Chandra and Co. Vs. Director of Municipal Administration - Court Judgment

Excerpt:
karnataka municipalities act, 1964 (karnataka act no. 22 of 1964) - sections 57 & 80(3) - no objection as to irregularity as to period of notice & resolution passed by majority : meeting not prejudicially affected - notice in conformity with section 57 since earlier resolution substantially set forth.;it is pertinent to note that none of the councillors took any objection to the alleged irregularity as regards the period of notice. on the contrary, as against the previous resolution which was passed by majority, the impugned resolution was passed unanimously by the municipal council.... it is further pertinent to refer to sub-section (3) of section 80 of the act whereunder every meeting of a municipal council is deemed to have been duly convened and held and no act done or proceeding taken under the act could be questioned on the ground merely of any defect or irregularity not affecting the merits of the case. in that view of the matter, there is no good ground to hold that the proceedings of the meeting were prejudicially affected by the alleged irregularity.... notice conforms with the requirement of section 57 of the act since the earlier resolution is substantially set forth therein. - section 42 proviso & sugarcane (control) order, 1966: [n. kumar,j] fixing of minimum purchase price - letter written by the commissioner for cane development and director of sugar in karnataka to the deputy commissioners to ensure payment of the higher price for sugarcane to the farmers propriety being questioned held, the sugarcane (control) order, 1966 is a statutory order made in exercise of the powers conferred by section 3 of the essential commodities act, 1955, investing the central government with the power to fix the price of sugarcane and direct payment thereof as also the power to regulate the movement of sugar cane. the state government has no power to fix the minimum price for sugarcane higher than the minimum price fixed by the central government. it is a strong arm method adopted by the state government which has no authority of law. it is patently illegal, probably made with the intention of satisfying the farmers at the expense of the rule of law. impugned orders/letters were quashed. - on the representation of the appellant, the state government recommended to the municipal council to consider his application for purchasing the land at the market value. in the first instance, the meeting held on 18-11-1986 was bad for want of 7 clear days notice as provided under section 48 of the act. [1968]1scr87 ,the requirement of the law as stated by this court on the interpretation of section 57 is not held to be bad. was it the legislature's intention in making the provision that the failure to comply with it shall have the consequence of making what is done invalid in law? quite clearly, any irregularity in the manner of giving the notice would be covered by the words 'irregularity in the service of the notice upon any councillor'.it appears to us, however, reasonable to think that in making such a provision in section 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required. in that view of the matter, there is no good ground to hold that the proceedings of the meeting were prejudicially affected by the alleged irregularity. 11. in the view we have taken above, this appeal has to fail and it is accordingly dismissed.hakeem, j. 1. in this appeal, the appellant has called in question the correctness and legality of the order passed by the learned single judge upholding the validity of the resolution passed by respondent-3 municipal council, cancelling its earlier resolution dated 31 -10-1986.2. the appellant has been running his petrol pump in certain land belonging to. respondent-3 municipal council. originally, the lease of the land was granted to him in the year 1953, which was renewed from time to time on the recommendation of the state government. on the representation of the appellant, the state government recommended to the municipal council to consider his application for purchasing the land at the market value. in pursuance of the said direction by the government, respondent-3, by its resolution dated 31-10-1986, resolved that the land in question be granted to the appellant at 1 1/2 times the market value thereof. the decision was said to have been taken by a majority of the council. however, this resolution was not given effect to, and on 18-11-1986 respondent-3 municipal council passed another resolution cancelling the earlier one. the appellant, having challenged the said resolution in appeal, the director of municipal administration set aside the earlier resolution by which the municipal council had resolved to grant or sell the land at 1 1/2 times the market value. at the same time, declared to suspend the subsequent resolution dated 18-11-1986. the appellant has, in the writ petition, sought for a writ of certiorari quashing the resolution of respondent-3 municipal council dated 18-11-1986 and the order of the director of municipal administration dated 31-8-1987. he has further sought for a writ of mandamus directing the respondents to grant the land to him.3. having upheld the resolution passed by respondent-3 dated 18-11-1986, the learned judge has opined that the appellant cannot claim as of right any land belonging to the municipality, muchless can he compel it to sell the land to him at any particular rate. the learned judge has further held that, in the circumstances, the order made by the director of municipal administration one way or the other does not affect the appellant and it is open for him to seek renewal of the lease for consideration by the respondent in accordance with law.4. sri u.l. narayana rao, learned senior counsel appearing for the appellant, fairly conceded that the appellant's prayer for a writ of mandamus to compel respondent-3 municipal council, cannot be legally supported. however, the main challenge in the appeal is against the validity of the second resolution dated 18-11-1986 