S.Vimala v. The Secretary to Government Municipal Administration and Water Supply Department Fort St.George, Chennai

State of Tamil Nadu rep. By Secretary to Government Municipal Administration and Water Supply Department Fort St. George, Chennai 600 009.

Tiruvennainallur Town Panchayat rep. By its Executive Officer Tiruvennainallur Villupuram District 607 203... Respondents in W.P.No.31336 of 2007 The Election Officer(Executive Officer)Tiruvennainallur Town PanchayatTiruvennainallurVillupuram District... Respondent in W.P.No.35442 of 2007 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamusand Certiorari as stated therein.W.P.25055 of 2007:-A writ of certiorarified Mandamus calling for the records relating to the G.O.Ms.208 dated 08.12.2003 issued by the 1st Respondent herein and to quash the same and consequently to direct the 3rd respondent to forbear from giving effect to the notice isseud Na.Ka.No.2425/2007/p93 dated 05.07.2007.WP.No.28370/07 A Writ of Certiorari calling for the records relating to G.O.(D).No.392 dated 22.08.2007 issued by the 1strespondent herein, the Tamil Nadu Municipal Administration and Water Supply Department and to quash the same.WP.No.31336/2007 A Writ of Certiorari in the nature of a Writ, calling for the records connected with G.O.(D).No.428 dated12.09.2007 on the file of the 5th Respondent herein and quash thesame.WP.No.35442/2007A Writ of Certiorari calling for the records of the impugned notice dated 15.11.2007 issued by the respondent herein and quash the same.

26.11.2007 as the date of meeting of the Council, and that is challenged in W.P.No.35442 of 2007.6. In both matters, the petitioners concerned were sought tobe removed from the post of Chairman on "No Confidence Motion"and therefore, meeting of the Council of Madambakkam TownPanchayat was convened on 23.07.2007 by the Assistant Director of Town Panchayat, Kancheepuram District and in respect of Tiruvennainallur Town Panchayat, the meeting was convened by the Assistant Director of Town Panchayat, Cuddalore Zone on19.07.2007.

In respect of petitioner in W.P.Nos.25055 and 28370 of2007, in Madambakkam Town Panchayat "No Confidence Motion" was moved, in which out of 15 Members of Council, 10 have voted in favour of "No Confidence Motion" against the petitioner and on the recommendation of the Assistant Director of Town Panchayat, Kancheepuram District, the Government issued the impugnedNotification removing the petitioner therein.

Likewise, in respect of Tiruvennainallur Town Panchayat, on the date of meeting of the Council on 19.07.2007, when the "NoConfidence Motion" was moved, 14 Members out of 15 have voted in favour of "No Confidence Motion" and as per the recommendation of the Assistant Director of Town Panchayat, Cuddalore Zone, the Government has issued the impugned Notification removing the petitioner and also consequently the Election Officer has fixed the date of election for the post of Chairman.

The common grounds raised in both the cases are that the convening of the special meeting of the Council in both the cases by the Assistant Director of Town Panchayats is against Section40-A(2) of the Act, which contemplates that the notice of intention to make the motion in the form fixed by the StateGovernment, signed by not less than one half of the sanctioned strength of the Council together with the copy of the motion, shall be delivered by any two of the Councillors signing the notice in person to the Regional Director of MunicipalAdministration. Therefore, when the Act prescribes the RegionalDirector of Municipal Administration as the Authority, the "NoConfidence Motion" submitted to the Assistant Director of TownPanchayats, is against the provisions of Section 40-A of the Act.10. It is the further case of the petitioners that the amendment effected by the Notification issued by virtue of the powers under Section 3M of the Act by substituting the words,'Assistant Director of Town Panchayat' in the place of 'RegionalDirector of Municipal Administration' is not valid in law, since the same has to be done only by way of amendment to the Act by the Legislature or Ordinance and not by the executive instructions.

In addition to the above said legal submissions, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel appearing for the petitioners have also submitted that the power of delegation by the State Government under Section363 of the Act does not apply in respect of Chapters II and III,and Section 40-A being a part of Chapter III, there cannot be any delegation of power by the State Government also.

