Tirunelveli Municipal Council vs The State of Madras

Kailasam, J.—Writ Petition No. 1789 of 1966 was filed in the name of the Tirunelveli Municipal Council represented by its chairman, Abdul Majid, for the issue of a writ of certiorari calling for the records relating to 6.0. Ms. No. 1643, Rural Development and Local Administration, dated 2nd July 1966 and for quashing the order on the ground that it is illegal and unsustainable in law. Writ Petition No. 1917 of 1966 was filed for the issue of a writ of certiorari calling for the records relating to G.O. Ms. No. 1643, Rural Development and Local Administration, dated 2nd July 1966 and for quashing the order, by Abdul Majid in his personal capacity on the ground that his valuable rights as chairman had been superseded by the above-mentioned Government order.

Elections to the Tirunelveli Municipal Council were held in the year 1964. Abdul Majid was elected as the chairman of the municipal council defeating one Alwar Naidu, a congress man, by securing 20 votes as against 10 votes. The Government issued G.O. No. 1376, dated 27th May 1966 under Sub-section (1-A) of Section 41 of the Madras District Municipalities Act, 1920 calling upon the Tirunelveli Municipal Council to show-cause why it should not be superseded for a period of two years. It was stated in the order that it had been brought to the notice of the Government that there had been several instances of disorderly behaviour of the councillors at the council meetings and defaults in performance of the council''s functions. Nine charges were mentioned in the order. The first two charges related to two meetings held on 1st August 1964. An ordinary meeting of the municipal council was adjourned, as one councillor staged a walk-out accusing the chairman, while two others were also reported to have behaved in an improper manner. There was hindrance in the conduct of the meeting and the business could not be transacted on that day. The second charge related to the urgent meeting convened at 6 p.m. on the same day to consider the presentation of welcome address to the Governor of Madras. It was stated that due to the inability of the chairman to maintain order in the council the meeting was adjourned without even taking the attendance. The third charge related to an ordinary meeting that was proposed to be held on 17th August 1964. The meeting could not be held, as the chairman or the vice-chairman was not present, and though seven members attended the meeting, the meeting was adjourned. It was stated that enquiries revealed that more members attended the meeting on that date and that, as there was disorderly behaviour, some persons left the council and the actual happenings had not been recorded in the minutes book. The fourth charge related to the appointment of one Syed Kannu as a bill collector by the appointment committee at its meeting on 2nd May 1964 without his name having been included in the panel sent by the employment exchange. The fifth charge related to an ordinary meeting proposed to be held on 7th November 1964. Neither the chairman nor the vice-chairman attended the meeting. Though 16 councillors attended the meeting, the meeting was not conducted, as there was some disturbance about the choosing of the councillor to preside over the meeting. In the next meeting held on 16th November 1964 the action of the councillors was condemned by 10 councillors and as a mark of protest they staged a walk-out. The sixth charge related to an ordinary meeting held on 16th November 1964. Ten out of 19 councillors present walked out. There was no quorum, but the chairman without ordering dissolution of the meeting vacated his seat and went to his chamber. After some time he returned to the council hall, when two councillors turned up, and the chairman took all the 73 subjects scheduled to be taken up on that date and passed them. The seventh charge related to a resolution passed by the council on 6th February 1965 expressing sympathy with the victims in the anti-Hindi agitation and requesting the Government to hold a judicial enquiry into the Palayamkottai shooting incident. The meeting was adjourned as decided by the majority. The charge is that the subject-matter of the resolution was outside the purview of the municipal administration and the interference by the council in such a matter was unwarranted. The eighth charge related to the meeting, dated 19th April 1965, when a councillor was not allowed by the chairman to put some questions. That councillor threatened the chairman and, as the situation was tense, the chairman adjourned the meeting. Two other meetings scheduled to be held on that day were not held but the chairman made an entry in the minutes book that they were also adjourned. The ninth charge related to the ordinary meeting held at 5-30 p.m. on 5th February 1966. There was confusion and the atmosphere was tense. After the meeting was over signatures were taken from some of the councillors for the next urgent meeting at 6 p.m. One councillor was ejected and number of councillors left the hall, and the chairman entered the hall and immediately all the subjects for the meeting were declared to have been disposed of. The chairman did not record in the minutes book the fact that a number of councillors left the meeting.

It was alleged that there had been faction and confusion prevailing in the council and consequent persistent default in performing the duties of the council imposed on it by law.

The municipal council at a meeting held on 16th June 1966 resolved that the charges levelled by the Government were not in accordance with law and that the proposal to supersede the municipality should be dropped. After replying to the nine charges the council stated that several instances were due to the attitude of the opposition with a political motive and for the purpose of wreaking vengeance. The council pointed out that the municipality was carrying on its work according to law and in the interests of the public. Though according to the District Municipalities Act it is incumbent on the municipality to hold only one meeting in a month, the municipality in the interests of the administration amended the rule making it incumbent on them to hold two meetings a month and were holding them accordingly. The municipality pointed out that, though even according to the amended rule only 37 meetings were to be held, in fact 50 meetings were held during the period 1st August 1964 to 5th February 1966. The municipality further referred to the administration report by the Collector for the year 1964-65 where it was noted that the administration was satisfactory. They further pointed out that in other municipalities under the administration of the Madras Government various objectionable incidents had taken place and referred to an objectionable incident in a particular municipality. It was further alleged that the Government had framed these charges for political reasons with a view to wreak vengeance and pointed out that the Collector neither in his inspection notes nor in the administration report referred to the charges framed. Again the municipality referred to certain incidents in another municipality, where councillors were suspended in the abuse of its powers.

