S.A. Manikandaraja vs The State of Tamil Nadu and Others

K. Venkataraman, J.—The present writ petition has been filed challenging the action of the first Respondent in dissolving the Rajapalayam Municipality. Thus, the present writ petition has been filed challenging G.O. Ms. No. 200 dated 15.10.2008 with a further direction directing the first Respondent to initiate appropriate action to continue the functioning of the elected Municipal Council of Rajapalayam.

The short matrix of the matter as put forth by the Petitioner in his affidavit in support of the writ petition is set out here under:

2.1. The Local Body elections held for the State of Tamil Nadu on 15.10.2006 for all Corporations, Municipalities and Town Panchayat. The Petitioner contested for the 40th Ward, Rajapalayam Municipality on behalf of All India Anna Dravida Munnettra Kazagam. He was successful in the said election. There are 42 Councillors representing their respective wards including the Chairman and Vice Chairman.

2.2. On 28.10.2006, elections were held for the post of Chairman and Vice Chairman and Mrs. Rathinam, the fifth Respondent herein representing the 37th Ward and Mr. A.A. Subba Raja, representing the 1st Ward were elected as Chairman and Vice Chairman respectively. Aggrieved by the inactive attitude of the fifth Respondent in discharging her duties as Chairman in convening the meetings and passing necessary subjects for the welfare of the people of Rajapalayam Municipality, the Petitioner and other Councillors have given various representations to the fourth Respondent. However, no action has been taken by the fourth Respondent. The Petitioner and 20 other Councillors, therefore, have filed a writ petition before the Madurai Bench of the Madras High Court for a mandamus directing the first Respondent to initiate necessary action against the fifth Respondent for her failure to discharge her function as Chairman of the said Municipality and further directing the first Respondent to convene the Municipal Council Meeting regularly in accordance with law. The said writ petition was disposed of on 14.02.2008 with certain directions. However, the first Respondent, wantonly failed to comply with the said order which necessitated the Petitioner to file a contempt petition in Cont.P. No. 194 of 2008. In turn, the first Respondent filed a petition for extension of time for passing orders as per the directions made there under. Both the matters came before the Madurai Bench of the Madras High Court and the same are pending.

2.3. While so, the first Respondent had issued a show cause notice dated 07.05.2008 u/s 41 of the Tamil Nadu District Municipalities Act, 1920 (herein after referred to "the Act") to the Rajapalayam Municipality, to show cause within fifteen days from the date of receipt of the said notice why the said Council should not be dissolved.

2.4. On receipt of the show cause notice, the fifth Respondent herein announced that a meeting would be held on 16.05.2008 at about 4.00 p.m. to give an explanation of the Municipal Council for the said show cause notice. However, the fifth Respondent failed to conduct the meeting and postponed it citing law and order problem. Therefore, as a Vice Chairman, the Petitioner conducted the meeting in the presence of the Senior member Ur. P. Yogasekaran and passed resolutions along with explanation of majority Councillors viz., 23 out of 42 in the presence of the fourth Respondent. The same has, been forwarded to the concerned authorities, but the fourth Respondent refused to acknowledge the same, who is in glow with the fifth Respondent. The Petitioner therefore, communicated a copy of the resolutions to the Respondents 1 to 4 by registered post.

2.5. The show cause notice must be issued only after the provisions of Sections 39 and 40 of the said Act are complied with but the first Respondent had caused notice in a hasty manner.

2.6. In the meanwhile, one Mr. S.S. Mani, Councillor of 19th Ward, had filed two writ petitions before this Court in W.P. Nos. 12769 and 12770 of 2008 challenging the show cause notice of the first Respondent and consequently directing the first Respondent to initiate appropriate action u/s 39 of the said Act. By an order dated 27.05.2008 in M.P. No. 2 of 2008 in W.P. No. 12770 of 2008, this Court passed an order giving liberty to the Petitioner thereon to give a reply to the show cause notice and the first Respondent was given liberty to pass orders, ''but the same shall be kept in abeyance for a period of two weeks so as to enable the Petitioner thereon to work out his remedy. Thereafter, those two writ petitions have been disposed of by an order dated 09.07.2008. In the said order, the seventh Respondent was directed to send Agenda relating to the show cause notice dated 07.05.2008 on or before 14.07,2008. On receipt of the same, the fifth Respondent was directed to send notice of meeting to consider the said show cause notice to all the Counsellors fixing the date of meeting on 23.07.2008 at 4.00 p.m. On the said date, the Counsellors have been directed to consider the Agenda and the minutes of the Agenda was ordered to be sent to the seventh Respondent, the Government. On receipt of the report from the seventh Respondent, the Government was directed to consider the same and pass orders in accordance with law. Further, the learned District Judge of Virudhunagar District at Srivilluputhur had been nominated as Observer on the date of the meeting i.e., on 23.07.2008.

2.7. Pursuant to the orders made thereunder, the Council meeting was convened on 23.07.2008 in the presence of the learned District Judge at Virudhunagar. In the said meeting, the contents of the show cause notice was the Agenda and all the items in para B and C of the show cause notice except B (4) were passed by the Municipal Council and the meeting was held in a peaceful manner. The Petitioner along with 23 Councillors, has communicated the minutes of the meeting to the first Respondent for consideration. While so, suddenly, on 15.10.2008, the first Respondent had. passed the impugned order dissolving the Municipality. The first Respondent has appointed the third Respondent as a Special Officer of the Municipality and to conduct the election before 20.03.2009 u/s 41(1)(b) of the Act. Thus, challenging the said G.O. Ms. No. 200 dated 15.10.2008 of the first Respondent, the present writ petition has been filed.

