Madras High Court
S.Raja Mohamed vs The District Collector on 22 April, 2022
W.P.(MD)No.7788 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.7788 of 2022
W.M.P.(MD).No.5849 of 2022
S.Raja Mohamed .. Petitioner
Vs
1.The District Collector,
Theni, Theni District.
2.The Commissioner,
Periyakulam Municipality,
Periyakulam,
Theni District. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari, calling for the records relating to the notice
issued by the 2nd respondent in his proceedings in Na.Ka.No.
565/2022/F1, dated 12.04.2022 and quash the same as illegal.
For Petitioner : Mr.M.Ajmal Khan, Senior Counsel for
M/s.Ajmal Associates
For Respondents : Mrs.S.Jeyapriya, for R1
Government Advocate
Mr.N.Dilip Kumar, for R2
Standing Counsel
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.7788 of 2022
ORDER
This writ petition has been filed challenging the impugned notice,
dated 12.04.2022, issued under Section 49 of the Tamil Nadu District
Municipalities Act, 1920, seeking for disqualification of the petitioner as
a Vice Chairman of the Municipality on the ground that he has acquired
interest in a contract involving the Municipality prior to his election,
which is still subsisting.
2. The petitioner has challenged the impugned show cause notice
on the following grounds:
a) The second respondent has issued the notice without jurisdiction and
without authority under law.
b) According to the petitioner, having become a functus officio after the
declaration of the results and the notification of the same, the second
respondent iss not empowered to seek for disqualification of the
petitioner as he does not have power to do so under the statute.
c) It is also challenged on the ground that the second respondent has pre-
determined the issue by declaring in the impugned notice that the
petitioner is disqualified as a Vice Chairman, though the petitioner has
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W.P.(MD)No.7788 of 2022
been only called for enquiry and to submit his explanation under the
impugned notice.
3. Heard Mr.M.Ajmal Khan, learned Senior Counsel appearing for
the petitioner, Mrs.S.Jeyapriya, learned Government Advocate, who
accepts notice on behalf of the first respondent and Mr.N.Dilip Kumar,
learned Standing Counsel, who accepts notice on behalf of the second
respondent.
4. The learned Senior Counsel for the petitioner drew the attention
of this Court to Section 49 of the Tamil Nadu District Municipalities Act,
1920 and in particular, he would refer to Section 49(2)(c) of the said Act
and the proviso contained therein and would submit that the said
provision will apply only to a case prior to the election, when the
petitioner submits his nomination and will not apply to a post-election
case.
5. The learned Senior Counsel for the petitioner also drew the
attention of this Court to the impugned notice as well as the decision of
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W.P.(MD)No.7788 of 2022
the Honourable Supreme Court in the case of Siemens Ltd. Vs. State of
Maharashtra and others reported in (2006) 12 Supreme Court Cases 33
and would submit that the impugned notice squarely falls within the
proposition laid down in the said decision, under which, it has been held
that if the show cause notice has pre-determined the issue, it can be
challenged by way of a writ petition.
6. It is also submitted by the learned Senior Counsel for the
petitioner that if at all the respondents are aggrieved by the election of
the petitioner, they can challenge the same only by filing an Election
Petition under Section 51-A of the Tamil Nadu District Municipalities
Act, 1920. He also drew the attention of this Court to the said Section.
7. Per contra, Mr.N.Dilip Kumar, learned Standing Counsel
appearing for the second respondent would rely upon Section 50 of the
very same Act and in particular, he referred to Section 50 (1)(d) of the
Act and would submit that only in accordance with the said provision,
the impugned communication has been sent to the petitioner, though the
Section has been wrongly mentioned in the communication. He would
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W.P.(MD)No.7788 of 2022
submit that as per the aforementioned provision, if the petitioner has
acquired any interest in any subsisting contract made with or work being
done for the Council, he is liable for disqualification. He also drew the
attention of this Court to Section 51 of the Act and would submit that if
the petitioner is aggrieved by the disqualification proceedings, he ought
to have filed an application under Section 51 of the said Act, before the
District Judge concerned. According to him, instead of approaching the
concerned District Judge, he has filed this writ petition, which is not
maintainable.
8. The learned Standing Counsel also relies upon the judgment of a
Division Bench of this Court made in the case of The Commissioner,
Avadi Municipality, Avadi, Chennai Vs. U.Geetha and others in
W.A.No.1040 of 2013 and the decision of a learned Single Judge of this
Court in the case of S.Indumathi Vs. The President, Selection Grade
Town Panchayat, Mukkudal, Tirunelveli District and another, dated
23.04.2009. According to him, as per the said decisions, there is no
statutory obligation on the part of the Municipality to file a petition for
deciding the question of disqualification of a Councillor. According to
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W.P.(MD)No.7788 of 2022
him, as per the said decisions, the Councillor would suffer
disqualification forthwith, once a communication has been sent under
Section 50 of the Act. The issue raised by the respective counsels has to
be examined at length.
9. This Court is of the considered view, after hearing the
submissions made by the respective counsels, that the issue raised by the
respective Counsels has to be examined at length, since the matter is
listed only for admission today. This Court suggested to the Standing
Counsel as to whether there is any possibility to get instructions as to
whether the impugned notice can be withdrawn or not. After a short pass
over, the learned Standing Counsel for the second respondent obtained
instructions from his client to withdraw the impugned notice. However,
he sought for liberty to the respondents to initiate fresh proceedings for
disqualification as against the petitioner under the provisions of Tamil
Nadu Municipalities Act, which was vehemently opposed by the learned
Senior Counsel in view of the grounds raised by the petitioner in this writ
petition, which has been stated supra. Since it has been vehemently
opposed, the issue raised by the respective Counsel are left open by this
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W.P.(MD)No.7788 of 2022
Court for the respective parties to agitate the same as and when the plea
arises and as and when any fresh proceedings are initiated before this
Court at later stage.
10. In view of the withdrawal of the impugned notice by the
second respondent, nothing survives for further adjudication in this writ
petition. After recording the submissions made by the learned Standing
Counsel for the second respondent, this writ petition is disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
22.04.2022
Index: Yes/No
Internet : Yes/No
TM
Note:In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the Advocate/litigant
concerned.
To
1.The District Collector,
Theni, Theni District.
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W.P.(MD)No.7788 of 2022
ABDUL QUDDHOSE, J.
TM
W.P.(MD)No.7788 of 2022
22.04.2022
https://www.mhc.tn.gov.in/judis
