High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.02.2005CORAMTHE HONOURABLE MR.MARKANDEY KATJU, THE CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE D.MURUGESANW.A.Nos.1797, 1798, 1846 & 1847 of 2004W.A.Nos.1797 & 1798 of 2004:The PresidentKandipedu PanchayatKatpadi Panchayat UnionAppellant inVellore District..W.A.No.1797 of 2004/ 2nd Respondent in WP 526/04M.GovindanThe PresidentVandranthangal Village PanchayatKatpadi Panchayat UnionKatpadi TalukAppellant inVellore District..W.A.No.1798 of 2004/ 2nd Respondent in WP 38846/03-Vs-M.Kothanda Reddy..1st respondent inW.A.No.1797 of 2004/ Petitioner in WP 526/04M.Pankajam..1st respondent inW.A.No.1798 of 2004/ Petitioner WP 38846/03The District Collector(Inspector of Panchayat)2nd respondent in Vellore District, Vellore..both the W.As. 1797, 1798/04 (Ist Respondent inboth WPs)The Government of Tamil Nadurep. by its Secretary to GovernmentRural Development DepartmentFort St.George3rd respondent inChennai 600 009..both the W.As.(3rd respondent impleaded as perorder dated 01.02.2005 inW.A.M.P.Nos.201 & 260 of 2005by Hon’ble CJ & DMJ) https://hcservices.ecourts.gov.in/hcservices/ W.A.Nos.1797 & 1798 of 2004 are filed under Clause 15 of theLetters Patent, against the common order of the learned singleJudge dated 17.4.2004 made in W.P.Nos.526 of 2004 and 38846 of2003. For Appellants::Mr.P.S.RamanSenior Counsel forM/s V.Suthakar &K.S.ViswanathanFor Respondents::Mr.K.Muthukumarasamyfor R1 in both W.As.Mr.V.RaghupathyGovernment Pleader forR2 & R3 in both W.As.W.A.Nos.1846 & 1847 of 2004:S.SenthilkumarPresidentAppellant in (4th Respondent in WP 7810/03)Siraghizhandanallur PanchayatW.A.No.1846 of 2004Kumaratchi Panchayat Union& 4th respondent inCuddalore District..W.A.No.1847 of 2004The Block Development OfficerAppellant inCommissioner, Panchayat UnionW.A.No.1847 of 2004Kumaratchi, Kattumannar Koil Taluk..& 4th respondent in W.A.No.1846 of 2004 (3rd Respondent in WP 7810/03)-Vs-1. T.Kumaravelu..1st respondent in (Petitioner in WP 7810/03)both the W.As.2. The Chief Executive Officer Collector of Cuddalore District2nd respondent in( Ist CuddaloreRespondent in WP 7810/03) ..both the W.As.3. The Assistant Director of Panchayat3rd respondent in (R2 in WPCuddalore..7810/03 ) both the W.As.4. R.Kumar..5th respondent in (5th RepondentWP 7810/03)both the W.As.W.A.Nos.1846 & 1847 of 2004 are filed under Clause 15 of theLetters Patent, against the order of the learned single Judgedated 5.3.2004 made in W.P.No.7810 of 2003. https://hcservices.ecourts.gov.in/hcservices/ For Appellants::Mr.V.SubbarayanFor Respondents::Mr.V.RaghupathyGovernment Pleader forR2 & R3 in both W.As.JUDGMENTD.MURUGESAN, J.The above writ appeals raise a common question as to whether,if the President or the Vice President of a Panchayat refuses tosign a cheque, should it be treated as "absence" within themeaning of the word employed in Section 188(3) of the Tamil NaduPanchayats Act, 1994 (hereinafter referred to as "the Act"). 2. We have heard the learned counsel for the appellants andthe respondents.3. The scope of Section 188(3) of the Act came up forconsideration before a Division Bench in W.A.No.1799 of 2004. Byan order dated 28.1.2005, the Division Bench has held as follows:-"In our opinion, we can give a wider meaningto the word "absence" than mere "physical absence".One word can have several meanings, just as severalwords can have one meaning (synonyms). It alldepends on the context in which it has been used.For example, the word "desertion" appearing inSection 13 of the Hindu Marriage Act implies notonly factum of separation, but also "animusdeserendi", vide Lachman v. Meena (AIR 1964 SC 40).There can be constructive desertion. The husbandand wife may be living together under the sameroof, but the husband may have legally deserted her(wife) by his conduct. Similarly the word"absence" is a word of wide connotation, and is notnecessarily limited to "physical absence". Theindifferent or obstructionist attitude of a personor avoidance can, in our opinion, amount to absencein some situations.In our opinion, if the Vice President (orPresident, as the case may be) by his conduct makesit impossible for the village panchayat to function(either by neglecting his duties or by causingregular obstruction in