Counter affidavit has been filed on behalf of the first Respondent, wherein the following the facts have been set out:

3.1. The fifth Respondent Municipality was not functioning properly, as a consequence the welfare schemes meant for the public could not be implemented. The monthly Council meeting was not conducted periodically from the month of October, 2007. The Petitioner and 20 others have filed a writ petition before the Madurai Bench of the Madras High Court in W.P. No. 373 of 2008 against the activities of the Chairman for her failure to discharge her function as Chairman of the said Municipality, In, the. said, writ petitioner'' an order dated 14.02.2008, the first Respondent was directed to consider the representation of the Petitioner. Based on the report of the Regional Director of Municipal Administration, Tirunelveli and Commissioner of Municipal Administration and considering that the welfare scheme of the Municipality worth about Rs. 537.79 lakhs has not been executed as on date, the Government has decided to dissolve the Municipal Council u/s 41 of the said Act. Before that, a show cause notice has been issued to the Council to give explanation why the Council should not be dissolved. The Chairman, by her letter dated 07.05.2008, had stated that a Special Meeting of the Council was convened on 16.05.2008 and ended with no decision due to the chaos and confusion among the Councillors.

3.2. One Mr. S.S. Mani filed two writ petitions in W.R Nos. 12769 and 12770 of 2008 against the show cause notice and this Court had directed the learned District Judge of Virudhunagar to be an observer in the meeting on 23.07.2008. As per the direction of the High Court, the Council meeting was convened to give reply to the show cause notice of the Government. While passing resolution, out of 42 Councillors, 18 Councillors including the Chairman have proposed to dissolve the Council and 22 Councillors including the Petitioner have opposed the decision of the Government and sent the same to the Government. The fourth Respondent had sent a report saying that the welfare schemes are still pending and have not been implemented and the people of the Municipality are suffering due to lack of welfare schemes. Thus, the Government dissolved the Council u/s 41 of the said Act and a Special Officer has been appointed to perform the function of the Municipal Council and he has also taken charge on 16.10.2008. The Special Officer convened the Council meeting on 20.10.2008 and passed 352 subjects out of 356 subjects for the works worth about Rs. 566.87 lakhs. Thus, he has cleared all the pending welfare schemes and civil amenity works.

3.3. The fifth Respondent had also complained that the Petitioner is not allowing to conduct the Municipal Council properly and has been causing trouble under one pretest or other. The Municipal meeting held on 23.07.2008 was only for submitting explanation to the show cause notice and no other subject was included in the Agenda. The fifth Respondent was the Chairperson of the meeting and none including the Petitioner could preside or pass any resolution, which was not found in the Agenda. After the meeting, the explanation submitted by the Councillors including the Petitioner and the fifth Respondent were considered. Similarly the other related documents which resulted in the issuance of the show cause notice dated 07.05.2008 were also considered. The Municipal Council had not submitted any explanation for the show cause notice, but, there were individual petitions and explanations from the Councillors which are not specified in the said Act. After appreciation of the documents and assessing the ground realities, the Government had decided to dissolve the Municipal Council. It is not necessary to take action under Sections 39 and 40 of the said Act and then u/s 41 of the said Act.

Counter affidavit had been filed on behalf of the fourth Respondent wherein the following facts have been set out:

4.1. After the vacation of Vice Chairman Post on 19.07.2007, the State Election Commission notified election to the post of Vice Chairman to be held on 18.10.2007. But, due to law and order problem, the election did not take place and it was adjourned to 26.11.2007. The Petitioner became the Vice Chairman in the election held on 26.11.2007.

4.2. In view of the incident happened in the election for Vice Chairman, in consultation with the Chairman of the Municipality, a letter has been sent to the Inspector of Police, Law and Order, Rajapalayam, seeking protection for conducting Council meeting on 17.12.2007. However, even though there were 146 items in the Agenda, the Chairman could not conduct the meeting due to law and order problem. After the adjournment of the meeting, the Petitioner along with 20 Councillors staged dharna inside the meeting hall. The said incident was reported to the Regional Director and Commissioner of Municipal Administration.

4.3. Monthly meeting for the month of January, 2008 fixed on 18.01.2008 was also adjourned by the Chairman due to law and order problem. In the meeting held on 05.03.2008, in spite of the presence of the police inside the meeting hall in flight among the C6uncillors has broken and pandemonium writ large. A report dated 05.03.2008 has been sent to the Commissioner of Municipal Administration and Regional Director of Municipal Administration, for taking appropriate action.

4.4. By communication dated 06.03.2008, the first Respondent called for a detailed report through the second Respondent and the second Respondent, in turn, called report from the third Respondent and after a detailed lenquiry, the third Respondent had sent a detailed report to the Government through the second Respondent.

4.5. After considering the relevant materials, the Government issued a show cause notice as contemplated u/s 41 (1-A) of the said Act. However, instead of giving opinion on the show cause notice, the Councillors raised the issue of beating complained by the 34th Ward Councillor. The Petitioner conducted an illegal meeting inside the meeting hall of the Municipal Council after the Chairman concluded that the meeting as adjourned.

4.6. In spite of the earnest efforts to conduct the Council meetings under police protection on 17.12.2008, 18.01.2008, 05.03.2008 and 30.04.2008, the same could not be conducted due to persisting law and order problems. The meeting on 16.05.2008 to answer the show cause notice was also ended in the manner aforesaid.

