IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.09.2011 CORAM: The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A.No. 1846 of 2011 1.Principal Secretary to Government, Municipal Administration & Water Supply Department, Fort St. George, Chennai – 600009. 2.The Commissioner of Municipal Administration, Chepauk, Chennai – 5. ... Appellants/Respondents 1 & 2 Vs. 1.P.Balachandar 2.The Commissioner, Trichy City Municipal Corporation, Trichy. ... Respondents/Petitioner/3rd Respondent Prayer :- Writ appeals filed under clause 15 of the Letter Patent against the order dated 21.09.2011 made in W.P.No.20209 of 2011 filed 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 03.01.2011 in so far as it relates to merger of Tiruverumbur Town Panchayat with Trichy City Municipal Corporation on the file of the 1st respondent and quash the said G.O.s as void and against law. For Appellant :Mr.A.Navaneetha Krishnan Advocate General Assisted by Mr.S.Venkatesh G.P and Mr.K.V.Dhanapalan AGP For Respondents :Mr.Raja Kalifullah for Mr.F.Rahman Sheriff for R1 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM, J. This appeal is directed against the judgment and order dated 21.09.2011, in W.P.No.20209 of 2011, whereby the learned Single Judge, allowed the writ petition and quashed the Government orders merging Tiruverumbur Town Panchayat with Tiruchirapalli City Municipal Corporation. 2. The State has filed this appeal aggrieved over the order made in the writ petition. The respondent/writ petitioner is a resident of Tiruverumbur and filed the writ petition, challenging three Government orders in G.O.Ms.No.218, Municipal Administration and Water Supply Department, dated 28.09.2010, G.O.Ms.No.244, dated 15.10.2010 and G.O.Ms.No.4 dated 03.01.2010 insofar as it relates to merger of Tiruverumbur Town Panchayat with Tiruchirapalli City Municipal Corporation. 3. The writ petition was filed raising the following grounds. (a) The Government orders are in violation of principles of natural justice and opposed to equity, justice and fair play. (b) The impugned orders were issued without following the provisions of Section 3(1) of the Tiruchirapalli City Municipal Corporation Act which requires prior consultation between the Government and Corporation and the proposal if any has to be published and publication has to be made in local daily news paper so as to invite objections. (c) Publication in the Tamil Nadu Government Gazette will not amount to proper publication under the Act. (d) The objections from the general public and the resolution passed by the Panchayat were not considered and a mere reference has been made to those objections. (e) The initiation of proceedings for merger of the Town Panchayat with the corporation has to commence from the Government and not from the Commissioner of the corporation. (f) The proposed merger is not in public interest. 4. The appellants/respondents opposed the claim of the respondent/writ petitioner by contending that:- (i) As per the resolution of the Tiruchirapalli Corporation, the recommendations of the District Collector, https://hcservices.ecourts.gov.in/hcservices/ Commissioner of Municipal Administration and considering the other aspects as per the provisions laid down in Section 3(1) of the Act, the Government issued the orders and was notified in the Tamil Nadu Government Gazette. (ii) The procedure as contemplated under Section 459 of the Coimbatore City Municipal Corporation Act, 1981, which is applicable to Tiruchirapalli Corporation and the procedure under Section 3(1) of the Tiruchirapalli Corporation Act were scrupulously followed and the notification was made. (iii) Any deviation from the merger will affect the Municipal election schedule during October 2011. (iv) As per Article 243(U)(3) of the Constitution of India an election to constitute the Corporation shall be completed before the expiry of its duration i.e. 24.10.2011. (v) Objections were called for after giving due notice and no objections were received from the general public and also from the respondent/writ petitioner on the proposal of the Government within the stipulated time as per Section 3(1) of the Tiruchirapalli Corporation Act and Section 459 of the Coimbatore Corporation Act. (vi) The delimitation of the divisions has been done based on the Government orders and action taken to get the approval of the delimitation of Wards Committees and the election process has been started. (vii) In view of the embargo in Article 243ZF of the Consitution, the validity of any law relating to delimitation of constituency cannot be called in question. (viii) The Court should not intervene to stop the election process and local body elections cannot be delayed in view of the stipulation under Article 234(U)(3) of the Constitution. (ix) The allegation that the merger was against public is false. 