@JUDGMENTTAG-ORDER
V. Dhanapalan, J.@mdashA challenge has been made to an order passed by the second respondent in the impugned proceedings in Na.Ka. No. 2341/2011/B2, dated 25.7.2011, wherein, the second respondent passed an order u/s 50(1)(d) of the Tamil Nadu District Municipalities Act (for short, ''the Act''), holding that the petitioner ceased to hold the office for the alleged reason that she has violated Section 30(1) of the Act, seeking to quash the same and for consequential direction to the respondents not to interfere with the petitioner''s functioning as Chairman of the Arani Municipality. Thiruvannamalai District. The case of the petitioner is as follows:
She is the elected Chairman of the Arani Municipality in the Elections held on 15.10.2006 and she is continuing in the said post till date. She belongs to a particular political party, namely DMK and she is the sympathizer of the same. In the meanwhile, the second respondent caused a notice dated 27.6.2011 at the instigation of a person, by name, A.P. Subash Chandra Bose who belonged to AIADMK. Based on the complaint of the said person, dated 26.6.2011, the second respondent passed an order on 27.6.2011 to the effect that she has to give an explanation for the allegation that she helped his son to obtain a shop in the Periyar Maligai Complex belonging to the Municipality and thereby, she has violated certain rules and regulations in the said allotment and she has been asked to give an explanation as to why she should not be proceeded upon u/s 50(1)(d) of the Act, for which, the petitioner sent a representation on 4.7.2011, stating that the allegations thereof were more than two years old and hence, should could state her objections only if copies of the relevant papers are served on her. She requested the respondents to furnish the copy of the complaint given by the said Subhash Chandra Bose and other connected papers to enable her to give explanation to the allegation. Further, on 16.7.2011, she sent another representation stating that the second respondent in respect of non-furnishing of the required document and the complaint.
While so, to the petitioner''s shock and surprise, she received the notice dated 27.6.2011 in the proceedings in Na.Ka. No. 2341/2011/ B2 of the second respondent stating that she has been removed from the post of Councilor of the Municipality and also the Chairman post u/s 50(1)(d) of the Act for the alleged reason that she has violated Section 30(1) of the Act.
She is assailing the said order on the ground that it was passed in violation of the principles of natural justice, as she was not given a chance to give her explanation in the absence of non-furnishing of the copy of the complaint and the connected papers and also that the respondents erred in passing the order without giving any opportunity to her. The impugned order is passed without looking into the fact that the shop was allotted to persons only unanimously and no voting or any discussion was made in the meeting. The second respondent is not at all entitled under the Act to remove the petitioner from the post of either the Municipal Councilor or the Chairman, and also that Section 50(1)(d) of the Act is not at all applicable with effect to provisions of Section 49. There is no pecuniary interest by the petitioner over the shops. Hence, the Writ Petition is filed.
2. The second respondent has filed a counter affidavit inter alia stating as follows:
The Writ Petition is misconceived and is not maintainable either in law or on facts. The petitioner has submitted that as per Section 40B of the Act, only the Regional Director of Municipal Administration is the competent person to initiate proceedings for the removal of the Chairman. The petitioner is not removed for the misconduct mentioned in Section 40B. On the other hand, she became disqualified to hold the post of Chairman as per the provisions of Section 30(1) of the Act, and since she has become disqualified, action had been taken u/s 50(1)(d) of the Act. Only the second respondent-executive authority is the competent authority in this regard. Further, if the petitioner is aggrieved by the action of the second respondent, she has effective remedy to apply to the District Judge of the District to get remedy u/s 51 of the Act. Without exhausting the alternative effective remedy, the petitioner has invoked the writ jurisdiction of this Court.
One A.P. Subhash Chandra Bose of Mo. 10/38, Rajaji Street, Arani in his petition dated 20.6.2011 alleged that the shop bearing No. 1, in Periyar Maligai, which belongs to Arani Municipality, was leased out to Mr. L. Satish Kumar, son of Mrs. Shanthi Loganathan, who is the Municipal Chairman of Arani Municipal Council against the Municipal Rules and also alleged that the said shop would fetch a rent of Rs. 10,000/-, whereas it has been leased out for a rent of Rs. 2,340/- and requested to take action to dissolve the Arani Municipal Council and to take possession of the said shop by the Arani Municipality.
