1 BEFORE THE MADURAI BENCH OF MADRAS HIGHCOURT DATED: 09.11.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.4242 of 2011 and M.P.(MD)No.1 of 2011 G.Arumugam ... Petitioner Vs. 1.The Principal Secretary to Government, Municipal Administration & Water Supply Department, Fort St.George, Chennai. 2.The District Collector, Pudukottai District, Pudukottai. 3.The Commissioner, Pudukottai Municipality, Pudukottai. 4.The Chairman, Pudukottai Municipality, Pudukottai. ... Respondents Prayer in both Wps.: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 1st respondent in his proceedings Lr.No.29127/Na.Ne.5/2010-4 dated 31.03.2011 and quash the same and consequently directing the 1st respondent to cancel the item Nos.11, 14, 18, 19, 22, 24, 28, 30, 35, 49, 56, 63, 79, 80, 86 in the resolution dated 14.09.2010 passed in the 3rd respondent Municipality. For Petitioner : Mr.B.Saravanan For Respondents : Mr.M.Govindan (For R1 & R2) For Respondent-3: Mr.J.Parekhkumar For Mr.P.Srinivas For Respondent-4: Mr.P.Ganapathisubramanian O R D E R The petitioner is the elected Member of 25th Ward of the Pudukottai Municipal Council for the term 2001-2006. During his functioning as Ward Member, on noticing that the Municipal Council meeting was not being held in terms of the Provisions of the Tamil Nadu District Municipalities Act, the petitioner registered his objections to the resolution passed by the Municipalities on 31.08.2010 and 14.09.2010. Aggrieved by recording of the Minutes and the behaviour of the other members of the Council as well as the https://hcservices.ecourts.gov.in/hcservices/ 2 Commissioner's conduct in recording those resolutions, the petitioner sent a representation to the first respondent State Government, under Section 36 of the Tamil Nadu District Municipalities Act. Since the petitioner representation, dated 02.10.2010 was not reasonably disposed of, the petitioner moved this Court with a writ petition in W.P.(MD)No.13013 of 2010, seeking for a direction to the State Government to dispose of his representation. This Court without going into the merits of the case, by an order dated 22.10.2010 directed the State Government to consider the petitioner's representation. On the basis of the direction given then on consulting the Commissioner for Municipal Administration, the State Government passed the impugned order, dated 31.03.2011. According to the petitioner, the impugned communication sent by the State Government was not satisfactory and was not done in the discharge of the functioning vested on the State Government under Section 36 of the Tamil Nadu District Municipalities Act. 2.The grievance of the petitioner was that while the State Government was almost in agreement with the grievance raised by the petitioner viz., that many matters were decided outside and the Council is taken as ratifying body and not placing the Council, the initial proposal was illegal. The State Government did not further ordered for any cancellation of those resolution or appropriate action against the Council Members, who are responsible for passing such resolution. According to the petitioner, the State Government should have exercised full power under Section 36 and therefore, he is once again before this Court. 3.Heard the argument of Mr.B.Saravanan, learned counsel for the petitioner. 4.It is the contention of the petitioner that Section 19 of the Tamil Nadu District Municipalities Act clearly imposed obligations that the Municipal Administration will help to the Council and its Chairman is only the Executive Authority of the Council. Under Section 20, the duties and powers of individual Council are delegated. Under Section 22, it is the Executive Authority who has to carryout the Council's resolution and not the other way around. 5. The learned counsel also referred to Schedule 8 appended to the District Municipalities Act, wherein, penalties were provided for various penal offences in terms of Section 313 of the Act. In respect of violation of Section 13, the Penalties imposed on the councillors. 6. When the matter came up on 09.04.2004, Notice of Motion was ordered and Private Notice was also permitted. Pending the Notice of Motion, no interim orders were passed, though a request was made by the petitioner. On notice from this Court, on behalf of the first respondent, a counter affidavit has been filed, dated Nil. A Perusal of the impugned letter clearly shows that the Government was conscious about the proceedings of the Municipal Council and there https://hcservices.ecourts.gov.in/hcservices/ 3 has been a deviation from the established norms and the role of the Commissioner has also been emphasised. 7.After setting all these facts the State Government gave a direction to the Commissioner and the Municipal Council that henceforth the Municipal meeting should be held in terms of Section 25 r/w Schedule 3 and such an advice has also been given to the Commissioner in his official capacity. It must also be noted that the term of the Municipal Council, in which the petitioner was a member had already come to an end by October 2011, and the new council has taken over and one only expect that the new council will act strictly in terms of the Act and not give rooms to any further complaint. 8. But at the same time, the contentions of the petitioner that either the order of the Government should be set aside and should be remanded for fresh disposal or when the Government upon the members, who have deviated from the established norms, cannot be countenanced. In fact, in the counter affidavit, the State Government has clearly stated that while exercising the power under Section 36, no particular direction can be given by any member and in paragraph No.21, it has been averred as follows:- 21. "... it is submitted that, section 19 relates to the administration of Municipality vesting with the Council. This has not been violated in that the approval of the Council has been obtained albeit post facto the action taken. Section 21 relates to the power of the council to call for the records. It is not known as to how the said provision has been violated in the present case. Section 36 relates to the power of the Government to cancel, suspend or modify the resolution of the Municipality concerned and has no relevance as a ground of challenge to the order impugned. The discretion of the Government cannot be insisted upon, to be invoked in a particular manner. Once the resolution is passed resolving to accept the subject placed, it is immaterial as to whether it is a prior sanction or a post facto approval to the action already taken." 9. In the light of the stand taken by the State Government, this Court cannot interfere with the said order. The power under Section 36 is an extraordinary power vested on the State Government over elected Municipal bodies and especially, in the context of the Municipalities having the constitutional recognition in terms of Part IX-A of the Constitution, the State Government must be extremely circumscribed in dealing with the elected Municipalities. In the present case, having regard to the allegation made by the petitioner the State Government while taken the role of advising the Municipalities to function properly and also gave direction to the Commissioner to carryout his statutory role and duties in accordance with the Municipal laws. https://hcservices.ecourts.gov.in/hcservices/ 4 10. In the light of the same, this Court is not inclined to interfere with the impugned order passed by the State Government. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To 1.The Principal Secretary to Government, Municipal Administration & Water Supply Department, Fort St.George, Chennai. 2.The District Collector, Pudukottai District, Pudukottai. 3.The Commissioner, Pudukottai Municipality, Pudukottai. 4.The Chairman, Pudukottai Municipality, Pudukottai +1cc to Mr.P.Srinivas, Advocate, Sr.No.38947 +one cc to Special Government Pleader, Sr.No.38793 +1cc to Mr.B.Saravanan, Advocate, Sr.No.39021 W.P.(MD)No.4242 of 2011 09.11.2011 mpk SMA/09.12.2011/8C/4P https://hcservices.ecourts.gov.in/hcservices/