K. Muniyandi v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:07-3-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.Nos.21822 and 34886 of 2007.....K. Muniyandi... Petitioner in both the WPs. vs.1.The State of Tamil Nadu rep. By its Secretary Municipal Administration of Water Supply Department Fort St.George, Chennai 9.2.The Regional Director of Municipal Administration Madurai 2.... Respondents in both the WPs.3.S.Planisamy.. R.3 in WP.34886/07 Writ petitions filed under Article 226 of the Constitution of Indiapraying for issuance of a Writ of Declaration and Mandamus as statedtherein.For petitioner: Mr. L.Chandrakumar in both WPs.For respondents: Mr. S.Ramasamyin both WPs. Addl.Advocate General II assisted by Mr.L.S.M.Hasan Fizal Government Advocate for R.1& R.2 Mr.I.Paranthaman Addl.Govt. Pleader for R.3.. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERIn W.P.No.34886 of 2007, the writ petitioner has come forward tothis Court for direction against the first respondent Government todeclare the continuance of the third respondent as Chairman of TheniAllinagaram Municipality as illegal and irregular pursuant to theOrdinance No.5/07 issued by the Government of Tamil Nadu in the Gazettenotification dated 4.10.2007 and consequently, to reinduct thepetitioner as Chairman of Allinagaram Municipality, on the basis that"No Confidence Motion" moved against the petitioner stands abated.2. The petitioner was elected as Councillor and subsequently, asChairman of Theni Allinagaram Municipality in October, 2006. Accordingto him, he has carried out many public services in the public interestin an impartial manner which resulted in other elected council membershaving a grudge against the petitioner. The second respondent hasissued a show-cause notice dated 16.05.2007, stating that on 6.6.2007at 10.00 am "no confidence motion" would be moved against the petitioneras Chairman. After "no confidence motion" was moved on the said date,the Government passed G.O.(D) 267, Municipal Administration and WaterSupply (MA5) Department dated 15.6.2007 directing the removal of thepetitioner as Chairman. Challenging the said Government Order dated15.6.2007, the petitioner has filed W.P.No.21822 of 207 for declarationthat section 40-A of the Tamil Nadu District Municipalities Act, 1920(in short,"the Act") and the order of the first respondent in G.O.(D)No.267, Municipal Administration and Water Supply (MA5) Department dated15.6.2007 are ultra vires. 3. In the meantime, to fill up the vacancy caused due to theremoval of the petitioner, steps have been taken to conduct electionand that was challenged in W.P.(MD) No.2160 of 2007, which is pendingon the file of Madurai Bench of this Court. Taking note of the fact thatin large number of Municipalities and Town Panchayats, "no confidencemotions" are freely passed, the Government passed Ordinance No.5/07dated 4.10.2007, amending section 40-A of the Tamil Nadu DistrictMunicipalities Act, 1920, by which, all "no confidence motions" undersection 40-A pending before any authority stand abated. According tothe petitioner, the said provision of the Ordinance applies to thepetitioner since, according to him, the resolution removing him hasnot been given effect to in letter and spirit and therefore, the writpetition, viz., W.P.No.34886 of 2007 has been filed for the relief asstated above on various grounds including that the continuance of thethird respondent as Chairman after the promulgation of OrdinanceNo.5/2007 is illegal on the basis that the "no confidence motion"against the petitioner stands abated by virtue of the Ordinance.According to the petitioner, in the strict sense of the Ordinance, thethird respondent should have been removed and the petitioner shouldhave been reinducted as Chairman as "no confidence motion" passed https://hcservices.ecourts.gov.in/hcservices/ against the petitioner stands abated.4. The Commissioner of Theni Allinagaram Municipality has filed acounter affidavit on behalf of the second respondent. According to thesecond respondent, the majority of the Councillors signed and twoCouncillors presented the petition of their intention to move "noconfidence motion" against the petitioner and after receiving thepetition the second respondent has convened the meeting on 6.6.2007 at10.00 am. by intimating the same to all Councillors on 16.5.2007 as persection 40A(3) of the District Municipalities Act. The second respondentstates that challenging the intimation dated 16.5.2007, the petitionerhas filed W.P.No.5000 of 2007 and M.P.No.1 of 2007 before the MaduraiBench of this Court and that was dismissed on 5.6.2007. After thereport of the second respondent regarding passing of "no confidencemotion" by more than 3/5 majority of the sanctioned strength of theCouncil, the State Government has issued G.O.(D) No.267 dated 15.6.2007by virtue of powers under section 40A(12) of the District MunicipalitiesAct. Therefore, there is no illegality or irregularity in theGovernment Order passed by the Government. The second respondent statesthat the dismissal of writ petition in W.P.No.5000 of 2007 has beensuppressed by the petitioner. 