Palaniswamy, J. -
(1.) GINGEE Town Panchayat by its Vice President, the petitioner, prays for a writ of mandamus directing the second respondent, the Executive Officer, Town Panchayat, Gingee not to implement the order of the first respondent, Collector of South Arcot, dated 22nd March 1968 directing the withdrawal of a prosecution launched by the second respondent against one Syed Kaja Basha. The charge against Syed Kaja Basha is that he made an unauthorized construction without obtaining the permission of the executive authority. A complaint was launched against him under the provisions of the Madras Municipalities Act, 1920 before the Sub -Magistrate, Gingee. Syed Kaja Basha presented a petition to the Collector, first respondent, on 21st January 1968 requesting for withdrawal of the prosecution stating certain grounds which need not be adverted to here. On receipt of this petition, the first respondent, without giving an opportunity to the second respondent, passed the impugned order on 22nd March 1968 directing withdrawal. On the basis of the direction, the second respondent is said to have given a petition to the court and the Magistrate is said to have passed an order of acquittal on that basis. The Panchayat has not accepted this position and has taken up the matter by way of revision and the matter is pending in the High Court. The only point that arises for consideration in this petition is whether the order of the first respondent dated 22nd March 1968 directing the withdrawal of the complaint is valid.
(2.) THE support this order, reliance is placed on behalf of the first respondent upon S. 147 of the Madras panchayats Act, 1958. The relevant portion of the section reads:
(1) The Inspector may, by order in writings
(i) suspend or cancel any resolution passed, order issued, or licence or permission granted, or
(ii) prohibit the doing of any act, which is about to be done or is being done in pursuance or under colour of this Act, if in his opinion -
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised, or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other law or an abuse of such powers or is considered by the Inspector to be otherwise undesirable, or
(c) the execution of such resolution or order or the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray:
Provided that nothing In this sub -section shall enable the Inspector to set aside any election which has been held.
(2) the Inspector shall, before taking action on any of the grounds referred to in Clauses (a) (b) of sub -section (1), give the authority or persons concerned an opportunity for explanation.
In the counter affidavit filed on behalf of the first respondent, it is said that the first respondent thought that action should be taken under S. 147(1)(ii)(e) , if action is to be taken under this sub -section, no notice to the Panchayat is necessary. But in the same paragraph it is alleged that if a particular act is considered undesirable, it is liable to be nullified by the first respondent. It is thus made to appear as if what has been made falls also under S. 147(1)(ii)(b) . The inconsistency is apparent. By no stretch of reason it can be said that the order of the first respondent can be brought within the scope of sub -section (1) (ii) (e). It cannot be said that the prosecution launched against the alleged is likely to cause danger to human life, health or safety, or is likely to lead to a riot of an affray. Perhaps realising the absurdity of this position, it is sought to be made out in the counter affidavit of the first respondent that the impugned order was passed because he thought that the prosecution was undesirable, falling within the scope of clause (b). If he had purported to act under the provision, he should have compiled with sub -section (2) by giving an opportunity to the Panchayat. That was not done. On the face of it, this contention is totally untenable. It is difficult to see how a prosecution for alleged violation of law can be considered to be 'undesirable.' It is not only the right but also the duty of a local authority to take action against unauthorised construction. To call such action undesirable is perverse. In no view of the matter, the action of the first respondent can be justified. His order is unsustainable.
(3.) ON the basis of the invalid order the prosecution has been withdrawn and the matter is pending in revision. If the direction as prayed for by the petitioner is given, it may perhaps be open to the petitioner to contend that the withdrawal of the prosecution should be deemed to be pending. But the accused is not a party in this petition and he should not be prejudiced. Mr. Ramaswami appearing for the petitioner concedes that position; but submits that the encroachment Is a continuing offence and it is open to the Panchayat to launch fresh prosecution if it is found that the order of the first respondent is unsustainable. I find that the first respondent's order is unsustainable. Instead of issuing a direction as prayed for, I think the proper order to be passed in the peculiar circumstances of this case is to quash the order of the first respondent directing the withdrawal of the prosecution. This, however, shall not prejudice the right of the Panchayat to take further action as it may consider necessary as regards the alleged, constructions. This also does not preclude the first respondent from dealing with the matter afresh in a proper way, if he considers necessary. I accordingly quash the order of the first respondent dated 22nd March 1968. There will be no order as to costs.