5. The learned Single Judge found that the proposal for merger emanated from the Government as could be seen from the Government order in G.O.Ms.No131, dated 16.03.2007 after which a public hearing was conducted by the District Collector and after the said public hearing the Principal Secretary to Government of Tamil Nadu Municipal Administration held review meeting on 09.08,.2010 and based on which the Tiruchirapalli corporation passed a resolution on 27.08.2010 to include Tiruverumbur Town Panchayat within its limits. The learned Single Judge negatived such contention raised by the respondent/writ petitioner and held that https://hcservices.ecourts.gov.in/hcservices/ there is no violation of Section 3(1) of the Act. Regarding the next contention raised by the respondent/writ petitioner that the Government pre-decided the issue, the learned Single Judge negatived such a plea after referring to the Government order in G.O.Ms.No.218, dated 28.09.2010 and held that it is only a proposal and no final decision was taken by the Government in G.O.Ms.No.218. Thus the only other legal issue which appears to have been canvassed by the respondent/writ petitioner before the learned Single Judge was as to whether there has been due compliance of Section 459 and 461 of the Coimbatore Corporation Act. The learned Single Judge by referring to Section 3 of the Trichy Corporation Act and Section 459 and 461 of the Coimbatore Corporation Act held that paper publication of the notification is mandatory and in the absence of paper publication, the merger proceedings suffer. The learned Single Judge further by relying upon the decision of the Hon'ble Supreme Court in (1985) 3 SCC 697, [State of Orissa vs. Sridhar Kumar Mallik and others], which arose under the Orissa Municipal Act, 1950, held that without paper publication, the impugned notifications are invalid. Thus, the learned Single Judge concluded that when law requires certain acts to be done in a particular way, the same shall be done in such way only and allowed the writ petition. 6. The learned Advocate General Mr.A.Navaneetha Krishnan, after reiterating the contentions raised in the counter affidavits filed in the writ petition, contended that the writ petition was liable to be dismissed on the ground of latches and this Court will not entertain a writ petition challenging a notification concerning the election process more so when the writ petition was filed at a belated stage just prior to the election. In this regard reliance was placed on the decision of the Hon'ble Supreme Court in (1996) 6 SCC 303 [ Anugrah Narain Singh vs. State of U.P]. 7. The learned Advocate General further submitted that the merger proposal was initiated in 2007 during the previous regime and public hearing was conducted by the Collector which was communicated to the Government and a review meeting was conducted by the Government and it is only thereafter the resolution was passed by the Tiruchirapalli Corporation on 27.08.2010 and after further proceedings were taken including the approval of delimitation of Wards committee, the writ petition was filed after one year on 18.08.2011 and on that ground alone, the writ petition was liable to be dismissed. It is further contended that in terms of Section 459 of the Coimbatore Corporation Act only a Gazette notification is contemplated and as such there is no requirement for paper publication and the interpretation of the learned Judge of the provisions of Section 461 of the Coimbatore Corporation Act is incorrect. It is further contended that the subsequent Government orders have not been challenged and in view of the prohibition under Article 243ZG of the Constitution, the writ petition is not maintainable. Further, it is contended that Section 461 of the Coimbatore Corporation Act, applies only if there is any specific prescription under the Act or if the power under the second proviso of Section 459 has been invoked by the https://hcservices.ecourts.gov.in/hcservices/ Government. It is further contended that the delimitation notification having been issued, the same will not be interfered by this Court in view of Article 243U(3)A and 243ZG of the Constitution of India. In support of his contention, the learned Advocate General placed reliance the decision of the Hon'ble Supreme Court in (1995) supp. (1) SCC 594 [Ravindar Kumar vs. State of Punjab & Another]; (2009) 5 SCC 404,[Assn. Of Residents of MHOW(ROM) vs. Delimitation Commission of India]; (1996) 6 SCC 634,[I.T.C.Bhadrachalam Paper Boards vs. Mandal Commissioner (Revenue)]; (1998) 9 SCC 594 [K.Sridhar Kumar vs. Union of India]; and 2010 (6) CTC 785 [ Jaspal Singh Arora vs. State of M.P]. 8. Mr.Raja Kalifullah the learned counsel appearing for the respondent/writ petitioner contended that the initiation of the proceedings was done by the Commissioner of the Corporation and not the Government and the objections raised by the Panchayat for the merger was not taken into consideration and the Government pre-decided the issue. It is further contended that paper publication is mandatory as per Section 459 r/w Section 461 of the Coimbatore Corporation Act and in the absence of any such publication, the notification itself is vitiated. Further, it is submitted that several persons would have raised objections if notification was issued in the newspapers and none were aware till the ultimate Government order in G.O.Ms.No.4 was issued. In support of his contention, the learned counsel placed reliance on the Hon'ble Supreme Court in (1985) 3 SCC 697[State of Orissa vs. Sridhar Kumar Mallik and others] and (1986) 2 SCC 608 [Sonik Industries, Rajkot vs. Municipal Corporation of the City of Rajkot]. 9. We have carefully considered the submissions on either side and perused the materials available on record. 10. As noticed above, the learned Single Judge while allowing the writ petition, rejected two of the contentions raised by the respondent/writ petitioner, namely that the proceedings for merger were initiated by the Commissioner of the Trichy Corporation and not by the Government as required under Section 3(1) of the Trichy Corporation Act, which states that with effect from the date of the commencement of the Act, the local area included in Tiruchirapalli Municipality shall constitute the City of Tiruchirapalli and from such date the Municipal Corporation shall be deemed to have been established and in term of first proviso to Section 3(1) the Government may from time to time after consultation with the corporation by-notification alter the limits of the City so as to include or exclude areas specified in the notification. It is seen that the proposal for such merger emanated from the Government during 2007, by a Government order dated 16.03.2007. Under the said Government order, the District Collector was directed to conduct a meeting, which was conducted on 22.12.2007 and the deliberations and minutes were forwarded by the District Collector to the Government. It is thereafter, the Government held a review meeting on 09.08.2010, and pursuant to which the resolution was passed by the Tiruchirapalli Corporation to include Tiruverumbur Panchayat within its limts. