Madras High Court
Mrs. Pitchammal vs The Collector, Kanyakumari District, ... on 4 May, 2000
Equivalent citations: 2000(3)CTC636
ORDER
1. The writ petition is filed by the elected President of the Sucheendram Selection Grade Town Panchayat, to quash the proceedings of the 1st respondent dated 9.3.2000 in R.No.289/2000/P.III and to permit the Town Panchayat to collect the entry fee including the parking fee from the owners of the vehicles entering Sucheendram.
2. It is stated that a representation was submitted by the public of Sucheendram to the petitioner, stating that the person who has been granted the license to collect the fees is collecting from the owners of the vehicles at higher rates and that it has given rise to lot of complaints and therefore the Panchayat itself undertake the collection on 22.3.2000 a meeting of the Town Panchayat was held. In the said meeting, it was decided that the right to collect fee from the vehicle entering Sucheendram Town shall not be put up for auction and that the same shall be collected directly by the Town Panchayat and that the Town Panchayat shall appoint ex-service men for the purpose of collecting the same. The Collector by his proceedings dated 9.3.2000 informed that there is no provision for appointing the Ex-service men to collect the fee and therefore, the Panchayat shall auction out the right as before. After the receipt of this letter from the collector, a meeting of the Panchayat Board was held and it was resolved unanimously that the Panchayat itself shall collect the fees and that as the auction had been held contrary to the decision of the Panchayat, the Council has decided to reject the highest bid of Murugesan. Thereafter, an order was passed by the collector on 29.3.2000. By this order, the Collector of Kanyakumari suspended the Resolutions dated 8.2.2000, 13.3.2000 and 24.3.2000, by acting under Section 36 of the Tamil Nadu District Municipalities Act. The collector also sent a report to the Government as required under Section-36 about the same. In that background, the writ petition has been filed by the President of the Town Panchayat.
3. Before I take up for consideration the main writ petition, I will dispose of the two petitions filed by the petitioner, one for the impleading of the Executive Officer of the Sucheendram Town Panchayat as the 4th respondent and the other for amending the prayer in the writ petition.
4. Learned Special Government Pleader Mr.K.R.Tamizhmani submitted that he has no objection. The presence of the Executive Officer, Sucheendram Town Panchayat is definitely necessary for the purpose of the case and hence, this application is accordingly allowed, and the Executive Officer, Sucheendram Town Panchayat is impleaded is impleaded as the 4th respondent.
5. Coming to the request of the petitioner in WMP.No.10828 of 2000, the same is filed to amend the prayer in the main Writ Petition. The Writ Petition has been filed originally consisting of a prayer to quash the proceedings of the Collector Kanyakumari in proceedings No.289/2000/P.III dated 9.3.2000.
6. This writ petition was filed on 29.3.2000. The proceeding was issued by the Collector on 29.3.2000 under Section 36 of the Tamil Nadu District Municipalities Act, suspending the resolutions dated 8.2.2000, 13.3.2000 and 24.3.2000. Therefore, the petitioner could not have known about the order passed on 29.3.2000, when the very writ petition was presented before this court on 29.3.2000. The order passed on 29.3.2000 is one under Section 36 of the Act. By this Order, the collector has suspended the resolutions of the Town Panchayat. The Council has been holding the view that the right should not be auctioned out, but the fee should be collected by the Council itself directly from the vehicle owners. They passed a resolution to that effect as well and also requested the collector to grant permission to engage th services of ex-servicemen for deputing them to collection work. It was rejected by the Collector, who ordered the right to be auctioned out, with the result that the auction was held and the 3rd respondent became the successful bidder. The successful bid has to be confirmed by the Town Panchayat. When the subject of confirmation of the said bid of the 3rd respondent came up for consideration of the Town Panchayat, the Town Panchayat declined the same and rejected the bid and once again passed the resolution to the effect that the collection shall be done only by the Town Panchayat. The Collector did not agree with the Council's resolution and issued the proceedings on 29.3.2000, suspending the Resolution. The prayer now asked for flows from the very set of facts already alleged by the petitioner. It is in the nature of final or further orders passed by the Collector on the same set of facts and circumstances. This application for amendment is opposed only by the successful bidder viz., the 3rd respondent.
7. In my opinion, the 3rd respondent will not be affected in any manner if the amendment is permitted. Instead of driving the petitioner to the necessity of filing a fresh writ petition, to permit the petitioner to carry out necessary amendment, incorporating a relief with reference to the final order or further order passed by the Collector on 29.3.2000, will be the right and proper course. The amendment proceeds, as I stated already, from the same set of facts and flows from the same cause of action. It will not prejudice the 3rd respondent. Nor the Amendment would spring any surprise upon the 3rd respondent. All the facts necessary to decide the matter are there and in disposing of a writ petition, the position prevailing as on the date when the matter is taken up by the court will be the most relevant and crucial for determination of the rights of the parties. Therefore, on the date when the writ petition is taken up, we find that already an order has been passed on 29.3.2000 with reference to the subject matter of the writ petitioner and therefore, in the fitness of things, it is necessary to permit the amendment. It will not only help to prevent multiplicity of proceeding, further would advance uniformity of decision . On the ground of convenience as well, such amendment should be permitted. Further, the other respondents have no objection to the proposed amendment. The respondents cannot have any different stand with reference to the proposed amendment. Hence, the request of the petitioner for amendment is permitted and the petition in W.M.P.No.10828 of 2000 will stand allowed. The registry is directed to carry out necessary amendment.
