M.Rani Munirathinam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30.06.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAWrit Appeal No.1505 of 20071.C.J.Senthil Kumar2.K.Munikrishnan3.E.Kuppareddy4.V.Jyothi Raman5.B.N.Velayudham6.Elumalai7.K.Usha Rani8.N.Rekha9.S.C.Bhagyalakshmi10.P.Thyagarajan .....Appellants/ Intervenersv.1.M.Rani Munirathinam2.The State of Tamil Nadurepd.by Secretary to GovernmentMunicipal Administration and Water Supply DepartmentFort St.George, Chennai -93.The Assistant Director of Town Panchayat Collector Office Complex, Tiruvellur Region, Tiruvellur4. The Executive Officer(Incharge)Pallipattu Town PanchayatPallipet, Thiruvellur District. ....Respondents/ Petitioner and RespondentWrit Appeal filed under clause 15 of the Letters Patentagainst the order of the learned single Judge dated 23.11.2007made in Writ Petition No.34715 of 2007 presented to this Courtunder Article 226 of the Constitution of India to issue a writ ofcertiorari calling for the records relating to impugned G.O.(D)No.426, municipal Administration and water supply (TP2)Department dated 12.9.2007 issued by the Ist Respondent and quashthe same. https://hcservices.ecourts.gov.in/hcservices/ For appellant :Mr.V.RaghavachariFor Respondents :Mr.Ravichandran for Mr.R.BharathkumarMr.I.Paranthaman,AGP for RR2 to 4JUDGMENTK.RAVIRAJA PANDIAN, J. The appellants - interveners in the Writ Petition, who arethe ward members of Pallipattu Town Panchayat, filed this appealquestioning the correctness of the order dated 23.11.2007 made inWrit Petition No.34715 of 2007, in which G.O.(D) No.426,Municipal Administration and Water Supply (TPZ) Department dated12.9.2007 removing the first respondent from the office of thePresident of Pallipattu Town Panchayat under Section 40A(12) ofthe Tamil Nadu District Municipalities Act, 1920, (Tamil Nadu ActV of 1920), (hereinafter referred to as "the Act") has beenquashed. 2. The material facts, which are necessary for disposal ofthe writ appeal, are as follows:The first respondent was elected as a President ofPallipattu Town Panchayat on 28.10.2006. The interveners/ electedward members 10 in number out of 15 , have presented a writtennotice of intention to make a motion expressing want ofconfidence in Thirumathi M.Ranimunirathinam, President ofPallipattu Town Panchayat, the first respondent herein, togetherwith a copy of the motion proposed to be made to the thirdrespondent - Assistant Director of Town Panchayat, ThiruvallurZone. Pursuant to the said letter, the third respondent issued anotice on 25.6.2007 under Section 40-B of the Act intimating themembers about the convening of the meeting on 4.7.2007. Since thesaid notice was not in conformity with Section 40-A(3), in thesense, that there was no fifteen days clear notice, the saidmeeting stood cancelled and another notice was issued by thethird respondent on 3.7.2007 convening the meeting of thePanchayat on 19.7.2007. On that day, the motion was carried out.Questioning the correctness of the procedure followed,particularly, the competence of the third respondent in issuing asecond notice, the first respondent moved this Court by way ofwrit petition in W.P.No.27629 of 2007. In that writ petition,notice of motion was ordered on 22.8.2007 and order of interiminjunction restraining the first respondent therein – StateGovernment from passing further orders in pursuance of themeeting held on 19.7.2007 for the purpose of removal of thePresident of the Pallipattu Town Panchayat was also granted for aperiod of two weeks and thereafter it was extended by another twoweeks on 6.9.2007. On 25.9.2007, this Court disposed of the writpetition in the following terms:"....2. Though the prayer sought for in this writpetition is for a larger relief, Mr.Vijay Narayan, https://hcservices.ecourts.gov.in/hcservices/ learned senior counsel appearing for the petitionerwould confine his submission to the limited extent thatthe petitioner intends to submit a representation tothe Government within a period stipulated, if suchrepresentation is sent, the Government may be directedto consider it on merits and pass orders in accordancewith law.3. In view of the above limited submission made bythe learned Senior Counsel for the petitioner, withoutgoing into the merits of the case, if anyrepresentation is received from the petitioner withinwo weeks from today, the Government is directed toconsider the same and pass orders on merits and inaccordance with law. The writ petition is disposed ofaccordingly. No costs. Consequently, connected M.P. isclosed."Pursuant to the said order, the first respondent gave arepresentation to the second respondent herein on 8.10.2007. Inthe mean time, the second respondent passed the impugnedGovernment Order on 12.9.2007 removing the first respondent fromthe Office of the President. The said Government Order wasassailed by the first respondent by filing the writ petition.3. By reason of the impugned order, the writ petition wasallowed by quashing the Government Order as non est in law onthe premise that the said Government Order came to be passedwhile there was a specific order of injunction restraining thesecond respondent – State Government from proceeding furtherpursuant to the meeting held on 19.7.2007 in force. 