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the contention of the respondent/writ petitioner that the proceedings emanated for the first time from the Commissioner Tiruchirapalli Corporation is factually incorrect and in view of the facts noticed above, there is full and due compliance of Section 3(1) of the Act. 11. The next contention of the respondent/writ petitioner was that the Government pre-decided the issue and passed G.O.Ms.No.218 and the subsequent Government order calling for objection, is an empty formality and consequently, the procedure adopted is unfair and improper. We have seen the Government order in G.O.Ms.No.218, dated 28.09.2010, and from perusal of paragraph 7 of the Government order and the language adopted, it is evident that it is only a proposal to merger five Town Panchayats with Trichy Corporation. This is further made clear in the notification issued in G.O.Ms.No.244, dated 15.10.2010, wherein it is stated that in exercise of power confered by sub-Section 1 of the Section 3 of the Trichy Corporation Act, the Governor of Tamil Nadu after consultation with the Municipal Corporation of Tiruchirapalli proposes to alter the limits of City of Tiruchirapalli and notice was given that the proposed alteration will be taken into consideration after expiry of six weeks from the date of publication of the notification in the Tamil Nadu Government Gazette and objections, if any, in writing should be addressed to the Principal Secretary to Government Municipal Administration Department. Further it is seen that the Government in G.O.Ms.No.4 dated 03.01.2011, noted that during the stipulated period of six weeks objection against the proposed alteration were not received and the Government proceeded to alter the limits of the City of Tiruchirapalli. Therefore, it can hardly be stated that there was any impropriety in the procedure which commenced during 2007 and it cannot be stated that the Government pre-decided the issue. 12. Having held so three legal issues remains to be considered which are as to whether the notification issued by the Government is required to be published in the news paper and whether there is such a statutory requirement under Section 459 and 461 of the Coimbatore Corporation Act; the second issue being whether the election could be intervened in view of the embargo under Article 243ZG of the Constitution r/w Article 243U of the Constitution. The third and final issue to be considered is whether the writ petition is barred by latches. 13. In terms of Section 8 of the Trichy Corporation Act, the provisions of the Coimbatore Corporation Act shall apply mutatis mutandis to the Trichy Corporation. Chapter XVII of the Coimbatore Act deals with Procedure and Miscellaneous and the relevant provisions for this case falling under this chapter are Sections 459 and 461 and for easy reference, the same are quoted herein below: 459. Publication of notifications:- Save as otherwise provided, every notification issued under this Act shall be published also in Tamil: https://hcservices.ecourts.gov.in/hcservices/ 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 notice, notification or information shall be inserted in at least one Tamil and one English newspaper, if any, published in the city. 14. In terms of Section 459 every notification issued under the Act, shall be published also in Tamil. In terms of the proviso, the Government was vested with the power to direct that any notification published under the Act shall be published either in Tamil or in English only and instead of being published in the Tamil Nadu Government Gazette be published in any other manner specified by them. Thus, it is mandatory for every notification issued under the Act should be published also in Tamil. However, if the Government opines that the notification should be published either in Tamil or in English only or instead of Gazette publication if any other mode has to be adopted, then the same may be directed to be done and for such purpose a separate order invoking the proviso to Section 459 is required. Admittedly, no such order has been passed by the Government by invoking the power under the said proviso. Further, the notification issued has been published also in Tamil as is evident from the documents placed before this Court in the typed set of papers and such notification in Tamil has been published in the Government Gazette dated 15.10.2010. 15 The learned Single Judge by reading Section 461 into 459 came to the conclusion that such notification is mandatorily required to be published in the news paper. We are unable to persuade ourselves to agree with such conclusion as a bear reading of Section 461 makes it clear that such requirement is only whenever it is provided by the Act, Rule, Bylaw or Regulation requiring publication in the local news papers and if such a requirement is there in the Act, Rule, Bylaw or Regulation, then such notification or information shall be inserted in atleast one Tamil and One English news paper published in the City. Therefore, it is manifest that Section 461 is subject to Section 459 and in the absence of any Rule, Bylaw or Regulation stipulating that the notification is required to be published in the news paper and the Government having not exercise their power under the proviso to Section 459, there is no mandatory requirement for the merger notification issued under Section 3 (1) of the Trichy Corporation Act to be published in the new paper. 