(MD).No.21616 of 2021 and batch and I would with all force, struck down the impugned orders.
81. The first respondent had no authority to also issue the Show Cause Notices.
82. I am not prepared to examine the reasons given in either the Show Cause Notice or in the impugned order, since the official who issued it, had no authority at all.
83. The Usilampatti Panchayat Union has every right to sit and discuss the fate of the shops of all these petitioners. They can pass any resolution. If any such resolution is considered to be not legally passed or as an abuse of power or excess exercise of power, by the Inspector of Panchayats / District Collector, then under Section 202 of the Tamil Nadu Panchayats Act, 1994, the Inspector of Panchayats / District Collector can suspend or cancel any such resolution. But, first, the Panchayat must sit, discuss and decide and pass a resolution. It is for that purpose, the Father of the Nation wanted the existence of a Panchayat and stated that public opinion will do what violence can never do and further, the voice of the people may be said to be God's voice, the voice of the Panchayat. That voice should be heard. Constitutional values always far outweigh financial considerations. https://www.mhc.tn.gov.in/judis 46/48 W.P.(MD).No.21616 of 2021 and batch
84. The Writ Petitions are therefore allowed. The impugned orders in each one of the Writ Petitions are struck down. Consequently, connected miscellaneous petitions are closed. No Costs.
27.01.2022
Index : Yes / No
Internet : Yes/ No
Lm
Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1.The Assistant Director of Panchayat, O/o.the Assistant Director of Panchayat, Collector Office Campus, Madurai District.
2.The Commissioner, O/o.the Panchayat Union Office, Usilampatti Panchayat Union, Madurai District.
https://www.mhc.tn.gov.in/judis 47/48 W.P.(MD).No.21616 of 2021 and batch C.V.KARTHIKEYAN, J.
Lm Order made in W.P.(MD).Nos.21616 to 21625, 21670 to 21683, 21736 to 21749, 21848 , 22490 to 22492, 22347 to 22356, 23171 and 23173 of 2021 27.01.2022 https://www.mhc.tn.gov.in/judis 48/48