the administration orotherwise) he may be said to be "absent". Suchinterpretation of the word "absence" in Section 188(3) would be taking a practical view otherwise theVice President (or President, as the case may be)if he has adversarial relationship with the VicePresident (or President as the case may be) canmake it very difficult for the Village Panchayat tofunction by his simple act of refusing to sign https://hcservices.ecourts.gov.in/hcservices/ cheques. Funds are often required for variouspurposes and if the President or Vice Presidentrefuses to sign cheques for ulterior motives, as isthe allegation in the counter affidavit in thiscase, the functioning of the village panchayat maybecome impossible. We are not expressing anyopinion as to whether in this case, the VicePresident has refused to sign for some ulteriormotives, but we are certainly of the opinion thatSection 188(3) of the Act, as well as G.O.Ms.No.92dated 26.03.1997 can be read harmoniously in themanner mentioned above. We do not agree with thelearned single Judge that if the Vice President (orPresident, as the case may be) refuses to sign itcan never be a case of "absence" within the meaningof the word in Section 188(3) of the Act, and theonly recourse which can be taken to is underSection 206. It may be noted that Section 206(2)of the Act states that before removing the VicePresident the procedure mentioned in sub-sections(2) to (13) of Section 205 has to be complied with,and that procedure is a cumbersome, time consumingone. Surely for signing every cheque it would beimpracticable to resort to that procedure. If theconclusion of the learned single Judge that forrefusal to sign cheques action could be taken underSection 206(3) of the Act for removal of the VicePresident (or President, as the case may be) thetime bound programmes like Village Panchayat,earmarked grant account like Sampoorna Grame YojgasYojana Scheme (Food for work), Village PanchayatScheme Fund Account etc., will lapse if the fundsare not utilized within the time stipulated, sincethe procedure mentioned in sub-sections (2) to (13)of Section 205 is very elaborate and cumbersome."4. The Division Bench has held that if the Vice President (orPresident, as the case may be) by his conduct makes it impossiblefor the village panchayat to function (either by neglecting hisduties or by causing regular obstruction in the administration orotherwise) he may be said to be "absent" and that suchinterpretation of the word "absence" in Section 188(3) would betaking a practical view, otherwise the Vice President (orPresident, as the case may be) if he has adversarial relationshipwith the Vice President (or President as the case may be) can makeit very difficult for the Village Panchayat to function by hissimple act of refusing to sign cheques. Funds are often requiredfor various purposes and if the President or Vice Presidentrefuses to sign cheques for ulterior motives, as is the allegationin the counter affidavit in this case, the functioning of thevillage panchayat may become impossible. The Division Bench hasalso held that Section 188(3) of the Act, as well as G.O.Ms.No.92dated 26.03.1997 can be read harmoniously and that if the VicePresident (or President, as the case may be) refuses to sign,resorting to action under Section 206 of the Act may require thecompliance of the procedure mentioned in sub-sections (2) to (13)of Section 205 and the said procedure is a cumbersome, time https://hcservices.ecourts.gov.in/hcservices/ consuming one, as for signing every cheque it would beimpracticable to resort to that procedure. 5. The Division Bench has further held in regard to the dutyof the Inspector of Panchayats namely, the District Collectorbefore granting prior approval to any resolution passed by thePanchayat in authorizing another member of the Village Panchayatto sign the cheque, in the place of the Vice President, along withthe President as follows:-"We would however point out that before grantingprior approval it would be the duty of theInspector of Panchayats (District Collector) togive a hearing to the Vice President or(President, as the case may be) (which need not bea personal hearing as already mentioned above),and apply his mind and decide by a written ordergiving reasons as to whether