It is the further submission of the learned counsel that under Section 304(2) of the Act, every rule made under Section 77(2) or 103 and every Notification issued under the Act shall, assoon as possible after it is made or issued, be placed on the table of both the Houses of State Legislature, so as to enable the Legislature to make any modification in such rule or notification and thereafter, the rule will have effect in the modified form and therefore, according to the learned counsel for the petitioners, inasmuch as the Notification has not been placed before the Legislature, it cannot have the legal effect.

It is their further submission that after Chapter I-B has been inserted by the Tamil Nadu Municipal Laws (Amendment) Act(18/2006), the Town Panchayats have also been brought within the purview of the Tamil Nadu District Municipalities Act and therefore, Town Panchayats form part of the Tamil Nadu DistrictMunicipalities Act, in which event, unless and until the amendmentis effected to Section 40-A, the Assistant Director of TownPanchayat cannot have any jurisdiction to preside over the meeting and conduct elections and so on. They would also rely upon the judgements of the Supreme Court in Union of India vs. NationalHydroelectric Power Corporation Ltd., (AIR 2001 SC 2512) and TheQuarry Owners Association vs. State of Bihar (AIR 2000 SC 2870).

On the other hand, it is the case of the respondents asper the counter affidavit that the minimum number of Councillorsrequired under the Act have met the Assistant Director of TownPanchayat, Kancheepuram in person and presented a written notice of their intention to move "No Confidence Motion" against the Chairman together with a copy of motion which was signed by more than half of the Members of the Council. As per G.O.Ms.No.208dated 08.12.2003, the Government has authorised the AssistantDirector of Town Panchayat in respect of Town Panchayats to perform the functions of the Regional Director of MunicipalAdministration under Sections 40-A and 40-B of the Act. It was in accordance with the conferment of such power, the meeting was convened, which according to the respondents is perfectly valid. In the meeting, resolution was passed as required under law for removal of the petitioners as Chairperson and Chairman and the respective Assistant Directors of Town Panchayat have sent the copies of the minutes of the meetings to the Government and the Government has ultimately passed orders of removal of petitioners.14(a).

I have heard the learned counsel for the petitioner and the learned Additional Advocate General for respondents and perused the entire records.

The Tamil Nadu District Municipalities Act, 1920 was enacted to consolidate and amend the law relating to district municipalities. 16(a). Section 4 of the Act enables the Governor to createMunicipalities having regard to the population of the area, the density of population therein, the revenue generated for local administration, the percentage of employment, the non-agriculturalactivities, the economic importance and such other factors, by way of notification and the municipal authorities are constituted asper Chapter III of the Act, which includes Council, Chairman and Executive Authority.16(b). The term "panchayat town" is defined under Section 3(18-A) of the Act, which means "an area in transition from a rural area to an urban area classified as panchayat town under Section3-P of the Act. "16(c). Likewise, the term "Town Panchayat" is defined under Section 3(29-A) of the Act, which means "an institution of self-Government constituted for a transitional area as defined in clause (2) of Article 243-Q of the Constitution.

It is significant to note that the term "transitional area" was included in the definition clause of the Tamil NaduDistrict Municipalities Act,1920 in Section 3(29-AA) by the TamilNadu Municipal Laws (Amendment) Act 18 of 2006 to mean, "an area in transition from a rural area to an urban area classified as transitional area under Section 3-B."17(a). Section 3-B enables the Governor to form TownPanchayats by necessary notifications. That is contained in Chapter 1-A of the Act, which speaks about the constitution and strength of Town Panchayats, election, reservation of seats, division into wards, term of office, preparation of electoral roll, etc.17(b). In addition to Chapter 1-A, by the Tamil NaduMunicipal Laws (Amendment) Act 18 of 2006, Chapter 1-B was incorporated with the caption 'Town Panchayats', having Sections3-O to 3-CC. A reading of Chapters 1-A and 1-B shows that the said Chapters speak about the substantial act of creation of TownPanchayats and various methods in consonance with the mandate of Constitution of India in Chapter IX and IX-A.