On receipt of the reply from the municipality the Government passed the impugned Government order, G.O. No. 1643, dated 2nd July 1966. The Government after referring to the nine charges and the explanation submitted by the municipality held that the charges were made out. In paragraph 9 of its order the Government referred to the statement of the municipal council that no adverse comments had been made by the Collector in his notes or administration reports. The Government stated that they had received number of reports from the Collector during the last fourteen months. In paragraph 10 the Government referred to the inspection report of the municipal council by the Collector and in paragraph 11 to the report of the Collector, dated 23rd March 1966 where the Collector had again referred to the various irregularities in the functioning of the municipal council in the administration of the municipality and recommended to the Government to take action u/s 41(1) of the District Municipalities Act. The Government obtained the comments of the Collector on the replies given by the municipal council to the show cause notice and stated that the Collector''s remarks clearly brought out the facts that the charges had been proved and that the functioning of the municipal administration had not at all been satisfactory. The Government order further state that the Government had also obtained the relevant records of the municipal council and perused them. Having regard to all the reports of the Collector, the records of the municipality and the facts mentioned in the earlier paragraphs of the impugned Government order the Government were dear that the municipal council had committed irregularities requiring action u/s 41(1) of the District Municipalities Act. The Government were satisfied that with faction and groups in the council and frequent defaults made by it the ingredients mentioned in Section 41 of the Madras District Municipalities Act, 1920 had been made out and the municipality should be superseded for a period of two years.

The questions that arise for consideration are (i) whether the order of the Government superseding the municipal council can be maintained on the ground that the municipal council was not competent to perform or persistently made default in performing the duties imposed on it by law or exceeded or abused its powers, and (ii) whether the requirements u/s 41 (1-A) were complied with.

The relevant provisions of the Madras District Municipalities Act in regard to these questions may now be considered. The municipal authorities charged with the carrying on of the provisions of this Act are (a) a council, (b) a chairman, and (c) an executive authority. The municipal council is a body corporate having a perpetual succession and a common seal and subject to any restriction or qualification imposed by the District Municipalities Act or any other enactment. It is vested with the capacity of suing or being sued in its corporate name of acquiring holding and transferring property movable or immovable, of entering into contracts and of doing all things necessary for the purpose of its constitution. u/s 7 of the Act, the municipal council is to consist of such number of councillors as may be notified by the State Government in accordance with the table in the section. Sections 13 to 18 specify the duties of the chairman and the executive authority, and Section 19 provides that the municipal administration shall vest in the council but the council is not entitled to exercise functions expressly assigned under the Act to the chairman or executive authority. Section 21 empowers the council to require the executive authority to produce any document which is in his authority. Section 23 enables the council to constitute committees, and Section 24 to appoint members to special committees. Section 25 imposes a duty on the council to observe the rules in schedule III and authorises it to make regulations not inconsistent therewith or with other provisions of the Act or rules made by the State Government. A machinery is set up under the Act to supervise the functioning of the municipality. Section 33 requires the municipal council to submit every year through the District Collector the administration report. The Collector is authorised to make remarks on the report and such remarks are to be forwarded to the council and the council is entitled to offer or make such explanations or observations as the council may think fit. Section 34 authorises the District Collector as controlling authority to inspect any immovable property or any work in progress under the control of any municipal authority in his district. The State Government and the District Collector are empowered u/s 34(2) to call for documents and information which may be required for purposes of inspection. Section 35 enables the District Collector, if it appears to him that the executive authority had made default in carrying out any resolution of the council, to call for an explanation and send a report along with the explanation to the State Government. Section 36 empowers the State Government to suspend or cancel any resolution passed, order issued, or licence or permission granted or prohibit the doing of any act which is about to be done or is being done, in pursuance of or under colour of this Act, if in their opinion, such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorized or such resolution, order, licence, permission or act is in excess of the powers conferred by the Act or any other law or the execution of such resolution or order, the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray. Before exercising its powers under this section, the State Government is required to give the authority or the person concerned an opportunity for explanation. It may be noted that u/s 35 of the Act, the District Collector is empowered to make a report if the executive authority makes a default in carrying out any resolution of the council, and u/s 36, the State Government is empowered to suspend or cancel any resolution and to prohibit the doing of an act, if the municipality had acted illegally or in excess of the powers conferred by the Act. Section 37 confers certain emergency powers on the Collector for executing any work or doing any work which the council or the executive authority is empowered to execute or to do, and the immediate execution or the doing of which is in his opinion necessary for the safety of the public. Section 38 enables the State Government to appoint such officers as may be required for the purpose of inspecting or superintending the operations of all or any of the municipal councils established under the Act. Section 39 enables the State Government if it appears to it, that a municipal council, chairman or executive authority has made default in performing any duty imposed by or under this or any other Act, to fix a period for the performance of such duty, and if such duty is not performed within the period so fixed, to appoint some person to perform it. Section 40 enables the State Government to remove a chairman or a vice-chairman, who in their opinion wilfully omits or refuses to carry out or disobeys the provisions of the Act or any rules, by-laws, regulations or lawful orders issued thereunder or abuses the powers vested in him. In these petitions, we are concerned with the scope of Section 41(1) and (1-A), and the two Sub-sections may be usefully extracted:

(1) If in their opinion, a council 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 direct that the council be dissolved and reconstituted on such dates as the State Government may fix in that behalf or they may, if they think necessary, supersede the council for a specified period not exceeding two years and the notification shall be laid before both Houses of the State Legislature: . . .

(1-A) Before publishing a notification under Sub-section (l),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 . . .