4.7. The elected Council alone is empowered to pass resolution and the executive authority has to implement the decision. But, due to non-discussion of various proposals put forth before the Council from October 2007 onwards, several basic amenity works were pending.

4.8. After considering the materials and ground reality, the Government has issued G.O. Ms. No. 200 Municipal Administration and Water Supply Department dated 15.10.2008 dissolving the Rajapalayam Municipal Council and notification had been published on 15.10.2008 in the Tamil Nadu Government Gazette Extraordinary dated 15.10.2008. Thereafter, a Special Officer had been appointed.

Thus, the counter affidavit of the fourth Respondent sought for the dismissal of the writ petition.

Counter affidavit had been filed on behalf of the fifth Respondent, wherein the following facts have been set out:

5.1. The Council was elected in October, 2006 and till 28.09.2007 ordinary and urgent meetings of the Council were regularly and peacefully conducted. One Mr. Subba Raja was the Vice Chairman till 19.07.2007 on which date he was removed by a no-confidence motion. There were large scale defections to remove the Vice Chairman and thereafter, the Petitioner became Vice Chairman. As and when the meetings commenced, the Petitioner would not allow the meetings to go on. In fact, police protection has been sought for, for conducting the meetings. On 05.03.2008, when the meeting was conducted, the Vice Chairman, the Petitioner herein wanted to sit along with the fifth Respondent. Any amount of explanation could not satisfy him. The Deputy Superintendent of Police, who was present inside the meeting hall along with his officials, requested her to wind up the meeting as he could not offer security to her. Hence, the meeting was called off.

5.2. Even in the meeting convened on 30.04.2008, there were lot of problems. The meeting which was convened on 16.05.2008 for replying to the show cause notice dated 07.05.2008 could not be proceeded with. No resolution has been passed on the welfare measures in the meeting held on 23.07.2008. The only Agenda was about the show cause notice dated 07.05.2008 and no subject was considered or passed.

Thus, the counter affidavit sought for the dismissal of the writ petition.

I have heard Mr. P.H. Manoj Pandian, learned Counsel appearing for the Petitioner, Mr. S. Ramasamy, learned Additional Advocate General appearing for Respondents 1 to 3, Mr. N.S. Nandakumar, learned Counsel appearing for the fourth Respondent and Mr. K.R. Tamilzhmani, learned Counsel appearing for the fifth Respondent.

Learned Counsel appearing for the Petitioner would mainly submit that--

(i) before invoking Section 41 of the said Act, Section 39(6) of the Act should have been invoked;

(ii) the impugned order has been passed violating the principles of natural justice since the first Respondent had relied on various reports, which have not been furnished to the Council for making effective representation;

(iii) the procedure contemplated u/s 41(1A) of the Act had not been followed;

(iv) the impugned order does not whisper about the resolution passed in the Council on 23.07.2008;

8.1. On the other hand, the learned Additional Advocate General appearing for the first Respondent, on the first point, would submit that -

(i) Section 41 of the Act does not stipulate that it is subject to the provisions to Section 39 of the Act;

(ii) Section 39 of the Act could be invoked only if the Chairman and Executive Authority made default in performing any duty imposed on them by the Act which is nothing to do with Section 41 which empowers the State Government to dissolve or supersede the Council;

(iii) if any Municipality is not competent to perform, then action could be taken u/s 41 of the Act, without first invoking Section 39 of the Act.

8.2. As regards the second point, the learned Additional Advocate General would submit that the report had been called for only to know the present position and the failure to furnish the report would not vitiate the action of the Government.

8.3. Regarding the third point submitted by the learned Counsel appearing for the Petitioner, according to the learned Additional Advocate General, explanation was considered. Further more, Section 41(1A) of the Act does not speak about the explanation by the individuals, but by the Councillors in toto. In spite of it, the Government has considered the objection. Though the Chairman had convened the meeting, she could not proceed with the meeting in view of the chaos and confusion caused in the meeting.

8.4. The contentions raised by the learned Counsel appearing for the fourth Respondent was similar to the line as put forth by the learned Additional Advocate General and the counsel appearing for the fifth Respondent.

Learned Counsel appearing for the fifth Respondent has put forth the following additional points:

(i) From October, 2006 to September, 2007, the meetings went on peacefully. But, subsequently, the meetings could not be conducted in view of the chaos situation created by the Petitioner and his groups.

(ii) For October 2007, November 2007 and February 2008, the fifth Respondent admits that she has not conducted the meetings. If the Court comes to the conclusion that the Council cannot do the work, then the action of the first Respondent has to be upheld.

(iii) Executive decision taken cannot be interfered with and relied on the judgment reported in 1967 1 M.LJ. 47.

(iv) On facts, if the Court comes to the conclusion that the Council cannot do the work, not even notice is necessary.

The facts that are not disputed are that--

(i) The Local Body elections were held in the State of Tamil Nadu on 15.10.2006 for all Corporations, Municipalities, etc. and the Petitioner and other Councillors were successful in the said election. Thereafter, on 28.10.2006, elections were held for the post of Chairman and Vice Chairman and the fifth Respondent had been elected as Chairman and one Mr. A.A. Subba Rao representing the 1st Ward was elected as Vice Chairman.

(ii) On 26.11.2007, the Petitioner became the Vice Chairman.

(iii) On 03.03.2008, the Petitioner and 16 other Councillors sent a representation to the Government praying action against the Chairman and Commissioner for their illegal activities. On the very same date, representation has been sent to the Chairman by the Petitioner and others for conducting a meeting.

