CORAMTHE HONOURABLE MR v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:21-9-2011CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.No. 20209 of 2011Mr.P.Balachandar ... PetitionerVersus1.State of Tamilnadu, Rep. by its Principal Secretary, Municipal Administration & Water Supply Department, Fort St. George, Chennai-600 009.2.Commissioner of Municipal Administration, Having his office at Ezhilagam, Annexe Building, VIth Floor, Chepauk, Chennai-600 005.3.The Commissioner, Tiruchirapalli City Municipal Corporation, Contonment, Trichy-1. ... Respondents This writ petition is filed under Article 226 of theConstitution of India praying for the Writ of Certiorari to callfor the records relating to G.O.Ms.No.218 Municipal Administrationand Water Supply dated 28.09.2010. G.O.Ms.No.244 MunicipalAdministration and Water Supply Department dated 15.10.2010 andG.O.Ms.No.4 Municipal Administration and Water Supply Departmentdated 3.1.2011 in so far as it relates to merger of TiruverumburTown Panchayat with Trichy City Municipal Corporation on the fileof the Ist respondent and quash the said G.Os. As void and againstthe law. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :Mr.Raja Kalifullah for Mr.Rahmansheriff For Respondents :Mr.A.Navaneethakrishnan 1 & 2 Advocate General assisted by Mr.K.V.DhanapalanAddl.Govt.Pleader for respondentsFor Respondent 3: Mr.V.M. VelumaniORDER The petitioner has challenged the merger ofThiruverumbur Town Panchayat with the Trichy MunicipalCorporation. The case of the petitioner is that he is residing atThiruverumbur ,which is a Town Panchyatat. By merging theThiruverumbur Panchayt with Trichy Municipalilty, the TownPanchayat will loose its identity and the Panchayats will bedeprived of several beneficial schemes and it would result inaffecting the agricultural operation. Therefore, the petitionerchallenges the merger.2.Mr.Raja Kalilfullah, learned counsel appearing for thepetitioner submitted the contentions: 1) A notification which is required to begiven under Section 3(1) of the Trichirapalli City MunicipalCorporation Act 1994 is subject to previous publication. However,no previous publication has been made.2) No paper Publication was effected as per Section461 of Coimbatore City Municipal Corporation Act.3) The proposal for merger, as per Section 3(1)has to start from the Government, whereas, the process in thiscase was started by the Commissioner of Trichy Municipality.4) No area has been mentioned in the notificationunder Section 3(1) of the Act.5) The resolution of the Thiruverumbur TownPanchayat and the general public opposing the merger was totallyignored and no opportunity was given to explain about theobjections.3.The learned counsel pointed out from the G.O.Ms.No.218that a decision has already been taken to merge on 28.9.2010,whereas G.O.Ms.No.244 seeking objection from the public was issuedonly on 15.10.2010. Having taken a decision to merge, the https://hcservices.ecourts.gov.in/hcservices/ subsequent government order inviting objection is only aformality. He further submitted that even though there was aresolution by the Thiruverumbur Town Panchayat, it has been statedin G.O.Ms.No.4 dated 3.1.2011 that no objection was received. Infine he submitted that merger is in violation of Section 3(1) ofthe Trichirapalli City Municipal Corporation Act and also inviolation of Sections 459 and 461 of the Coimbatore City MunicipalCorporation Act. He relied upon a judgement in State of Orissa vs.Sridhar Kumar Mallik and others reported in (1985) 3 SCC 697 andstressed that the government notification should mention about thearea which is intended to be merged and there should be a paperpublication. Referring to the other judgement in State of Madrasvs. V.G.Row reported in AIR 1952 SC 196, he would submit thatthere is inadequacy of publication of notification. The otherjudgement referred is Sonik Industries Rajkot vs. MunicipalCorporation of the City of Rajkot reported in (1986) 2 SCC 608 tocontend that the news paper publication should have been made. Ifthe publication is effected, the general public would have beenput on notice and in the absence of paper publication, the mergerproceedings are not valid.4.On the other hand the learned Advocate General appearingfor the State submitted that the Government started the processto extend the territory of Trichy Municipal Corporation as earlyas 2007 itself. He submitted that by G.O.