The above provisions empower the State Government to direct that the council be dissolved and reconstituted or if they think it necessary to supersede it for a period not exceeding two years. The circumstances under which the powers can be exercised by the State Government are that in its opinion the council (i) is not competent to perform, (ii) persistently makes default in performing the duties imposed on it by law, or (iii) exceeds or abuses its powers. Before taking action under this section, the State Government is enjoined to communicate to the council concerned, the grounds on which they propose to do so, obtain its explanations or objections and consider them. If after considering the explanations submitted by the council, the Government are satisfied that the grounds u/s 41 are made out, the Government may dissolve or reconstitute the municipal council or if it thinks necessary supersede the council. The effect of dissolution of the municipal council is stated in Sub-section (2) of Section 41. The members as well as the chairman and vice-chairman shall be deemed to have vacated their offices and fresh elections are to be held in accordance with the provisions of the Act, and the newly elected councillors shall enter upon their offices on the date fixed for the reconstitution of the council. The effect of supersession is stated in Sub-section (3) of Section 41. Apart from all the members of the council, the chairman and the vice-chairman vacating their offices, the functions of the council are vested in some officer determined by the State Government. During the period of supersession the council ceases to be in existence. While the effect of dissolution is the chairman, the vice-chairman and the members vacating their offices followed by fresh elections, in the case of supersession not only do the chairman, vice-chairman and the members vacate their offices but also the council itself ceases to exist for the period of supersession. On any one of the grounds mentioned in Sub-section (1) of Section 41 it is provided that the State Government may direct the council to be dissolved and reconstituted. But before it could be superseded by the Government, the Government must think that supersession is necessary. It may at this stage be pointed out that in the show cause notice, G.O. Ms. No. 1376, Rural Development and Local Administration Department, dated 27th May 1966 it was not indicated that the Government thought it necessary to supersede the council. Neither in the order superseding or in the notification appended to the Government order it is stated that the Government considered it necessary to supersede the council. The effect of supersession is extremely drastic as it puts an end to the existence of the municipal council itself and deprive the citizens of their right to participate in the municipal administration. In view of the grave nature of the consequences, some protection is necessary before such a drastic action is taken, and this is given by insisting on the State Government to consider the question whether supersession is necessary and only when thinks so, to supersede the municipality while in the case of dissolution no such condition is insisted upon. There is nothing in the proceedings to indicate that the Government exercised its mind and thought it was necessary that the council should be superseded.

Before going into the question whether the Government acted within its jurisdiction in coming to the conclusion that the charges had been made out, which would justify the supersession of the municipal council, it may be considered whether the requirements of Section 41 (1A) have been made out. In the show cause notice, dated 27th May 1966 nine charges were listed, and the explanation of the municipal council was called for. In their reply the municipal council after giving explanations regarding the nine charges referred to the administration report of the Collector for the year 1964-65 and pointed out the remarks of the Collector, The administration on the whole can be considered to be fairly satisfactory with scope for improvement. The municipal council also pointed out that the defects mentioned by the Government were not noted in the inspection notes or the administration report of the Collector. The Government after declining to accept the explanation offered by the municipal council regarding the nine charges proceeded to deny the allegation of the municipal council that the Collector in his inspection notes and administration report did not make any adverse reports. The Government stated that number of reports were received by them from the Collector during the last fourteen months. In paragraph 10 of the order of the Government superseding the municipal council the Government referred to portions of the Collector''s inspection report, dated 4th August 1965 and his conclusion:

The result of the inspection of the municipal office, on the whole, cannot be said to be satisfactory.

It is also stated that a copy of the inspection report had been sent by the Collector to the Tirunelveli municipal office. In paragraph 11 reference is made by the Government to the report of the Collector, dated 23rd March 1966 about the various irregularities in the functioning of the municipal council in the administration of the municipality and recommending to the Government to take action u/s 41(1) of the District Municipalities Act. It is further stated that the Government had obtained comments of the Collector on the replies given by the municipal council to the show cause notice and that the Collector''s remarks clearly brought out the fact that the charges had been proved and that the functioning of the municipal administration had not at all been satisfactory. In the concluding portion of the order the Government has recorded as follows:

Government have also obtained relevant records of the municipal council and perused them. Having regard to all the reports of the Collector, the records of the municipality and the facts mentioned in the earlier paragraphs, Government are clear that the municipal council has committed irregularities requiring action u/s 41(1) of the District Municipalities Act, 1920.

From the averments in paragraphs 10 and 11 of the order it is clear that the Government had taken into consideration the inspection report of the Collector, dated 4th August 1965 and the Collector''s report, dated 23rd March 1966, recommending action u/s 41(1) of the District Municipalities Act. It also obtained comments of the Collector and relied on the Collector''s remarks for coming to the conclusion that the charges had been proved and the administration of the municipality was not satisfactory. It is also clear that the relevant records of the municipal council and the reports of the Collector had been perused by the Government. Section 41 (1-A) requires that before a notification under Sub-section (1) is published the Government should communicate to the council concerned the grounds on which they propose to do so and ask it to show cause against the proposal and consider its explanations and objections if any. Nine specific charges were communicated to the municipal council by the show cause notice, dated 27th May 1966. But in the impugned Government order, G.O. No. 1643, dated 2nd July 1966, the inspection report of the Collector, dated 4th August 1965 and the Collector''s recommendation, dated 23rd March 1966 and the Collector''s remarks on the explanations offered were taken into consideration. The Petitioners had no opportunity of explaining the adverse remarks in the inspection report of the Collector, dated 23rd March 1966. It also appears that in rejecting the explanation of the municipal council the Government relied on the remarks of the Collector. To the contention that the municipal council was not afforded an opportunity to explain the adverse comments in the reports specified above, the answer of the Government is found in paragraph 17 of its counter affidavit. It is stated that in paragraphs 9, 10 and 11 of its order of supersession, the Government has dealt with the request of the municipal council that the inspection report and the administration report be looked into before passing orders in the matter and, therefore, the Government looked into the reports to satisfy itself whether or not there are materials in these reports which would support the claim of the council in its representation and not for the purpose of obtaining fresh grounds for supporting the opinion of the Government. In its explanation the municipal council stated that it was bringing to the notice of the Government that the defects pointed out by the Government were not noted in the inspection notes or in the administration report of the Collector. The statement on behalf of the Government that the municipal council requested that the inspection reports might be looked into before passing orders may not be quite correct. There can be no doubt that in the impugned Government order, G.O. No. 1643, dated 2nd July 1966, the Government has taken into consideration the several facts which were not put to and explanation asked for from the municipal council. It is needless to point out that the inspection notes of the Collector, dated 4th August 1965 and the report, dated 23rd March 1966 contain various facts prejudicial to the municipal council. It is also seen from the Government order that the Government relied on the remarks of the Collector in coming to its conclusion that the explanations should be rejected. It is stated by the Government.

