P.Sivakumar v. Tiruvallur District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.1.2009C O R A MTHE HONOURABLE Mr.JUSTICE S.NAGAMUTHUWrit Petition No.25115 of 2008and M.P.No.1 of 2008P.Sivakumar..Petitioner -Vs-1.The Inspector of Panchayats & District Collector Tiruvallur District. Thiruvallur2.The Government of Tamil Nadu By its Secretary, Rural Development Department, Fort St.George, Chennai-600 009. 3.The Tahsildar, Thiruvallur Taluk, Thiruvallur..RespondentsPetition filed under Article 226 of the Constitution of Indiapraying for issuance of a Writ of Certiorari to call for all therecords relating to the impugned Gazette PublicationNo.Na.Ka.16458/08/A3/Vu.E(Voo) in Gazette No.39 dated 01.10.2008issued by the Government of Tamil Nadu, the Second respondent hereinand the subsequent notification No.Na.Ka. 16458/08/A3 dated 7.10.2008issued by the inspector of Panchayats and the District Collector,Thiruvallur District, the first respondent herein, by which thepetitioner was removed from the post of the President, KottaiyurVillage Panchayat, Thiruvallur Taluk & District and quash the same.For petitioner ... Mr.K.Subramanian, Senior counsel for M/s.M.Mohammed Shafi, S.PuniyakottiFor respondents for R1 to R3 ... Mrs.Malarvizhi Udhayakumar, Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RAdmit. By consent of both sides, the writ petition itself istaken up for final disposal.2. The petitioner is the President of Kottaiyur VillagePanchayat, Thiruvallur Taluk & District. On the allegation that thepetitioner had committed some irregularities, the first respondentissued a show cause notice dated 4.7.2008 under Section 205 of theTamil Nadu Panchayats Act calling upon him to submit his explanationregarding the said charges. It is further stated by the petitionerthat he submitted an explanation on 21.8.2008 denying the allegationsmade against him. Thereafter, as required under Section 205 of theTamil Nadu Panchayats Act, 1994, a meeting of the village Panchayatwas held by the Tahsildar in which majority of the members opposedthe move for removal of the petitioner. However, after receiving theview of the panchayat and report of the Tahsildar, the firstrespondent by his Proceedings in Na.Ka.No.16458/08/A3 dated 7.10.2008passed an order under Section 205(11) of the Tamil Nadu PanchayatsAct removing the petitioner from the post. Curiously, even beforethe order could be passed, notification was issued under Section 205(11) of the Act in the Tamil Nadu Government Gazette dated 1.10.2008as if the petitioner had already been removed from the post.Challenging the order of the District Collector dated 7.10.2008 aswell as the notification dated 1.10.2008, the petitioner has comeforward with this writ petition.3. Though several grounds have been raised in the writ petition,the learned Senior Counsel appearing for the petitioner would confinehis argument only to the ground that the notification dated 1.10.2008as well as the order of the District Collector dated 7.10.2008 shouldbe rendered invalid on the sole ground that the order has been giveneffect to retrospectively from 1.10.2008, whereas, the order removingthe petitioner from the post itself was made only on 7.10.2008. Thelearned Senior counsel relies on a judgment of this Court reported in1976 (II) MLJ 182 in K.V.Kandasamy Gounder, President Negamam TownPanchayat, Pollachi Taluk, Coimbatore District, wherein Hon'bleJustice S.Mohan,(as he then was) while dealing with an identicalsituation has set aside both the order of the Inspector of Panchayatremoving the petitioner therein from the post as well as the Gazettenotification and had remitted the matter back to the Collector forfresh consideration. The learned Senior Counsel would submit that onthe above sole ground, the writ petition deserves to be allowed andthe matter needs to be remitted back to the Collector for freshconsideration.4. Though a detailed counter has been filed disputing most ofthe grounds raised in the writ petition, the above ground, wherein,specifically, the petitioner has stated that the impugned https://hcservices.ecourts.gov.in/hcservices/ notification as well as the order are invalid on the ground that thesame has been given retrospective operation in gross violation ofSection 205(11) of the Tamil Nadu Panchayats Act, has not beendisputed. 5. I have carefully considered the rival submissions.6. A cursory comparison of Section 149-A(11) of the Tamil NaduPanchayats Act, 1958 and Section 205(11) of the Tamil Nadu PanchayatsAct of 1994 would make it clear that both the provisions are in parimateria. While dealing with the removal of Village President bygiving retrospective operation of the order of removal under Section149-A(11) of the Tamil Nadu Panchayats Act in K.V.Kandasamy Gounder'scase cited supra, this Court has held as follows:-"If read in the light of that section, theonly conclusion that is possible is a prospectivedate. However, sub section (12) does not throwany light with regard to the interpretation ofsub-section(11) since sub-section contemplatesremoval only by notification which notificationwould come into effect on publication. Thereforebetween the date of the order and the publicationthe affected President would have time enough tomove the Government and seek the postponement ofthe date specified for removal. This apart, theorder of the Collector does not give as to whatexactly is the reason that prompted him to fix thedate as 13the February, 1976. Perhaps he thoughthat from the date of the passing of theresolution, inasmuch as the Panchayat hadexpressed in unequivolcal terms in favour ofremoval of the writ petitioner, it should takeeffect. It may even be possible to argue underthese circumstances that the Inspector did notexercise his statutory function while consideringthe views of the panchayat since the relates theremoval to the date of the resolution. But I amnot going into that question. On the short groundthat only a prospective date is contemplated undersub-section (11) of section 149-A of the Act, thiswrit petition is allowed and the matter isremitted to the Collector for fresh considerationin the light of the observations made above."7. The ratio laid down in the above judgment squarely applies tothe facts of the present case. In the instant case also, the orderremoving the petitioner from the post of President was made only on7.10.2008. I do not understand, as to how even before the orderpassed by the District Collector, the removal could be published in https://hcservices.ecourts.gov.in/hcservices/ the Government Gazette dated 1.10.2008. It shows that the entireproceeding has been made in a hurried manner without properapplication of mind. Applying the ratio laid down in the abovejudgment and having regard to the facts stated above, I am of theview that it is a fit case, where the impugned Gazette notificationas well as the impugned order should be quashed.8. In the result, the writ petition is allowed ; the Gazettenotification dated 1.10.2008 and impugned order of the DistrictCollector in Na.Ka.NO.16458/08/A3 dated 7.10.2008 are quashed. Thematter is remitted back to the first respondent for freshconsideration strictly in accordance with law by affording sufficientopportunity to the petitioner. No costs. Consequently, connectedmiscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnvsriTo1.The Inspector of Panchayats & District Collector Tiruvallur District. Thiruvallur2.The Secretary, Government of Tamil Nadu Rural Development Department, Fort St.George, Chennai-600 009. 3.The Tahsildar, Thiruvallur Taluk, Thiruvallur.1 CC to the Government Pleader, SR NO.33111 CC To Mr.M.Mohammed Shafi, Advocate, SR NO.2612W.P.No.25115 of 2008tej(co)pmk/2.2.2009.