(D)No.131 RuralDevelopment and Panchayat Raj (C1) Department dated 16.3.2007, theGovernment initiated the process of Merger by giving proceduresfor amalgamation of local bodies. By the above said G.O., theGovernment directed the District Collector to have public hearingregarding the proposal for merger . Pursuant to that, a publichearing was conducted on 22.12.2007 and the public meeting washeld by the Collector. The response of all, including the people,was received on that day. As per letter dated 3.8.2010 written bythe Director of Municipal Administration and the review meetingconducted by the Principal Secretary on 9.8.2010, the Commissionerof Trichy Municipality wrote on 18.8.2010 to the ExecutiveOfficer, Thiruverumbur Town Panchayat seeking remarks regardingmerger. Again on 23.8.2010 a review meeting was conducted by thePrincipal Secretary and thereafter only the Trichy MunicipalCorporation by its resolution dated 27.8.2010, requested themerger of Thiruverumbur Town Panchayat with the TrichirapalliMunicipality.5.Though the Thiruverumbur Town Panchayat passed aresolution against the merger on 30.8.2010, the District Collectorby his report dated 7.9.2010 recommended inclusion of Town https://hcservices.ecourts.gov.in/hcservices/ Panchayat with Trichy Municipal Corporation. Thereafter a proposalregarding merger was notified by G.O.Ms.No.218 MunicipalAdministration and Water Supply (Election) Department dated28.9.2010. By placing the above facts, he would contend that theproposal emanated only from the Government and not from theCommissioner as contended by the petitioner. Later objections werecalled for by G.O.Ms.No.244 Municipal Administration and WaterSupply (Election) Department dated 15.10.2010 within a period ofsix weeks. As there was no objection received, the notificationin G.O.Ms.No.4 Municipal Administration and Water Supply(Election) Department, merging Thiruverumbur Town Panchayat withthe City of Tiruchirappalli was issued on 3.1.2011. Consequentlyby G.O.Ms.No.89 Municipal Administration and Water Supply(Election) Department dated 28.6.2011, number of wards wereincreased and boundaries were fixed by delimiting the Corporationlimit by G.O.Ms.No.108 dated 19.8.2011.6.The learned Advocate General would submit that a finalorder under Section 3(1) was issued on 3.1.2011 and the writpetition was filed only on 27.8.2011 after a lapse of eightmonths. Therefore, the writ petitioner is guilty of laches. Hewould contend that there is no necessity for paper publicationunder Section 461 in view of compliance of Section 459 ofCoimbatore City Municipal Corporation Act. He relied on Section 21of the Tamil Nadu General Clauses Act 1891 and would submit thatgazette notification is enough. Regarding agricultural operations,learned Advocate General submitted that by a survey it was foundthat only 1.26 percent of the public are engaged in agriculturaloperations. Regarding welfare measures, he submitted that all thewelfare measures would be implemented. Election for local body isto be conducted in every five years under Article 243(u) of theConstitution of India and the present local body period expires on24.10.2011. Finally he submitted that, the Madurai Bench hasjurisdiction to entertain the writ petition. 7.Heard the parties and perused the records carefully.A perusal of the records would show that by Government OrderNo.131 Rural Development and Panchayat Raj ( C1 ) Department dated16.3.2007, the government directed the District Collector to holda public meeting about the extension. Pursuant to that theCollector held a meeting on 22.12.2007. After the said publichearing, as per letter dated 3.8.2010 written by the Director ofMunicipal Administration, the Principal Secretary, MunicipalAdministration held a review meeting on 9.8.2010. Based on theabove, Trichirapalli Municipality passed a resolution on 27.8.2010for inclusion of Thiruverumbur Town Panchayat with the Trichi https://hcservices.ecourts.gov.in/hcservices/ Municipality. The communication dated 18.8.2010 written by theCommissioner, Trichi Municipality to the Executive Officer,Thiruverumbur reads as follows: “ Iah.bghUs;; ;/ jpUr;rpuhg;gs;sp khefuhl;rp ? Cs;shl;rpmikg;g[fspd; epiycah;j;Jjy; ? khefjuhl;rp vy;iy tphpt[ gLj;Jjy; ? bjhlh;ghf/ghh;it 1/ efuhl;;rp eph;thfk; ,af;Feh;. mth;fspd; fojk; vz; 51452-2004-vk;3. ehs; 03/08/2010/2. muR Kjd;ikr; brayhsh;. efuhl;rp eph;thfk; kw;Wk; FoePh;; tH';fy;Jiw. Mth;fspd; Ma;t[ ehs;/ 09/08/2010/////ghh;itapy; (1) y; fhDk; efuhl;rp eph;thf ,af;Feh; mth;fspd; fojj;jpd;goa[k;. kw;Wk;; ghh;it (2) y; fhDk; muR Kjd;ikr; bryhsh;. efuhl;lrp eph;thfk;kw;Wk; FoePh; tH';fy; Jiw mth;fshy; 09.08.2010 md;W elj;jg;gl;l Ma;t[f;Tl;lj;jpd; bjhlh;r;rpahf j';fs; fpuhk