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2015 DIGILAW 3095 (MAD)

D. Ramamorthy v. Mayor, Trichirappali Corporation

2015-09-16

R.SUBBIAH

body2015
ORDER : R. Subbiah, J. These Writ Petitions have been filed praying for the issuance of Writs of Certiorari to call for the records of the first respondent in Na.Ka.No. 9311/2014/C4 (Centre) dated 04.08.2015 and quash the same as illegal and arbitrary. By the said order, dated 04.08.2015, the first respondent herein stopped the petitioners from participating in the Council Meeting. 2. Since the issue involved in both the Writ Petitions are one and the same, they are taken up together and disposed of by a common order. 3. The short facts leading to the Writ Petitions is that the petitioner, namely, D. Ramamorthy in W.P.(MD). No. 14964 of 2015 and the petitioner in W.P. (MD). No. 14965 of 2015, namely, T. Muthuselvam have been elected as Councillors of Trichy Corporation for Ward Nos.46 and 40 respectively. The said Corporation had established a crematoria at Karumandapam and the same is being utilised by two lakhs people. While so, the petitioners came to know that one Rajasekar, son of Jembulingam of Edamalaipatty Puthur, went to crematorium at Karumandapam on 15.07.2015 for burial of his mother's dead body, where, one Kumar alleged to have been incharge of the said crematorium received the dead body and immediately handed over the ashes of the body. Hence, the petitioners made an enquiry and came to know that the said Kumar without burning the body of the deceased gave the ashes of a stranger and hence, a compliant was lodged with the Inspector of Panchayat, Cantonment Police Station leading to registering a case against the said Kumar in Crime No.595 of 2015 for an offence under Section 295(A) of IPC and he along with some of the accused were remanded to judicial custody. In spite of the compliant being lodged, the said Kumar failed to discharge his duties properly and the Corporation failed to check their unlawful act in this regard. 3.1. The petitioners further alleged that the person belonging to the said crematorium used to burn two to three bodies together as against the usual practise. The matter went viral on the media, even then there is no improvement on the burning issue. It is further alleged that without proper license in the name of Trichy Corporation, receipts were issued for burning the corpses. 3.2. The matter went viral on the media, even then there is no improvement on the burning issue. It is further alleged that without proper license in the name of Trichy Corporation, receipts were issued for burning the corpses. 3.2. While the situation stood thus, the Meeting of the respondent Corporation was convened on 04.08.2015 and in order to bring to the notice of the entire Council Members especially to the first respondent, the petitioners attended the Council Meeting on 04.08.2015 along with a skull. When the said issue was raised, the Members of the Ruling Party made a strong objection to the same and prevented the petitioners from raising the issue. Due to the same, there was a sudden scuffle, in which, the skulls brought by the petitioners, have been broken into pieces. Further, in this regard, when the petitioner wanted to have the probe done by the Central Bureau of Investigation, the first respondent without permitting the petitioners, adjourned the meeting. Subsequently, the impugned notice dated 04.08.2015 was served upon by the first respondent by suspending the petitioners from attending the next council meeting. The said impugned notice is under challenge before this Court. 4. The first respondent has filed a separate counter affidavit for both the Writ Petitions reiterating the same averments in both the counter affidavits, which reads as follows:- 4.1. As per the Resolution of the Council, the Rotary Club of Tiruchirappalli Mid Town had been entrusted with the job of operation and maintenance of Karumandapam Gasifier Crematorium on 24.02.2009 with the approval of the Corporation Council initially for three years. The Corporation Council in its Resolution No.9 dated 31.01.2012 has accorded necessary approval to the Rotary Club of Tiruchirappalli Mid town to carry out the operation and maintenance of Karumandapam Gasifier Crematorium until further orders and the said NGO has been maintaining the crematoria ever since, until the incident had occurred. The petitioners are in the habit of doing bizarre things in order to be in limelight. On 04.08.2015, when the Council was convened to transact business, them bizarre action attracted the attention of others. The petitioners brought somebody's skull and broke the skull in the middle of the hall and had thus brought bad reputation to the Corporation. It is further averred in the counter affidavit that the entire issue is under intensive investigation by the Inspector of Police, Cantonment Police Station, Tiruchirappalli. The petitioners brought somebody's skull and broke the skull in the middle of the hall and had thus brought bad reputation to the Corporation. It is further averred in the counter affidavit that the entire issue is under intensive investigation by the Inspector of Police, Cantonment Police Station, Tiruchirappalli. In fact, the first respondent had issued proceedings Roc.No.C4/9311/2014 (main) dated 04.08.2015 barring Thiru. D. Ramamoorthy and T. Muthuselvam from attending the next Council Meeting as per Section 34(5) of the Coimbatore City Municipal Corporation Act, 1981, (for short 'the Act') which is applicable to Tiruchirappalli City Corporation, by which, the Mayor or Deputy Mayor or the Councillor presiding at a meeting of the Council may direct the Councilor whose conduct is in his opinion grossly disorderly to withdraw immediately from the meeting and the Councillors so ordered to withdraw shall do so forthwith and absent himself during the reminder of the day's meeting. If such Councilor refuses to withdraw, the Mayor, the Deputy Mayor or the Councillor presiding at the meeting may order his removal by force. The Councillor so directed to be absent shall be deemed to have failed to attend the meeting of the Council for the purpose of Clause (1) of Sub-Section (1) of Section 59. Therefore, the petitioners deserved much harder punishment for their disorderly act. However, keeping the natural justice in mind, they were barred for one month, only on the assumption that they would guard themselves in future against such incidents and will maintain the decorum of the Council. The petitioners herein have tarnished the image of Corporation by bringing in human skulls to the Council. Therefore, there is no merit in the contentions of the petitioners and the Writ Petitions are liable to be dismissed. 