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Periaswamy Goundar Vs. Municipal Council, by Commissioner and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Reported in(1960)1MLJ398
AppellantPeriaswamy Goundar
RespondentMunicipal Council, by Commissioner and anr.
Excerpt:
- .....residential house, which bore no. 58, borough road, erode. by a resolution of the erode municipal council in its proceedings, dated 25b may, 1957, this body decided not to grant the permission on the ground that the same would affect the public health and be a nuisance to the public. the second respondent sought to have this resolution of the municipal council cancelled by an application to the government in revision. but by their order, dated 19th november, 1957, the government refused to interfere with this resolution. the second respondent, however, still persisted in its attempts to obtain the licence and succeeded, a resolution being passed by the erode municipal council on 27th february, 1958, granting the requisite permission and licence.3. complaining that this.....
Judgment:
ORDER

Rajagopala Ayyangar, J.

1. These two writ petitions are directed to the Municipal Council of Erode and seek the relief of obtaining cancellation of a licence issued to the second respondent in each of the petitions permitting the latter to work a powerloom in a building adjacent to the residential premises of the petitioner.

2. A few facts are necessary to be stated to appreciate the points arising for decision. The second respondent, Palaniandavar Textiles, by proprietor, Muthuswami Gounder & Co., applied to the Erode Municipality in or about November, 1956, for the grant of a licence to enable him to install a 5 H.P. motor to work 5 power-looms in Premises No. 55, Muthuvelappa Gounder Street, Erode. This door No. 55 in exactly at the back of the petitioner's residential house, which bore No. 58, Borough Road, Erode. By a resolution of the Erode Municipal Council in its proceedings, dated 25b May, 1957, this body decided not to grant the permission on the ground that the same would affect the public health and be a nuisance to the public. The second respondent sought to have this resolution of the Municipal Council cancelled by an application to the Government in revision. But by their order, dated 19th November, 1957, the Government refused to interfere with this resolution. The second respondent, however, still persisted in its attempts to obtain the licence and succeeded, a resolution being passed by the Erode Municipal Council on 27th February, 1958, granting the requisite permission and licence.

3. Complaining that this resolution of the Municipal Council granting a licence thereunder was beyond the powers of the Municipality the present petitioner moved this Court in W.P. 222 of 1958 for a direction to quash the resolution. The main ground urged in this petition was that 55, Muthuvelappa Goundar Street, where the second respondent had been permitted to install the machinery and work the powerlooms had been notified as a residential area under Section 89(1) of the Madras Public Health Act. Before Writ Petition 222 of 1958 came on for hearing in the normal course, the Erode Municipal Council held another meeting on 30th June, 1958, at which a resolution cancelling the earlier resolution, dated 27th February, 1958, was passed. Since the petitioner had achieved what he desired to achieve by his writ petition, namely, the cancellation of the resolution of the Council, dated 27th February, 1958, the petition was not pressed, it was withdrawn as having become unnecessary and dismissed. Notwithstanding, however, the cancellation of the resolution, dated 27th February, 1958, by proceedings of 30th June, 1958, the Commissioner of the Erode Municipality still continued to implement the resolution, dated 27th February, 1958, by granting the licence and the permission which the second respondent had sought for the installation of the motors and the working of the looms. The petitioner, through his counsel, addressed a letter to the Commissioner inviting his attention to the resolution, dated 30th June, 1958 and the circumstances in which Writ Petition 222 of 1958 was withdrawn, and requesting him to give effect to the last resolution of the Council, dated 30th June, 1958, by which the earlier resolution, dated 27th February, 1958, had been cancelled. By his reply, dated 14th August, 1958, the Commissioner pointed out that the resolution, dated 30th June, 1958, was not in accordance with law and that in the circumstances he could not give effect to it, but had been awaiting the orders of Government to whom the matter had been referred. It is in these circumstances that these two Writ Petitions have been filed. The relief prayed for in W.P. 831 of 1958 is in the nature of a writ of mandamus to the Commissioner of the Municipality to give effect to and implement the resolution, dated 30th June, 1958, by which the earlier resolution, dated 27th February, 1958, had been cancelled, while the relief sought in W.P. 830 of 1958 is practically a repetition of that sought in W.P. 222 of 1958, namely, to direct the cancellation of the resolution of the Municipal Council, dated 27th February, 1958.

4. I shall first take for consideration W.P. 830 of 1958 because if the petitioner succeeds in it, the validity of the resolution of the Municipal Council, dated 30th June, 1958, becomes immaterial. The foundation of W.P. 830 of 1958 is that the Municipality had no jurisdiction to grant permission to the second respondent to install machinery and work the powerlooms in No. 55, Muthuvelappa Gounder Street, because that was an area, which had been notified as a residential area under Section 89(1) of the Madras Public Health Act. I have examined the relative notification issued under the Public Health Act and I find that No. 55 is not included in the residential area. The fact on which W.P. 830 of 1958 is based is, therefore, seen to be non-existent and the petition has to be dismissed.