While making the Amendment Act 18 of 2006, Section 3-BBhas been incorporated to give overriding effect to the saidChapter 1-B. Likewise, even in Chapter 1-A, Section 3-N gives overriding effect to Chapter 1-A notwithstanding anything inconsistent contained in the Tamil Nadu District Municipalities https://hcservices.ecourts.gov.in/hcservices/ Act or in any other law. Sections 3-N and 3-BB reads thus: "Section 3-N. Chapter to override other laws.-(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in this Act or any other law. (2) Save as otherwise provided in sub-section (1), the provisions of this Chaptershall be, in addition to, and not in derogation of, any other provisions of this Act. ""Section 3-BB. Chapter to override other laws: (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in this Act or any other law. (2) Save as otherwise provided in sub-section (1), the provisions of this Chaptershall be in addition to, and not in derogation of, any other provisions of this Act. "Therefore, it is clear that Chapter 1-A and 1-B should be treated as independent of the Tamil Nadu District Municipalities Act,1920and its significance is to enforce the constitutional mandate in the constitution of Town Panchayats.

In this regard, it is relevant to refer to Section 3-Mof Chapter 1-A and Section 3-AA of Chapter 1-B, which are as follows: "Section 3-M. Application of the Act to townpanchayats.- The State Government may, by notification, direct that any of the provisions of this Act and the rules made made thereunderor of any other enactment for the time being inforce elsewhere in the State of Tamil Nadu but not in the Panchayat town shall apply to that town panchayat to such extent and subject to such modifications, additions and restrictions as may be specified in the notification. ""Section 3-AA. Application of the Act to TownPanchayats: The State Government may, by notification, direct that any of the provisions of this Act and the rules made under the Act orof any other enactment for the time being inforce elsewhere in the State of Tamil Nadu but not in the panchayat town shall apply to that town panchayat to such extent and subject to such modifications, additions and restrictions as may be specified in the notification. "The said provisions which are similar, enable the State Governmentby notification to apply any provisions of the Tamil Nadu DistrictMunicipalities Act for the functioning of Town Panchayat, as https://hcservices.ecourts.gov.in/hcservices/ created or formed under Chapter 1-A and Chapter 1-B of the TamilNadu District Municipalities Act,1920.

Reading together with the legislative intent of giving overriding effect to Chapter 1-A and 1-B over any other provisions of the Tamil Nadu District Municipalities Act or any other law, the provisions under the said Chapters enable the State Governmentby notification to apply any of the provisions of the Tamil NaduDistrict Municipalities Act to that of Town Panchayat which make it clear that in respect of administration of Town Panchayats, itis not the entire Tamil Nadu District Municipalities Act as awhole which would be applied, but Chapters 1-A and 1-B in addition to any other provisions of the Tamil Nadu District MunicipalitiesAct,1920, which may be borrowed by the Government from time to time by necessary notification, would alone be applicable in the administration of Town Panchayat.

In this background, it is relevant to note the previous notification issued by the State Government by G.O.Ms.No.75Municipal Administration and Water Supply Department dated31.03.1995. The Government has issued the said notification by virtue of the powers conferred under Section 3-M of the Tamil NaduDistrict Municipalities Act, 1920 extending all provisions of the Tamil Nadu District Municipalities Act except a few sections and therefore, except those provisions mentioned under the said notification, all other provisions of the Tamil Nadu DistrictMunicipalities Act are borrowed for the administration of the TownPanchayats. The said notification as issued in G.O.Ms.No.75 dated31.03.1995 is as follows:NOTIFICATIONIn exercise of the powers conferred by section 3-M of the Tamil Nadu DistrictMunicipalities Act, 1920 (Tamil Nadu Act V of1920), the Governor of Tamil Nadu hereby extends to all the town panchayats in the State, the following provisions of the TamilNadu District Municipalities Act, 1920 (TamilNadu Act V of 1920) and the Tamil NaduPanchayats Act, 1994 (Tamil Nadu Act 21 of1994), namely:-(1) (a) All sections except "Sections 5, 7,12C, 13B, 43, 68, 77AA and 77B of the TamilNadu District Municipalities Act, 1920 (TamilNadu Act V of 1920).(b) All Rules, Regulations and By-lawsframed under the said Act except the Rules, Regulations and Bye-laws made under sections5, 7, 12C, 13B, 43, 68, 77AA and 77B of the said Act. (2) Sections 119, 120, 132, 133, 134, 135,159, 160, 161, 167, 168, 169, 172, 180, 182and 183 of the Tamil Nadu Panchayats Act, 1994(Tamil Nadu Act 21 of 1994)." https://hcservices.ecourts.gov.in/hcservices/