(iv) Since no action had been taken, W.P. No. 373 of 2008 was filed by the Petitioner and other 20 other Councillors before the Madurai Bench of the Madras High Court to issue a writ of mandamus directing the first Respondent to initiate necessary action against the fifth Respondent for her failure to discharge her function as the Chairman of Rajapalayam Municipality and further directing the first Respondent to convene the Municipal Council meeting regularly in accordance with law.

(v) The said writ petition was disposed of on 14.02.2008 with the following directions:

Though several contentions have been raised and as the allegations made in the affidavit filed in support of the writ petition are being denied by the sixth Respondent and on instructions of the allegations contained in the affidavit but such disputed questions of fact cannot be gone into in the writ petition. But the fact remains that the Municipal Council meeting was not held due to various reasons. This Court is not going into the question as to whether there was justifiable reason for not conducting the Municipal Council meeting as disputed questions of fact cannot be gone into as aforesaid. It is also admitted that the representation sent by the Petitioners to the second Respondent copies of which have been marked to the first Respondent and other Respondent copies of which and other Respondents have not so far been disposed of.

(vi) Contempt Petition against the first Respondent was filed in Contempt Petition No. 194 of 2008 in W.P. No. 373 of 2008 for violating the orders made in the writ petition and in turn, the first Respondent filed a petition for extension of time for a period of eight weeks from 10.04.2008.

(vii) On 19.04.2008 and 03.05.2008, the Petitioner sent representations to the Chairman to conduct meetings.

(viii) On 20.04.2008 and 03.05.2008, the Chairman returned the said representations pointing out certain defects.

(ix) On 07.05.2008, the first Respondent issued a show cause notice u/s 41 of the said Act to show cause why the said Council should not be dissolved.

(x) Pursuant to, the show cause notice, the fifth Respondent announced that a meeting would be held on 16.05.2008 to offer explanation of the Municipal Council.

(xi) One Mr. S.S. Mani, Councillor of 19th Ward filed writ petitions in W.P. Nos. 12769 and 12770 of 2008 before this Court challenging the show cause notice issued by the first Respondent dated 07.05.2008 and consequently, directing the first Respondent to initiate proper action u/s 39 of the said Act.

(xii) On 27.05.2008, an order had been passed in M.P. No. 2 of 2008 in W.P. No. 12770 of 2008 observing that the Petitioner thereon is at liberty to give a reply to the show cause notice and the first Respondent is at liberty to pass orders, but the same shall be kept in abeyance for a period of two weeks so as to enable the Petitioner thereon to work out his remedies.

(xiii) On 09.07.2008, final order has been passed in both the writ petitions to the following effect:

The seventh Respondent is directed to send agenda relating to the show cause notice dated 07.05.2008, which is the subject matter of these writ petitions to the sixth Respondent on or before 14.07.2008. On receipt of the same, the sixth Respondent is directed to send notice of meeting to consider the said show cause notice to all the Councillors fixing a date of meeting on 23.07.2008 at 4.00 p.m. On that date, the Councillors will consider the said agenda and the minutes of the agenda is ordered to be sent by the seventh Respondent to the Government. On receipt of the report from the seventh Respondent, the Government can consider it and pass orders in accordance with law and further had deputed the District Judge of Virudhunagar District at Srivilliputhur to be an observer on the date of meeting i.e., on 23.07.2008 and the writ petitions were accordingly disposed of.

(xiv) Pursuant to the said order, the Municipal Council meeting was convened on 23.07.2008 at 4.00 p.m. in the presence of the learned District Judge, Virudhunagar District.

(xv) Proceedings of the meeting held on 23.07.2008 and the resolution passed by the Municipal Council had been sent to the Government.

(xvi) On 15.10.2008, the impugned Government Order in G.O. Ms. No. 200 had been passed dissolving the Council.

However, the dispute is that in the meeting dated 23.07.2008, according to the Respondents, the contents of the show cause notice was the only agenda, but, however, it is the case of the Petitioner that the entire meeting focused on the welfare measures to be undertaken by the Municipality and the Petitioner as well as the other Councillors had taken all steps to see that the welfare schemes are in no manner affected. Though the Petitioner and other Councillors were willing to cooperate for the purpose of conducting meeting and for passing the welfare schemes, the fifth Respondent, who did not have the requisite majority to act in accordance with her own measures, was keen to see that the meeting was not conducted and action followed by the Government against the Municipality.

The question now arises for consideration is whether the first Respondent was justified in passing orders u/s 41 of the Act and whether there existed any reason or necessity to dissolve the Municipal Council.

It is firstly contended by the learned Counsel appearing for the Petitioner that before invoking Section 41 of the Act, the first Respondent ought to have invoked Section 39 (6) of the Act. However, it is contended on behalf of the first Respondent by the learned Additional Advocate General appearing for Respondents 1 to 3 and Mr. K.R. Tamizhmani, learned Counsel appearing for the fifth Respondent, that Section 41 of the Act is not subject to the provision u/s 39. Section 39 could be invoked only if Chairman and Executive Authority failed to perform their duties. Before considering the said issue, it would be useful to extract Section 39 of the Act, which reads as follows:

State Government''s power to undertake works for, or to take action in default of a municipality:

(1) If at any time it appears to the (State Government) that a municipal Council, (chairman or executive authority) has made default in performing any duty imposed by or under this or any other Act (they may), by order in writing, fix a period for the performing of such duty.

(2) If such duty is not performed within the period so fixed, the (State Government) may appoint some person to perform it, and may direct that the expense of performing, it shall be paid, within such time, (as they may fix), to such person by the municipal Council.

