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RAMAKRISHNAN, Advocate

1990 1 LW 638 ; 1990 1 MLJ 433 ; 1990 0 Supreme(Mad) 239

(1990) 1 MLJ 433

Abdul Hadi, J.
The Executive Officer Vadakku Valliyur Town Panchayat And Anr.
Versus
M. Mattar Mohideen And Anr.
Decided On : 14/3/1990
.

Subject: Civil Law - Injunctions

interim injunction - water tax - panchayat - bye-laws - Superintending Engineer -

alteration - balance of convenience - irreparable injury - prima facie case

Act Referred :
CIVIL PROCEDURE CODE : O.39 R.1, O.39 R.2

ORDER

Abdul Hadi, J.

1. This Civil Revision Petition by the Valliyur Town Panchayat is against the order in
C.M.A.No. 61 of 1989 on the file of the District Judge, Tirunelveli, confirming the
interim injunction granted in I.A.No. 856 of 1989 in O.S.No. 255 of 1989 on the file of
the District Munisif's Court, Valliyur, restraining the said panchayat from collecting
the water tax on the basis of the bye-laws, which were amended pursuant to the
resolution of the panchayat dated 14.9.1988.

2. The main suit has been filed by the respondents 1 and 2, for themselves and on
behalf of the residents of the said panchayat, for a declaration that the said
resolution and the consequent amendment of the relevant bye-law are invalid and
for a consequential permanent injunction. By the resolution dated 23.11.1987, the
said panchayat resolved to increase the water tax (1) for domestic purpose from 75
paise per every 1000 litres or part thereof to Rs. 1.50 per 1000 litres beyond 8000
litres of consumption, while below the said 8000 litres limit a minimum charge of Rs.
10 was to be collected and (2) for nondomestic purpose from Rs. 1.50 per 1000
litres or part thereof to Rs. 3 per 1000 litres beyond 8000 litres of consumption,
while below the said 8000 litres limit a minimum charge of Rs. 20 was to be
collected. The said resolution dated 23.11.1987 was placed before the concerned
Superintending Engineer, Tamil Nadu Water and Drainage Board as contemplated by
paragraph 89(2) of the Manual of Panchayat Administration as amended by
G.O.Ms.No. 1105 dated 22.7.1980 Rural Development and Local Administration
Department. The said Engineer made corrections to the said resolution, whereby the
minimum rate for the supply of 8000 litres was deleted and uniformly fixed the rate

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at Rs. 1.50 for 1000 litres irrespective of the quantum of supply subject to a general
minimum of Rs. 10 for domestic purpose and likewise for non-domestic purpose also
the minimum rate for the supply of 8000 litres was fixed at Rs. 3 per 1000 litres
irrespective of quantum of consumption, subject to a general minimum of Rs. 20.
The resolution dated 14.9.1988 resolved to increase the water tax as suggested by
the said Engineer and it was sought to be implemented from 1.9.1989. It is against
this resolution dated 14.9.1988 and the consequent amendment of relevant bye-
law, the suit was filed and the interim injunction was sought for. Interim injunction
was granted by the trial Court and it was also confirmed by the lower appellate
Court. The defendants have filed this revision.

3. The main objection by the plaintiffs-respondents to the said resolution dated

14.9.1989 and the amended bye-law is that the said Engineer has no jurisdiction to
alter or modify the resolution passed by the panchayat and that he can only approve
or disapprove what the panchayat has done.

4. The learned Counsel for the petitioners initially argued that the Courts below
should not have passed the impunged order of injunction since no permission was
granted under order 1, Rule 8, C.P.C. for the respondents-plaintiffs to sue in a
representative capacity. I.A.No. 257 of 1989 was filed along with the suit seeking
permission under Order 1, Rule 8, C.P.C.; the said I.A. is dated 24.5.1989. Notice was
ordered in the said petition on the same day publication in one issue of Dinathanthi
was also ordered. On 26.6.1989 it was recorded that paper publication was made.
Thereafter the said I.A. was posted for enquiry subsequently on several days and so
far no order has been passed finally in the said I.A. This is borne out from the
certified copy of the said I.A. and the orders passed thereon till 15.11.1989. In view
of the above said facts, the learned Counsel for the petitioners contended that no
interim order, giving relief to the entire resident of the said panchayat on the footing
that the suit was on behalf of all of them, could have been passed in such a suit
when the permission under Order 1, Rule 8, C.P.C. had not been obtained. According
to him, if at all, the Court could have granted injunction only in favour of the two
plaintiffs in their respective individual capacities and not as representing the entire
residents of the said panchayat. In support of his contention he cited the following
passage in Sri Ram Krishna Mission v. Paramanand :

Unlike Order 33, Rule 8, C.P.C. which provides that where the application for
permission to sue as a pauper has been granted it shall be numbered and registered
and shall be deemed the plaint in the suit, Order 1 Rule 8, C.P.C. contemplates a suit
from the very inception. It is true that a representative character is imparted to the
suit only after the requisite procedure has been complied with; but it would be
erroneous to hold that no suit has been instituted until permission has been granted
by the Court.