A notice was issued to the petitioner in the Office Reference No. 2341/2011/B2, dated 27.6.2011 seeking explanation to the petitioner within seven days as to why action should not be taken against her to disqualify her from the post of Municipal Chairman as per Section 50(1)(d) of the Act for having violated Section 30 of the Act by misusing her power as Municipal Chairman and by showing undue interest in having presided over the Council Meeting in which a resolution has been passed approving the tender offered by her son Mr. L. Sathish Kumar for the shop No. 1, Periyar Maligai, Arani Municipality. Therefore, this is in violation of Sections 30 and 49(2)(c) of the Act. Therefore, they have invoked the provisions of Section 50(1)(d) to disqualify the petitioner, since the petitioner has participated in the discussion for grant of lease to her son which is prohibited as per Section 30(1) of the Act.
The petitioner requested for furnishing the copies of the documents in her letter dated 4.7.2011 and also sought for a copy of the complaint given by A.P. Subhash Chandra Bose. The copies of five numbers of documents pertaining to the leasing out of the said Municipal Shop were furnished to the petitioner in the Office Letter Roc. No. 2341/2011/B2, dated 11.7.2011. But the petitioner did not give any explanation as sought for in the Office Notice dated 27.6.2011, even after the Municipality furnished the copies of relevant documents, such as tender notice, copy of the minutes of the meeting, dated 24.8.2009, etc. The copy of the complaint was not furnished to the petitioner as she seemed to divert the issue and delay the submission of her explanation.
Even after a lapse of 28 days, that too, after the Municipality furnished the copies of relevant documents, in the absence of any explanation from the petitioner, the petitioner was disqualified as Municipal Councilor and Municipal Chairman in the Office Notice Roc. No. 2341/2011/B2, dated 25.7.2011 as per Section 50(1)(d) of the Act, by the second respondent, who is the competent authority to disqualify the petitioner as Councilor as well as Chairman. Since the action is taken u/s 50(1)(d) of the Act, the allegation that only the Regional Director can take action, is untenable. In this case, action is not taken u/s 40B of the Act. The impugned order is sustainable in law and on facts, as the respondents have followed the procedures as contemplated under the Act and the allegation of violation of principles of natural justice, is denied. The petitioner was given ample opportunity to put forth her case. Only to drag on the proceedings, the petitioner has moved this Court and therefore, the second respondent prayed for dismissal of the Writ Petition.
3. The foremost contention of the learned counsel for the petitioner is that the second respondent is not competent to disqualify the petitioner by passing the impugned order, contrary to the provisions of Section 50(1)(d) of the Act and the respondents can only apply to the District Judge through the Council and therefore, the impugned order is vitiated in law. He further contended that the copy of the complaint was not furnished to the petitioner and therefore, the petitioner could not make her submissions and the action contemplated by the respondents by passing the impugned order, is in violation of the principles of natural justice.
4. Per contra, learned Special Government Pleader appearing for the respondents contended that the action taken by the respondents is based on the complaint. The petitioner has violated the provisions of Section 30(1) of the Act by giving the shop in lease to the petitioner''s son Mr. L. Sathish Kumar, which has created loss to the Municipality. Therefore, for the act committed by the petitioner, Section 50(1)(d) attracts disqualification and she ceases to hold the office for the above allegation and also for having participated in the discussion and chaired the meeting of the Municipality, at the time of deciding the lease in favour of her son. Learned Spl. G.P. further contended that the respondents have followed the procedures contemplated under the Act and there is no violation of the principles of natural justice. Since the petitioner seemed to divert the issue and delay the submission of the explanation, the copy of the complaint was not furnished, however, all the other relevant documents were furnished to her. In support of her contentions, learned Spl. G.P. relied on the following decisions:
5(a) Rajangam v. Mohamed Hani (2000) 2 MLJ 51 (Madras High Court) at p. 53 of MLJ:
"10. Now, we have to decide whether Section 50(1)(d) of the said Act will apply to the case of the petitioner so as to disqualify him, even though the subsisting contract given to the petitioner''s son cannot be treated as a contract of the petitioner himself. Section 50(1)(d) does not contemplate a subsisting contract in favour of the Chairman or a Councilor but, even if there is any interest in such contract, the said provision will apply. So, it has to be decided whether the petitioner was having any interest in the said subsisting contract.