4. At this juncture, it is pertinent to state that from4.10.2007, certain amendments were made to the laws relating tothe Municipal Corporations and the Municipalities in the State ofTamil Nadu under Tamil Nadu Ordinance No.5 of 2007, by which thefollowing amendments were inserted to Section 40-A of the Act,which reads as follows:"In section 40-A of the Tamil Nadu DistrictMunicipalities Act, 1920, - (1) in sub-section (2), for the expression "notless than one-half of the sanctioned strength", theexpression "not less than three-fifth of thesanctioned strength" shall be substituted;(2) in sub-section (12), for the expression "notless than three-fifths of the sanctioned strength",the expression "not less than three-fifth of thesanctioned strength" shall be substituted;(3) in sub-section (13), for the expression "sixmonths", the expression "one year" shall besubstituted;(4) for sub-section (14), the following sub-section shall be substituted, namely: - https://hcservices.ecourts.gov.in/hcservices/ "14) No notice of a motion under this sectionshall be received: -(i) within one year of the assumption of officeby: or (ii) during the last year of the term of office,of,a chairman or a vice-chairman"Any motion expressing want of confidence in thechairman or vice-chairman made under section 40-A andpending before any officer, authority or theGovernment, as the case may be, as provided insection 40-A, immediately before the commencement ofthis Ordinance, shall abate."5. Mr.Raghavachari, learned counsel appearing for theappellants has contended that the order impugned is passedwithout appreciating the scope of the writ petition inW.P.No.27629 of 2007 and the order is in error in giving muchimportance to the interim order, without considering the natureof the final order passed in the writ petition. He furthercontended that the interim order passed would automatically mergewith the final order. That aspect of the matter has not beentaken into consideration while passing the impugned order. Thedispute in the earlier case was concerned only about the issuanceof the notice and when a final decision has been taken pursuantto the notice, the writ petition virtually becomes infructuous.That aspect of the matter has not been considered in the orderimpugned.6. Learned counsel appearing for the first respondent arguedfor sustaining the order of the learned single Judge. 7. Learned Government Pleader appearing for the secondrespondent Government submits that of course, it is true that aninterim injunction has been granted against the Governmentrestraining it from proceeding further pursuant to the resolutionpassed on 19.7.2007, but the passing of interim order has notbeen brought to the notice of the Government before issuing thenotification in the official gazette and it was brought to thenotice of the Government only on 14.9.2007. In the mean time theGovernment Order has been published in the Government Gazette on12.9.2007. Hence the Government cannot faulted in issuing theGovernment Order.8. From the above said facts, it is clear that on writtennotice by 10 out of 15 councillors, on 25.6.2007 the secondrespondent issued a notice for convening the meeting on 4.7.2007under Section 40-A(3). Thereafter having found that the saidnotice was not in conformity with the statutory requirement,another notice dated 3.7.2007 convening a meeting of thePanchayat on 19.7.2007 was issued curing the defects. On that day https://hcservices.ecourts.gov.in/hcservices/ i.e., on 19.7.2007, the motion was moved. However, this Court byits order dated 22.8.2007, injuncted the State Government frompassing further orders in pursuance of the meeting held on19.7.2007 for the purpose of removal of the first respondent fortwo weeks i.e., upto 5.9.2007. The said order, as could be seen,was passed upon hearing the arguments of Senior Counsel for thepetitioner and the Additional Government Pleader on behalf of therespondents. The said injunction order was further extended byanother two weeks upto 20.9.2007 by order dated 6.9.2007 afterhearing all the respective parties including the AdditionalGovernment Pleader appearing for the second respondent-Government. But the Government Order in G.O.(D) No.426,Municipal Administration and Water Supply (TPZ) Department waspassed on 12.9.2007 on which date the injunction order was stillin force against the second respondent. 9. Therefore, the question to be resolved is, whether theimpugned Government Order dated 12.9.2007 can be regarded asvalidly passed, when an order of injunction to pass such an orderwas in force against the second respondent – Government?. Asimilar issue came to be considered by the Supreme Court in thecase of SURJIT SINGH AND OTHERS VS. HARBANS SINGH AND OTHERSreported in (1995) 6 SCC 50, in which the Apex Court enunciatedthe law as follows:"....As said before, the assignmentis bymeans of a registered deed. The assignment hadtaken place after the passing of the preliminarydecree in which Pritam Singh has been allotted 1/3rdshare. His right to property to that extent stoodestablished. A decree relating to immovableproperty worth more than hundred rupees, if beingassigned, was required to be registered. That hasinstantly been done. It is per se property, for itrelates to the immovable property involved in thesuit. It clearly and squarely fell within the ambitof the restraint order. In sum, it did not make anyappreciable difference whether property per se hadbeen alienatedor a decree pertaining to thatproperty. In defiance of the