5. When the matter is taken up for consideration, though very many contentions have been raised with regard to the factual aspects of the case at the time of making submissions the learned counsel for the petitioners submitted that by inviting the attention of this Court as to Section 34(5) of the Coimbatore Municipal Act which is also applicable to the Trichy Municipal Corporation it is submitted that the Mayor has got power to suspend the member only for one meeting so as to say that the Mayor does not have power to suspend the members in the next Council Meeting. Sofar as the present cases are concerned, as per Section 34(5) of the Act, on 04.08.2015, the Mayor ordered for the removal of the petitioners by force from attending the Meeting. Since the petitioners were already removed by force, they cannot be removed once again by way of suspension from attending the future council meeting, when there is no provision to do so. In this regard, further, the learned counsel for the petitioners invited the attention of this Court to Section 59(1)(l) of the Act. In the case on hand, on 4.8.2015 itself, the petitioners were removed from the Council Meeting. Therefore, the Mayor will not have power to suspend in the next Council Meeting. It is the submissions of the learned counsel for the petitioners that when no power was granted under the Statute to suspend the petitioners for future council meeting, exceeding the power, no order can be passed. For the above said proposition, he relied upon the following judgments of the Apex Court:- (i) Kovi Ravi and others v. Secretary to Government reported in (2008) 6 MLJ 762 . (ii) Ramchandra Murarilal Bhattad and others v. State of Maharashtra and others, reported in (2007) 2 SCC 588 . (iii) Babu Verghese and others v. Bar Council of Kerala and others, reported in (1999) 3 SCC 422 . 6. Per contra, the learned counsel for the respondents apart from reiterating their counter affidavits had submitted that if at all the petitioners are aggrieved, they should approach the Government to redress their grievance and the Writ Petitions are not the proper remedy to air their grievance. Therefore, he prayed for the dismissal of the Writ Petitions. 7. Keeping the submissions made on either side, I have perused the materials available on record. 8. From the submissions made on either side, two Sections of the Act are more important to decide the issue on hand. Section 34(5) of the Coimbatore City Municipal Corporation Act, 1981, which is applicable to Tiruchirappalli City Corporation, reads as follows:- "The Mayor or Deputy Mayor or the Councillor presiding at a meeting of the Council may direct the Councilor whose conduct is in his opinion grossly disorderly to withdraw immediately from the meeting and the Councillors so ordered to withdraw shall do so forthwith and absent himself during the reminder of the day's meeting. If such Councilor refuses to withdraw, the Mayor, the Deputy Mayor or the Councillor presiding at the meeting may order his removal by force. The Councillor so directed to be absent shall be deemed to have failed to attend the meeting of the Council for the purpose of Clause (1) of Sub-Section (1) of Section 59." 8.1. Similarly, Section 59(1)(l) of the Act reads as follows:- (l) fails to attend the meetings of the council for a period of three consecutive months beginning from the date of the commencement of his term of office or of the last meeting he attended, or of his restoration to office as councillor under subsection (4), as the case may be:- Provided that no meeting which a councillor does not attend shall be counted against him under this clause, if due notice of that meeting was not given to him. Provided further that no meeting that was adjourned for want of quorum shall be counted against him under this sub-section. Explanation:- A meeting held under sub-rule (2) of Rule 3 of Schedule I or Rule 6 of that Schedule shall not be deemed to be a meeting within the meaning of this clause." 9. Even going by the Section as referred to above, it is seen that the said provision does not empower the Mayor to suspend the Members in the future council Meeting. From the said provision, it is seen that if the Mayor or Deputy Mayor or the Councillor, is of the opinion that the conduct of the Members are disorderly, they may order the removal by force. In the instant case, the petitioners were removed by force on 04.08.2015. On that day, they have not signed the register. Therefore, it can be construed that they were absent on 04.08.2015 itself. Therefore, as per Section 34(5) of the Act, without the aid of the Act, the question of suspending the petitioners once again for the future date does not arise. Further, in my considered opinion, when a particular Act prescribes under a Statute, the said Act must be done in that manner only. In the instant case, when there is no power to suspend the petitioners from future council meetings, without the aid of the Act, the impugned orders cannot be sustainable in law. Further, in my considered opinion, when a particular Act prescribes under a Statute, the said Act must be done in that manner only. In the instant case, when there is no power to suspend the petitioners from future council meetings, without the aid of the Act, the impugned orders cannot be sustainable in law. For the above-said reasons, I am of the opinion that the order impugned in the Writ Petitions is not legally sustainable. Therefore, the impugned order in both the Writ Petitions are liable to be set aside. Accordingly, the impugned orders stand set aside and the Writ Petitions are allowed. No costs, consequently, connected miscellaneous petitions are closed.