g";rhaj;J bjhlh;ghf ,j;jJld; ,izf;fg;gl;Ls;s tptu';fis g{h;j;jp bra;J ,f;fojk; bfhz;LtUk; jdp egh;K:yk; mDg;gp itf;Fk;go nfl;Lf; bfhs;sg;gLfp;wJ/,jid kpft[k; mrukhf fUJkhWk; md;g[ld; nfl;Lf; bfhs;fpnwd;/ xk;-?????MizaUf;fhf.jpUr;rpruhg;gs;sp khefuhl;rp/ 8.In view of Commissioner Municipal Administration letterdated 3.8.2010 and letter dated 9.8.2010 written by PrincipalSecretary, Municipal Administration, it cannot be said that theproposal emanated from the Commissioner, whereas as per record itis seen that the government initiated the process and followed bya public hearing and review meeting by the authorities. Therefore,there is no question of violation under Section 3(1) ofTrichirapalli City Municipal Corporation Act 1994, Section 3(1)reads as as follows:"3. Establishment of Municipal Corporation for the City ofTiruchirappalli:-(1) With effect on and from the date of thecommencement of this Act, the local area included inthe Tiruchirappalli Municipality shall constitutethe City of Tiruchirappalli for purposes of this https://hcservices.ecourts.gov.in/hcservices/ Act; and from such date of the commencement, aMunicipal corporation shall be deemed to have beenestablished for the said City by the name ofTiruchirappalli Municipal Corporation:Provided that the Government may, from timeto time, after consultation; with the corporation,by notification, alter the limits of the cityconstituted under this sub-section so as to includetherein or to exclude therefrom the areas specifiedin the notification.Provided further that the power to issue anotification under this sub-section shall be subjectto previous publication.(2) The corporation shall, by the said name, bea body corporate, having perpetual succession and acommon seal with power to acquire, hold and disposeof property and to enter into contracts and may byits corporate name, sue and be sued.(3) The Tiruchirappalli Municipality,functioning immediately before the date of thecommencement of this Act, shall be deemed to havebeen abolished from such commencement."As per the above Section only, the Government took the initiativeafter the consultation with the Corporation.9.With regard to jurisdiction it is contended on behalf ofthe Government that Madurai Bench of this Court alone has gotjurisdiction to entertain the writ petition, as Trichy andTiruverumbur fall within its jurisdiction. The said contention isnot tenable as the respondents 1 and 2 are having office atChennai and the first respondent only issued the impugnednotifications. The Apex Court in Kusum Ingots & Alloys Ltd. vs.Union of India and another reported in (2004) 6 SCC 254 held inparagraph 10 as follows: "10.Keeping in view the expressions used inclause (2) of Article 226 of the Constitution ofIndia, indisputably even if a small fraction of causeof action accrues within the jurisdiction of theCourt, the Court will have jurisdiction in the matter."The Full Bench of this Court, in M/s. Sanjos Jewellers representedby M.J.Jose, Bangalore and others vs. Syndicate Bank, rep. by itsAssistant General Manager, Bangalore and another reported in(2007) 6 MLJ 755, followed the above Supreme Court judgement and https://hcservices.ecourts.gov.in/hcservices/ held that when part of cause of action arises this courtdefinitely can issue a writ. Therefore, cause of action partlyarises at Chennai and this Court has jurisdiction to entertain thewrit petition.10.The next contention of the petitioner is that there is noprevious publication as per Section 3(1) of the Act. G.O.Ms.No.218Municipal Administration and Water Supply (Election) Departmentdated 28.9.2010 speaks about the proposal of the Government toinitiate proceedings under Section 3(1) of the Trichirapalli CityMunicipal Corporation Act for extension of territory limit. Thoughthe learned counsel appearing for the petitioner submitted that adecision has been taken and thereafter only G.O.Ms.No.218Municipal Administration and Water Supply (Election) Departmentdated 28.9.2010 was issued, it is seen no decision was taken.Paragraph 7 of the said G.O reads as follows:“@muR ,r;braw;Fwpg;g[ bjhlh;ghd ftdkhd ghprPyidf;Fg;gpd;dh; efuhl;rp eph;thf ,af;Fehpd; ghpe;Jiuia Vw;W.fPH;f;fhdqk; 5 cs;shl;rp mikg;g[fs; jpUr;rpuhg;gs;sp kheful;rpa[ld; ,izf;fg;glyhk; vd Kot[ bra;J mt;thnw MizapLfpwJ.@Therefore, it is clear that what is intended is only a proposaland no decision was taken. 