(3) The (State Government) may, with the consent of the municipal Council, undertake on its behalf the construction of water-supply, drainage or other works, appoint persons to carry out the construction of such works, and direct that the expense, including the pay of such persons, be paid from the municipal fund.

(4) If expenses which the (State Government) (have directed) under Sub-section (2) or (3) to be paid from the municipal fund are not so paid, the district collector, with the previous sanction of the (State Government) may make an order directing the person having the custody of the municipal fund to pay it in priority to any other charge against such fund except charges for the service of authorized loans.

(5) Such person shall, so far as the funds to the credit of the municipal Council admit, be bound to comply with such order.

.(6) If on a representation in writing made by the Chairman, the State Government are satisfied that due to the non-cooperation of the Councillor with the Chairman, the municipal Council is not able to function, the State Government may, by notification, authorise the Chairman to perform, subject to the control of the State Government or any officer authorised by the State Government in this behalf, such of the duties imposed upon the municipal Council by law and for such period not exceeding six months as may be specified in such notification. During the period for which the chairman is so authorised, there shall be no meeting of the municipal Council.

13.1. As per the above provisions, if at any time it appears to the State Government, the Chairman or the Executive Authority has made any default in performing any duty imposed on them, may appoint some other per-son to perform it. Thus, Section 39 contemplates that non-performance of any duty imposed would authorise the State Government to appoint some other person to perform the duty or undertake on behalf of the Council, the construction of water-supply, etc. or if the Chairman makes a representation in writing and the State Government if satisfied would authorise the Chairman to perform the said function. Thus, Section 39 of the Act contemplates the power of the State Government to undertake works or to take action in default of the Municipality in not performing any duties imposed on it. Thus, the argument advanced by the learned Counsel appearing for the Petitioner that before invoking Section 41, Section 39, more so, Section 39 (6) should have been invoked by the first Respondent, is liable to be rejected.

13.2. Further, as rightly contended by the learned Additional Advocate General, Section 41 of the Act does not say that any action taken u/s 41 is subject to the provisions u/s 39 of the Act.

13.3. But, however, why Section 39 of the Act had not been invoked by the first Respondent is not known. It is the definite case of the first Respondent that there is a default in carrying out the welfare measures by the Municipal Council. It is also equally the case of the fifth Respondent that the Chairman of the Municipal Council that due to non-cooperation of the Councillors with her, the Municipal Council was not able to perform any function. In such event, the Government could have acted either u/s 39(1) of the Act suo motu or could have invoked Section 39(6) of the Act on the representation made by the Chairman. But, unfortunately, even though there is a provision to carry out the welfare measures by invoking Section 39, the first Respondent has not initiated any action as per Section 39 of the Act.

13.4. Nevertheless, as stated earlier, before invoking Section 41 of the Act, the first Respondent need not invoke Section 39 of the Act at the first instance and thereafter proceedings u/s 41 have to be initiated. Both Sections 39 and 41 are independent and one does not depend on the other.

The second submission of the learned Counsel appearing for the Petitioner, which has to be considered is, whether the impugned order has been passed violating the principles of natural justice since the first Respondent had relied on various reports, which have not been furnished to the Council for making effective representation. The Council was put on notice in the show cause notice about the reasons for issuance of such notice. But, however, the impugned order discloses that the first Respondent called for present status report from the fourth Respondent and the fourth Respondent seems to have sent a report dated 13.08.2008 to the first Respondent. It is not known what is the report sent by him. The report is not forming part of the typed set filed on behalf of the Respondents. When the impugned order states that all the documents have been perused, it should mean the report of the fourth Respondent dated 13.08.2008 also. The reliance on such report undoubtedly is a violation of principles of natural justice, since the Council is not aware of the contents of the report.

The 3rd and 4th submissions of the learned Counsel appearing for the Petitioner, which is required to be considered is whether the first Respondent had violated the procedure contemplated u/s 41 (1-A) of the Act. Learned Counsel appearing for the Petitioner would submit that there was no consideration of the representation made by the Councillors which forms part of the resolution passed on 23.07.2008, which have been sent to the first Respondent and there is no effective consideration by the first Respondent while passing the orders u/s 41 (1-A) of the Act. On the other hand, the learned Additional Advocate General appearing for Respondents 1 to 3 and the learned Counsels appearing for Respondents 4 and 5 would submit that Section 41 of the Act does not contemplate an enquiry and hence, the said contention of the learned Counsel appearing for the Petitioner is liable to be rejected.

15.1. Before considering the said submission, it would be useful to extract Section 41 of the Act, which reads as follows:

State Government''s power to dissolve or supersede:

(1) If, in the opinion of the State Government, the municipality is not competent to perform or persistently makes default in performing the duties imposed on it by law or exceeds or abuses its powers, the State Government may, by notification-(a) dissolve the municipality from a specified date; and (b) direct that the municipality be reconstituted with effect from a date which shall not be later than six months from the date of dissolution.

(1A) Before publishing a notification under Sub-section (1) the State Government shall communicate to the council concerned the grounds on which they propose to do so, fix a reasonable period for the council to show cause against the proposal and consider its explanations or objections, if any:

Provided that where a council has disobeyed an order issued u/s 36, the State Government shall not be bound to follow the procedure laid down in this Sub-section.

