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The Managiri Village Panchayat, Represented by Its President, K.R. Pichai and ors. Vs. the Government of Tamil Nadu Represented by the Secretary to Government R.D.L.A. Department and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)1MLJ107
AppellantThe Managiri Village Panchayat, Represented by Its President, K.R. Pichai and ors.
RespondentThe Government of Tamil Nadu Represented by the Secretary to Government R.D.L.A. Department and ors.
Cases ReferredPresident and Ors. v. The Government of Andhra Pradesh
Excerpt:
- - they have filed these writ petitions praying for the issue of writs of certiorari to quash the notifications, preliminary as well as final, issued by the government, referred to above. hence, these writ petitions fail and they are dismissed......that the government may, by notification, declare their intention (a) to exclude from the city any local area comprised therein, and defined in such notification ; or (b) to include within the city and local area in the vicinity thereof and defined in such notification ; provided that no-cantonment shall be included within the city. sub-section (5) of this section stated that any inhabitant of a local area in respect of which any such notification has; been published or any local authority affected by any such notification, or the council of the corporation desiring to object to anything therein contained, may submit the objections in writing to the government within six weeks from the publication of the notification and the government shall take a 1 such objections, into consideration......
Judgment:
ORDER

M.M. Ismail, J.

1. A Corporation changed with the Municipal Government of the City of Madurai to be known as the Municipal Corporation of Madurai came into existence on 1st May, 1971 under provisions of the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act XV of 1971) (hereinafter referred to as the Act). Sub-section (4) of Section 3 of this Act stated that the Government may, by notification, declare their intention (a) to exclude from the City any local area comprised therein, and defined in such Notification ; or (b) to include within the City and local area in the vicinity thereof and defined in such notification ; provided that no-cantonment shall be included within the city. Sub-section (5) of this section stated that any inhabitant of a local area in respect of which any such notification has; been published or any local authority affected by any such notification, or the Council of the Corporation desiring to object to anything therein contained, may submit the objections in writing to the Government within six weeks from the publication of the notification and the Government shall take a 1 such objections, into consideration. According to Sub-section (6) of this section, when six weeks-from the publication of the notification, have expired, and the Government have considered the objections, if any, which, have been submitted, they may, as the case may be, by notification, exclude from or include in, the city, the local area or any portion thereof. Sub-section (7) provides that this Act shall come into force in, or cease to apply to, any such local area or any portion thereof, as the case may be, on such date as may be specified, in the notification under Sub-section (6). Sub-section 8 is as follows:

(8) If any local area in which the-Tamil Nadu District Municipalities-Act, 1920 (Tamil Nadu Act V of 1920) or Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958), is in force, is constituted as, or included in the City, the Government may pass such orders as they may deem fit as to the transfer to the Corporation or disposal otherwise of the assets or institutions of any-Municipality or Panchayat in the local area and as to the discharge of the liabilities if, any, of such Municipality or Panchayat relating to such assets or institutions, as the case may be.

Proceeding under Sub-section (4) of : Section 3 of the Act, the Government issued a notification in G. O. Ms. No. 2475, Rural Development and Local Administration Department, dated 17th November, 1973, proposing to include the areas mentioned in the appendix to the notification within the City of Madurai. This notification was. published in the Tamil Nadu Government Gazette on 17th November, 1973. 'There had been representations with regard to this proposal from different panchayats and panchayat unions affected by the proposal. The 'Government, after considering the said representations, issued the notification under Sub-section (6) read with Sub-section (7) of Section 3 of the Act in G.O. Ms. No. 169, Rural Development and Local Administration Department, dated 30th January, 1974 including the areas specified in the annexure to the notification within the jurisdiction, of the Madurai City Municipal Corporation with effect from 30th January, 1974. Subsequently, the Government, in G. O. Ms. No. 422 Rural Development and Local Administration, dated 28th February, 1974, gave certain directions under Sub-section (8) of Section 3 of the Act. The petitioners in all these writ petitions are the Presidents of the Panchayats which are affected by the inclusion of some of the areas within the jurisdiction, of the Madurai City Municipal Corporation under the notifications referred to above. They have filed these writ petitions praying for the issue of writs of Certiorari to quash the notifications, preliminary as well as final, issued by the Government, referred to above.

2. The sole and simple argument advanced on behalf of the petitioners by 'he learned Counsel for the petitioners is that areas affected and invoked in these writ petitions formed part of Panchayats constituted under the Tamil Nadu Panchayats Act, 1958. (hereinafter referred to as the Panchayats Act) and that Act makes specific provision for exclusion of areas included in a panchayat town or panchayat village, as the case may be, and unless the areas in question are excluded from the panchayat town or the panchayat village, as the case may be, under the provisions of the Panchayat Act, there is no area available for inclusion within the jurisdiction of the Madurai City Municipal Corporation. In other words, the argument of the learned Counsel for the petitioners is that the areas in question must be first excluded from the panchayats under the provisions of the Panchayats Act, and thereafter alone they can be included within the jurisdiction of the Madurai City Municipal Corporation under the provisions of the Act, and he Government not having taken steps to have the areas excluded from the respective panchayats under the provisions of the Panchayats Act, the impugned notifications are not valid. I shall now consider the validity of this submission with reference to the provisions contained in the Panchayats Act itself.