in his opinion, theVice President (or President, as the case may be)is refusing to sign the cheque for ulteriormotive, or for genuine reasons in the interest ofthe village panchayat. It will be the duty of theInspector of Panchayats, to decide this matterobjectively and impartially without beinginfluenced by any extraneous pressures orconsiderations. If the refusal to sign the chequeis for good and genuine reasons in the interest ofthe Village Panchayat, the Inspector should refuseapproval, but if it is for extraneousconsiderations or is mala fide he should grant it. 6. It is therefore to be considered as to whether theInspector of Panchayats namely, the District Collector had givenopportunity to the first respondent in each appeals before passingthe orders impugned in the writ petitions. 7. The first respondent in W.A.No.1797 of 2004 (writpetitioner) was elected as Vice President in the Kandipedu VillagePanchayat, Vellore District. By a resolution dated 18.10.2003,the Panchayat resolved to authorize another member to sign thecheque along with the President, as the first respondent was notcooperating with the administration. The said resolution wasforwarded to the District Collector cum Inspector of Panchayat,Vellore District who, by an order dated 6.1.2004, approved theresolution of the Panchayat and the power of the Vice President tosign the cheque was cancelled. The first respondent questionedthe above order of the Inspector of Panchayat in W.P.No.526 of2004 and the said writ petition was allowed on 17.4.2004 on theground that if the Vice President omits or refuses to dischargehis duties, the only course open to the Inspector of Panchayats isto invoke the provisions of Section 206 of the Act warrantingremoval of the Vice President only after issuing notice and givingdue opportunity. The President of the Kandipedu Village Panchayathas filed the above writ appeal questioning the impugned judgment. https://hcservices.ecourts.gov.in/hcservices/

8. The first respondent in W.A.No.1797 of 2004, in ground (f)of the affidavit filed in support of the writ petition hasspecifically averred that the impugned order is in violation ofthe basic principles of natural justice and no notice was given tohim before passing the said order. The District Collector,Vellore has not filed any counter affidavit in the said writpetition. Though he has filed an affidavit in support of thepetition to vacate the interim order, neither he has denied theabove specific averment of the first respondent nor has statedthat the first respondent was given opportunity before passing ofthe order. In the absence of such notice, as has been held by theDivision Bench, the order impugned in the writ petition cannot besustained. 9. The first respondent in W.A.No.1798 of 2004 (writpetitioner) was elected as Vice President in the VandaranthangalVillage Panchayat, Vellore District. By a resolution dated17.9.2003, the Panchayat resolved to authorize another member tosign the cheque along with the President, as the first respondentwas delaying the signing of cheques. The said resolution wasforwarded to the District Collector cum Inspector of Panchayat,Vellore District who, by an order dated 23.12.2003, approved theresolution of the Panchayat and the power of the Vice President tosign the cheque was cancelled. The first respondent questionedthe above order of the Inspector of Panchayat in W.P.No.38846 of2003 and the said writ petition was allowed on 17.4.2004 on theground that if the Vice President omits or refuses to dischargeher duties, the only course open to the Inspector of Panchayats isto invoke the provisions of Section 206 of the Act warrantingremoval of the Vice President only after issuing notice and givingdue opportunity. The President of the Vandaranthangal VillagePanchayat has filed the above writ appeal questioning the impugnedjudgment. 10. The first respondent in W.A.No.1798 of 2004, in ground(e) of the affidavit filed in support of the writ petition hasspecifically averred that the impugned order is in violation ofthe basic principles of natural justice and no notice was given toher before passing the impugned order. Though the DistrictCollector, Vellore has filed the counter affidavit in the saidwrit petition, neither he has denied the above specific avermentof the first respondent nor has stated that the first respondentwas given opportunity before passing the order. In the absence ofsuch notice, as has been held by the Division Bench, the orderimpugned in the writ petition cannot be sustained. 