11. The word ''interest'' has got a very wide import and should be construed very liberally and it need not be on the basis of a right in a property or in any activities. But it also certainly not sentimental or sympathetic interest. ''Interest'' must be something more than a sentimental interest, which arises from such natural love and affection of a father for his son. It need not be only the possibility of a pecuniary advantage. It may be equally to be the likelihood of a pecuniary loss. Accruing benefit need not be direct. The possibility or even probability of actual resulting benefit will be sufficient. This view of mine is supported by the decision in Prumode Lal v. Additional District Magistrate, AIR 957 Cal. 164.
12. Though the finding of the learned District Judge that when the petitioner is the undivided member of the joint family with his son Palanisamy, in whose favour the contract was given, the petitioner is having right in the said contract cannot be sustained. But, it cannot be said that he is not having any interest in the said contract given to his son, that too, during his tenure of office as Chairman of the said Municipality. While considering the scope of Section 7(d) of the Representation of the People Act, 1951, the Apex Court in
"The purpose of the Act is to maintain the purity of the legislature and to avoid a conflict between duty and interest. It is obvious that the temptation to place interest before duty is just as great when there is likely to be some difficulty in recovering the money from Government (for example, if Government were to choose not to ratify the contracts) as when there is none."
13. In the subsequent decision of the Apex Court in
"In our opinion, the High Court has taken the right view of the matter. The law requires that a candidate should not have any interest in any contract with Government and even a partner has an interest sufficient to attract the provisions of Section 9-A"
14. Though the learned District Judge is not correct in proceeding on the basis that the petitioner is having right in the subsisting contract, in view of the fact that the petitioner''s son is a member of the undivided Hindu joint family, the order disqualifying the petitioner can be sustained, as the petitioner is having interest in the subsisting contract. When a person like the petitioner is discharging public duty, he should avoid granting contract to his blood relations that too to his undivided son, especially when the son is having a common kitchen with the father, and, it cannot be said that the petitioner is not having any interest in the business, though not monetarily."
5(b) Sundaresa Iyer, In re 69 LW 504 (Madras High Court):
"In this connection, it is significant to note the provisions of Section 350 of the District Municipalities Act. There a suit for damages or compensation against any servant or officer or municipal council or municipal authority or even any person acting under the directions of the same, shall not be instituted, unless the conditions mentioned in the Section are satisfied. The conditions apply even to persons acting under the directions of the municipal authority. Similarly if protection against criminal proceedings given to the persons mentioned in the Section is intended for all, the expression used in Section 350 would well have been used in Section 353A as well. Apart from the plain meaning of the words (about which there is no ambiguity) the failure to use such expressions as used in Section 350 in Section 353A is strongly indicative of the intention of legislature not to extend the protection of persons other than those mentioned in the Section. It is true that the servants of the Municipality, when they act under the delegated powers u/s 18(A)(iii) have all the powers of the executive authority. But a mere clothing of an individual with all the powers of a higher authority will not make that individual the higher authority. Section 353A will not, therefore, apply to the petitioner herein."
Madurai Bench of Madras High Court: W.P.(MD). Nos. 11530, 11610, 11611 and 11623 of 2009: dated 12.11.2009:
"7. In view of the submissions made by the learned counsels and on a perusal of the records available, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to interfere with the impugned order of the second respondent, dated 5.11.2009.
8. As admitted by the learned Special Government Pleader, appearing for the respondents, the order, dated 5.11.2009, issued by the second respondent is only a communication of the disqualification incurred by the petitioners, in view of the sentence passed by the Assistant Sessions Judge, Periyakulam, in S.C. No. 141 of 2008. As such the petitioners have not been disqualified by the impugned order of the second respondent, dated 5.11.2009. Therefore, there is no need for this Court to set aside the impugned order of the second respondent, dated 5.11.2009. Hence, the writ petitions are liable to be dismissed. Hence, they are dismissed. However, it is made clear that it is open to the petitioners to invoke the relevant provisions of law, including Section 51 of the Tamil Nadu District Municipalities Act, 1920, to agitate their rights and to seek the necessary reliefs, in the manner known to law. No costs. Consequently, connected M.P.(MD). Nos. I and 2 of 2009 are closed."