The Collector''s remarks clearly bring out the fact that the charges have been proved and that the functioning of the municipal administration has not at all been satisfactory.

The plea that the Government was not influenced by the remarks of the Collector cannot be accepted. It is clear, therefore, that the Government had taken into consideration facts, which the municipal council had no opportunity to explain, and thus contravened the provisions of Section 41(1-A) of the Act.

It may now be considered whether the charge that the council was not competent to perform or was persistently making default in performing the duties imposed on it by law, or exceeded or abused its powers can be maintained. In the show cause notice, dated 27th May 1966 after mentioning the charges it was stated that, as there had been faction and confusion prevailing in the council, there was persistent default in performing the duties of the council imposed, on it by law. In the order superseding the council it was stated that the Government was satisfied that with faction and groups in the council and frequent defaults made by it the ingredients mentioned in Section 41(1) of the Madras District Municipalities Act had been made out. In the notification appended to the Government order the Government, after stating that in its opinion the Tirunelveli Municipal Council was not competent to perform and had persistently made default in performing the duties imposed on it by law and had exceeded its powers, observed that the administration of the Tirunelveli Municipality had become difficult due to the faction in the Tirunelveli Municipal Council. It may thus be seen that it was not specifically alleged in the show cause notice that the municipality exceeded or abused its powers. In the impugned order it is not stated that the municipal council exceeded or abused its powers though in the appended notification it is stated that the municipality exceeded its powers. The charges of incompetency and persistently defaulting in the performance of duties are sought to be maintained on the ground that seven of the meetings could not be conducted properly. The question is whether the failure to conduct seven of the meetings in an orderly manner would amount to incompetency or to persistent default in the. performance of duties.

Section 19 vests the municipal administration in the council. The council is entitled to call for the records from the executive authority and to appoint committees and special committees under Sections 21, 23 and 24 of the Act. Section 25 requires that the council should observe the rules in schedule III. Apart from the general powers enumerated in chapter III of the Act, various other powers are invested with the municipal council. Section 61 vests in the municipal council all public streets with the pavements, stones and other materials, sewers, drains, drainage works, tunnels and culverts, etc. Section 61-A imposes a duty upon the municipal council to provide from the municipal funds to the Provincial Government expenses that might have been incurred by the Government for the lighting, watering and other purposes. The municipal council is also entitled to levy property tax, professional tax, tax on carriages and animals, tax on carts, etc. Section 78A makes it obligatory on every municipality to levy a duty on certain transfers of property. Section 81 makes it obligatory on the municipality to levy a tax on buildings and lands as prescribed therein. Section 82 prescribes as to how the tax should be assessed, and Section 83 enumerates exemptions. Option is given to the municipal council to levy professional tax, tax on carriages and animals, etc. The municipal council is under an obligation to provide water for drinking, lighting for public streets, and maintain a sufficient system of public drains so far as the funds at its disposal would permit. Section 153 provides that every municipal council shall make adequate arrangements for the regular sweeping and cleaning of the streets and removal of sweepings therefrom, the daily removal of filth and carcasses of animals from private premises, and the daily removal of rubbish from dust-bins and private premises, etc. Section 162 requires that the municipal council shall, at the coat of the municipal fund, cause the public streets and bridges to be maintained and repaired. It is unnecessary to refer to all the sections of the Act except to state that the Act has imposed certain duties on the municipal council and invested it with certain powers. If the municipal council fails to carry out its duties or abuses or acts in excess of its powers, provision is made under the Act for correcting the municipal council. As already pointed out, an effective supervision is provided for by requiring the municipal council to submit its administration report to the State Government, and the Collector to pass his remarks thereon. The Collector is invested with controlling powers and can enforce execution of resolutions. The State Government is given wide powers u/s 36. Officers can be appointed by the State Government for inspecting the municipal affairs and making a report to the Government. The State Government by Section 39 is empowered to fix a period for the performance of any duty which the municipal council has defaulted in performing that duty which is imposed on it. Section 40 empowers the State Government to remove the chairman, or the vice-chairman who wilfully omits or refuses to carry out or disobeys the basic provisions of the Act, the rules, etc. Over and above all these, the State Government is empowered to dissolve or supersede the municipal council.