3. Section 3 of the Panchayats Act deals with the formation of panchayat villages and panchayat towns. Sub-section (1) (a) of the section states that the Inspector may, by notification, classify and declare every local area possessing urban characteristics and comprising a revenue village or villages or any portion of a revenue village or contiguous portion of two or more revenue villages and having a population estimated at not less than five thousand and an annual income estimated at not less than ten thousand rupees, as a panchayat town for purposes of this Act, Under Section 3 (1) (b) the Inspector shall, by notification, classify and declare every other local area comprising a revenue village or villages or any portion of a revenue village or contiguous portions of two or more revenue villages with a population estimated at not less than five hundred as a panchayat village for the purposes of the Act. Under Section 3 (1) (c) the Inspector shall, by notification, specify the name of such panchayat town or panchayat village. It is Sub-sections (2) and (3) of this section that is strongly relied on by the learned Counsel for the petitioner and therefore , I am extracting Sections 3 (2) and 3 (3) in full, and they are as follows:

3.(2)(a) The Inspector may, by notification, exclude from a village or town any area comprised therein provided that the population of the village or town, after such exclusion, is not less than five hundred.

(b) In regard to any area excluded under Clause (a), the Inspector shall, by notification under Sub-section (1), declare it to be a village or town if it has a population of net less than five hundred include it in any contiguous village or town under Clause (c) (1).

(c) The Inspector may, by notification:

(i) include in a village or town any local areas contiguous thereto; or

(ii) cancel or modify a notification issued under Sub-section (1) ; or

(iii) alter the name of any village or town specified under Sub-section (1).

(d) Before issuing a notification under Clause (a) or under Clause (b) read with Sub-section (1) or under Clause (c) the Inspector shall give the panchayat or panchayats which will be affected by the issue of such notification a reasonable opportunity for showing cause against the proposal and shall consider the explanations and objection, if any, of such panchayat or panchayats.

(3) Any rate-payer or inhabitant of such area or any panchayat concerned may, if he or it objects to any notification under Sub-section (1) or Sub-section (a), appeal to the Government, within such period as may be prescribed.

The argument of the learned Counsel for the petitioners is that under Sections 3 (2) and 3 (3) the Inspector will have to first exclude an area from the panchayat and before issuing a notification in that behalf, he shall have to give the panchayat or panchayats which may be affected by the issue of such notification, a reasonable opportunity for showing cause against the proposal, and shall consider the explanations and objection, if any, of such panchayat or panchayats. Even after the Inspector has taken, a decision and issued a notification after considering and taking into account the explanations and objection referred to above, a rate-payer or inhabitant of such area or any panchayat concerned may, if he or it objects to any such notification, appeal to the Government within such period as may be prescribed. Therefore, the learned Counsel contend that first the Inspector must issue the notification excluding : the area from the panchayat or town, as the case may be, after giving an opportunity to the panchayat or panchayats; affected to put forward its or their case, and even after the Inspector has issued the notification an appeal is available-even to a rate payer, and only when that appeal has been dismissed by the-Government, the area will be available-for inclusion in the City Municipal Corporation of Madurai, and, therefor, so long as the procedure contemplated, in Sections 3(2) and 3 (3) of the Parchayats. Act has not been followed, the area can-net be included within the jurisdiction of the Madurai City Municipal Corporation.

4. In my opinion, this argument is unsound for more than one reason. I have already referred to the provisions, contained in Section 3 of the Act. Those provisions themselves contemplate the affected local authority having an opportunity of making a representation and after considering the representation the Inspector in the first instance and on appeal the Government are given the power to issue the notification either for exclusion or for inclusion. It could not have been in the contemplation of the statute that this process should b taken first under the Panchayats Act and there after repeated or duplicated under the Madurai City Municipal Corporation. Act. If the argument of the learned Counsel for the petitioners is to be accepted, it will follow that first the procedure prescribed under Section 3 of the : Panchayats Act will have to be followed which involves the Government them--selves taking a decision or, appeal preferred by a rate-payer or inhabitant or affected panchayat. Even after the Government has taken such a decision, it will have to again follow the procedure prescribed under the Act, which again, involves the Government giving the very same opportunity to the inhabitant or any local authority to make their representations, and after considering their objections or explanations taking a decision either for inclusion or exclusion. On the face of it, such an argument is-untenable and, therefore, I have no hesitation in rejecting the same.