11.Before going into other aspects, it is appropriateto consider whether paper publication of notifications with regardto merger of Town Panchayat with the Municipal Corporation ismandatory or not? Admittedly, all notifications includingG.O.Ms.No.244 Municipal Administration and Water Supply (Election)Department dated 15.10.2010 seeking objections from the publicwithin six weeks were published only in Official Gazette.12.Publication of notification is covered by Sections 459and 461 of the Coimbatore City Municipal Corporation Act 1981.Section 461 deals with publication in news papers. It is useful torefer Sections 459 and 461 of the Act.:"459. Publication of notifications- Save asotherwise provided, every notification issued underthis Act shall be published also in Tamil:Provided that the Government shall have the powerto direct that any such notification-(i) shall be published either in Tamil or inEnglish only. https://hcservices.ecourts.gov.in/hcservices/ (ii) shall, instead of being published in theTamil Nadu Government Gazette, be published in anyother manner specified by them.461. Publication in newspapers – Whenever it isprovided by this Act or by any rule, by law, orregulation made under it that notice shall be given byadvertisement in the local newspapers, or that anotification or any information shall be published inthe same, such place, such notice, notification orinformation shall be inserted in atleast one Tamil andone English newspaper, if any, published in the city.13.The provision regarding publication of notification iscovered by Section 459 of the Act. As per Section 459, everynotification issued shall be published in Tamil also. Section 461makes it very clear that notice shall be given by advertisement inthe local news papers and notification shall be inserted inatleast one Tamil and one English newspaper, if any, published inthe city. The aforesaid provisions abundantly make it clear thatnotification under the Act is required to be published in the newspapers. When Section 3 of the Act which deals with merger speaksabout notification and previous publication, paper publication asper Section 461 is mandatory. In this case admittedly no paperpublication was effected. In the absence of paper publication, themerger proceedings suffer.14.With regard to reliance upon Section 21 of the TamilnaduGeneral Clauses Act 1891 by the learned Advocate Generalcontending that the publication of notification in the officialgazette is enough, Section 21 of the Act has to be considered.Section 21 reads as follows:"21. Publication of orders and notifications inthe Official Gazette. --- Where, in any Act, or in anyrule passed under any Act, it is directed that anyorder, notification or other matter shall be notifiedor published, such notification or publication shall,unless the Act otherwise provides, be deemed to be dulymade if it is published in the (Official Gazette)."15.A perusal of Section 21 of the General Clause Act 1821would reveal that Section 21 would be applicable, when there is astatutory direction for publication in official gazette only andnot any modes of publication contemplated under the Act, whereas https://hcservices.ecourts.gov.in/hcservices/ Section 261 of the Coimbatore City Municipal Corporation Act, 1981mandatorily requires publication of notification in Tamil andEnglish news papers. Therefore, Section 21 of the Tamil NaduGeneral Clauses Act 1891 does not support the respondent.16.The learned counsel for the petitioner rightly pointedout that in the absence of publication in the news papers, thenotification is invalid. However, the learned Advocate Generalsubmitted that no paper publication is required and Section 459 issatisfied, Section 461 is not applicable. The notification is withregard to merging of Thiruverumbur Town Panchayat withTrichirapalli City Municipal Corporation. The general publicshould know about the proposal of notification of ThiruverumburTown Panchayat with the Trichirapalli City Municipal Corporation.Otherwise it is not possible for the General Public to raise anyobjection about the same. Unless, the information is given to thepeople, there may not be any objection by the public. Therefore,the impugned notifications without paper publications are invalidfor violation of Section 461 of the Coimbatore City MunicipalCorporation Act 1981. It cannot be expected that the Generalpublic would know about the government gazette. Hence, non-publication of notification in Tamil and English news papers asper Section 461 of the Act would make the merger proceedings non-est in law. State of Orissa vs. Sridhar Kumar Mallik and othersreported in (1985) 3 SCC 697, the Hon'ble Apex Court insistedabout the importance of publication in local language. In thatcase, the