From an examination of the provisions of the Act it appears that the procedure to be followed normally in the case of default by the municipal council in the performance of its duties is for the State Government to fix a period for the performance of such duties and to require it to perform its duties, and if the municipal council persistently makes default in performing the duties imposed on it to proceed u/s 41. It may not always be necessary to follow this procedure, if the requirements of Section 41 are made out. The performance of the duties imposed on the municipal council mentioned in the section would obviously refer to the duties referred to in the various provisions of the Act and the rules, as for instance the duty to maintain water-supply, drainage, scavenging, etc., whether the duties mentioned in the section would include the orderly conduct of the meetings is highly doubtful. No doubt Section 25 makes it obligatory on the municipal council to observe the rules in schedule III of the Act. Schedule III are rules regarding proceedings of the council. It lays down how business should be transacted. Rule 1 requires that the municipal council shall meet at least once in every month, upon such days and at such times as it may arrange and also at other times as often as a meeting shall be called by the chairman. If a meeting is not held once in a month, there will be breach of the rule, and consequently contravention of Section 25. In this case there were more than 50 meetings during the period in question, out of which seven meetings could not be conducted properly. It was contended on behalf of the Government that every meeting convened under the rules should be conducted properly, failure of which would amount to default in the performance of its duties by the municipal council. In the Municipal Manual (1957 edition) compiled by the Government at page 463 is given the regulations for the conduct of business at meetings of municipal councils. 26 (a) of the regulations empowers the chairman to direct any councillor, whose conduct is in his opinion, grossly disorderly, to withdraw immediately from the council and any councillor so ordered to withdraw is bound to do so forthwith and absent himself during the remainder of the day''s meeting. Regulation 26 (6) empowers the chairman in case of grave disorder arising in the municipal council to suspend any sitting for a time to be named by him. The regulations have envisaged disorderly meetings and for meeting them have conferred powers on the chairman. The contention that every meeting convened by the municipal council should be conducted in an orderly manner and if that is not done the municipal council would be failing in the performance of its duties cannot be accepted. In this case, as already observed, more than one meeting in fact not less than two meetings had been held every month, and disturbances were in seven meetings out of 53 meetings during the relevant period. The default in the performance of its duties may be attributed to the municipal council, if there had been failure to convene the required meetings.

It is significant to note that Section 41 requires that the municipal council should be persistently making default in performing the duties imposed on it. The word persistent denotes making default obstinately and persevering in its default. The Chambers Dictionary (twentieth century) gives the meaning of the word persistent as to continue steadfastly or obstinately especially against opposition (often within): to persevere: to insist. Stroud''s Judicial Dictionary (third edition) states that the epithet persistent necessarily implies some degree of repetition. The word persistent would, therefore, imply to continue in the default obstinately against opposition. Persistent default could be rightly inferred if the Government took steps u/s 39 and required the municipal council to perform its duties within a time fixed and the municipal council failed to perform its duties and persisted in its default in the performance of its duties. In the absence of any such action persistent default can be proved only by a continuous obstinate conduct in spite of opposition. In this case, even assuming that a failure to conduct meetings properly would amount to default in the performance of the duties of the municipal council, it cannot be stated that the municipal council persisted in its default. The seven meetings in which the disturbances took place ranged from 1st August 1964 to 5th February 1966, that is a period of eighteen months, during which admittedly about 45 meetings were properly conducted. The charge that there was persistent default in the performance of the duties of the municipal council cannot be sustained. The facts do not establish that the municipal council was not competent to perform its duties. Charges 1 and 2 relate to the adjournment of the ordinary meeting of the municipal council on 1st August 1964 and an urgent meeting held on the same day. Charge 3 relates to a meeting proposed to be held on 17th August 1964 but not actually held. The charge also states that there were certain irregularities and disorderly behaviour. Charge 5 relates to a meeting proposed to be held on 7th November 1964 but was not held. There was some disturbance about the choosing of the councillor to preside over the meeting. Charge 6 relates to the meeting held on 16th November 1964, when there was a walk-out by 10 or 19 councillors. There was no quorum but the chairman did not order dissolution of the meeting. The meeting was subsequently held and 73 subjects scheduled to be taken up on that day were passed. Charge 8 relates to the meeting held on 19th April 1965 when a councillor was not allowed by the chairman to put some questions. There was some disturbance and the meeting was adjourned. Charge 9 relates to a meeting on 5th February 1966 when there was some confusion in the meeting and one councillor was ejected and number of councillors left the hall. Even assuming that these seven charges against the municipal council have been made out, there is no material for coming to the conclusion that the municipal council defaulted persistently in performing its duties imposed on it.