4(a). It is the further case of the second respondent that afterthe motion was put to vote, 21 Councillors have supported the "noconfidence motion" and two Councillors kept quiet as neutral and tenCouncillors including the petitioner opposed the motion. It is also thecase of the second respondent that after the lawful removal of thepetitioner from the post of Chairman, the vacancy was notified and theState Election Commission, Chennai has conducted election for the postof Chairman on 17.7.2007, in which the third respondent Mr.S.Palanisamyhas been duly elected, who secured 18 votes out of 33 votes. It is alsostated by the second respondent that the petitioner also contested inthe said election and secured only 8 votes.5. In the writ petition filed by the petitioner challengingsection 40-A of the Act, it is the contention of the petitioner thatsection 40-A does not prescribe any opportunity of being heard andtherefore, it is against the principles of natural justice. He alsostates that in the present case, the written notice of intention has notbeen signed by the prescribed number of persons. It is also the case ofthe petitioner that under the impugned order the second respondent hasfailed to hold secret ballot and the decision was taken by raising ofhands, which according to the petitioner is illegal. Further, thewritten notice of intention must be in such a form which is prescribedby the State Government and inasmuch as the notice has not been issuedin such form, it is not valid. Even the show-cause notice issued ispredetermined. According to the petitioner, no opportunity was given fordebate and discussion before putting the intention to vote. https://hcservices.ecourts.gov.in/hcservices/

6. Mr.L.Chandrakumar, learned counsel appearing for thepetitioner would submit that at the first instance, section 40-A of theAct is violative of the principles of natural justice in the sense thatit does not provide for opportunity to the affected person to expresshis views. Further, according to him, even the Government has notprescribed the form by which the motion has to be moved and in theabsence of such prescribed form, the entire proceedings should be nulland void. He would also submit that by virtue of Ordinance No.5/07which has come into effect from 4.10.2007, all pending resolutions aredeemed to be abated and therefore, inasmuch as the resolution by whichthe petitioner was sought to be removed has not been given effect to byvirtue of the new amendment, the resolution is deemed to be invalid andconsequently, the petitioner is entitled to reinstatement as Chairmanand the third respondent has to be removed.7. Mr.S.Ramasamy, learned Additional Advocate General appearingon behalf of the respondents, would submit that there is absolutely nomerit in the case, inasmuch as section 40-A of the Act has provided theentire procedure in letter and spirit with checks and balances. Hewould also submit that the petitioner has, in fact, filed the writpetition challenging the intimation for convening the meeting of "noconfidence motion" issued by the second respondent dated 16.5.207 andthe same was dismissed by the Madurai Bench of Madras High Court and onthis score, the present writ petitions are liable to be dismissed.According to him, the procedure contemplated under section 40-A of theAct has been completely followed and ultimately under section 40-A(12)when the Government issued notification removing the petitioner, it hascome into effect and only thereafter, the Government has issuedOrdinance No.5/07 which has come into effect from 4.10.2007 whereas thepetitioner was removed from the post on 15.6.2007 and therefore, it cannever be presumed to be a pending proceeding. His further submission isthat the petitioner has taken contrary stand in his writ petitions. 8. Heard the learned counsel for the petitioner and respondentsand perused the records.9. Even though the petitioner has chosen to challenge theprovisions of section 40-A of the Tamil Nadu District MunicipalitiesAct, 1920, in effect, the petitioner's challenge appears to be againstthe Government Order in G.O.(D) 267, Municipal Administration and WaterSupply (MA5) Department dated 15.6.2007, under which the Government, byvirtue of the powers conferred under section 40-A(12) of the Act, hasissued notification removing the petitioner from the post of Chairman. 10. In any event, since the petitioner has chosen to raise thecontention that section 40-A which provides for "no confidence motion"against Chairman and Vice Chairman is ultra vires in the sense that itdoes not give any opportunity to the affected party to put forth hiscase in the Council, it is necessary to consider section 40-A of the https://hcservices.ecourts.gov.in/hcservices/ Act, which reads as follows:"Section 40-A. Motion of no-confidence in Chairman or vice-chairman.- (1) Subject to the provisions of this section, a motionexpressing want of confidence in the chairman or vice-chairmanmay be made in accordance with the procedure laid down herein.