It is by adopting those provisions of the Tamil NaduDistrict Municipalities Act, 1920, including Section 40-A to bemade applicable to Town Panchayats, it is not as if the TownPanchayats are upgraded as District Municipalities, which are certainly separate entities governed exclusively by the provisions of the Tamil Nadu District Municipalities Act,1920, but those provisions of the District Municipalities which are borrowed from the Tamil Nadu District Municipalities Act, 1920 are made applicable for the administration of the Town Panchayat. The said enabling power is given to the State Government under Sections 3-Mand 3-AA of Chapters 1-A and 1-B of the Tamil Nadu DistrictMunicipalities Act,1920. Therefore, it is clear that the functioning of District Municipalities and that of the TownPanchayats are distinct in their character and it cannot be said that the authorities who are to perform the functions in respect of District Municipalities under the Tamil Nadu DistrictMunicipalities Act,1920 alone should perform the functions in respect of administration of Town Panchayat, which is having its own administrative set up. However, in the event of the Government deciding to have the same authority who is performing functions under the Tamil Nadu District Municipalities Act in respect of Town Panchayat, it can borrow the same from the TamilNadu District Municipalities Act for the administration of TownPanchayats. The change of such authority cannot be straightaway effected by the Government by authorising the authority to perform the function, but it has to be done as per Sections 3-M and 3-AAof Chapters 1-A and 1-B of the Tamil Nadu District MunicipalitiesAct,1920 by way of proper notification issued by the Governor on behalf of the State Government.

It was exactly the proposition of law which was decidedby this Court on the earlier occasion in respect of the power regarding removal of Chairman under Section 40-B of the Act, which was borrowed for the administration of the Town Panchayat byG.O.Ms.No.75 dated 31.03.1995. The facts of that case were that the Regional Director of Municipal Administration has to perform the functions of authority for removal of Chairman of DistrictMunicipalities, and the Government, with a view to apply the said provision to Town Panchayats, has issued G.O.(D) No.93 MunicipalAdministration and Water Supply (ELEC) Department dated04.03.1999, and straightaway conferred the powers of the RegionalDirector of Municipal Administration under Section 40-B to the Assistant Director of Town Panchayats. The said Government Orderwas as follows: "MUNICIPAL ADMINISTRATIN AND WATER SUPPLY (ELEC)DEPARTMENTG.O.(D)NO.93DATE:4.3.1999READ:From the Director of Town Panchayats, D.O.Letter RC.No.2099/99/A1, dated 10.2.99.ORDER:Under Sections 40A and 40-B of the Tamil NaduDistrict Municipalities Act, 1920, the Regional Directorsof Municipal Administration are exercising the powers and functions relating to the no-confidence motion on Vice- https://hcservices.ecourts.gov.in/hcservices/ Chairman and removal of Chairperson in the Municipality.