The learned Advocate-General sought to support the impugned order on the ground that the municipal council exceeded and abused its powers by passing a resolution on 6th February 1965 expressing sympathy with the victims in the anti-Hindi agitation and requesting the Government to hold a judicial enquiry into the Palayamkottai shooting incident. Similarly charge No. 4 was relied on for establishing the municipal council exceeding and abusing its powers by the appointment committee appointing one Syed Khannu as a bill collector on 2nd Hay 1964, when his name was not included in the panel of the names sent by the employment exchange. The contention has to be rejected on the ground that in the show cause notice it was not alleged that the municipality exceeded or abused its power and an explanation called for. The municipality had no opportunity to rebut the charge. In the impugned Government order it was not stated that the municipal council exceeded or abused its powers though in the appendix to the notification it is stated that the municipality had exceeded its powers. Even on merits this contention has to be rejected. Section 20(2) of the Madras District Municipalities Act, 1920 confers a right on the municipal council to move resolution and to interpellate the chairman on matters connected with the municipal administration subject to such regulations as may be framed by the council. Rule 3 of the Municipal Manual, page 32 prescribes the procedure for moving of the resolutions and conducting of meetings of the municipal council. The chairman has the power to decide on the admissibility of a resolution and to disallow any resolution, which in his opinion contravenes the provisions of the Act or the rules made thereunder. If the chairman is of the opinion that a resolution related to a matter which is unconnected with the municipal administration and may lead to an unseemly or communal controversy he shall refer the resolution to the State Government and obtain their orders as to whether it may be admitted. Reference to the State Government is obligatory when the resolution relates to a matter unconnected with the municipal administration and is likely to lead to an unseemly or communal controversy. It is not alleged that the resolution was likely to lead to an unseemly or communal controversy. But it is stated that the matter was unconnected with the municipal administration. The chairman is obliged only to refer the question when it is not only unconnected with the municipal administration but also likely to lead to an unseemly or communal controversy. It is not denied that the resolution is unconnected with the municipal administration. But by passing a resolution unconnected with the municipal administration it cannot be stated that the municipal council had abused or acted in excess of its powers. A reading of the rule above cited would indicate that even resolutions relating to matters unconnected with the municipal administration are envisaged as long as they do not lead to unseemly or communal controversy. It may be that the Government may cancel the resolutions u/s 36. The charge that the municipal council abused or acted in excess of its powers in appointing the bill collector Syed Kannu, whose name was not included in the panel sent by the employment exchange cannot also be sustained. The municipal council in its explanation to this charge stated that though the appointment committee appointed Syed Kannu it did not give effect to it, and as soon as the municipal council realised the mistake, it rescinded its resolution on 3rd March 1966. No order of appointment was given to Syed Kannu. The municipal council applied for exemption in the case of Syed Kannu on 16th October 1964 to the Government through the Collector. The resolution of the appointment committee appointing a person not included in the panel sent by the employment exchange, in ignorance of the rules requiring that only persons in the panel of the employment exchange should be appointed, would not amount to acting in excess or abuse of powers.

The learned Advocate-General submitted that the order of supersession is passed in its administrative capacity by the Government and as such it cannot be interfered with by this Court in the exercise of its writ jurisdiction. He submitted that the Government in forming an opinion whether a council is not competent to perform or persistently makes a default in performing the duties imposed on it by law, or exceeds or abuses its powers, is acting purely in its administrative capacity and is entitled to gather information from wherever it is available. He further submitted that the decision of the State Government to supersede a municipal council is an administrative act, but in arriving at the decision the Government is required to adopt a quasi-judicial procedure and give an opportunity to the municipal council to explain the charges and then consider the explanation offered by them. When once the procedure is followed and an opportunity is given to the municipal council to offer their explanation and their explanations are considered, the conclusion being administrative in character cannot be interfered with. In other words the contention is, if the procedure had been followed the Court cannot interfere with the order of supersession.

Section 41 makes it incumbent on the State Government to communicate to the council the grounds on which they propose to supersede the municipal council and fix a reasonable period for the municipal council to show cause against the proposal and consider its explanations or objections, if any. The right to be heard is conferred on the municipal council and a duty is cast upon the State Government to consider the explanation furnished by the municipal council. The Supreme Court in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, had to consider whether the Government was obliged to act judicially under Sections 53-A and 57 of the Central Provinces and Berar Municipalities Act, 1922. Section 53-A of that Act is as follows:

53-A (1). If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may, by an order stating the reasons therefor published in the gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order.

Section 57(1) is as follows:

(1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the official gazette, dissolve such committee and may order a fresh election to take place.

* * *

(5) No order under Sub-section (1) or Sub-section (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation.

Section 57 of the Central Provinces and Berar Municipalities Act, 1922 is more or less analogous to Section 41 of the Madras District Municipalities Act, 1920. The majority expressed the view that there was nothing in Section 53-A which in terms imposed any duty on the State Government; to act judicially and that no form of procedure was laid down or even referred to from which such a duty could be inferred. It also observed that in Section 53-A there was a significant omission of any provision like that embodied in Sub-section (5) of Section 57 which required that no order under that section should be passed until reasonable opportunity had been given to the committee to furnish an explanation. The majority proceeded on the basis that the provisions of Section 57 denoted that the Government was required to act judicially. SUBBA RAO J. (as he then was) in his dissenting judgment expressed his view that Section 53-A imposed a duty on the Government to act judicially in ascertaining the objective and jurisdictional fact, namely, whether the committee was incompetent, and that it was a necessary condition of such a duty to give an opportunity to the committee to explain the grave charges levelled against it. The learned Judge expressed the rule thus (at page 1501):

The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance.

The decision in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, makes it abundantly clear that the Supreme Court was of the view that there was a duty cast on the Government to act judicially u/s 57, though they differed as to the nature of the duty so far as Section 53-A was concerned. Section 41(1) of the District Municipalities Act being more or less on the same lines as Section 57 of the Central Provinces and Berar Municipalities Act, the decision of the Supreme Court in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, may be taken as an authority for the proposition that in exercising its functions u/s 41(1) of the District Municipalities Act the State Government should act judicially.

The area where the principles of natural justice will have to be followed and judicial approach has to be adopted has become wider and the writ jurisdiction extended after the judgment of the House of Lords in Ridge v. Baldwin (1964) A.C. 40. The House of Lords was considering the nature of the duty cast upon the watch committee u/s 191(4) of the Municipal Corporations Act, 1882, which is in the following terms (at page 64):

The watch committee, or any two justices having jurisdiction in the borough, may at any time suspend, and the watch committee may at any time dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit for the same.