16. The learned Single Judge placed reliance on the decision of the Hon'ble Supreme Court in State of Orissa vs. Sridhar Kumar Mallik https://hcservices.ecourts.gov.in/hcservices/ (supra). In that case unlike Coimbatore Municipal Corporation Act and Trichy Municipal Corporation Act, there was a specific provision in the Orissa Municipal Act, 1950 i.e., Section 417-A, according to which before publication of notification declaring any area under the Municipal Corporation, the State Government shall publish in addition to the Official Gazette at least in one newspaper circulating in that area a proclamation announcing the intention of the Government to issue such notification and inviting all persons residing within such area to submit their objections, if any, in writing to the District Magistrate within one month from the date of publication of the proclamation in the Official Gazette. Taking notice of the mandatory provision as contained in Section 417-A(1-a) of the Orissa Municipal Act, 1950 their Lordships held that since the notification did not satisfy the statutory requirement the same was rightly quashed by the High Court. 17. As noticed above, the language employed in Section 459 is quite distinct from the language of the provisions of the Orissa Municipal Act and therefore, the decision of the Hon'ble Supreme Court is distinguishable on facts and does not render any assistant to the case of the respondent/writ petitioner. Thus it is held that there is no mandatory requirement for causing a publication in the news paper and the finding rendered by the learned Single Judge in this regard is reversed. 18. Article 243U(1) states that every Municipality, unless sooner dissolved shall continue for five years. In terms of clause 3 of Article 243U an election to constitute a Municipality shall be completed before the expiry of its duration specified in clause (1) of the Article 243U. Thus, it is evident that this provision was inserted by the framers of the Constitution to ensure that there should not be any delay in the constitution of the new Municipality every five years and not to allow the nominated bodies to continue endlessly. Therefore, this statutory requirement has to be met by the State Government and there cannot be any deviation. Article 243ZG states that notwithstanding anything in the Constitution, (a) the validity of any law relating to delimitation of constituencies or allotment of seats made or purporting to be made under Article 243ZA shall be called in question in any Court and (b) no election to any Municipality shall be called in question except by a election petition. Thus it is clear that it is not only the notification purporting to have been made under Article 243ZA, but also the validity of any law relating to a delimitation of constituencies shall be called in question in any Court. The Hon'ble Supreme Court in (1998) 9 SCC 594, referred supra, while considering an election petition filed, challenging an election under the M.P. Municipalities Act held as follows:- 3 ... The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition... https://hcservices.ecourts.gov.in/hcservices/ 19. In Anugrah Narain Singh vs,. State of U.P (supra), the appeal before the Hon'ble Supreme Court was against an order passed by the Division Bench of Allahabad High Court, whereby Municipal Election in the State of U.P. were cancelled and/or postponed and a former member of the legislative assembly and a candidate for the post of Mayor, Allahabad, were the appellants. One of the question which was decided is as to whether in terms of Article 243ZG of the Constitution is there a complete bar for entertaining any petition and their Lordship's observed as follows:- 12.... The answer must be emphatically in the affirmative. The bar imposed by Article 243-ZG is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the court and stall the elections..... 15. The Court also quoted from its order dated 30-3-1982 that: (Lakshmi Charan Sen vs. A.K.M.Hassan Uzzaman (1985) 4 SCC 689) “... no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. ... The High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution”. 25. In this connection, it may be necessary to mention that there is one feature to be found in the Delimitation Commission Act, 1962 which is absent in the U.P. Act. Section 10 of the Act of 1962 provided that the Commission shall cause each of its order made under Sections 8 and 9 to be published in the Gazette of India and in the Official Gazettes of the States concerned. Upon https://hcservices.ecourts.gov.in/hcservices/ publication in the Gazette of India every such order shall have the force of law and shall not be called in question in any Court. Because of these specific provisions of the Delimitation Commission Act, 1962, in the case of Meghraj Kothari v. Delimitation Commission (AIR 1967 SC 669), this Court held that notification of orders passed under Sections 8 and 9 of that Act had the force of law and therefore, could not be assailed in any court of law because of the bar imposed by Article 329..... 29. Dealing with the provisions of the Constitution relating to panchayats contained in Articles 243-A to 243-O (which are similar to Articles 243-Q to