When that was challenged before this Court inW.P.No.12667 of 2002 on the basis that the Government has no power to make delegation of such power to the Assistant Director of TownPanchayat, while upholding the said contention, by order dated23.10.2002, E.Padmanabhan,J, by referring to Section 3-M of the Act has categorically held that the said section enables the Government by notification to direct any of the provisions of the Tamil Nadu District Municipalities Act either in the same manner or by modification or by addition or by restriction to be made applicable in respect of Town Panchayats and it does not mean that the Government can straightaway delegate such powers to the Assistant Director of Town Panchayat. The operative portion of the order is as follows: "28. Section 3-M of The District Municipalities Act, 1920reads thus:-"The State Government may, by notification direct that any of the provisions of this Act and the rules madethereunder or of any other enactment for the time being in force elsewhere in the State of Tamil Nadu but not in the https://hcservices.ecourts.gov.in/hcservices/ Panchayat own shall apply to that townpanchayat to such extent and subject to such modification, additions and restrictions as may be specified in the notification. "In terms of the said provision, the State Government bya notification could direct that any provisions of the Act and Rules made therein or any other enactment's for the time being in force shall apply to the TownPanchayat to such extent and subject to such modifications, additions and restrictions. This would mean that the State Government is the delegated authority either to extend the provisions of the District Municipalities Act or the Rules or any other enactments for the time being in force to such extent and subject to such modifications, additions and restrictions. Section 3-M could be relied upon, if at all, only in respect of the prevailing enactments aswell as enactments and rules which are in force and Section 3-M cannot be relied upon nor it is a source of power to confer an authority or delegate the powers on the Assistant Director of Town Panchayat to exercise the powers as if he is the Regional Director. "

Therefore, it is clear that the Government's power under Sections 3-M or 3-AA in Chapters 1-A and 1-B of the Tamil NaduDistrict Municipalities Act,1920 is not to straightaway delegate the powers to the Assistant Director of Town Panchayat, who is performing the functions of the Town Panchayat as its executive, but by making necessary notification, to modify the provisions of the Act in order to make it applicable for the administration of the Town Panchayat. Therefore, by issuing such notification it is not as if the Government should perform its legislative function. The intention of the Government in extending the provisions of the District Municipalities Act for the administration of TownPanchayat in a modified form is not for the purpose of making amendment to the District Municipalities Act,1920, but it is only for the purpose of applying the provisions by modification by means of issue of notification for administration of the TownPanchayat.

On the factual position of this case, it is clear that itis not as if by the impugned notification any substantial change in the provisions of the Act was sought to be made, but the changeis only in respect of an executive who is in the administration of the Town Panchayat, authorising him to perform the functions of the authority, viz., the Regional Director of MunicipalAdministration, who is the administrative authority or executive in respect of District Municipalities and it is not necessary that the authority performing the functions in respect of DistrictMunicipalities must perform the functions for the administration of Town Panchayat also. To borrow the provisions from the DistrictMunicipalities Act for enabling an executive of Town Panchayat, viz., the Assistant Director of Town Panchayat to perform the functions of such provisions, a notification prescribed under https://hcservices.ecourts.gov.in/hcservices/ Sections 3-M and 3-AA of Chapters 1-A and 1-B as stated above issufficient and such notification cannot be held to be invalid. That was the purport of the order of this Court stated supra.

In consonance with the order of this Court dated23.10.2002, G.O.Ms.No.208 dated 08.12.2003 has been passed by issuing notification under Section 3-M of the Act, thereby authorising the Assistant Director of Town Panchayat to perform the functions under Section 40-A of the Act, which has been borrowed for the administration of the Town Panchayats. In such circumstances, I am of the considered view that there is absolutely no substance in the contention of the learned counselfor the petitioners in these writ petitions.

It is not in dispute that all procedures contemplated in Section 40-A of the Act have been followed in these cases and the number of persons required have signed the notice of intention and the number of persons required have presented the same in person before the Assistant Director of Town Panchayat, who, in turn, has called for the meeting of Panchayat by giving necessary notice asper the provisions and resolution was passed with requisite majority favouring the 'No Confidence Motion' and the papers were forwarded by the Assistant Director of Town Panchayat to the Government and the Government in its turn has issued notification under Section 40-A(12) of the Act. Therefore, there is absolutely no illegality in the entire procedure followed in these cases.