It was contended that the watch committee were bound to observe the principles of natural justice and before attempting to reach any decision they were bound to inform the officer of the grounds on which they proposed to act and give him a fair opportunity of being heard in his own defence. In considering that plea LORD REID, who spoke for the majority after elaborately referring to the case law on the point, held that the Petitioner was right in his contention that the watch committee was bound to inform him of the grounds on which they proposed to act and give him a fair opportunity of being heard in his own defence. The learned Judge after quoting the passage in the judgment of Atkin L. J., in Rex v. Electricity Commissioners. London Electricity Joint Committee Co. (1920), Ex parte (1924) 1 K.B. 171, 205, expressed his view that a gloss was put on the passage by LORD HEWART C.J., in Rex v. Legislative Committee of the Church Assembly. Haynes-Smith, Ex parte (1928) 1 KB. 411 when he stated the position of law thus (at pages 74 and 75):

In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially. The duty to act judicially is an ingredient which, if the test is to be satisfied, must be present.

Commenting on this passage LORD REID observed (at page 75):

If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities.

Relying on the passage of BANKES L. J., at page 198 in Rex v. Electricity Commissioners. London Electricity Joint Committee Co. (1920), Exparte (1924) 1 K.B. 171,

On principle and on authority it is in my opinion open to this Court to hold, and I consider that it should hold, that powers so far-reaching, affecting as they do individuals as well as property, are powers to be exercised judicially and not ministerially....

Lord Reid J., observed (at page 76) that BANKES L.J., inferred the judicial element from the nature of the powers, and was also of the view that ATKIN L. J., did the same. The learned Judge, LORD REID expressed his dissent from the view taken by the Privy Council in Nakkuda Ali v. M.F. De S. Jayaratne (1951) A.C. 66. Referring to the powers of the controller of textiles in Ceylon cancelling the Appellant''s licence to act as a dealer under a Defence Regulation, which empowered him to cancel a licence where the controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer, the Privy Council expressed itself thus (at page 77):

But it does not seem to follow necessarily from this that the controller must be acting judicially in exercising the power ... It is a long step in the argument to say that because a man is enjoined that he must not take action unless he has reasonable ground for believing something he can only arrive at that belief by a course of conduct analogous to the judicial process. ... If he is not under a duty so to act then it would not be according to law that his decision should be amenable to review and, if necessary, to avoidance by the procedure of certiorari.

Lord Reid declined to accept this view and stated that nothing would induce him to accept the position that although an enactment expressly required an official to have reasonable grounds for his decision, their law was so defective that a subject could not bring up such a decision for review, however seriously he might be affected and, however obvious, it might be that the official acted in breach of his statutory obligation. The principle laid down in Ridge v. Baldwin (1964) A.C. 40, is that the judicial element can be inferred from the nature of the power and need not be expressly conferred. This is the view expressed by SUBBA RAO J., (as he then was) in his dissenting judgment in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, at page 1501, when he stated that the duty to act judicially might not be expressly conferred but might be inferred from the provisions of the statute and that it might be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In Associated Cement Companies Ltd. Vs. P.N. Sharma and Another, after referring to the decision of the House of Lords in Ridge v. Baldwin (1964) A.C. 40, Gajendragadkar C.J., summed up the position thus (at page 1601):

In other words, according to LORD REED''S judgment the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decision which the watch committee had been authorised to reach u/s 191(4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of the writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under Article 226 of our Constitution, the test prescribed by LORD REID in this judgment may afford considerable assistance.

The same view is expressed in a recent decision of the Supreme Court in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, Subba Rao J., (as he then was) delivering the judgment expressed the position thus (at page 86):

If the statute expressly imposes a duty on the administrative body to act judicially it is a clear case of a judicial act. But the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred, of the duty imposed on the authority and other indicia afforded by the statute.

It is clear from the authorities cited that the question whether the duty to act judicially or not has to be inferred from the provisions of the statute. It can be gathered from the nature of the power conferred on the authority, the nature of the rights affected, the manner of the disposal provided and other indicia afforded by the statute. In view of the clear pronouncements by the House of Lords in Bidge v. Baldwin (1964) A.C. 40 and by the Supreme Court in Associated Cement Companies Ltd. Vs. P.N. Sharma and Another, and Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, there can be no doubt that the powers conferred on the Government u/s 41 of the Madras District Municipalities Act are judicial in character and can be interfered with by the High Court in the exercise of its writ jurisdiction.

The learned Advocate-General relied on a decision of the Court of Appeal in Johnson and Co. v. Minister of Health (1947) 2 All ER 395 in support of his contention that the function of the Government u/s 41(1) of the District Municipalities Act is mainly administrative in character. In that case the Court was dealing with a compulsory purchase order made by a local authority u/s 74 of the Housing Act, 1936 and confirmed by the Minister of Health. In dealing with the facts of that case the learned Judge observed (at pages 398 and 399):

First, the functions of the Minister in carrying these provisions into operation are fundamentally administrative functions. In carrying them out, he has the duty which every Minister owes to the Crown, viz., to perform his functions fairly and honestly, and to the best of his ability. But his functions are administrative functions, subject only to the qualification that, at a particular stage and for a particular and limited purpose, there is superimposed on his administrative character a character which is loosely described as "quasi judicial ".... That decision must be an administrative decision, because it is not to be based purely on the view that he forms of the objections, vis-a-vis the desires of the local authority, but is to be guided by his view as to the policy which in the circumstances he ought to pursue.

The Advocate-General also relied on a passage in Board of Education v. Rice (1911) A.C. 179 where it was held that the Board of Education would have to ascertain the law and also to ascertain the facts, that they could obtain information in any way they thought best, always giving a fair opportunity to those who were parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. In determining the character of the Board the Court held (at page 182):

The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari. Reliance was placed on the decisions in Local Government Board v. Arlidge (1915) A.C. 120, Errington v. Minister of Health (1936) 1 KB 249, Frost v. Minister of Heatth (1936) 1 KB 286 and Offer v. Minister of Health (1936) 1 K.B. 40. It is unnecessary to deal with these decisions as the position of law has been clearly laid down by the House of Lords in Ridge v. Baldwin (1964) A.C. 40 by the Supreme Court in Associated Cement Companies Ltd. Vs. P.N. Sharma and Another, and Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, .