15.2. Thus, Section 41 (1-A) stipulates that before publishing a notification under Sub-section (1), a show cause notice should be given to the Council giving reasons thereof and after fixing a reasonable period for the Council to reply, consider its explanations and objections, if any, and shall pass orders. Emphasising on the words "consider its explanations or objections, if any", learned Counsel appearing for the Petitioner would submit that" consider " means considering the points raised and the explanations offered by the Council and shall take a decision. In the given case on hand, according to the learned Counsel appearing for the Petitioner, though the majority of the Council members have passed certain resolutions and submitted an explanation, the same has not been considered by the first Respondent before passing the impugned order. However, learned Additional Advocate General appearing for the first Respondent would submit that nothing was transacted on 23.07.2008 and the only Agenda that was placed before the Council was in respect of the show cause notice that has been received from the first Respondent and if any meeting had been conducted by the Vice Chairman along with some of the Councillors and transacted any business, no sanctity should be given to the said meeting.

15.3. Learned Additional Advocate General appearing for Respondents 1 to 3 relied oh Section 13 of the Act which stipulates that Chairman of the Municipal Council shall convene the meeting of the Councillors and perform all the duties and exercise all the power specially imposed or conferred on the Chairman by the Act. In the case on hand, though the Council meeting was convened by the Chairman, no resolution has been passed in the said meeting and hence, the meeting conducted by the Vice Chairman along with his supporters may not have any sanctity.

15.4. It is, thus clear that a meeting was conducted on 23.07.2008 and a report has been sent by the fifth Respondent along with the countersignature by the fourth Respondent, the Commissioner of the Municipality along with resolutions. From that, it could be seen that 24 members including the Petitioner had opposed the dissolution of the Council and 18 have supported for the same. Further, it could be seen from the report of the Chairman countersigned by the Commissioner, to the Government referring about the same and also the individual representations given by the members of the Council. But, however, in the impugned order of dissolution, though there is a reference about the resolution passed and the opinion of the Chairman and the objections raised by the Petitioner along with other Councillors, there is no discussion about the same in the impugned order. Even in the reference column, there is no reference about the report of the fifth Respondent Chairman along with connected reference about the objections of the Petitioner and others. Thus, it is crystal clear that the first Respondent while passing the impugned order, has not taken into account the report sent by the fifth Respondent about the proceedings which have taken place on 23.07.2008, which have been sent to the Government along with the minutes of the proceedings, the objections or otherwise of the members of the Council. That is why the learned Counsel appearing for the Petitioner had made a strenuous submission that even though the State Government before passing the order of dissolving the Municipal Council had to consider the explanation or objection, if any, against the proposal for dissolution of the Council, since the same has not been effectively done by the first Respondent, it vitiates the impugned order. It would be useful to extract the resolution dated 23.07.2008 sent to Government, which reads as follows:

The impugned order also refers about the same and it is usefully extracted here under:

In the decision reported in 1967 (1) M.LJ. 47 State of Madras v. Tirunelveli Mun. Council., the question that has arisen for consideration was whether the Courts have got power under Article 226 of The Constitution of India to strike down the exercise of power to supersede a Municipal Council u/s 41 (1A). The Division Bench of this Court has held as follows:

The contention of the learned Advocate-General may, therefore, be expressed in this form. Where there is no question of the deprivation of a Fundamental right, but the status of the concerned body and its powers are both derived from a statute, and subject to the restrictions of that statute, we must look to the statute alone for the interpretation of function or power possessed by Government. Where the words, such as "in their opinion" are deliberately used, this is a subjective satisfaction and essentially an administrative power; in its exercise, a quasi-judicial form or process may well be engrafted on it, and the learned Advocate-General concedes that this is the effect of Section 41 (1-A) of the Act. But his point is that, so long as relevant material was placed before Government, and the Government acted in bona fide exercise of the statutory power, and the quasi-judicial process was respected as well as the principles of natural justice, this Court ought not to interfere. It should not, in judicial review, constitute itself a judge of the adequacy of the facts on which Government acted, or the wisdom of the steps taken.

Five propositions had been laid on the statutory powers of the Government order and the language employed in Section 41 and 41 (1-A) in the said judgment, which are usefully extracted here under:

(i) This is essentially an administrative power, in which the exercise of the power depends on the subjective satisfaction of Government that a Municipal Council is not competent to perform the duties imposed on it by law, or that it persistently makes default in performing them, or exceeds or abuses its powers. Needless to say, such a satisfaction must be arrived at, in accordance with the quasi-judicial process enacted in Section 41 (1-A) and it must be bona fide and not tainted by an ulterior object, or colourable exercise of the power.

(ii) This decision itself is subject to the quasi-judicial process made obligatory by Section 41 (1-A), and to the principle of natural justice. Therefore, the grounds for the action proposed must be communicated to the Council, a reasonable period for the explanation of the Council must be given, the explanations or objections should be duly considered, and all the principles of natural justice should be adhered to. These hybrid functions, as pointed out in Johnson''s case, frequently arise with reference to the complex organization of a modern State; there is nothing surprising in them. Both the essentially administrative character of the ultimate decision, and the necessity to observe the quasi-judicial process, must be kept in mind by the Courts before which the matter is brought up in judicial review.

(iii) If the quasi-judicial character of the process has not been adhered to, or any principle of natural justice has been violated, the Court will not hesitate to strike down the Order. The Court is not concerned with the materials upon which the Government might act, prior to the commencement of the lis. But once the lis or quasilis has commenced, extraneous matter or considerations should not intrude into the actual decision.