(2) Written notice of intention to make the motion, in suchform as may be fixed by the State Government, signed by suchnumber of councillors shall constitute not less than one-half ofthe sanctioned strength of the council, together with a copy ofthe motion which is proposed to be made, shall be delivered byany two of the councillor, signing the notice in person together,to the Regional Director of Municipal Administration.(3) The Regional Director of Municipal Administration shallthen convene a meeting for the considerations of the motion, tobe held at the municipal office, at a time appointed by him whichshall not be later than thirty days from the date on which thenotice under sub-section (2) was delivered to him. He shall giveto the councillors notice of not less than fifteen clear days ofsuch meeting and of the time appointed therefor.(4) The Regional Director of Municipal Administration shallpreside at the meeting convened under this section, and no otherperson shall preside there at. If within half an hour after thetime appointed for the meeting Regional Director of MunicipalAdministration is not present to preside at the meeting, themeeting shall stand adjourned by a time to be appointed andnotified to the councillors by the Regional Director of MunicipalAdministration under sub-section (5).(5) If the Regional Director of Municipal Administration isunable to preside at the meeting, he may, after recording hisreasons in writing, adjourn the meeting to such other time as hemay appoint. The date so appointed shall not be later thanthirty days from the date appointed for the meeting under sub-section (3). Notice of not less than seven clear days shall begiven to the councillors of the time appointed for the adjournedmeeting.(6) Save as provided in sub-sections (4) and (5) a meetingconvened for the purpose of considering a motion under thesection, shall not for any reason be adjourned.(7) As soon as the meeting convened under this section hascommenced, the Regional Director of Municipal Administrationshall read to the council the motion for the consideration ofwhich it has been convened, and declare it to be open fordebates.(8) No debate on any motion under this section shall beadjourned.(9) Such debate shall automatically terminate on the expiryof two hours from the time appointed for the commencement of themeeting, if it is not concluded earlier. Upon the conclusion of https://hcservices.ecourts.gov.in/hcservices/ the debate or upon the expiry of the said period of two hours, asthe case may be, the motion shall be put to the vote of thecouncil.(10) The Regional Director of Municipal Administration shallnot speak on the merits of the motion, nor shall he be entitledto vote thereon.(11) A copy of the minutes of the meeting together with acopy of the motion and the result of the voting thereon shallforthwith on the termination of the meeting be forwarded by theRegional Director of Municipal Administration to the StateGovernment.(12) If the motion is carried with the support of not lessthan three-fifths of the sanctioned strength of the council, theState Government shall, by notification, remove the chairman orvice-chairman.(13) If the motion is not carried by such a majority asaforesaid, or if the meeting cannot be held for want of a quorum,no notice of any subsequent motion expressing want of confidencein the same chairman or vice-chairman shall be received untilafter the expiry of six months from the date of the meeting.(14) No notice of a motion under this section shall bereceived within six months of the assumption of office by achairman or vice-chairman."11. It is seen from section 40-A of the Act that the procedure formoving "no confidence motion" against Chairman and Vice Chairman isstated in the following manner:(i)A written notice of intention in the form fixed by the Government andsigned by not less than one half of the sanctioned strength of thecouncil along with a copy of the motion proposed to be made shall bedelivered in person by minimum two councillors signing the notice, tothe Regional Director of Municipal Administration.(ii)Thereafter, the Regional Director of Municipal Administration shallconvene a meeting fixing the time which shall not be later than 30 daysfrom the date on which the notice under section 40A(2) was delivered tohim. However, he has to give 15 days clear notice before the meeting.(iii)Only the Regional Director of Municipal Administration shallpreside over the meeting and within half an hour if he fails toattend the meeting, the meeting shall stand adjourned to another dateas notified by the Regional Director of Municipal Administration. Ifthe Regional Director of Municipal Administration is unable to presideover the meeting, the reason for the same has to be recorded and themeeting can be adjourned. Except these two instances, the meeting shallnot be adjourned for any other reason.(iv)In the meeting, the Regional Director of Municipal Administrationshall read to the Council the motion for consideration and declare itto be open for debate. Under sub-section (8), it is made clear thatthe debate on motion shall not be adjourned. Two hours time is givenfor debate and within this time, the motion must be put to vote of the https://hcservices.ecourts.gov.in/hcservices/ council.