However, as pointed out by the learned Counsel for the respondents, in the said
decision, the Allahabad High Court also observed as follows:

I think that when a court issues notice on an application for leave under Order 1;
Rule 8 made after the presentation of the suit, it should be inferred that the Court
has by implication granted a conditional permission.

It has also been held by a Divisional bench of this Court in a case reported in
Sankiah v. Vadakasi 1980 T.L.N.J. 86 as follows:

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However it is not necessary that a formal order should be passed by the Court. From
the circumstances of the case and from the fact that the Court had ordered
publication of the notice it can be presumed that the Court had granted the
necessary permission under Order 1, Rule 8...The provisions of Order 1, Rule 8 do
not enjoin that the plaintiffs should obtain before hand the authority of those whom
they seek to represent, the reason being that it will be open to all person having the
same interest to get themselves impleaded and either support the plaintiff or
oppose him in the suit...on the other hand, when the plaintiffs have filed the
necessary application and the court has ordered the necessary notice to be
published in the dailies, it is for the other residents of Chellam North and South
Streets, if/they were so inclined to have come and opposed the plaintiffs. In the
absence of any such opposition from any of the residents of' Chellam North and
South Streets it is not for the defendants 1 and 2 to say that the plaintiffs are not
entitled to file the suit in a representative capacity. We therefore set aside the
finding of the trial court on issue No. 1 that the plaintiffs 1 to 3 cannot represent the
entire people in the locality.

The said decision considered many of the decisions cited by both the Counsel before
me like Kumaravelu Chettiar v. Ramaswami Ayyar 65 M.L.J.87 A.I.R.1933 Privy
Council 183, Narayani Kamalakshi v. Kunchiyan Bahula Yan A.I.R.1959 Kerala 269,
and the above referred to Sri Ram Krishna Mission v. Pramanand . In the present
case, notice was issued in the application under Order 1, Rule 8, C.P.C. As stated
above, even publication has been done. Further, it should be noted that the above
said objection by the petitioners Counsel was not taken up in the petition in the
Courts below. No doubts in Assistant Commissioner, H.R. & C.E. Salem etc. v.
Nattamdi K.S. Ellappa, etc. 100 L.W.240 it was held by a learned single Judge of this
Court as follows:

...the procedure under Order 1 Rule 8, Code of Civil procedure has to be followed
and without doing so, no relief could be granted to the individual concerned.

But, in the present case, the procedure no doubt has been followed. The only thing
is that final order granting permission has not been expressly passed. But, in view of
the above said observations in Sankiah v. Vada kasi 1980 T.L.N.J.86 and Sri
Ramakrishna v. Paramanand referred to above, I think it should be presumed that a
conditional permission has been given by implication. The following passage in
Narayani Kamalakshi v. Kunchiyan Bahulayan is significant:

Notwithstanding the failure of a Court to pass an order on a petition under Order 1,

Rule 8 the Court shall assume such permission being granted to the parties where
the Court has directed publication...The view that mere omission to pass a formal
order granting sanction would not vitiate the decree was expressed by the Division
Bench of the Lahore High Court in Punjab Co-Operative Bank v. Hari Singh A.I.R.1933
Lah 749...That such a formal order giving permission under Order 1, Rule 8 is not
necessary is the view expressed by Justice Gokhale of the Bombay High Court in
Kumaravelu v. Chhagan Kisan . In fact, the learned Judge took the view that the
permission under Order 1, Rule 8 can be granted even at the appellate stage.
Referring to the decision of the Madras High Court in Muthukaruppa v. Appavoo
(1943) 1 M L J 453 : A.I.R. 1943 Mad. 161...Mathew, J. said in Kunhalavi Musaliar v.
Abdullah 1965 Ker. LT.907...thus:

...that the Court must be deemed to have given its permission when it ordered the
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publication of the notice in the paper.