5. I have carefully considered the submissions made by learned counsel on either side and perused the records and the decisions relied on by the learned Special Government Pleader.
6. Admittedly, it is not in dispute that the petitioner is an elected Chairman of the Arani Municipality and she is holding the office as Chairman from 15.10.2006 and continuing in the said post till date. While so, there was a notice issued by the second respondent on 27.6.2011 based on the complaint given by one A.P. Subash Chandra Bose, alleging that the petitioner has helped her son in the allotment of the shop in the Periyar Maligai Complex belonging to the Municipality and therefore, she has violated the rules and regulations in the allotment of shop. After receipt of the notice, the petitioner sent a representation to the second respondent on 4.7.2011 requesting the respondents to furnish the copies of the relevant papers and also the copy of the complaint, to enable her to submit her objection/explanation. The petitioner made further representation on 16.7.2011 seeking for copy of the complaint. It appears that except the copy of the complaint, the other documents were furnished to the petitioner in the Office Letter Roc. No. 2341/2011/B2, dated 11.7.2011. Even then, the petitioner did not submit her explanation, and therefore, the respondents have proceeded to pass the impugned order on 25.7.2011 u/s 50(1)(d) of the Act for having violated Section 30(1) of the Act by misusing her power as Municipal Chairman and also for having presided over the Council meeting, in which a resolution was passed approving the tender offered by her son Mr. L. Sathish Kumar, the blood relation of the petitioner, for the shop No. 1, Periyar Maligai, Arani Municipality, against the natural justice, by wielding undue influence and therefore, this disqualified her as Councilor or Chairman by the second respondent, who is the competent authority to take action against the petitioner.
7. In the above context, the impugned notice has to be examined as to whether it is in violation of the provisions of the Act and also as to whether the second respondent is competent to pass such order of disqualification against the petitioner.
8. It is to be seen that the second respondent is the Commissioner of Arani Municipality of Tiruvannamalai District. He claims that he is the executive authority who is competent to take action against the petitioner. The procedure was followed by him by issuing notice on 27.6.2011 and thereafter, the petitioner sought for certain documents in her representation dated 4.7.2011. However, except the copy of the complaint, the other documents were furnished to her. There was no explanation by the petitioner and the impugned order has been passed on 25.7.2011 u/s 50(1)(d) of the Act.
9. Section 50(1)(d) of the Act reads as follows:
"50: Disqualification of Chairman or Councilors--(1) Subject to the provisions of Section 51, the Chairman or a Councilor or a person referred to in clause (b) and (c) of sub-section (2) of Section 3C or clause (b) and (c) of sub-section (3) of Section 7 shall cease to hold his office, if he--
(a)..
(b)..
(c)..
(d) subject to the proviso to clause (c) of sub-section (2) of Section 49, acquires any interest in any subsisting contract made with, or work being done for the council except as a shareholder (other than a director) in a company.
10. Section 49 of the Act provides for disqualification of candidates and clause (c) of sub-section (2) to Section 49 provides as follows:
"49. Disqualification of candidates:-
(1)...
(2) A person shall be disqualified for election as a Chairman or for election as a Councilor, if such person is at the date of nomination or election--
(a)..
(b)..
(c) interested in a subsisting contract made with, or any work being done for, the municipal council except as a shareholder (other than a director) in a company.
11. In this regard, it is also relevant to notice Section 51 of the Act, which reads as follows:
"57. Decision of questions of disqualification of Chairman or Councilor by District Judge -- Whenever it is alleged that any person who has been elected as the chairman or a councilor is disqualified u/s 50, Section 50A of Section 60 and such person does not admit the allegation, or whenever the Chairman or any Councilor is himself in doubt whether or not he has become disqualified for office, u/s 50, Section 50A or Section 60 such Chairman or Councilor or any other Councilor may, and the executive authority, at the request of the council, shall, apply to the District Judge of the district in which the municipality is situated.
(2) The said judge after making such inquiry as he deems necessary, shall determine whether or not such person is disqualified u/s 50 Section 50A or Section 60, and his decision shall be final.
(3) Pending such decision, the Chairman or the Councilor shall be entitled to act as if he were not disqualified."