5. There is yet another reason for rejecting this argument of the learned Counsel for the petitioners. Section 3 (2) (a) of the Panchayats Act deals with the power of the Inspector , by notification, to exclude from a village or town any area comprised therein provided that the population of the village or town after such exclusion is not less than five hundred. Section 3 (2) (b) contains a clinching answer to the argument advanced by the learned Counsel for the petitioners. According to Section 3 (2) (b) in regard to any area excluded under Clause (a), the Inspector shall by notification under Sub-section (1), declare it to be a village or town if it has a population of not less than five hundred or if its population is less than five hundred include it in any contiguous village or town under Clause (1). Thus, it will be seen that the area excluded from a town or village by the Inspector under Section 3 (2) (a) of the Panchayats Act has necessarily to be constituted into an independent panchayat, if the population is five hundred Or more or to be included in another panchayat, if the population is less than five hundred, and therefore, the argument of the learned Counsel for the petitioners that only after an exclusion ordered by the Inspector under Section 3 (2) (a) of the Panchayats Act, the area will be available for inclusion within the jurisdiction of the Madurai City Municipal Corporation overlooks this statutory provision under which no such area will be available for inclusion because such an area has necessarily either to be constituted an independent panchayat or to be included in another panchayat, because the language used in Section 3 (2) (b) is mandatory, namely, the Inspector shall constitute a separate panchayat or include it in the the contiguous village or town under Clause (c) (1). There-lore, the provisions contained in Section 3 (2) (b) gives a complete answer to this contention of the learned Counsel for the petitioners. For these reasons, I reject the contention of the learned Counsel for the petitioners.

6. However, the learned Counsel for the petitioners invited my attention to a decision of the Andhra Pradesh High Court in The Prakasam Nagar Co-operative-House Construction Society Ltd., by its President and Ors. v. The Government of Andhra Pradesh by its Secretary , Health, Housing and Municipal Administration, Hyderabad and Anr. (1966)2 A.W.R. 458, in support of their argument. In my opinion, that decision-is not of any assistance. to the learned-Counsel for the petitioners. In that case, the Government of Andhra Pradesh acting under Section 4 (1) (c) of the Madras District Municipalities Act issued preliminary and final notifications including; a certain local area from Pidingoyya Panchayat in the District Municipality of Rajahmundry. These notifications, were questioned before the Andhra. Pradesh High Court on the ground that once an area is included in a panchayat, it cannot be included in the District Municipality without it first being excluded from the panchayat under the-provisions of Section 3 of the Gram Panchayat Act. The Andhra Pradesh High. Court, after examining Section 4 (1) (c) of the District Municipalities Act and. Section 3 of the Andhra Pradesh Gram. Panchayat Act (II of 1964), came to the conclusion that without excluding the area in question from the jurisdiction, of the Panchayat, that area could not be included within the jurisdiction of the Municipality. In my opinion, that decision does not help the petitioners in. the present cases for the simple reason, that the Andhra Pradesh Gram Panchayat Act II of 1964 does not contain a provision corresponding to Section 3 (2) (b) of the Tamil Nadu Panchayats Act, 1958. Apart from this, I have already extracted Section 3 (8) of the Act which expressly refers to the area included in the Corporation being originally a local area in which the Tamil Nadu District Municipalities Act, 1920, or the Tamil Nadu Panchayats Act, 1958, was in force and, therefore, enabled the Government to make consequential and incidental pro-visions for the purpose of transferring the assets and institutions of any Municipality or panchayat in the local area to the Corporation in question. This provision expressly contemplate; the Government, under the Act, including an area, which originally performed part of a Municipality or a Panchayat, in the area of the Madurai City Municipal Corporation. Such a corresponding provision was not present in the Madras District Municipalities Act, which the Andhra Pradesh High Court considered. Section 4 (5) of the Madras District Municipalities Act, 1920, merely stated that if any local area in which the Madras Local Boards Act, 1920, is in force is constituted as or included in a Municipality the State Government may pass such orders as they may deem fit as to the transfer to the council of such Municipality or disposal otherwise of the. assets or institutions of any local board in the local area and as to the discharge of the liabilities, if any, of such local board relating to such assets or institutions. This Section 4 (5) of the Madras District Municipalities Act did no contemplate the area forming part of a panchayat under the Tamil Nadu Panchayats Act, 1958, being included within a Municipality or constituted as a Municipality under the provisions of Section 4, without following the procedure prescribed under the Panchayat Act itself. In view of these features I am unable to hold that the decision of the Andhra Pradesh High Court relied on is of any assistance to the case of the petitioners in the present case, having regard to the statutory provisions referred to by me already. No other point was urged before me. Hence, these writ petitions fail and they are dismissed. There will be no order as to costs.


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