BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17/08/2007
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
WRIT PETITION (MD) No.4819 of 2004
and
W.P.M.P.(MD)No.4793, 99 and 173 of 2005
Radhapuram Panchayat Union
Radhapuram, through its Councillor,
Soundararajan. .. Petitioner
vs.
1.The Secretary to the Government,
Municipal Administration and
Water Supply Department,
Fort St.George,
Madras - 9.
2.The Rural Development Department,
Panagal Maligai,
Saidapet,
Chennai - 15.
3.The District Collector,
Tirunelveli District,
Tirunelveli.
4.The Executive Officer,
Tisaiyanvillai Town Panchayat,
Tisaiyanvillai Taluk,
Tirunelveli District.
5.A.Simson .. Respondents
(5th respondent impleaded
vide order dated 9.6.2007
in WPMP (MD)No.1474 of 2005)
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari calling for the records in proceedings bearing
No.A2/1856/2002 dated 18.12.2004 on the file of the 3rd respondent and quash the
same.
!For petitioner ... Mr.K.Srinivasan
^For respondents ... Mrs.V.Chellammal,
Special Government Pleader
for R1 to R3
Mr.P.Senthurpandian for R4
Mr.Vijayakumar for R5
:ORDER
This Writ Petition is filed by the Panchayat Union through one of its
Councillor seeking to quash the order dated 18.12.2004 by which the third
respondent/District Collector directed the Commissioner to hand over 156 shops
and vacant plots and other properties to the Tisaiyanvillai Town Panchayat/4th
respondent herein.
2. The Commissioner Panchayat Union instead of handing over the properties
as directed by the third respondent pursuant to the order of the first
respondent Government made in G.O.Ms.No.298, Municipal Administration and Water
Supply Department dated 20.11.1996 is holding on to the same and had set up one
of the Councillors to file the present Writ Petition. He also obtained an order
of interim stay in W.P.M.P.(MD)No.4793 of 2004 on 30.12.2004. A vacate Stay
Petition being W.V.M.P.(MD)No.l173 of 2005 was filed by the 4th respondent.
Thereafter, an impleading petition was filed by one of the Ward Member of the
Tisaiyanvillai Town Panchayat, and he got himself impleaded as the 5th
respondent and had filed a vacate stay petition being W.V.M.P.(MD)No.99 of
2005.
3. With the consent of parties, the main Writ Petition itself was taken
up for hearing.
4. Heard Mr. K. Srinivasan, learned counsel for the petitioner, Mrs.
V.Chellammal, learned Special Government Pleader for R1 to R3 and Mr.
Senthurpandian, learned counsel for R4 and Mr. R.Vijayakumar, learned counsel
for R5 and have perused the records.
5. After the Tamil Nadu Panchayats Act 1994 was enacted, the Town
Panchayats were brought within the purview of the Tamil Nadu District
Municipalities act 1920. Therefore, the Town Panchayats, which are situated
within the territorial limits of a Panchayat Union were made as autonomous units
and the Panchayat Unions were divested of its jurisdiction over the properties
vest on the Town Panchayats which include shandies, markets, roads, bridges
etc., and coming within the territorial limits of the Town Panchayats.
6. In order to resolve the disputes between Town Panchayats which are
functioning under the Tamil Nadu District Municipalities Act, 1920 and the
Panchayat Unions coming under the Tamil Nadu Panchayats Act 1994, the
Government had issued G.O.Ms.No.298, Municipal Administration and Water Supply
Department dated 20.11.1996. Pursuant to the direction given in the said G.O.,
the assets which lie under the jurisdiction of Town Panchayats and are
maintained by them were directed to be transferred from the Panchayats Unions to
the Town Panchayats for maintenance and management with immediate effect.