Hon'ble Supreme Court confirmed the judgement of OrissaHigh Court, which quashed the State Government notificationnotifying the area under the Orissa Municipal Act 1950. The saidnotification was quashed on the ground that proclamation requirespublication under the Orissa Municipal Act and it must bepublished in the local language of the area. In para 8 it hasbeen held as follows: " ... It is apparent that the Legislature attachesserious importance to eliciting the opinion of theresidents of the area who will be affected by itsconstitution as a notified area, and that is whyexpress provision in that behalf was made in sub-section (1) of Section 417-A. The Legislature did notconsider it sufficient that the proclamation waspublished in Official Gazette. It is a notorious factthat few people beyond those who belong to the officialcommunity actually read the Official Gazette.Therefore, the Legislature imposed the furtherrequirement that the proclamation should be published https://hcservices.ecourts.gov.in/hcservices/ in a newspaper circulating in the area. A newspapertoday has become a basic medium for communication withthe people. Its effectiveness in that regard cannot bedisputed, even as its influence in the dissemination ofinformation cannot be underestimated. To reach out tothe people, it must be published in a language withwhich they are familiar. In so fundamental a matter aslocal self-government the legislature intended that anopportunity should be available to all persons residingwith the area to submit their objections. The locallanguage of the area is Oriya, and therefore the StateGovernment should have published the proclamation inthat language in the news paper. On this point also wefind ourselves in agreement with the High Court."The aforesaid judgement is squarely applicable to the factsof the case. 17.Moreover, it is a basic principle of law that if thepower is given to do certain things in certain way, the thing mustbe done in that way or not at all. The following judgements laiddown the above dictum:1.Taylor -vs- Tailor reported in 1876 1 Ch.D426, 2.Nazir Ahmad -vs- Emperor reported in AIR 1936Privy Council 253(1)=(1936) 44 L.W.213, in State of Uttar Pradesh-vs- Singhara Singh and others reported in AIR 1964 SC3583. Babu Verghese -Vs- Bar Council of Kerala andothers reported in 1999 (3) SCC 422, 4. Ramchandra Muralilal Bhattad and others -vs-State of Maharashtra and others reported in 2007 (2)SCC 588 5. Indian Banks' Association, Bombay and others-vs- Devkala Consultancy Service and others reportedin (2004) 11 SC 1,6. Chandrakishore Jha vs. Mahavir Prasad reportedin AIR 1999 SC 3558 https://hcservices.ecourts.gov.in/hcservices/

7. Gujarat Urija Vikash Nigam Ltd. vs. EssarPower Ltd. reported in 2008 (4) SCC 7557. Sheeba Philominal Merlin and another vs. TheRepatriates Co-op Finance & Development Bank Ltd.,(Govt of India Enterprise) and others reported 2010-4-L.W. 497."18.When the law requires certain acts to do in a particularway, the same is required to be done in the same way and anyviolation would vitiate the entire action. When the act requiresmandatorily, to make paper publication, the respondents cannotignore the same and issue impugned notification. When the matterinvolves a major decision of merging Thiruverumbur Town Panchayatwith Trichirapalli City Municipal Corporation, the respondentsshould have been careful enough to see that statutory requirementswere complied with. Lack of paper publication as per Section 261is an incurable defect. Therefore the notifications suffer. 19.Therefore, when the procedure has been prescribed underSection 461 of the Act which mandatorily requires publication ofnotification in Tamil and English news paper, the non-complianceof the same vitiates the entire merger process. Therefore, allimpugned GOs pertaining to merger of Thiruverumbur Town panchayatwith Trichirapalli City Municipal Corporation are quashed. WritPetition is allowed. No costs. Consequently connected M.Ps areclosed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vkTo1.State of Tamilnadu, Rep. by its Principal Secretary, Municipal Administration & Water Supply Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2.Commissioner of Municipal Administration, Having his office at Ezhilagam, Annexe Building, VIth Floor, Chepauk, Chennai-600 005.3.The Commissioner, Tiruchirapalli City Municipal Corporation, Contonment, Trichy-1.1 cc to Government Pleader, sr. 586951 cc to Mr.P.S. Jayakumar, Advocate, Sr. 585131 cc to Mr. Rjakalifulla, Advocate, Sr. 58809W.P.No. 20209 of 2011PA (CO)kk 21/9