12. From a reading of the above provisions of law, it is clear that the Chairman shall cease to hold office, if he acquires any interest in any subsisting contract made with or the work being done for the Council, except as a shareholder (other than a Director) in a company. If the disqualification of a Chairman is questioned by the person aggrieved, then the Executive Authority, at the request of the Council, shall apply to the District Judge of the District in which the Municipality is situated and thereafter, the said District Judge will arrive at a decision by making such inquiry as he deems necessary and determine whether or not such person is disqualified u/s 50.
13. In the instant case, the respondents have admitted in the counter affidavit in paragraph 6 that the petitioner has not submitted explanation as sought for in the notice dated 27.6.2011, even after a lapse of 28 days, that too, after the Municipality furnished the copies of relevant documents, such as tender notice, copy of minutes of the meeting dated 24.8.2009, etc., as requested by the petitioner in her letter dated 4.7.2011 and as such, in the absence of any explanation from the petitioner, Tmt. Shanthi Loganathan, the petitioner herein was disqualified as Municipal Councilor and Municipal Chairman in the impugned notice in Roc. No. 2341/2011/B2, dated 25.7.2011 as per Section 50(1)(d) of the Act, for having violated Section 30(1) of the Act, by misusing her power as Municipal Chairman in having presided over the Council meeting in which a resolution has been passed by allotting the shop to her son.
14. The provisions of Section 51 of the Act make it clear that whenever it is alleged that any person who has been elected as the Chairman or a Councilor is disqualified u/s 50, and such person does not admit the allegation, or whenever the Chairman or any Councilor is himself in doubt whether or not he has become disqualified for office, the executive authority, at the request of the Council, shall apply to the District Judge.
15. In the instant case, the second respondent has passed the order of disqualification. Thereafter, the executive authority, shall request the Council and apply to the District Judge of the District, in which the Municipality is situated and thereafter, the District Judge is to determine and decide whether such disqualification is valid u/s 50(1)(d) of the Act.
16. It is seen that the petitioner has not submitted her explanation on the ground that the copy of the complaint was not furnished to her. The said complaint is the basis for taking action against the petitioner. Therefore, the petitioner could not submit her explanation to the respondents, as to whether she has done mistake in allotting the shop in favour of her son. The decision arrived at by the second respondent to disqualify the petitioner, has to be tested by the competent District Judge of the concerned jurisdiction, by referring the matter to the concerned District Judge at the request of the Council. In the instant case, the second respondent has not done anything so far to refer the matter to the District Judge. On the other hand, the second respondent is implementing the disqualification. A perusal of the records and the pleadings, makes it clear that a copy of the complaint as requested by the petitioner, has not been furnished, and therefore, there is clear violation of the principles of natural justice.
17. Further, it is provided that the disqualification is to be determined by the competent District Judge. The second respondent''s action in not moving the District Judge, would give a clear impression that the second respondent''s order, which is not tested before the concerned District Judge, as contemplated u/s 51 of the Act, also vitiates the impugned notice.
18. It is settled legal principle that if one person is in breach of certain acts, he could be disqualified in the manner as provided under law. A reading of Section 50(1)(d) read with Sections 49 and 51 of the Act, shows that the provisions of law have been comprehensively provided as to how a person who acquired any interest in any subsisting contract, made with, or work being done for the Council except as a shareholder (other than a Director) in a company, ceases to hold the office in the manner as provided under law. But the stand of the respondents in this case is that the disqualification has been made and it should be given effect to. The legislative intention is to disqualify a particular person in the manner as provided u/s 50(1)(d) of the Act, it could be done only as per the provisions contemplated under the Act and the said legislative intention cannot be given a go-by by the executive authority against the very object of the provisions. A perusal of the entire records clearly reveals that the authority has not acted in accordance with the provisions of the Act. On the contrary, he is making the order to disqualify and therefore, the impugned order is vitiated in law and cannot be sustained.
19. Therefore, for the foregoing reasons and discussion, the impugned order is legally infirmed and therefore, the same is set aside. However, the matter is remanded to the second respondent to take action in the manner as provided under the Act and proceed further in the matter. The writ petition is allowed to the extent indicated above. No costs. The Miscellaneous Petition is closed