7. On behalf of the petitioner Panchayat Union, a Writ Petition was filed
by an elected Councillor by name Arumugam (being W.P.(MD)No.2972 of 1997)
challenging the said G.O.,. However, the said Writ Petition was dismissed with
liberty to the said Councillor to approach the Government. The Government on
the representation made by the said Arumugam passed an order dated 21.3.2001 by
stating that as already it had issued G.O.Ms.No.298, Municipal Administration
and Water Supply Department dated 20.11.1996 by which markets within the
Panchayat Unions should be transferred to the Town Panchayats and therefore, the
petitioner Panchayat Union Council cannot retain those properties.
8. Since the properties were not transferred by the Panchayat Union,
another Writ Petition was filed by the 5th respondent before this Court being
W.P.(MD)No.11920 of 2004 seeking for the transfer of assets belonging to the 4th
respondent from the petitioner Panchayat union. However, this Court by an order
dated 16.9.2004 directed the first respondent to consider the grievance of the
5th respondent. It was pursuant to this order, the District Collector was
constrained to pass an order dated 18.12.2004, which is impugned in the present
Writ Petition. There is no quarrel about the transfer of other assets and the
present dispute relates to the transfer of 156 shops for which ground rent is
collected by the petitioner Panchayat Union Council. In fact, those 156 shops
are situated within the territorial limits of the 4th respondent Town Panchayat.
It was by an order dated 12.6.1993, the Panchayat Union Council permitted the
shop keepers to put up temporary structures by paying ground rent. Since the
weekly shandy was given to the Town Panchayat in the year 1998 itself by not
handing over the right to collect ground rent from the 156 shops, revenue to the
extent of Rs.2.02 lakhs was being deprived to the 4th respondent.
9. The petitioner Panchayat Union passed a Resolution No.81 dated
31.7.2001 once again seeking permission to retain the right to collect ground
rent. They had relied on G.O.Ms.No.131, Municipal Administration and Water
Supply Department dated 23.5.1997, which was passed with reference to Kulithalai
Panchayat Union Council vis-a-vis Kulithalai Town Panchayat. It was directed by
that G.O. that the community hall, marriage hall and carpentary and smithy
workshops can be retained by the Panchayat Union. But in the same order, it was
directed that public properties such as markets, roads, bridges etc., should be
handed over to the Town Panchayat and a direction was also given to handover
road, markets, bridges maintained by the Kulithalai Panchayat Union to
Kulithalai Town Panchayat.
10. In the guise of considering the resolution passed by the writ
petitioner Panchayat Union, the District Collector contrary to the Government
Order and contrary to the orders passed in the Writ Petition ordered to keep in
abeyance the handing over of the public properties pending for a further
clarification from the Government. Thereafter a letter was written by the
District Collector dated 6.8.2001 to the Director of Rural Development (the 2nd
respondent) seeking certain clarification. In his order, he had blatantly took
the side of the writ petitioner Panchayat Union Council without any
justification and without regard to the orders passed by the Government.
11. The 2nd respondent wrote a letter to the first respondent dated
6.9.2001 and enclosed the proposal sent by the District collector. However, it
was advised that the Panchayat Union’s shandy can be given to the Town Panchayat
but the 156 shops can be retained by the petitioner Panchayat Union Council. It
is on the strength of this correspondence between the third respondent and the
second respondent on the one hand and the second respondent and the first
respondent on the other hand, the present Writ Petition had been filed. In
fact, there is no lack of clarity in the earlier order of the Government with
reference to the transfer of Town Panchayat properties coming within its
territorial limits.
12. The order of the first respondent in G.O.Ms.No.298, Municipal
Administration and Water Supply Department dated 20.11.1996 is not only legally
correct but also in consonance with the provisions of the Tamil Nadu Panchayats
Act 1994. The Panchayat Unions are not expected to maintain roads, bridges,
markets (shandies) etc., and the Town Panchayat is the primary unit under the
District Municipalities Act. It is an urban agglomeration and the only source
for them to get revenue was by collection of rents.
