A.Mary Stella v. The Secretary to Government Rural Development and Panchayat Raj

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.12.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.25975 of 2009A.Mary Stella .. PetitionerVs.1. The Secretary to Government Rural Development and Panchayat Raj Fort St.George, Chennai – 600 009.2. The Inspector of Panchayat -cum-District Collector (Incharge) Thiruvallur District, Thiruvallur. .. RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of a writ of Certiorarified Mandamus to call for the records ofthe first respondent relating to the impugned letterNo.13527/V004/2009, dated 24.11.2009, to quash the same and to directthe first respondent to pass order on petitioner's appeal which washeard on 6.10.2009, in view of this Court order in W.P.No.17175 of2009, dated 25.8.2009.For Petitioner:Mr.S.Kumara Devan For Respondent:Mr.T.SeenivasanAddl. Government Pleader ORDERThe petitioner was elected as the President of KottaikuppamVillage Panchayat. It appears that certain complaint has beenlevelled against the conduct of the petitioner to the secondrespondent, who is the Inspector of Panchayat, which relate to theconstruction of houses for tsunami victims. Based on the complaint,enquiry was conducted by the Assistant Director Panchayat on4.1.2009. It appears that thereafter the persons who gave thecomplaint to the second respondent have represented to the secondrespondent on 13.1.2009 for withdrawal of the said complaint.However, the second respondent has issued a show cause notice on27.1.2009 to the petitioner for removal of the petitioner underSection 205 of the Tamil Nadu Panchayats Act, 1994 (for brevity, "theAct"). The petitioner submitted his explanation on 27.2.2009. https://hcservices.ecourts.gov.in/hcservices/

2. At the instance of the second respondent, which was on16.3.2009, the Tahsildar, Ponneri was directed to obtain the opinionof the Panchayat for removal of the petitioner. It is seen thatpursuant to the said direction, the Tahsildar has convened a meetingof the Village Panchayat on 28.4.2009. It is stated by thepetitioner that in the meeting convened by the Tahsildar, the VicePresident and other Panchayat members have unanimously opposed theresolution for removal of the President and thereafter, on receivingthe said report from the Tahsildar, the second respondent has passedan order on 19.5.2009 differing from the views of the members of thePanchayat and removing the petitioner from the post of President byexercising the power conferred under Section 205(11) of the Act andthe said removal was later published in the gazette notificationdated 4.6.2009. In the said order, the second respondent hasinformed the petitioner that against the order of removal dated19.5.2009, the petitioner can file an appeal to the Government underSection 205(12) of the Act.3. It is seen that the petitioner has accordingly filed anappeal to the first respondent on 15.6.2009 and as the same was notdisposed, the petitioner has approached this Court by filingW.P.No.17175 of 2009, in which this Court by order dated 25.8.2009has directed the first respondent to dispose of the appeal on meritsand in accordance with law. It is stated that pursuant to thedirection of this Court, the first respondent has in fact conductedan enquiry on 6.10.2009, in which the petitioner was representedthrough her counsel, and after the enquiry there was no further orderpassed. However, the impugned order came to be passed on 24.11.2009as per which the first respondent, by referring to the Full Benchjudgment of this Court in The District Collector and Inspector ofDistrict Panchayat, Villupuram District and another v. DeviParasuraman and others, 2009 (4) CTC 609 in respect of the procedureto be followed in cases where the Inspector of Panchayat differs fromthe view of the Panchayat and stating that the Inspector of Panchayathas to give his reasons and show cause notice to the Presidentconcerned and pass appropriate orders thereafter, returned therecords to the second respondent.4. The impugned letter of the first respondent dated 24.11.2009is challenged on the ground that when the first respondent has itselfentertained the appeal filed by the petitioner under Section 205(12)of the Act as per the contents of the order of the second respondentdated 19.5.2009 and conducted an enquiry as per the direction of thisCourt in the appeal filed by the petitioner, it is the duty on thepart of the first respondent to pass appropriate orders on merits andwithout passing orders on merits in the appeal filed by thepetitioner under Section 205(12) of the Act, by impugnedcommunication the first respondent has sent the records to the second https://hcservices.ecourts.gov.in/hcservices/ respondent