(v)The Regional Director of Municipal Administration shall not speak onmerits of motion and he shall not vote.(vi)After the meeting is over, the minutes of the meeting along with acopy of the motion and the result of the voting must be forwarded bythe Regional Director of Municipal Administration to the StateGovernment.(vii)If the motion is carried with the support of not less than 3/5th ofthe sanctioned strength, the State Government shall notify the removalof the Chairman or Vice Chairman. (viii)If the motion is not carried by the majority as required and forwant of quorum, no subsequent meeting can be convened for removal ofthe Chairman again for a period of six months.Therefore, a reading of the entire provision makes it clear that itgives sufficient opportunity to the members to deliberate on the noticewhich includes the right of the person sought to be removed to speak.The contention that by fixing the time limit of two hours for debate onthe motion, the right of the Chairman who is sought to be removed istaken away cannot be accepted and on that score, the provision cannotbe held to be ultra vires. 12. As far as the voting is concerned, no prescribed method ofvoting is found in the Act. In view of the same, it is open to theRegional Director of Municipal Administration to decide the way ofvoting, that is, whether the raising of hands would alone be sufficient,to decide the question that the required strength for the purpose ofcarrying out the motion viz., 3/5th of the sanctioned strength of thecouncil have voted in favour of the motion for the removal of theChairman or Vice Chairman. Therefore, in my view, there is absolutelyno substance in the writ petition filed by the petitioner against theprovisions of the Act.13. Coming to the resolution passed against the petitioner, it isclear that the second respondent has convened the meeting on 6.6.2007 bygiving a notice on 16.5.2007, thereby giving a clear 15 days notice. Areference to the impugned Government Order makes it clear that out of 33Councillors present including the petitioner, 21 have voted in favourof the motion and 10 Councillors including the petitioner voted againstthe motion and two Councillors remained neutral. In such circumstances,21 Councillors who have voted for the motion have certainly represented3/5th of the sanctioned strength. It is also clear that once theGovernment is satisfied with the conduct of the meeting and the resultof the meeting is notified, the removal comes into operation as persection 40-A(12) of the Act. In the present case, the Government hasissued notification on 15.6.2007. It is also pertinent to point outthat even the notice issued by the second respondent dated 16.5.2007itself was questioned in W.P.No.5000 of 2007 which came to be dismissedon 5.6.2007. In fact, subsequent to the removal of the petitioner fromthe post of Chairman, the election to the post of Chairman was notified https://hcservices.ecourts.gov.in/hcservices/ by the State Election Commission, Chennai on 2.7.2007 and ultimately,the election was held and the third respondent, S.Palanisamy waselected, who got 18 votes in his favour out of 33, the required numberof votes for election being half of the sanctioned strength. 14. It is true that the Government has issued an Ordinance, viz.,the Tamil Nadu Municipal Laws (Amendment) Ordinance, 2007 which hascome into force on 4.10.2007 under which section 9 states as follows: "9. Any motion expressing want of confidence in the chairmanor vice-chairman made under section 40-A and pending before anyofficer, authority or the Government, as the case may be, asprovided in section 40-A, immediately before the commencement ofthis Ordinance, shall abate."15. The Ordinance has come into effect on 4.10.2007. The questionto be decided is, whether the resolution passed by the Municipality inremoving the petitioner in the meeting of the Council held on 6.6.2007and subsequently notified by the Government on 15.6.2007 can be treatedto be 'pending before any officer, authority or the Government'? 16. On the face of record, there is no difficulty to come to theconclusion that inasmuch as the resolution passed by the Council inremoving the petitioner from the post of Chairman has been notifiedlegally by the Government on 15.6.2007, nothing remains to be pendingthereafter and everything has come to a conclusion. In view of the same,the contention of the learned counsel for the petitioner that as perthe Ordinance in letter and spirit, the resolution is deemed to bepending has no locus to stand at all. In view of the same, thewrit petitions fail and the same are dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhTo1.The Secretary State of Tamil Nadu Municipal Administration of Water Supply Department Fort St.George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/

2.The Regional Director of Municipal Administration Madurai 2.3.S.Palanisamy S/o.Subban 63 Karunanidhi st., Samadharmapuram, Theni.1 cc to Mr.I. Paranthaman, Addl. Govt. Pleader, SR.No.128271 cc to L. Chandrakumar SR.No.129521 cc to L. Chandrakumar SR.No.12953SJI (CO)MMP 14.3.08 W.P.Nos.21822 & 34886 of 2007