The reliance placed on by the learned counsel for the petitioners, viz., judgement of the Supreme Court in Union of India vs. National Hydroelectric Power Corporation Ltd., (AIR 2001SC 2512), has no application to the facts of the present case. That was a case, where Water (Prevention and Control Pollution)Cess Act (36 of 1977) confers powers on the Central Government to amend Schedule 1 and the Act itself provides for placing such amendment before the House of Parliament. It was in the circumstances that no resolution has been placed before the Parliament for the purpose of considering the same, the SupremeCourt has held that such amendment made by way of notification and not following the procedure, is not valid, in the following words: "9. We see no reason to disbelieve the correctness of the averment so made in the said affidavit. The averment made is categorical and unequivocal, namely, that no resolution relating to the notification dated 16.4.1993had been moved in the Parliament. If no resolution had been moved, the question of the Parliament giving approval does not arise. Though the first step of placing the notification in each House of Parliament had been taken, subsequent steps leading to passing of the resolution were not even commenced with the moving of the resolution. It is not necessary for us to consider what is the effect of not moving the resolution within the time https://hcservices.ecourts.gov.in/hcservices/ frame of 15 days as prescribed by sub-section(2) as the present case is not where there has been a delay in moving the resolution. Therehas been in fact a non-compliance with the said requirement. With resolution not having been moved at all, it cannot be held that there wasa valid amendment of Schedule I to the Act. The High Court, in our opinion, was, therefore, right in coming to the conclusion that this levy and the purported realisation of the cesswas not in accordance with law. "

In the present case, as I have elicited above, it is not as if by the impugned notifications, Government intends to issue notifications under the Tamil Nadu District Municipalities Act,1920 for the purpose of administration of District Municipalitiesand therefore, the question of applicability of Section 304(2) of the Act for placing the notification before the State Legislaturedoes not arise. At the risk of repetition, it can be said that when the provisions are borrowed for administration of another totally distinguishable Department, viz., Town Panchayat, as per the enabling provisions under the Act, there is absolutely no question of treating it as a notification issued in respect of the administration of District Municipalities and therefore, I am of the considered view that the applicability of Section 304(2) of the Act does not arise in the factual situation of these cases.

Similar is the case in respect of the judgement of the Supreme Court in The Quarry Owners Association vs. State of Bihar(AIR 2000 SC 2870). That was a case relating to the Mines and Minerals (Regulation and Development) Act (67 of 1957) in respect of major minerals where the Parliament has retained its full control. However, regarding the minor minerals, since they are of local use and the State Government is well-versed to deal with them, the Rules and Notifications so framed are to be placed before the State legislature, which is a check on the exercise ofits powers. In the said judgement, the Supreme Court has held as follows: "45. It is true that the language of both sub-section (1)and sub-section (3) of S.28 are different. They are reproduced below: "28. Rules and notifications to be laid before Parliament and certain rules to be approved by Parliament.- (1) Every rule and every notification made by the Central Governmentunder this Act shall be laid, as soon as may beafter it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in once session or in two or more successive sessions and if, before the expiry of the session immediately following the session or https://hcservices.ecourts.gov.in/hcservices/ the succession sessions aforesaid, both Housesagree in making any modification in the rule or notification or both Houses agree that the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule or notification.

In fact, as correctly pointed out by the learnedAdditional Advocate General, the judgement of the Supreme Court inAIR 2001 (SC) 2512 (cited supra) was distinguished by the SupremeCourt in the subsequent case in Prohibition and ExciseSuperintendent, Andhra Pradesh vs. Toddy Tappers Co.operativeSociety, Marredpally (2003 (12) SCC 738).In view of the same, the writ petitions fail and the same are dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kh https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government Municipal Administration and Water Supply Department Fort St.George, Chennai 9.2.The Director of Town Panchayat Kuralagam, Chennai. 3. The Assistant Director of Town Panchayat Kancheepuram Zone, Kancheepuram. 4. The District Collector Villupuram District Villupuram. 5. The Assistant Director of Town Panchayats Cuddalore 607 001.6.The Regional Director of Municipal Administration Cuddalore Zone Cuddalore 607 001.7.The Election Officer (Executive Officer) Tiruvennainallur Town Panchayat Tiruvennainallur Villupuram District.1 cc to Mr.T. Dhanyakumr, Advocate, sr. 126371 cc to Mr.K. Elango, Advocate, Sr. 127071 cc to Mr.M. Dhandapani, Advocate, sr. 12744 W.P.Nos.25055, 28370, 31336 & 35442 of 2007LA (CO)kk 10/3