5. Writ Petition 831 of 1958, however, stands on a different footing. Whether or not No. 55, Muthuvelappa Gounder Street, was a residential area, the Municipality had a right under Section 250 of the District Municipalities Act to refuse a licence for the installation of motors, etc., and work an industry in thickly populated areas. Even if the resolution, dated 27th February, 1958, directing the granting of a licence to the second respondent was valid, and that is the basis upon which I am dismissing W.P. 830 of 1958, the question still remains whether the resolution, dated 30th June, 1958, has or has not to be given effect to by the Commissioner.

6. The factum of the resolution, dated 30th June, 1958, is not in controversy, and the only ground upon which the Commissioner of the Municipality has refused to give effect to it was because he considered that it was illegal. The grounds upon which he based his opinion are really not very relevant for the disposal of this petition, and so I do not propose to dwell on them. I shall assume that the Commissioner of the Municipality was correct in thinking that it was incompetent for the Municipal Council to have passed that resolution because a licence has already been granted to the 2nd Respondent under the previous resolution. The question still remains as to whether the Commissioner could refuse to carry out the resolution of the Municipal Council, because of the doubt he entertained regarding the legality of such a resolution.

7. To consider this question it is necessary to advert to the scheme of the District I Municipalities Act. Part II, Chapter III, of Madras Act V of 1920, after constituting the Municipal Council as a corporate body (Section 6(2)) sets out in Section 13-A the functions of the Executive Authority, that is, the Commissioner. This Section enacts:

The Executive Authority of the Municipal Council shall (a) carry into effect the resolution of the Council;

The other functions set out in paragraphs (b) and (c) are not relevant and I am, therefore, omitting reference to them. This duty of the Commissioner, the Executive Authority, is further emphasised by the positive provision of Section 22 which enacts:

The Executive Authority shall be bound to give effect to every resolution of the Council unless such resolution is modified, suspended or cancelled by a controlling authority.

The group of sections following Section 34 deals with the controlling authorities. Section 34 empowers the District Collector to enter upon and inspect any property or work under the control of the municipal authority, and Sub-section (2) of that section vests in the State Government and on the District Collector the power to call for information from the Municipal Council in relation to its statutory activities. Section 35 enables the Collector to enforce the execution of resolutions if the Executive Authority makes default in carrying out the resolutions. The power to suspend or cancel resolutions, which is really the power which the Commissioner of the Municipality has purported to exercise in this case, is vested in the State Government under Section 36(1), which enacts.

The State Government, may, by order in writing - (i) suspend or cancel any resolution passed, order issued, or licence or permission granted...in pursuance or under colour of this Act, if in their opinion,...(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act, or any other law....

There is a proviso which states that the State Government shall before taking action under this section on any of the grounds referred to in Clauses (a) and (b) give the authority or person concerned an opportunity for explanation. Sub-section (1)(ii)(c) of Section 38 enables the District Collector to suspend the resolution, orders, licences, permissions granted by the Municipality, if the execution of such resolutions or order or the continuance of such licence or permission or the doing of the act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray. Section 37 vests in Collectors emergency powers but it is not necessary to go more fully into it as it is unnecessary for the purpose of this petition. This in brief is the provision made by the Act for suspending or cancelling the operations of the resolutions passed by the Council which might be held to be in excess of the powers conferred by the Act or other law. It would be seen, therefore, that the power of suspension is vested only in the State Government and the only function of the Commissioner of the Municipality would be to draw the attention of the Government to the supposed invalidity or ultra vires character of the resolution and leave it to the State Government to act under the terms of Section 36. In my opinion, Sections 13-A and 22, taken in conjunction with the specific provisions contained in Section 36, leave no room for doubt that the Commissioner of a Municipality is not vested with any power to refuse to carry out the resolution of the Council. His opinion regarding the validity of the resolution cannot form any foundation for enabling him to suspend the resolution, and refuse to perform the statutory duty enjoined on him by Sections 13-A and 22 of the Act.

8. In view, therefore, of these provisions the petitioner is entitled to succeed in W.P. No. 831 of 1958 for the issue of a writ of mandamus to direct the Commissioner of the Municipality to give effect to the resolution, dated 30th June, 1958.

9. I was informed that the Commissioner had forwarded the resolution of the Municipal Council, dated 30th June, 1958, to the Local Government for action under Section 36 by way of cancellation, and the Government had not passed orders on this ?communication because of the pendency of this Writ Petition. The allowance of Writ Petition 831 of 1958 will be no bar to the Government exercising their statutory powers under Section 36(1) of the District Municipalities Act because the reasoning on the basis of which I have allowed the petition is that it was not within the power of the Commissioner to suspend or cancel the resolution of the Municipal Council, which under Section 36(1) of Madras Act V of 1920, is exclusively vested in the State Government.

10. W.P. No. 830 of 1958 fails and is dismissed, and the rule nisi is discharged. W.P. No. 831 of 1958 succeeds and the rule is made absolute and a writ will issue directing the Commissioner of the Municipality to give effect to the resolution of the Council dated 30th June, 1958. No order as to costs in either petition.


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