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1989 DIGILAW 161 (MAD)

T. Rajaram v. V. Narayanaswamy

1989-03-02

S.MOHAN, VENKATASWAMI

body1989
Judgment :- VENKATASWAMI, J. 1 All these three Writ Appeals are directed against a common order of Shanmugham, J. in W.P. Nos. 6160 of 1981, 641 of 1980 and 6461 of 1981 respectively, dated 17.4.1984. 2. The contesting Respondent in each of the Writ Petitions is the Appellant in each of these Writ Appeals is the Petitioner in the respective Writ Petitions. The Writ Petitioner, feeling aggrieved by an order of the Government in G.O.Ms. No. 1981, R.D. & L.A., dated 17.12.1979, have moved this Court for quashing the said G.O. and for a consequential mandamus as prayed for in the Writ Petition. 3. The facts as gathered from the pleadings and common order of the learned Judge are as under: The Corporation of Madras constructed all 16 ‘P’ type Building in Shenoy Nagar, Madras. Out of the 16 ‘P’ Type buildings, 8 houses were sold to the First occupant as per the then existing policy. Later on, finding it difficult in choosing the person for allotment by way of sale, the Government seems to have issued instructions to the Corporation of Madras in Memo No. 9141-A/165/65-7-B, L.A., dated 8.1.1968 not to sell the remaining ‘P’ Type buildings, instead to let out the same on rental basis. On the basis of the said memorandum the Council passed a Resolution bearing Resolution No. 609 of 1968, dated 7.8.1968 that “The remaining unsold 9 ‘F’ Type buildings in Shenoy Nagar need not be sold and that they may continue to be let out on rental basis”. Subsequently, the First occupants of the said house remaining unsold ‘F’ Type buildings sent representations to Government to modify the earlier memorandum dated 8.1.1968 and permit the Corporation of Madras, to sell the same in the same manner as the other seven ‘F’ Type buildings were sold. The Government after a long time, and after ascertaining the view of the Commissioner, Corporation of Madras, passed the impugned G.O. which reads as follows: “Abstract “Buildings — Corporation of Madras ‘F’ Type buildings in Shenoy Nagar — Hire Purchase — Execution of Sale deed in favour of allottees — Issued. Rural Development and Local Administration Department. G.O.Ms. No. 1981, Dated: 17th December 1979 Read: 1. From Thiru T. Rajaram, Petition, dt. 29.2.79. 2. From the Commissioner, Corporation of Madras, dt. 18.4.79 and 9.8.79 3. From Thiru K. Venkataraman & others, dt. 21.5.79. 4. Rural Development and Local Administration Department. G.O.Ms. No. 1981, Dated: 17th December 1979 Read: 1. From Thiru T. Rajaram, Petition, dt. 29.2.79. 2. From the Commissioner, Corporation of Madras, dt. 18.4.79 and 9.8.79 3. From Thiru K. Venkataraman & others, dt. 21.5.79. 4. From the Commissioner, Corporation of Madras, letter Rec. No.51/82057/79, dt. 7.7.1979. ORDER: In the circumstances, reported, the Government in super session of the instructions issued in Memorandum No. 94191A/M5/65-7 Rural Development and Local Administration, dt. 8.1.68 have decided that the sale deed in favour of the First occupants of the remaining 9 (‘F’ Type houses be executed as has been done earlier in the case of 7 houses of this type in relaxation of the disposal of the immovable properties of Municipal Councils and Municipal Corporations issued in G.O.Ms. No. 730, Rural Development and Local Administration, dt. 14.4.1976, the Commissioner, Corporation of Madras, is requested to take immediate action in the matter and send a report to the Government. The Commissioner, Corporation of Madras is requested to acknowledge receipt of this Order. The petitioners are informed that the Government issued suitable instructions to the Commissioner, Corporation of Madras, in this matter. They are requested to approach him in the matter.” 4. The abovesaid G.O. was challenged before Shanmukham, J., by a group of persons, apparently in the occupation of a portion of the building presumably not the first occupants. At this juncture, one relevant factor was to be noticed, that is, when the Government passed the impugned order there was no Council for the Corporation of Madras as it was superseded by the Government earlier. As a result of such supersession, the administration vested with the Special Officer, assisted by the Commissioner of Corporation of Madras. 5. The impugned G.O. was challenged before the learned Judge of the ground that the Government could not pass the order when the earlier resolution of the Corporation Council dated 7.8.1968 was not specifically rescinded or overruled in a manner known to law. This argument found favour with the learned Judge and on that basis, alone, the learned Judge allowed the Writ Petitions. However, the learned Judge declined to grant the consequential relief of Mandamus prayed for by the Writ Petitioners. The reasoning of the learned Judge as found in paragraph-5 reads as follows:— “Let me recall the Corporation Councils Resolution, dated 7.8.1968. This argument found favour with the learned Judge and on that basis, alone, the learned Judge allowed the Writ Petitions. However, the learned Judge declined to grant the consequential relief of Mandamus prayed for by the Writ Petitioners. The reasoning of the learned Judge as found in paragraph-5 reads as follows:— “Let me recall the Corporation Councils Resolution, dated 7.8.1968. It was then decided that the buildings need not be sold and they might be continued to let out on rental basis. It needs noticing the power of the Council as envisaged in the Madras City Municipal Corporation Act. Section 23(1) provides, subject to the provisions of this Act, the Municipal Corporation of the City shall