(iv) Apart from this, there must be a reasonable nexus between the grounds upon which the Government purports to act, and the satisfaction which is enacted in Section 41 (1) of the Act. The material must relate to the in competency of the Council to perform its duties, or to persistent, default in performing the duties imposed on it by law, or excess or abuse of power. If the material is extraneous to these considerations, the Court may proceed to strike down the exercise of power, upon the analogy of the no evidence rule. But the adequacy of the material, provided that it is relevant and the wisdom or unwisdom of the actual exercise of power, do not concern the Court, for the Court cannot substitute its satisfaction or absence of satisfaction, for the satisfaction of Government that the ingredients were established.

(v) If the exercise of the power is mala fide, or it is a colourable exercise of power for some ulterior purpose, the Courts will never hesitate to strike down the exercise of the power.

From the foregoing principles laid down by the Division Bench of this Court, the clear message that has been given by the Division Bench is that--

(i) the order u/s 41 (1-A) is a quasi judicial in character and it has to adhere to the principles of natural justice;

(ii) a reasonable opportunity should be given to the Council to explain;

(iii) explanation or objection should be duly considered;

(iv) the Court may not concern with the materials upon which the Government might act prior to the commencement of the lis;

(v) but, once the lis or quasi-lis has commenced, extraneous matter or consideration should not intrude into the actual decision;

(vi) the power shall be exercised without mala fide or it should not be a colourable exercise of power for some ulterior purpose;

(viii) the intervention of the Court would be necessitated if failure on those aspects.

In the given case on hand, though the first Respondent had not dealt with the report of the Commissioner, the fourth Respondent herein, which has been sent to the first Respondent after the meeting on 23.07.2008 in the impugned order, a reference has been made about the same not only in the reference column, but also in paragraph 12 of the impugned order and paragraph 13 states that all the relevant records have been taken into consideration by the Government, which could only mean the report of the fourth Respondent dated 13.08.2008 also.

Yet another reason that could be said is that though the fifth Respondent has sent to the Government the resolution and the expression made by individual persons, absolutely the order is silent about the same and the conclusion arrived at by the first Respondent in paragraph 13 does not deal with the same. Thus, the objections raised in the Council meeting by the majority of the Councillors were not duly taken into consideration by the first Respondent while passing the impugned order. When Section 41 (1-A) of the Act clearly says " to consider the explanation or objection, if any ", it means not only the final report of the fifth Respondent, the Chairman of the Council but also the views of the Councillors, and in the present case, the views of the majority of the Councillors, which has definitely form part of the report of the fifth Respondent, the Chairman of the Municipality. The failure to do so could mean only that the first Respondent had not considered the explanations or objections as required u/s 41 (1-A) of the Act.

In the above pronouncement, the order of the Government proceeded entirely on the formation of the charges, the explanation thereto and a recorded finding upon each charge and in the Government''s views the charges were established. But, in the given case on hand, the explanation that has been offered and the finding thereon is not available.

Learned Counsel appearing for the Petitioner would draw my attention to the judgment reported in Bhikhubhai Vithlabhai Patel and Others Vs. State of Gujarat and Another, . In the above said judgment, the Hon''ble Apex Court has held that the Court can determine whether the formation of the opinion is arbitrary, capricious or whimsical and it is always open to the Court to examine whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute. In the given case, the resolution passed in the Council on 23.07.2008 and the views expressed by the Members which have been enclosed along with the minutes by the fifth Respondent was not at all considered by the first Respondent which amounts to arbitrary action on the part of the first Respondent.

Learned Additional Advocate General appearing for Respondents 1 to 3 relied on the decision reported in T.V.R.V. Radhakrishnana Chettiar and Others Vs. State of Tamil Nadu, , wherein the facts relating to the said matter was that the State Government served a notice u/s 125 of the Tamil Nadu Panchayat Act calling upon a Panchayat Union Council to show cause why it should not be dissolved for one year. Explanation has been submitted and thereafter, the State Government dissolved the Panchayat. It has been contended that the Appellants thereon were not given copies of the report of the Collector and that of the Director, Rural Development. The High Court had held that the substance of the report was given in the form of grounds in the show cause notice and rejected the contention of the Appellants. It has been held by the Hon''ble Apex Court that since those reports were forming part of the grounds in the show cause notice, the reports need not be furnished to the Petitioners. In the given case on hand, though there is a reference about the report of the fourth Respondent, the Commissioner, there is absolutely nothing to show in the order about the contents of the report. Further, the substance of the report was not forming part of the grounds in the show cause notice, since the report was submitted by the fourth Respondent later to the show cause notice.

Yet another decision that has been relied on by the learned Additional Advocate General is reported in The State of Maharashtra and Another Vs. The Jalgaon Municipal Council and Others, paragraph 32 of the said judgment is usefully extracted here under:

The caution of associating rules of natural justice with the flavour of flexibilities would not permit the courts applying different standards of procedural justice in different cases depending on the whims or personal philosophy of the decision-maker. The basic principles remain the same; they are to be moulded in their application to suit the peculiar situations of a given case, for the variety and complexity of situations defies narration. That is flexibility. Some of the relevant factors which enter the judicial process of flunking for determining the extent of moulding the nature and scope of fair hearing and may reach to the extent of right to hearing being excluded are: (i) the nature of the subject-matter, and (ii) exceptional situations. Such exceptionality may be spelled out by (i) the need to take urgent action for safeguarding public health or safety or public interest, (ii) the absence of legitimate expectation, (iii) by refusal of remedies in discretion, (iv) doctrine of pleasure such as the power to dismiss an employee at pleasure, and (v) express legislation. There is also a situation which Prof. Wade and Forsyth term as "dubious doctrine" that right to a fair hearing may stand excluded where the court forms an opinion that a hearing would make no difference. Utter caution is needed before bringing the last exception into play. (Administrative Law, ibid., at pp 543-44.)

