S.Pradeepa v. The Commissioner/Secretary Municipal Administration Fort St. George, Chennai – 9 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.12.2009CORAMTHE HONOURABLE MR. JUSTICE K.VENKATARAMANWrit Petition No.15407 of 2009 &M.P.No.1 of 2009S.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 TheConstitution of India to issue a writ of Certiorarified Mandamuscalling for the records of the second respondent in his proceedingsin Na.Ka.No.3313/2009/A7 29.07.2009 quash the same and furtherdirect the first respondent to issue proper direction to the secondrespondent as per the tender allotted to the petitioner forcollecting tolls. For petitioner : Mr.A.Muthuraman For respondents : Mr.A.Edwin Prabakar A.G.P. For R1 & R3 Ms.G.Devi – for R2O R D E R Mr.A.Edwin Prabakar learned Additional GovernmentPleader takes notice for the respondents. 2. Even though the application for interim injunctionalone is listed before me, by consent, the writ petition itself istaken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/

3. The petitioner has come up with the present writ petitionchallenging the show cause notice of the second respondent dated29.07.2009, wherein he has pointed out that the petitioner violatedthe tender conditions and hence her licence will be cancelled, if noproper explanation is offered. 4. The case of the petitioner is that she has participatedin the tender process issued by the second respondent for collectingtolls in respect of Tourist vehicles being parked in temples andMahamagam Tank in and around Kumbakonam Town area. She became thehighest bidder for the period between 2009 and 2012. The MunicipalCouncil also passed a resolution to that effect. While so, thesecond respondent issued a show cause notice, calling upon her tooffer her explanation with regard to the alleged complaint ofcollecting tolls from the tourist vehicles within the Kumbakonam Townparked in front of the Hotel and shops. The petitioner has offeredher explanation for the same, but, however, the second respondentissued the final cause notice, which is under challenge in thepresent writ petition. 5. Learned counsel appearing for the petitioner mainlycontended that the second respondent has no power to cause suchnotice, since the licence was granted on the resolution made by theMunicipality. Further, he has contended that the second respondenthas no competency to issue such show cause notice. 6. The learned counsel appearing for the petitioner reliedon Sections 13-A and 22 of the Tamil Nadu District MunicipalitiesAct, for the said purpose. 7. By pointing out those provisions, learned counselappearing for the petitioner mainly contended that the secondrespondent has no jurisdiction to cause such notice. He has alsorelied on the decision reported in 73 LW 58 (Periaswamy Gounder v.Commissioner, Erode Municipality), wherein this court has held thatthe power to suspend or cancel a resolution lies with the Municipalcouncil and it could be done by the council through theCommissioner.8. Ms.G.Devi, learned counsel appearing for the secondrespondent Municipality submitted that the Commissioner has got amplepower to cancel the licence. Further, she has submitted that it isonly a show cause notice and the petitioner could be driven to sendan explanation and thereafter if any adverse orders are passed, thepetitioner can approach this court challenging the said order.9. I have considered the submissions made by the learnedcounsel for the petitioner as well as the learned counsel appearingfor the Municipality. https://hcservices.ecourts.gov.in/hcservices/

10. It is an admitted case that the petitioner was grantedlicence in pursuant to the council's resolution to that effect.While so, alleging violation of the terms and conditions, thepresent show cause notice was issued by the second respondent. Themain question that arises for consideration is whether the secondrespondent has power or jurisdiction to issue such notice.11. The learned counsel appearing for the petitioner hasdrawn my attention to Sections 13-A and 22 of the Tamil Nadu DistrictMunicipalities Act. Section 13-A of the said Act reads as follows: 13-A Functions of the executive authority – The executiveauthority of the municipal council shall -(a) carry into effect the resolutions of the council.(b) furnish to the council such periodical reportsregarding the progress made in carrying out the resolutionsof that body in the collection of taxes as the council maydirect; and(c) perform all the duties and exercise all the powerspecifically imposed or conferred on the executive authorityby this Act and subject, whenever it is hereinafterexpressly so provided, to the sanction of the council, andthe subject to all other restrictions, limitations andconditions hereinafter imposed exercise the executive powersfor the purpose of carrying out the provisions of this Actand be directly responsible for the due fulfillment of thepurposes of this Act. Section 22 reads as follows:22. Obligation of the executive authority to carryout council's resolution.- The (executive authority) shallbe bound to give effect to every resolution of the councilunless such resolution is modified, suspended or cancelledby a controlling authority.12. The said provisions make it clear that the Commissionerhas to act according to the resolutions of the council. In the givencase on hand, it is not the case of the second respondent that theMunicipal council has authorized him to cause such notice. Furthermore, this court in the judgment reported in 73 LW 58 (referredsupra) has held that the power to suspend or cancel a resolutionlies with the Municipal Council and it can be done only by theCouncil through the Commissioner. It is not the case of the secondrespondent that the show cause notice was issued to the petitionerpursuant to the resolution of the Municipal Council. https://hcservices.ecourts.gov.in/hcservices/

13. In view of the above stated position, I am inclined toset aside the impugned order of the second respondent dated29.07.2009 on the ground that he has no competency or jurisdiction tocause 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 secondrespondent dated 29.7.2009.14. The said proceedings of the second respondent dated29.07.2009 is therefore quashed.15. In fine, the writ petition stands allowed. It isneedless to say that if resolution is passed by the MunicipalCouncil, the second respondent is at liberty to take action againstthe petitioner, after due notice to her and also after getting anexplanation from her. No costs. Consequently, connectedmiscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. rj/sbiTo1.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.