IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12.2009 CORAM THE HONOURABLE MR. JUSTICE K.VENKATARAMAN Writ Petition No.15407 of 2009 & M.P.No.1 of 2009 S.Pradeepa ... Petitioner vs. 1.The Commissioner/Secretary Municipal Administration Fort St. George, Chennai – 9. 2.The Commissioner Kumbakonam Municipality at Kumbakonam. 3.The Inspector of Police East Police Station Kumbakonam East. ... Respondents Writ petition has been filed under Article 226 of The Constitution of India to issue a writ of Certiorarified Mandamus calling for the records of the second respondent in his proceedings in Na.Ka.No.3313/2009/A7 29.07.2009 quash the same and further direct the first respondent to issue proper direction to the second respondent as per the tender allotted to the petitioner for collecting tolls. For petitioner : Mr.A.Muthuraman For respondents : Mr.A.Edwin Prabakar A.G.P. For R1 & R3 Ms.G.Devi – for R2 O R D E R Mr.A.Edwin Prabakar learned Additional Government Pleader takes notice for the respondents. 2. Even though the application for interim injunction alone is listed before me, by consent, the writ petition itself is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner has come up with the present writ petition challenging the show cause notice of the second respondent dated 29.07.2009, wherein he has pointed out that the petitioner violated the tender conditions and hence her licence will be cancelled, if no proper explanation is offered. 4. The case of the petitioner is that she has participated in the tender process issued by the second respondent for collecting tolls in respect of Tourist vehicles being parked in temples and Mahamagam Tank in and around Kumbakonam Town area. She became the highest bidder for the period between 2009 and 2012. The Municipal Council also passed a resolution to that effect. While so, the second respondent issued a show cause notice, calling upon her to offer her explanation with regard to the alleged complaint of collecting tolls from the tourist vehicles within the Kumbakonam Town parked in front of the Hotel and shops. The petitioner has offered her explanation for the same, but, however, the second respondent issued the final cause notice, which is under challenge in the present writ petition. 5. Learned counsel appearing for the petitioner mainly contended that the second respondent has no power to cause such notice, since the licence was granted on the resolution made by the Municipality. Further, he has contended that the second respondent has no competency to issue such show cause notice. 6. The learned counsel appearing for the petitioner relied on Sections 13-A and 22 of the Tamil Nadu District Municipalities Act, for the said purpose. 7. By pointing out those provisions, learned counsel appearing for the petitioner mainly contended that the second respondent has no jurisdiction to cause such notice. He has also relied on the decision reported in 73 LW 58 (Periaswamy Gounder v. Commissioner, Erode Municipality), wherein this court has held that the power to suspend or cancel a resolution lies with the Municipal council and it could be done by the council through the Commissioner. 8. Ms.G.Devi, learned counsel appearing for the second respondent Municipality submitted that the Commissioner has got ample power to cancel the licence. Further, she has submitted that it is only a show cause notice and the petitioner could be driven to send an explanation and thereafter if any adverse orders are passed, the petitioner can approach this court challenging the said order. 9. I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel appearing for the Municipality. https://hcservices.ecourts.gov.in/hcservices/ 10. It is an admitted case that the petitioner was granted licence in pursuant to the council's resolution to that effect. While so, alleging violation of the terms and conditions, the present show cause notice was issued by the second respondent. The main question that arises for consideration is whether the second respondent has power or jurisdiction to issue such notice. 11. The learned counsel appearing for the petitioner has drawn my attention to Sections 13-A and 22 of the Tamil Nadu District Municipalities Act. Section 13-A of the said Act reads as follows: 13-A Functions of the executive authority – The executive authority of the municipal council shall - (a) carry into effect the resolutions of the council. (b) furnish to the council such periodical reports regarding the progress made in carrying out the resolutions of that body in the collection of taxes as the council may direct; and (c) perform all the duties and exercise all the power specifically imposed or conferred on the executive authority by this Act and subject, whenever it is hereinafter expressly so provided, to the sanction of the council, and the subject to all other restrictions, limitations and conditions hereinafter imposed exercise the executive powers for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfillment of the purposes of this Act. Section 22 reads as follows: 22. Obligation of the executive authority to carry out council's resolution.- The (executive authority) shall be bound to give effect to every resolution of the council unless such resolution is modified, suspended or cancelled by a controlling authority. 12. The said provisions make it clear that the Commissioner has to act according to the resolutions of the council. In the given case on hand, it is not the case of the second respondent that the Municipal council has authorized him to cause such notice. Further more, this court in the judgment reported in 73 LW 58 (referred supra) has held that the power to suspend or cancel a resolution lies with the Municipal Council and it can be done only by the Council through the Commissioner. It is not the case of the second respondent that the show cause notice was issued to the petitioner pursuant to the resolution of the Municipal Council. https://hcservices.ecourts.gov.in/hcservices/ 13. In view of the above stated position, I am inclined to set aside the impugned order of the second respondent dated 29.07.2009 on the ground that he has no competency or jurisdiction to cause such notice. Even though it is only a show cause notice, since, the second respondent has no competency to cause such notice, I am inclined to interfere with the said proceedings of the second respondent dated 29.7.2009. 14. The said proceedings of the second respondent dated 29.07.2009 is therefore quashed. 15. In fine, the writ petition stands allowed. It is needless to say that if resolution is passed by the Municipal Council, the second respondent is at liberty to take action against the petitioner, after due notice to her and also after getting an explanation from her. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rj/sbi To 1.The Commissioner/Secretary Municipal Administration Fort St. George, Chennai – 9. 2.The Commissioner Kumbakonam Municipality Kumbakonam. 3.The Inspector of Police East Police Station Kumbakonam East. + 1 CC To Mr. A.Muthuraman,Advocate SR NO.70586 + 1 CC To Mr.V.Raghupathi Advocate SR NO. 70870 W.P.No.15407 of 2009 CK {CO} TP/7.1.2010. https://hcservices.ecourts.gov.in/hcservices/