ORDER
V.V.S. Rao, J.
1. For the reason mentioned herein, it is expedient to dispose of these writ petitions by this common order. W.P. No. 26357 of 2003 is filed by the Municipal Council, Kakinada Municipality, Kakinada represented by its Chairperson Dr. B. Chandrasekhar praying for a Writ of Mandamus directing Respondents 1 to 5 to take action against Respondents 6 and 7 namely Superintendent of Police, Kakinada, East Godavari District and Station House Officer, II Town Police Station, Kakinada for their alleged failure to discharge statutory obligations to provide police aid pursuant to complaints made by petitioner and Commissioner of Kakinada Municipality to evict the encroachers from the properties allegedly belonging to Kakinada Municipality. This writ petition is referred to hereinafter as first writ petition
2. W.P. No. 370 of 2004 is also filed by Municipal Council, Kakinada Municipality, Kakinada represented by its Chairperson Dr.B. Chandrasekhar praying for a Writ of Mandamus directing respondents 1 to 4 namely Government of A.P., Director General of Police, Superintendent of Police, Kakinada and the District Collector, East Godavari District at Kakinada to transfer Crime No. 24 of 2003 and complaint filed by petitioner on 11.4.2003, 15.9.2003 and 18.9.2003 from fifth and sixth respondents namely Station House Officer, Port Police Station, Kakinada and Station House Officer, II Town Police Station, Kakinada to Central Bureau of Investigation (CBI) or Crime Branch, Crime Investigation Department (CBCID) or any other independent agencies in the interest of justice. In this order, this writ petition is referred to as second writ petition.
3. The events that precede following these two writ petitions seem to be same. In brief, these are as follows. The Chairperson and the Commissioner of Municipality received a complaint in August, 2003 from residents of 3rd Ward, Kakinada Town stating that Smt. V. Dalamma and others encroached municipal land, allegedly of the value of Rs. 2.00 crores, in Bhaskar Nagar, Kakinada Town by constructing thatched sheds. The Municipal Commissioner issued notices to encroachers to vacate the property, in vain. Therefore, petitioner, Commissioner and other staff members went to the area on 15.9.2003 to evict the encroachers and take possession of municipal property. The encroachers allegedly abused the petitioner and other officers in an un-parliamentary language. Petitioner and Commissioner therefore addressed letters to Police Officials seeking police aid to evict the encroachers. The police did not give any aid in spite of letter to the Commissioner on 20.9.2003.
4. In another incident, the Chairperson received a complaint from more than fifty residents of Sanjay Nagar Revenue Employees Colony of VIII Ward that public latrines are being constructed unauthorisedly. Petitioner, Municipal Commissioner and other engineering staff visited VIII Ward and directed to stop construction of latrines. One Smt. Meria Vara Lakshmi, President of Sridevi Mahila Mandali allegedly came over from the group and abused the petitioner in filthy and un-parliamentary language. The Municipal Commissioner reported the same to Station House Officer, Port P.S., but they did not take any action.
5. In the above circumstances; Chairperson filed the present writ petitions on behalf of Municipal Council placing reliance on Section 378 of A.P. Municipalities Act (hereafter called ‘Act’). The said provision reads as under:
378. Duties of Police Officers :–(1) It shall be the duty of every Police Officer–
(a) to communicate without delay to the proper Municipal Officer any information which he receives of the design to commit or of the commission of any offence under this Act or any rule, bye-law or regulation made under it, and
(b) to assist the Chairman, the Commissioner or any Municipal Officer or employee reasonably demanding his aid for the lawful exercise of any power vesting in the Chairman or the Commissioner or in such Municipal Officer or employees under this Act, or any such rule, bye-law or regulation.
(2) Any Police Officer who omits or refuses to perform any duty imposed on him by this Act shall be deemed to have committed an offence under the law governing the police force for the time being in force.
6. Section 378 does not present any difficulty. It makes a duty of every Police Officer to communicate the Municipality about the commission of any offence under the Act and also assist Chairperson, Commissioner or any Municipal Officer or employee reasonably demanding aid for lawful exercise of power vested in these officials under the Act. Not doing so is itself an offence under Sub-section (2) of Section 378. The difficulty however, in entertaining the writ petition is that it is not filed by the person authorized by the statute to sue or to be sued. When a statute like Municipalities Act incorporates the Municipal Body under Section 6 of the Act, such body should act within four corners of law under which it is brought into existence. Such Municipal Body which seeks to enforce provisions of statute must also invoke jurisdiction of this Court or any other Court strictly in accordance with provisions of law. Having regard to various provisions of Municipalities Act, noticed infra, a Chairperson of the Municipality, in law, has no right to file a suit, proceeding or a writ petition before this Court representing Municipal Council, it is only the Commissioner who is entitled to represent Municipal Body in a Court of law.