restraint order, thealienation/assignment was made. If we were to let itgo as such, it would defeat the ends of justice andthe prevalent public policy, When the Court intendsa particular stateof affairs to exist while it is inseizin of a lis, that state of affairs is not onlyrequired to be maintained, but it is presumed toexist till the Court orders otherwise. TheCourt, in these circumstances has the duty, as alsothe right, to treat the alienation/assignment ashaving not taken place at all for its purposes.Once that is so, Pritam Singh and his assignees,respondents herein, cannot claim to be impleaded asparties onthe basis ofassignment. Therefore, https://hcservices.ecourts.gov.in/hcservices/ the assignees-respondents could not have beenimpleaded by the trial court as parties to the suit,in disobedience of its orders....."10. From the enunciation of law, it is clear that indefiance of the restraint order, any order is passed and was tolet it go as such, it would defeat the ends of justice and theprevalent public policy. When the Court intends a particularstate of affairs to exist while it is in seizin of a lis, thatstate of affairs is not only required to be maintained, but itis presumed to exist till the Court orders otherwise. TheCourt in these circumstances of the case, has the duty as alsothe right to treat the order passed in defiance of the restraintorder, as having not taken place at all for its purposes. 11. The other contention that on 1.10.2007 the writ petitionwas finally disposed of by not granting the relief sought for inthe writ petition and the interim order got merged with the finalorder. Thus, the Government Order passed by the second respondentwould stand cannot be accepted. 12. The very cause of action on which the earlier writpetition came to be filed was, that whether the AssistantDirector of Town Panchayat – third respondent herein is competentto issue a second notice under Section 40A or not. The saidcause of action was in existence even at the time of disposingoff the writ petition, which is evident from the direction issuedin the final order, which is extracted above in paragraph No.2.Pursuant to the same, a representation dated 8.10.2007 has alsobeen made by the first respondent as stated above. On a readingof the final order dated 1.10.2007 made in the writ petition, onecould only come to the conclusion that till the second respondentdecided the representation to be made by the first respondent asto whether the issuance of second notice is correct or not withreference to Section 40-A or whether the third respondent isempowered to issue second notice as per the provisions of theAct, the resolution made on 19.7.2007 should not be proceededwith. If that is not the intention of the Order of the Court,then there remains nothing for directing the Government toconsider and pass orders on the representation of the firstrespondent on merit and in accordance with law. Otherwise theCourt would have dismissed the writ petition by giving liberty tothe writ petitioner to work out her remedy elsewhere. By theorder dated 1.10.2007, the Court has only relegated theresolution of the lis to the Government in accordance with lawand on its own merits. Thus, we are of the view that theGovernment or the interveners cannot take advantage of the finalorder passed to proceed further pursuant to the resolution dated19.7.2007. The above reasoning of ours is in consonance with thejudgment of the Supreme Court referred above. 13. Learned Government Advocate appearing for the secondrespondent has reiterated that the Government Order came to be https://hcservices.ecourts.gov.in/hcservices/ passed only because of the reason that the restraint orderagainst the second respondent – State from proceeding furtherreached the respondent on 14.9.2007. 14. It is not in dispute, rather, it is on record that theinjunction order passed by this Court on 22.8.2007 was passedafter hearing the Additional Government Pleader on behalf of therespondent. That shows the respondent had knowledge of therestraint order. It is settled law that a formal communication ofthe prohibitory order is not the requirement of law, but it issufficient, if knowledge of the prohibitory order of injunctionis communicated to the person concerned. The Apex Court in thecase of HOSHIAR SINGH VS. GURBACHAN SINGH (AIR 1969 SC 1089),has held as follows:"... Where the appellants, who were officersconcerned in their official capacity with theallotment and management of land for displacedpersons, were informed not merely be interestedparties by an Advocate (who was an officer of theCourt) that the High Court had passed a valid orderstaying delivery of possession of certain lands tocertain allottees, and a formal application supportedby an affidavit was made to that effect, theappellants had no real justification for doubting theauthenticity of the order and it was their duty tocarry out that order. If the appellants disobeyed theorder, there was, in the eye of the law, a willfuldisobedience of the order of the High Court stayingdelivery of possession, and they were guilty ofcontempt of Court. The appellants could not take upthe plea that as the order had not been officiallycommunicated to them, they were at liberty to ignoreit...."15. In yet another case, in THE ALIGARH MUNICIPAL BOARD VS.EKKA TONGA MAZDOOR UNION (AIR 1970 SC 1767), the Supreme Courtheld