Therefore, the above said objection filed by the petitioners' Counsel based an Order
1, Rule 8, C.P.C. cannot be sustained.

5. Coming to the next question whether it can be concluded that the above said
resolution passed on 14.9.1988 and the corresponding amendment of the relevant
bye-law incorporating the corrections made by the Superintending Engineer are
valid. The learned Counsel for respondents contended that as per paragraph 89(2)
of the Manual on Panchayat Administration as amended by the above said
Government Order, the Superintending Engineer has no power to "alter" the
resolution passed by the panchayat on 23.11.1987 and that if at all he can only
approve and confirm it or decline to do so. The said paragraph 89(2) runs as follows:

No by-law" or cancellation or alternation made by a panchayat shall have effect,

until the same has been approved and confirmed by the Divisional Development
Officer concerned...and by The Superintending Engineer, Tamil Nadu Water Supply
and Drainage Board or any other technical officer....

Both the Courts below have held that the Superintending Engineer has no such
power of alteration. I also think so, Prima facie at least. No doubt, the preamble to
the above said Government Order Ms.No. 1105 dated 22.7.1980 which amended the
above said paragraph seems to proceed on the" footing that the said
Superintending Engineer has power to alter the resolution passed by the panchayat.
Anyway, normally the preamble to the rule cannot control the actual rule that was
passed when the words of the rule are clear. That apart, the only amendment that
was made to the above said paragraph 89(2) seems to be that instead of Sanitary
Engineer who was earlier given power to approve and confirm, the Superintending
Engineer of Tamil Nadu Water Supply and Drainage is given the said power,
consequent on the formation of the said Board form 14.4.1972.

6. At any rate, I find the alteration actually made by the Superintending Engineer is
nothing very material. As stated above, he has only deleted the minimum rate of Rs.
10 for domestic purpose and Rs. 20 for non-domestic purpose for the initial 8000
litres of consumption. At the same time he stipulated a general minimum rate of a
sum of Rs. 10 and Rs. 20 respectively. The result of the change actually effected by
the Superintending Engineer is not any thing significant. For example if 8000 litres
are consumed by a domestic consumer according to the original resolution dated
23.11.1987 he has to pay simply Rs. 10. According to the Superintending Engineers
alteration, which is incorporated in the subsequent resolution dated 14.9.1988 he
should pay Rs. 12. Supposing 6000 litres are consumed by a domestic consumer he
has to pay Rs. 10 according to the Original resolution and according to the
Superintending Engineer's suggestion also he has to pay only Rs. 10. So, it cannot
be said that the residents of Valliyur panchayat would suffer any irreparable injury if
the temporary injunction is not granted. Further, the balance of convenience also
lies in favour of the petitioners-panchayat. They have alleged in the counter affidavit
before the Court below as follows:

It is absolutely impossible to maintain the protected water supply without the

enhancement. In the year 1988-89 the respondent nearly spent six lakhs of Rupees
towards maintenance and other expenses. Till 30.3.1989 the respondents have to
pay to the Government nearly 9 lakhs and odd towards protected water supply.

Page No. 4 of 5
Because of the injunction the financial position of the Panchayat is shaky.

No reply affidavit was filed repudiating these allegations in the counter. So, the
grant of injunction will inconvenience the panchayat more than the inconvenience
that would be caused to the residents of Valliyur panchayat if injunction is not
granted.

7. In granting temporary injunction, it is settled law that not only prima facie case
has to be seen, but also the other two factors, viz., (1) in whose favour the balance
of convenience lies and (2) whether the plaintiff would suffer irreparable injury if
injunction is not granted. Just to illustrate, the decision in Barkat Ali v. Zulfiquar held
that with the first condition, viz., whether the petitioners have made out a prima
facie case as sine qua non, two other conditions relating to the above said balance
of convenience and irrepairable injury should be satisfied by the petitioners
conjunctively and a mere proof of one of the three conditions does not entitle them
to obtain a temporary injunction in their favour. As stated above, since the
alteration made by the Superintending Engineer is very insignificant, it cannot be
said that the plaintiffs would suffer irrepairable injury if injunction is not granted.
Therefore, I conclude that this not a case for grant of temporary injunction prayed
for in favour of the plaintiffs.

8. I, therefore, set aside the orders of Courts below, allow this Civil Revision Petition
and dismiss I.A.No. 856 of 1989 in O.S.No. 255 of 1989 on the file of the District
Munisif's Court, Valliyur. No costs.

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