7. Sections 47 to 51 of the Act deal with powers of the Chairperson. These provisions do not confer any power on the Chairperson to sue on behalf of Municipal Council. In essence, it shall be the power of Chairman to preside over meeting of the Council. He is also under an obligation to make arrangements for election of Vice-Chairman and convene meeting of the Council. He can also incur contingent expenditure which should be ratified by the Municipal Council, The emergency powers as provided under Section 49 of the Act enabling him to direct execution of any work of emergent nature and report action taken to the Council.
8. The Commissioner of Municipality is the Chief Executive Officer of Municipal Council. The Government appoints the Commissioner under Section 29(1) of the Act who is paid his salary and allowances from out of the consolidated fund of the State. Though the Municipal Administration de jure is vested in the Council under Section 30 of the Act, Section 56 empowers the Commissioner to carry into effect all resolutions of the Council and furnish periodical reports to the Council. He is also entitled to attend meetings of Council and its various other committees. Other various provisions which deal with powers of Chairman and Commissioner of Municipal Council need not be referred to for the purpose of this case, but a reference shall have to be made to Section 370 of the Act which reads as under;
370. Provisions respecting institution etc., of civil and criminal actions and obtaining of legal advice :–The Commissioner may, with the approval of the Council except in respect of matters falling under Clauses (a), (b) and (h),-
(a) take, or withdraw from proceedings against any person who commits–
(i) any offence against this Act, the rules, bye-laws or regulations;
(ii) any offence which affects or is likely to affect any property or interest of the Council or the due administration of this Act;
(iii) any nuisance whatsoever;
(b) compound any offence against this Act, the rules, bye-laws or regulations which has been specified as compoundable in Schedule-VI;
(c) take, withdraw from or compromise proceedings for the recovery of expenses or compensation claimed to be due to the Council;
(d) withdraw or compromise any claim against any person in respect of a penalty payable under a contract entered into with such person;
(e) defend any suit or other legal proceedings brought against the Council or against any municipal authority, officer or employee, in respect of anything done or omitted to be done as aforesaid:
Provided that where the Council or the executive committee refuses to defend a suit or other legal proceedings which in the opinion of the Government ought to be defended, the Government may direct the executive committee to defend such suit or legal proceedings:
(f) compromise any claim, suit or legal proceedings brought against the Council or against any municipal authority, officer or employee, in respect of anything, done or omitted to be done as aforesaid;
(g) institute and prosecute any suit or withdraw from or compromise any suit or claim, which has been instituted or made in the name of the Council or any other municipal authority (officer or employee).
(h) Obtain such legal advice and assistance (as he may), from time to time, think it necessary or expedient to obtain, or (as he may) be desired by the Council to obtain, for any of the purposes mentioned in the foregoing clauses of this section or for securing the lawful exercise or discharge of any power or duty vesting in or imposed upon, any municipal authority or officer or employee,
9. Section 370 of the Act which is the special provision dealing with institution of civil and criminal action and obtaining legal advice leaves not even an iota of doubt that it is only Commissioner of Municipality appointed under Section 29(1) read with Section 2(8)(A) of the Act who can sue and be sued on behalf of the Council. The Chairman and Chairperson of a Municipal Council who is directly elected by the persons in Municipality under Section 23 of the Act cannot represent the Municipal Council in any legal proceedings before any Court or forum. The rationale behind is simple. The Municipal Commissioner relatively permanent official to discharge the functions and implement resolutions of the Municipal Council, whereas Chairman and Chairperson are elected once in five years. If a corporate body is not properly represented, it would present difficulties in the Court of law if Municipality is not properly represented. Further a Chairperson is elected on political party basis and this is an obvious reason, which Chairperson represents Municipal Council. Therefore, this writ petition filed by the Municipal Council, represented by Chairperson is not properly presented to this Court and therefore without expressing any opinion on the merits of the case, matter to be dismissed.
10. Copy of the order shall be sent to Chief Secretary to Government of A.P., Secretariat, Hyderabad with a direction to issue necessary guidelines or if necessary to take action for promulgating rules in this regard for future guidance of all Municipal Corporations and Municipalities in the State of A.P.
11. In the result, for the above reasons, writ petitions cannot be accepted and accordingly without expressing any opinion on merits of case, they are dismissed. It is open to Municipal Council, Kakinada to take appropriate action keeping in view observations made hereinabove.