13. By no stretch of imagination, the writ petitioner can stall the lawful
possession and collection of revenue by the 4th respondent. The attempt made by
the petitioner in filing the present Writ Petition is highly reprehensible. In
fact, only a Panchayat Union Council can have a right to maintain a Writ
Petition in its name as it has perpetual succession and seal and it is a body
corporate.
14. The Panchayat Council can sue in its name represented by its
Commissioner on the strength of a resolution made by a Panchayat Union Council.
A Ward Councillor cannot maintain a Writ Petition in the name of the Panchayat
Union Council. The Writ Petition is liable to be rejected on this sole ground.
15. Since the action of the Panchayat Union Council was being indirectly
supported by the third respondent/District Collector in defiance of the
Government Orders, the matter was heard at length. Therefore, the Court is not
giving a disposal on technical ground.
16. Mr. K.Srinivasan, learned counsel for the petitioner contended that
G.O.Ms.No.131, Municipal Administration and Water Supply Department dated
23.5.1997 was in fact a modification of the earlier order in G.O.Ms.No.298,
Municipal Administration and Water Supply Department dated 20.11.1996.
Therefore, they are eligible to have the benefit of the second Government Order.
17. In fact, the second Government Order has been issued only pursuant to
a quaery raised in respect of Kulithalai Panchayat Union Council and Kulithalari
Town Panchayat and it does not deviate from the earlier order of the Government.
The second order, in fact, is far from supporting the case of the petitioner, it
goes against the stand taken by the petitioner. The Panchayat Union Councils
are entitled to retain their properties but they are not entitled to retain
public properties such as markets, roads, bridges etc., which are exclusively to
be maintained by the Town Panchayats.
18. Attempt to make a distinction between G.O.Ms.No.298, Municipal
Administration and Water Supply Department dated 20.11.1996 as well as the
impugned order passed by the Collector is not permissible and the District
Collector being a subordinate functioning of the Government is bound to give
effect to a Government Order. In fact, only after change of the officer in the
post of the third respondent, the present impugned order came to be passed.
This clearly shows that the previous Collector was very much supportive to the
Panchayat Union Council. He was issuing communication contrary to the direction
issued by the Government as well as the provisions of the Tamil Nadu Panchayats
Act, 1994 and the Tamil Nadu District Municipalities Act, 1920.
19. The impugned order does not suffer from any illegality and is very
much in consonance of the provisions of the Tamil Nadu District Municipalities
Act as well as the Government’s direction issued in G.O.Ms.No.298, Municipal
Administration and Water Supply Department dated 20.11.1996.
20 Under the circumstances, the writ petitioner/Panchayat Union Council is
hereby directed to hand over all the 156 shops to the 4th respondent within a
period of four weeks from the date of receipt of copy of the order. The
Commissioner of the petitioner Panchayat Union Council is hereby directed to
implement the order of this Court without fail and send a compliance report to
this Court.
21. With reference to the loss of earning from and out of the ground rent
collected from the 156 shops by the petitioner Council to the deprivation of the
4th respondent, the third respondent/District Collector is hereby directed to
quantify the income derived by the Radhapuram Panchayat Union and after giving a
credit to the expenditure involved in maintaining the shops, arrive at the
income derived by the Panchayat Union Council and pass an appropriate order
directing the Radhapuram Panchayat Union to hand over the amounts collected from
and out of the 156 shops to the 4th respondent thereafter within a period of
four weeks.
22. With the above directions, the Writ Petition is dismissed. Interim
stay already granted stands vacated. No costs. The connected Miscellaneous
Petitions are closed.
asvm
To
1.The Secretary to the Government,
Municipal Administration and
Water Supply Department,
Fort St.George,
Madras – 9.
2.The Rural Development Department,
Panagal Maligai,
Saidapet,
Chennai – 15.
3.The District Collector,
Tirunelveli District,
Tirunelveli.
4.The Executive Officer,
Tisaiyanvillai Town Panchayat,
Tisaiyanvillai Taluk,
Tirunelveli District.