8. The facts of this case can be put in a nut shell. It was brought to the notice of the council that the contractor who has been granted the right to collect fees has been collecting at higher rates than the authorised one and that he was using muscle power to collect the same, with the result the tourists who come to the Town were harassed. On the representation of the public and on receipt of several complaints, it appears that the Council in its wisdom thought that the right of collecting such entrance fee from the vehicle owners should not be auctioned out and that the Town Panchayat itself would collect the same directly from the owners. Accordingly, they passed a resolution to that effect and requested the Collector for necessary permission to engage the service of Ex-servicemen to do the collection.
9. Learned Counsel for the petitioner Mr.Gnanadesikan submits that all party meeting was held, wherein such a decision was taken and in that meeting, the Collector himself was present and he agreed to the same. But, it is not necessary to decide whether the Collector was there present and agreed to abide by the unanimous decision reached at the all party meeting held to decide the same. As already pointed out, the Collector did not give permission to engage the services. Not only that, he directed that the rights should be auctioned out. Accordingly, a public action was held in which the 3rd respondent became the successful bidder and when the bid of the 3rd respondent was put on for the approval and acceptance by the Council, the Council rejected the same and again unanimously resolved to exercise the right of collection by the council itself. Subsequently on 29.3.2000, the Collector, acting under Section-36 of the Act, suspended the Resolutions.
10. The Collector has purported to act under Section 36 of the Tamil Nadu District Municipalities Act. Section 36 of the Act reads as follows:-
"Power to suspend or cancel resolution etc., under Act:- 1. The 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 is in excess of the powers conferred by this Act or any other law, or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or 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.
11. Section-36 (2) of the Act empowers the Collector to take immediate action necessary on any of the grounds referred to in Clause (c) of the sub-section (1). He can thus suspend the resolution or order or license of permit or act as the case may be provided section-36(i)(C) is satisfied.
12. Section 36 (1)(c) is to the effect that where 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 Collector has power to suspend the resolution. Thus, Collector will have only if section 36(1)(c) is attracted.
13. Here, by no stretch of imagination, it can be stated that the resolution passed by the Town Panchayat rejecting the bid of the 3rd respondent and proposing to collect the fees directly is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray. Infact, when the Collector sent a report to the Government as required under the section, he has not chosen to mention that the resolution is likely to lead to a riot or an affray or to an law and order probable. Infact, even in the proposed order, suspending the resolutions as ground are stated. Therefore, the action of the Collector in suspending the resolution is improper, arbitrary and capricious. It amounts to stifling the voice of a democratic body. Perhaps, irked by the fact that the Panchayat has not obeyed his earlier order the action has been resorted to under section 36(1)(c).
14. Learned Counsel for the 3rd respondent would submit that the Collector has emergency powers and refers to section 37 of the Act. Section 37 of the Act empowers the District Collector, in case of emergency to direct or prohibit the execution of any act which in the opinion of the Collector is necessary for the safety of the public.
15. Definitely, the facts of this case cannot be brought under section 37 of the Act or under section 36. According to the terms and conditions of the auction, the auction is subject to the confirmation of the Council. Condition No.9 runs as follows:-
16. Admittedly and obviously the auction in favour of the 3rd respondent has not been confirmed, and therefore, the 3rd respondent has no right under a merely because he is the highest bidder in the auction. His bid has not been accepted by the Council and the same has not been confirmed and therefore, the 3rd respondent has no right at all to ask for any relief muchless for vacating the order passed by this Court on 31.3.2000.
17. Since I have held that the Collector has no power to suspend the resolution and the action of the Collector in suspending the resolution is without the sanction of law and beyond authority, the same is liable to be set aside.
18. Learned Counsel for the 3rd respondent would submit that since the order dated 31.3.2000, the Town Panchayat itself is collecting the fee and what they have realised is much less, whereas the offer made by the 3rd respondent is higher and would enure for the benefit of the local body. Ofcourse, the Executive Officer has also submitted certain particulars, a xerox copy of which is also produced by the 3rd respondent. Surprisingly enough, the copy of the report sent by the Collector under section 36 is also produced by the 3rd respondent, the highest bidder. Apparently, the Executive Officer of the Panchayat Board appears to be interested in the highest bidder, with the result that he has furnished him with the copies of the document and particulars to enable him contend before this Court that it is beneficial to the local body to confirm the auction.
19. From the statement furnished, we find that there has been a gradual increase in the number of cars, van and other vehicles. It is also stated that the average daily collection is in a sum of Rs. 1,800. It is also stated that in the months to come especially during the vacation period the daily collection is likely to go up several times and according to the learned counsel for the petitioner the net realisation will be more than what he offered. It is also stated that the Panchayat is now able to collect the fees by employing their own men. Therefore, I am unable to accept the contention that the collection of the fees directly by the Panchayat would result in term income or loss of income to the Panchayat. Further, the Panchayat is not entering into any business activity. Nor the collection of fee can be called a commercial activity. The 3rd respondent is alleged to have been collecting more than what he is entitled to and it is also stated that he and his men are behaving roughly with those who come by vehicle to the town. Therefore, the larger interest of the public has to be taken into consideration. Hence, in that view I have to hold that its is only advantageous from the point of view of the public and desirable that the fees are collected directly by the Town Panchayat itself.
20. In the result, the writ petition is allowed quashing the order passed by the Collector on 9.3.2000 and the consequent final order passed on 29.3.2000. The Sucheendram Town Panchayat is authorised, permitted and directed to collect directly the fees by employing their own men till 31.3.2001. If the Town Panchayat experiences any difficulty procedural or practical and is of the opinion that such right should be auctioned out in future, they are at liberty to do so from 1.4.2001 onwards. In the circumstances, there is no order as to cost. The 3rd respondent, who has offered the highest bid will be entitled to refund of amount deposited by him, however subject to auction conditions. The other connected WMPs will stand dismissed.