11. The first respondent in W.A.Nos.1846 & 1847 of 2004 (writpetitioner) was elected as Vice President in theSiragizhandanallur Village Panchayat, Cuddalore District. By aresolution dated 23.12.2002, the Panchayat resolved to authorizeanother member to sign the cheque along with the President, as thefirst respondent was not cooperating with the administration. Thesaid resolution was forwarded to the District Collector cumInspector of Panchayat, Cuddalore District who, by an order dated21.1.2003, approved the resolution of the Panchayat and the powerof the Vice President to sign the cheque was cancelled. The firstrespondent questioned the above order of the Inspector ofPanchayat in W.P.No.7810 of 2003 and the said writ petition was https://hcservices.ecourts.gov.in/hcservices/ allowed on 5.3.2004 on the ground of non-compliance of theprocedures contemplated under Section 206 of the Act. ThePresident of the Siragizhandanallur Village Panchayat and theBlock Development Officer, Kumaratchi Panchayat Union, CuddaloreDistrict have filed the above writ appeals questioning theimpugned judgment.12. The first respondent in W.A.Nos.1846 & 1847 of 2004, inparagraph 13 of the affidavit filed in support of the writpetition has specifically averred that no enquiry was conducted bythe District Collector, Cuddalore before passing the impugnedorder. The District Collector, Cuddalore has not filed anycounter affidavit denying the above specific allegation of thefirst respondent. In the absence of such notice, as has been heldby the Division Bench, the order impugned in the writ petitioncannot be sustained.13. In view of the above and following the judgment of theDivision Bench in W.A.No.1799 of 2004 dated 28.1.2005, the mattersare remanded back to the District Collectors of Vellore andCuddalore to pass fresh orders after giving an opportunity ofhearing (which need not be a personal hearing) to the individualVice President and President of the Panchayat, and othersconcerned, and after recording reasons as to whether in theiropinion, the Vice President (or President, as the case may be) isrefusing to sign the cheque for ulterior motive, or for genuinereasons in the interest of the village panchayat. It will be theduty of the Inspector of Panchayats, to decide this matterobjectively and impartially without being influenced by anyextraneous pressures or considerations. If the refusal to signthe cheque is for good and genuine reasons in the interest of theVillage Panchayat, the Inspectors should refuse approval, but ifit is for extraneous considerations or is mala fide they shouldgrant it. This should be done very expeditiously by the DistrictCollectors of Vellore and Cuddalore.14. The writ appeals are disposed of accordingly. No costs.Consequently, W.A.M.P.Nos.3367, 3368, WAVMP Nos.4831, 4840, andWAMP Nos.3451 and 3452 of 2004 are closed.ssSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government of Tamil Nadu Rural Development Department Fort St.George Chennai 600 0092. The District Collector cum Inspector of Panchayats Vellore District3. The Chief Executive Officer Collector of Cuddalore District Cuddalore4. The Assistant Director of Panchayat Cuddalore5. The Block Development Officer Commissioner, Panchayat Union Kumaratchi Panchayat Union Cuddalore District6. The District Collector, Cuddalore7. The President, Kandipedu Panchayat Union, Katpadi Taluk, Vellore District.8. The President, Vandaranthangal Village Panchayat Katpadi Panchayat Union, Katpadi Vellore District.9. The President Brammapuram Village Panchayat Katpadi Panchayat Union, Katpadi Taluk, Vellore District. 10.The President, Sivaghizhandanallur Panchayat Kumaratchi Panchayat Union Cuddalore District11.The Section Officer, VR Section, High Court, Madras 104.+ 2 ccs to Mr.V.Subbarayan, Advocate (SR No.3961)+ 1 cc to Mr.V.Sanjeevi, Advocate (SR No.3886)+ 2 ccs to Mr.V.Suthakar, Advocate (SR Nos.3855, 3856)+ 1 cc to The Government Pleader (SR No.4114)JP(CO)Judgment in W.A.Nos.1797, 1798, 1846 & 1847 of 2004SR/8.2.2005