which, according to the learned counsel, is void since the meeting in which the said resolution was passed is patently in contravention of the provisions of sections 48 and 57 of the karnataka municipalities act, 1964 ('the act').5. the validity of the resolution is challenged mainly on two grounds. in the first instance, the meeting held on 18-11-1986 was bad for want of 7 clear days notice as provided under section 48 of the act. secondly, the notice dated 13-11-1986 being one for cancellation of the earlier resolution, does not strictly conform to the requirement of section 57 of the act as it does not set forth fully the earlier resolution which is proposed to be cancelled at such meeting. in support of his contention, reliance is placed upon the ruling of this court in bohar amarchand parsan raj v. the state of mysore ilr 1967 mysore 607. while interpreting section 57 of the act, a bench of this court has held that in the facts and circumstances of the case, the modification in question made by circulation without complying with the requirement of section 57 of the act should be considered as non est. it is submitted by the learned counsel that although the said decision, was set aside by the supreme court, in municipal council, raichur v. amar chand prasanna etc. : [1968]1scr87 , the requirement of the law as stated by this court on the interpretation of section 57 is not held to be bad.6. sri n.k. ramesh, learned counsel appearing for respondent-3 municipal council, has urged that there is absolutely no lacuna or irregularity either in the notice of meeting or in the meeting culminating in the passing of the resolution, cancelling the earlier resolution.7. in narasimhiah v. singri gowda : [1964]7scr618 , while considering the provisions of section 27(3) of the mysore town municipalities act (22 of 951), which is pari materia with section 48 of the act, the supreme court has held, inter alia, that the provision of 3 clear days notice provided under section 27(3) of the said act is only directory and not mandatory and, as such, the proceedings of the meeting and the resolution passed therein do not become invalid. it is observed thus:-'..... as in all the other matters of statutory construction the decision of this question depends on the ascertainment of the legislature's intention. was it the legislature's intention in making the provision that the failure to comply with it shall have the consequence of making what is done invalid in law? that is the question to be answered. to ascertain the intention the court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part......'it is further stated thus:-'it is necessary also to remember that the main object of giving the notice is to make it possible for the councillors to so arrange their other business as to be able to attend the meeting. for an ordinary general meeting the notice provided is of seven clear days. that is expected to give enough time for the purpose. but a lesser period - of three clear days - is considered sufficient for 'special general meetings' generally. the obvious reason for providing a shorter period of such meetings is that these are considered more important meetings and councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves. where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days notice would be sufficient. a consideration of the object of these provisions and the manner in which the object is sought to be achieved indicates that while the legislature did intend that ordinarily the notice as mentioned should be given it could not have intended that the fact that the notice is of less than the period mentioned in the section and thus the councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting, should have the serious result of making the proceedings of the meeting invalid.' further referring to the provisions of section 36 of the said act, which is pari materia with sub-section (2) of section 80 of the act, it is observed thus:-'it is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the councillors. quite clearly, any irregularity in the manner of giving the notice would be covered by the words 'irregularity in the service of the notice upon any councillor'. it appears to us, however, reasonable to think that in making such a provision in section 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required.'8, in the instant case, it is pertinent to note that none of the councillors took any objection to the alleged irregularity as regards the period of notice. on the contrary, as against the previous resolution which was passed by majority, the impugned resolution dated 18-11-1986 was passed unanimously by the municipal council as can be seen from the extract of the proceedings as per annexure-0. in this connection, it is further pertinent to refer to sub-section (3) of section 80 of the act whereunder every meeting of a municipal council is deemed to have been duly convened and held and no act done or proceeding taken under the act could be questioned on the ground merely of any defect or irregularity not affecting the merits of the case. in that view of the matter, there is no good ground to hold that the proceedings of the meeting were prejudicially affected by the alleged irregularity.9. this takes us to the second contention urged by sri u.l. narayana rao. to appreciate the rival contentions, it appears to be appropriate to extract the notice dated 13-11-1986 which is as below:-10. a bare perusal of the notice dated 13-11-1986, makes it clear that the meeting called for is to reconsider the earlier resolution of 31-10-1986 to sell the land to the appellant at 1 1/2 times market value. the section does not require setting forth in such notice the proposed modification or cancellation at such meeting. the notice, in our opinion, conforms with the requirement of section 57 of the act since the earlier resolution is substantially set forth therein. as such, there is no merit in the second contention either.11. in the view we have taken above, this appeal has to fail and it is accordingly dismissed.