No doubt, in the present case on hand, the situation that has arisen for the Government for interference and also for ordering dissolution of the Municipality is because the Municipal Council is not convening meetings properly in view of the two rival groups and no transaction could be carried out touching the welfare of the people. But the first Respondent should have taken action u/s 39 of the Act on the failure of the Chairman or the Executive Authority in performing their duties imposed. It has not been explained by the first Respondent why no action had been taken as contemplated u/s 39 of the Act. There is a power vested with the Government u/s 39 of the Act to take action when the Chairman fails to perform the duty within a time fixed. In fact, the Petitioner and the majority of the Councillors had reminded the fifth Respondent to convene the meetings to transact the business in the Council and the filing of the writ petition against the Petitioner for such purpose had been stated already. Thus, there seems to be lack of interest on the part of the fifth Respondent for convening the meeting for the reasons known to her.

Learned Counsel appearing for the fifth Respondent relied on the decision reported in Shiv Sagar Tiwari Vs. Union of India and others, By citing the said judgment, learned Counsel appearing for the fifth Respondent would submit that on facts if the Court comes to the conclusion that the Council cannot do the work, not even notice is necessary. Learned Counsel emphasised on para 49 of the said judgment, which is usefully extracted here under:

Natural justice is after all "no unruly horse, no lurking land mine" as characteristically stated by Krishna Iyer, J. in Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee. Its unnatural expansion without reference to these realities can be "exasperating" as observed by the learned Judge. It is also worthwhile to remember, as stated in para 24 of S.L. Kapoor v. Jagmohan that where on admitted or indisputable facts only one conclusion is possible, the Court may not compel the observance of natural justice, as it would be futile to do so. The real point for determination for us has been whether the incumbent got the allotment as per his turn or he jumped the queue, on the face of our rejection to depart from the existing policy requiring eviction of those also included in Categories VI and X. This we got examined well and have felt satisfied at the work undertaken by the Committee in this regard.

24.1 am unable to accept the said contention raised by the learned Counsel appearing for the fifth Respondent for the sole ground that Section 41 (1-A) of the Act specifically says that before publishing the notification under Sub-section (1), the State Government shall communicate to the Council concerned the grounds on which he proposes to do so, fixing a reasonable period for the Council to show cause against the proposal and consider the explanations or objections, if any. When the statute provides for a show cause notice and reasonable time for explaining the show cause notice and an order of considering the explanation or objection, if any, it cannot be heard to say that notice is not necessary if this Court comes to the conclusion on facts, that the Council cannot do the work.

By citing a decision reported in Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others, , learned Counsel appearing for the fifth Respondent would submit that the authority who passes the order even if he has no jurisdiction and if the original order is bad, the High Court can decline to interfere with under Article 226 of the Constitution of India. In the above pronouncement, it is said that the order lacking jurisdiction need not be set aside if the result would be the revival of an illegal order. But, in the case on hand, the position is entirely different. The first Respondent issued a show cause notice why the Council should not be dissolved and the report has been submitted by the fifth Respondent about the entire proceedings on the resolution, which has not at all been considered by the first Respondent, which resulted in the impugned order.

Yet another submission that was made on behalf of the Respondents is that the first Respondent need not consider each one of the Councillors objection. No doubt, the first Respondent need not consider the objections of each one of the Councillors. But, in the present case, when the minutes have been sent along with the resolution and the views of the Councillors to the first Respondent, not even it was dealt with. "Consider its explanation" as found in Section 41 (1-A) of the Act may not mean the Council in entirety since it is a common knowledge, especially in the given case that there cannot be a unanimity among all the Councillors. Hence, the arguments made in this regard does not sound well.

Thus, summing up the discussions made above would constrain me to come to the following conclusion:

(i) The argument put forth on the side of the Petitioner that before invoking Section 41 of the Act, Section 39 of the Act should have been invoked, is rejected.

(ii) Reliance placed on the report of the fourth Respondent dated 13.08.2008 vitiates the impugned order since it is not known what is the report of the fourth Respondent and whether it has resulted in the impugned order being passed by the first Respondent.

(iii) The first Respondent had not taken into account the report sent by the fifth Respondent, the Chairman along with the objections raised by the majority of the Councillors. Thus, there is lack of consideration on the explanation or objection raised by the Councillors.

(iv) It is not necessary that each Councillors'' explanation has to be considered, but when majority of the Councillors expressed certain factors opposing the dissolution and the same has been sent by the fifth Respondent to the Government, it is expected that the report of the Chairman, the fifth Respondent and the views expressed by the Councillors should have been considered by the first Respondent.

In fine, the impugned order is liable to be set aside and accordingly set aside. The writ petition stands allowed. It is needless to say that the first Respondent is at liberty to pass orders afresh after considering the report of the fifth Respondent along with objection raised by the majority of the Councillors sent by the fifth Respondent. No order as to costs. Consequently, connected miscellaneous petitions are closed.

Before parting with the case, I am constrained to express my anguish over the issue on hand. The people voted to elect the Councillors on the fond hope that they would be acting as their custodians and do all welfare measures, which would be beneficial to the people at large residing within the jurisdiction of the Municipality. When they voted with; such fond hope, it is sorry to state that without fulfilling their aspirations, in fighting in the Council made mess of the entire situation. I hope, at least hereafter, the paramount consideration of the Councillors shall be "the welfare of the people" and not other considerations. I hope this would be taken in the right spirit.