thus:"..In order to justify action for contempt ofcourt for breach of prohibitive order it is notnecessary that the order should have been officiallyserved on the party against whom it is granted, if itis proved that he had knowledge of the exact orderaliunde and he knew that it was intended to beenforced. Official communication is not a conditionprecedent, provided there is no valdi reason to doubtthe authenticity of the order conveyed to him....."16. The respondent – State is a juristic entity and it hasbeen represented before this Court by its counsel while passingthe interim order. Hence, it tantamounts that the order has beenpassed with the knowledge of the State. If the contention of theGovernment Pleader is accepted, then it would create a havoc in https://hcservices.ecourts.gov.in/hcservices/ the judicial administration, in the sense, as and when an adverseorder or a prohibitory order is passed by the Court and uponknowing about the order, the State can proceed further andultimately come before the Court and say that the order has notbeen received. 17. Mr.Raghavachari, learned counsel appearing for theappellants placed reliance on a judgment of the Supreme Court inthe case of MULRAJ VS. MURTI RAGHONATHJI MAHARAJ reported in(1967) 3 SCR 84. That was a case in which an application filed bythe landlord for permission to sue for ejectment of his tenantwas pending before a Magistrate. The tenant applied for transferof the proceedings relating to permission from that Magistrate'sCourt. On that transfer application, an order was passed stayingfurther proceedings. The stay order was not communicated to theMagistrate with the result that the Magistrate granted permissionto sue. The respondent filed the suit for ejectment where theappellant raised the plea that the permission granted subsequentto stay order was a nullity as the Magistrate dealing with thematter had lost his jurisdiction thereunder. That contention hasbeen rejected by observing that "an order of injunction isgenerally issued to a party and it is forbidden from doingcertain acts. It is well settled that in such a case the partymust have knowledge of the injunction order before it could bepenalised for disobeying it. Further, it is equally well-settledthat the injunction order not being addressed to the Court, ifthe Court proceeds in contravention of the injunction order, theproceedings are not a nullity." In the very same judgment, theCourt has explained the observation by saying that though theCourt which was carrying on execution was not deprived of thejurisdiction the moment a stay order was passed, even though ithad no knowledge of it, that does not mean that when the Courtgot knowledge of it, it was powerless to undo any possibleinjustice that might have been caused to the party in whosefavour the stay order was passed during the period till the Courthad knowledge of the stay order. The Supreme Court furtherobserved that "under Section 151 of the Civil Procedure Code, thepower is always available to the Court executing the decree insuch a case when the stay order was brought to the notice itcould always act under Section 151 and set aside steps takenbetween the time the stay order was passed and the time it wasbrought to the notice if that is necessary in the interest ofjustice and the party concerned asked it to do so." That is whatprecisely done in the case by the respondent by filing a writpetition. Hence, we are of the view that the above said judgmentinstead of advancing the case of the appellants, rather supportthe case of the respondents.18. Learned counsel for the appellants relied on the case ofSHIPPING CORPORATION OF INDIA LIMITED VS. MACHADO BROTHERS andOTHERS reported in (2004) 11 SCC 168 to contend that the writpetition has virtually become infructuous because of the final https://hcservices.ecourts.gov.in/hcservices/ order passed subsequent to passing of the impugned GovernmentOrder. In that case, the Supreme Court held that "interlocutoryorders are made in aid of final orders and not vice versa. Nointerlocutory order would survive after the original proceedingscomes to an end". There cannot be any exception to theproposition laid down by the Supreme Court in that case. However,the facts of the present case cannot be suited to the facts ofthe cited case. As already stated, the Government Order came tobe passed when the prohibitory order was very much in force. Thesubsequent event of disposal of the writ petition is also cannotbe regarded as dismissal of the writ petition, rather it can beregarded as transferring of the lis from this Court to theGovernment for determination. 19. Hence, for all the above reasons, we find that there isno infirmity in the order passed by the learned single and thewrit appeal is liable to be dismissed and the same is dismissed.However, there is no order as to costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.uskTo1. The Secretary to GovernmentMunicipal Administration and Water Supply Department State of Tamil NaduFort St.George, Chennai -92.The Assistant Director of Town Panchayat Collector Office Complex, Tiruvellur Region, Tiruvellur3. The Executive Officer(Incharge)Pallipattu Town PanchayatPallipet, Thiruvellur District.1 cc to Mr.I. Paranthaman, Advocate, Sr. 337521 cc to Mr.v. Raghavachari, Advocate, Sr. 336201 cc to Mr.R. Bharathkumar, Advocate, sr. 33452W.A. No.1505 of 2007RA (CO)kk 10/7