The learned Advocate-General submitted that no duty was cast on the Government to give reasons for its order, and when once an opportunity had been given to the municipal council and objections taken into account the requirements of Section 41 had been complied with and the order is not liable to be quashed by this Court. This contention does not arise for consideration in this case, as reasons have been given by the Government which have been dealt with at length earlier in this judgment. Even the contention that reasons need not be given for an order u/s 41 cannot be upheld, in view of the decision of the Supreme Court in Madhya Pradesh Industries Ltd. Vs. Union of India and Others (UOI), where Subba Rao, J., (as he then was) observed (at page 675):

So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders ... What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal.

The same view was expressed in Govindrao v. State of M.P. AIR 1960 S.C. 1222 where it was held that the Government acting u/s 5(3) of the C.P. and Berar Revocation of Land Revenue Exemption Act was exercising a judicial Act and were bound to give reasons. The Court further observed (at page 1226):

The Act lays upon the Government a duty which obviously must be performed in a judicial manner. The Appellants do not seem to have been heard at all. The Act bars a suit and there is all the more reason that Government must deal with such cases in a quasi judicial manner giving an opportunity to the claimants to state their case in the light of the report of the Deputy Commissioner. The Appellants were also entitled to know the reason why their claim for the grant of money or a pension was rejected by Government....

It is clear that the Government in exercising its powers u/s 41 is acting judicially and the order is liable to be interfered with by this Court. The order in this case cannot be sustained for the reasons stated already. The Government has not complied with the requirements of Section 41 (1-A) in that it had taken into consideration charges which were not included in the show-cause-notice, thereby depriving the municipal council of an opportunity to explain the charges. The Government had failed to state that it considered it necessary to supersede the municipal council as required u/s 41. Even if all the charges are held to be proved, it does not establish that the municipal council was not competent to perform or was persistently making default in performing the duties imposed on it. The Government did not mention in the show-cause notice or in the order of supersession that the municipal council acted in excess of or abused its powers though it is mentioned in the annexure. Even if the charges are held to be proved, the municipal council cannot be held to have abused or exceeded its powers.

The allegation made by the Petitioners of mala fides on the part of the Government remains to be considered. It is alleged in the affidavit of the Petitioner in Writ Petition No. 1789 of 1966 that in the election to the municipal council in 1964 the Petitioner Abdul Majid got elected by securing 20 votes as against the rival Congress candidate, who secured 10 votes. It was alleged that the Congress members of the municipal council were trying their best to stop the progress and the functioning of the municipal council both by writing petitions to the Collector and to the Government and also by obstructing the conduct of the meetings. It was further alleged that as he belonged to the Dravida Munnetra Kazhagam party and as the opposition party in the municipal council was Congress party, the Congress party, which is in power in the State of Madras was not happy over the fact that the Dravida Munnetra Kazhagam had captured the municipality of Tirunelveli and was trying to pick holes here and there and, therefore, the order of supersession was mala fide. It was further alleged in paragraph 5 of the affidavit that the State Ministers made certain speeches, which were reported in local papers indicating that they were prejudiced against the municipal council. Reference was also made to the order of the municipal commissioner objecting to the occupation of a municipal site for the exhibition by the Women and Children Hospital Improvement Exhibition Committee of which the Petitioner was the convenor. It was further stated that the Minister for Local Administration and the ruling party were bent upon superseding the municipal council, in which the Dravida Munnetra Kazhagam is the ruling party, since the party is opposed to the party in power in the State. The allegations regarding mala fides are denied and affidavits have been filed by the Minister for Rural Development and the Minister for Home of the Madras Government. The Home Minister admitted that he made a speech on 22nd June 1966 at Tirunelveli wherein he criticised the Dravida Munnetra Kazhagam and its policy. But he denied that he was at any stage consulted with regard to the proceedings that resulted in the supersession of the municipal council. The Minister for Rural Development and Local Administration has also in his affidavit denied the allegations of mala fides and stated that in issuing the impugned notification the Government was not actuated by any political motive. He further stated that the impugned notification was issued bona fide after a consideration of the explanation of the Tirunelveli Municipal Council. He also denied that he asked for the approval of any councillor of the Tirunelveli Municipal Council for superseding the municipal council. The allegations made by Majid, the Petitioner in Writ Petition No. 1789 of 1966, are not based on any personal knowledge. Reference has been made in the affidavit to reports in. the local dailies. But as to what was actually spoken by the Ministers concerned there is no evidence. Affidavits of persons, who heard the statement of the Ministers which could indicate prejudice against the municipal council, have not been filed. The allegations of mala fides have been denied by the Ministers and there are no grounds for not accepting the statements of the Ministers. It was faintly alleged on behalf of the Petitioner that the Tirunelveli Municipal Council was discriminated against, in that even though the affairs of the other municipal councils under the control of the Congress party are in a worse position, no action has been taken against them. The Petitioner has not given particulars as to in what respect the affairs in the municipal councils under the control of the Congress party are worse of. Apart from the bare allegations there is no material placed by the Petitioner for coming to the conclusion that the Government acted mala fide or with ulterior purpose. The contention that the Government was actuated by improper motives has to be rejected.

In the result these writ petitions are allowed and the impugned order will stand quashed with costs.