Commissioner, Sathyamangalam Municipality vs S.N. Nachimuthu

K.N. Mudaliyar, J.—This is an appeal by the Commissioner, Sathyamangalam Municipality against the order dated 8th April, 1971 of the

Special First Class Magistrate, Gobichettipalayam, acquitting S.N. Nachimuthu, accused Respondent herein, of the offence contravening Section

197 and 199 read with Section 216(1) of the Madras District Municipalities Act (Act V of 1920).

A brief outline of facts is necessary for the proper apprehension of the case. On 15th June, 1970 the Respondent applied for permission to the

Appellant for re-construction of the building in Door No. 11/31, at Vaniar Street at Sathyamangalam. The application was rejected by the

Appellant on 28th July, 1970 in Ex.B-1. Later, on 26th August, 1970 the Respondent filed another application in Ex.P-1. On 7th September,

1970, the Appellant passed an order directing the Respondent not to proceed with the reconstruction work. On 18th September, 1970 the

Appellant rejected the application of the Respondent in Ex.P-3. On 28th October, 1970, P.W.1, the Building-Inspector, inspected the new

construction which amounted to alteration of the old building. Again, the Appellant passed an order in Ex.P-4 rejecting the request of Respondent

on 28th October, 1970. He confirmed the order passed in Ex.P-4 in a later order in Ex. P-5 dated 11th November, 1970. Ex.P-5 was served on

the Respondent on 13th November, 1970. Again the Respondent filed another fresh plan and application on 16th November, 1970 in Ex P-6.

This application was also rejected on 19th December, 1970 in Ex. P.7.

On these facts, the learned trial Magistrate relied on the rationale in P.K. Ramaswamy Vs. Municipality of Coimbatore, and The Public

Prosecutor Vs. T. Krishna Rao, and found that the prosecution filed Exs. P-1 to P-7 for the purpose of covering the delay caused in the approval

of the plan and grant of permission u/s 200 and 201 of the Act. The learned trial Magistrate noticed that the work was in progress in the light of the

terms of Ex.P-1. On 28th July, 1970, the order Ex.D-1, has been issued, but the trial Magistrate noticed that there has been a lapse of more than

thirty days. The learned trial Magistrate relied on Section 321(11) of the Act and acted on a presumption that the application shall be deemed to

have been allowed.

In my view, the learned trial Magistrate has erred grievously in interpreting the relevant sections of the Act. A total reading of Section 197, 198,

199, 200, 201, 202, 216, 321(11), 337 and 339 of the Act would make it clear that the Commissioner has got to pass an order within thirty days

from the date of the application. It is true that he passed an order refusing to grant permission to the Respondent only on 28th July 1970. But no

legal presumption follows from this delay, in favour of the Respondent. After the rejection of the request of the Respondent for permission in Ex.

D. 1 on 28th July 1970, the Respondent filed another application on 26th August 1970. Interpreting this application of the Respondent in its best

light, I even presume that this is a ''written request'' to the council, for the Special Officer was combining the functions of an Executive Officer, and

the Chairman and the Municipal Council rolled into one. Therefore, the legal entity of the Council, although different from that of the Commissioner,

is still embodied in one and the same person, viz., the Special Officer. Therefore, considering the application of the Respondent in Ex. P. 1 as a

written request to the council, I notice that the Commissioner has sent his communication to the Respondent requesting him not to proceed with the

work in Ex. P. 2 dated 27th September 1970. Ultimately the Respondent''s request was rejected in Ex. R-3 dated 18th September 1970. This

timetable would clearly indicate that the Council has acted within thirty days. Had it passed any order beyond 26th September 1970, certainly the

legal presumption in favour of the Respondent u/s 202 of the Act would inevitably follow. But, in this case, there is the stubborn fact that Ex. P. 3

was passed as early as 18th September 1970 within thirty days. Therefore, the trial Magistrate clearly erred in applying Section 321(11) of the Act

to the facts of the case, as they are totally inapplicable to any permission for construction or reconstruction. That section would apply only to

licences and allied matters. Even subsoil) provides for an exception--""and save as otherwise specially provided in this Act."" Uadoubtedly, in my

view, Section 197, 198, 199, 200, 201, 202, 216, 317, 337 and 339 of the Act are special provisions for grant of applications for construction or

reconstruction.

Learned Counsel for the Respondent strenuously and vehemently contended that the Special Officer of the Sathyamangalam Municipality cannot

continue to discharge the functions of the Municipal Council beyond 6 months in view of Sub-section (2) of Section 368 of the Act. His arguments

are as follows: Sathyamangalam Municipality has been converted from a Panchayat and constituted as a Municipality. The area may have been

declared as a Municipality about 12th January 1970 for ''Sathyamangalam Municipality'' has been included under one of the schedules of the Act.

On 16th January 1970, one M. Kandaswami has been appointed u/s 368(1) as the Special Officer of Sathyamatgalam Municipality. His duty is to

cause arrangements for election to be made so that the newly elected Council may come into office on a day within six months from the date of

publication of the notification under Sub-section (3) of Section 4 declaring the area to be a Municipality. In regard to institutions pertaining to Local

Administration they are solely conceived for people to govern themselves, and by no stretch of imagination the constitution of a Council could be

postponed, for, such an arbitrary continuance of a Special Officer would be a negation of self-government and local administration.

There is some force in the argument submitted by Mr. Sekkizhar. But the Legislature, in its wisdom, has framed Sub-section (3) to Section 368,

which applies to the facts of the case. A combined reading of Sub-section (2) and (3) of Section 368 of the Act would undoubtedly make it clear

that the Special Officer is bound to make arrangements for election of a Council. For the Council to come into office, Sub-section (2) mentions it

to be on a day within 6 months from the date of publication of the notification under Sub-section (3) of Section 4 declaring the area to be a

municipality. But the Section mentions the word only ""may."" Therefore, Sub-section (3) would provide for the continuance of the Special Officer to

discharge the duties and perform the functions of a Municipal Council until a Council has been constituted, within the meaning of Sub-section (2) of

Section 368. Therefore the Special Officer functioning as Municipal Council at the time of rejecting the application of the Respondent in its order

dated 18th September 1970 in Ex. P. 3 is perfectly legal and valid. I am unable to accept the argument of Mr. Sekkizhar.

Normally, we, find sometimes partisan and personal politics coming into play in the bitter clash of Municipal politics. But, here is a case where a

Special Officer is administering the Sathyamangalam Municipality. I cannot shed the feeling that the Respondent was rather obdurate in defying the

orders of the Special Officer when he continued to reconstruct the building despite the refusal of the permission by the Special Officer Therefore, I

convict the Respondent of contravening the provisions of Section 197 and 199 read with Section 216(1) of Act V of 1920 and sentence him u/s

317 of the Act to pay a fine of Rs. 10 (Rupees ten only) in default to undergo simple imprisonment for one week. Time for payment 3 months.

The criminal appeal is allowed in the above terms.