vest in the Council, but the Council shall not be entitled to exercise functions expressly assigned by or under this Act or any other law to a Committee constituted under this Act or the Commission. Section 24 stipulates that the Committee constituted under this Act and the Commissioner shall be bound to give effect to every resolution of the Council unless such a resolution is cancelled in whole or in part by the State Government; the Proviso is omitted as unnecessary for the present purpose. Rule 10 of the Rules regarding proceedings of the Council and Committee in Schedule II to the said Act enables the Council to cancel its previous resolution after a period of three months. Under Section 44(2), the Government is vested with a power to cancel the Councils Resolution. In this case, the said Resolution of the Council, da ted 7.8.1968 was neither cancelled by the Council in its meeting, nor was it cancelled by the Government by any Notification pursuant to the power under Section 44 (2) or by virtue of the power vested on them under Section 44(8). The resultant position is that the said Resolution remains is force and is binding on the Executive Authority of the Corporation of Madras.” After overruling the contentions raised in support of the impugned G.O. the learned Judge, on the basis of the reasoning extracted above, has found as follows: “This is enough to strike down the impugned G.O. as invalid”. 6. Mr. D. Raju, learned counsel appearing for the Appellants in Writ Appeal Nos. 6. Mr. D. Raju, learned counsel appearing for the Appellants in Writ Appeal Nos. 222 and 483 of 198S submitted that the learned Judge went wrong in assuming that the Resolution of the Madras Municipal Corporation was in force notwithstanding the impugned G.O. According to the learned Counsel, the basis for the Resolution dated 7.8.68 was taken away by the Government by withdrawing its Memo, dated 8.1.1968. Even otherwise in the absence of the Council which was superseded, it is the Government which is entitled to all the assets and liabilities of the Corporation until the Council is re-constituted as per Section 44-A(8) of the Madras City Municipal Corporation Act, 1919. Therefore, the Government placing itself in the position of the Municipal Council, in supersession of the earlier Resolution, has passed the impugned G.O. and, therefore, it cannot be contended that notwithstanding the impugned G.O., the earlier Municipal Corporation Councils Resolution stands. It is a matter of policy which the Government is entitled to change according to administrative exigencies. In the circumstances, according to the learned counsel, the assumption that the impugned G.O. was one passed without jurisdiction is baseless. Even though such an argument was advanced before the learned Judge, it did not find favour with him. 7. Mr. T.R. Rajagopalan, learned counsel for the Appellant in Writ Appeal No. 473 of 1985 adopted the arguments of Mr. D. Raju. 8. Mr. T. Chengalvarayan, learned counsel for the contesting Respondent (Writ Petitioners) while conceding the position that the Government have every right to change the policy according to administrative exigencies and, therefore, that matter cannot be questioned in a court of law unless on the ground of mala fides, which is not the case here, however, submitted that the impugned G.O. cannot have the effect of superseding the earlier Municipal Corporations Resolution, dated 7.8.1968. In any event, the procedural aspect regarding the allotment of buildings on the basis of first occupant is arbitrary and unworkable is the contention of the learned Counsel. 9. We have carefully considered the rival submissions, and we are inclined to agree with the submissions made by Mr. D. Raju, learned counsel for the Appellants in Writ Appeal Nos. 222 and 483 of 1985. As seen from the Resolution of the Municipal Corporation, it was wholly based on earlier Government Memo, dated 8.1.1968. 9. We have carefully considered the rival submissions, and we are inclined to agree with the submissions made by Mr. D. Raju, learned counsel for the Appellants in Writ Appeal Nos. 222 and 483 of 1985. As seen from the Resolution of the Municipal Corporation, it was wholly based on earlier Government Memo, dated 8.1.1968. By the impugned G.O. that memo has been superseded and further relaxation also has been given on the restrictions placed on Municipal Councils, and Municipal Corporation regarding disposal of immovable properties. The positive direction given by the Government in the impugned G.O. will squarely fall within the powers vested in it under Section 44-A(8) of the Madras City Municipal Corporation Act, 1919. Therefore, the contention of Mr. Chengalvarayan that the earlier resolution of the Municipal Council is still in force cannot be accepted. At any rate, it must be deemed, by the impugned Government Order, the earlier Resolution has been superseded. 10 The other contention that the procedure of allotment of the building to the first occupant is arbitrary and unworkable also cannot be accepted in as much as on the earlier occasions the seven other buildings were allotted on the same basis. 11. In the circumstances, we do not find that there is any case for the Writ petitioners. The learned Judge was not right in accepting the argument that the earlier resolution of the Municipal Council is still in force and, therefore, the impugned G.O. is invalid. 12. In the result, the Writ Appeals are allowed and the orders of the learned Judge in so far as it relates to Writ Petition Nos. 641 of 1980, 6160 and 6461 of 1981 is set aside and the said Writ Petitions are dismissed. However, there will be no order as to costs.