for following the procedure as laid down by the Full Benchof this Court in The District Collector and Inspector of DistrictPanchayat, Villupuram District and another v. Devi Parasuraman andothers, supra.5. The learned counsel for the petitioner would submit that insuch event the first respondent should have set aside the order ofthe second respondent dated 19.5.2009 and sent back the matter to thesecond respondent for passing fresh orders in accordance with thedecision of the Full Bench of this Court, The District Collector andInspector of District Panchayat, Villupuram District and another v.Devi Parasuraman and others, supra.6. Mr.T.Seenivasan, learned Additional Government Pleaderappearing for the respondents would submit that the impugned noticeitself has been sent by the first respondent in order to implementthe decision of the Full Bench referred supra and in fact, it isbased on the decision of the Full Bench, the first respondent hassent a communication on 19.10.2009 to all the District Collectors,including the District Collector, Tiruvallur as follows:"2. As per the above referred order of the Full Bench ofMadras High Court, I am to state that as an Inspector ofPanchayats, you should record reasons for droppingaction against removal of President if you are satisfiedwith the explanation submitted by President. Regardingremoval of President from the post against the wishes ofthe members in the meeting convened by the Tahsildarunder Section 205(11) of the Tamil Nadu Panchayat Act,1994, you should record reasons for differing theviews / resolutions of Panchayat for taking decisions toremove the President. A show cause notice should alsobe given to the President intimating the reasons fordiffering with the view of the members of VillagePanchayat and you should issue the notification onlyafter consideration of the explanation submitted byPresident."7. I find force in the argument of the learned counsel for thepetitioner. Section 205 of the Act which relates to the procedure tobe followed in cases of removal of President, under sub-section (11)enables the Inspector of Panchayat to pass orders and thereafter, theGovernment has got power either to cancel the notification issuedunder sub-section (11) and may, pending a decision on suchcancellation, postpone the date specified in such notification.Sections 205(11) and 205(12) of the Act are as follows:"Section: 205. Removal of President.-(1) to (10)***(11) The Inspector may, after considering the views ofthe village panchayat in this regard, in his discretioneither remove the president from office by notification https://hcservices.ecourts.gov.in/hcservices/ with effect from a date to be specified therein or dropfurther action.(12) The Government shall have power to cancel anynotification issued under sub-section (11) and may,pending a decision on such cancellation, postpone thedate specified in such notification."8. When an issue was raised in a case where the Inspector ofPanchayat, while taking a different view from that the members of thePanchayat, has passed order of removal of the President withoutassigning any reason and without giving any further opportunity tothe President concerned, the Full Bench of this Court in The DistrictCollector and Inspector of District Panchayat, Villupuram Districtand another v. Devi Parasuraman and others, 2009 (4) CTC 609 hasultimately laid down the law in that regard as follows:"17. In the light of the discussions made above, wesummarise our views as follows:(i) An act of the Inspector under Section 205 isquasi-judicial in nature;(ii) If the Inspector is satisfied with theexplanation submitted by the President underSection 205, he is required to record hissatisfaction for dropping the proceeding; and(iii) If the Inspector differs with the viewsexpressed by the Village Panchayat and decides toremove the President or to drop the proceedingagainst the President, he is not only required torecord the reasons for differing with the viewsof the Village Panchayat, but before taking anydecision to remove the President, the Inspectoris also required to provide further notice to thePresident intimating the reasons for differenceand can issue notification only on considerationof cause, if any, shown by the President."9. By applying the dictum laid down by the Full Bench of thisCourt wherein it has been held that the conduct of the Inspectorunder Section 205 of the Act is quasi-judicial function and in caseswhere the Inspector differs from the views expressed by the VillagePanchayat for the purpose of removal of the President, it is requiredon his part to provide further notice to the President concernedintimating the reasons for difference and thereafter pass appropriateorders to the facts and circumstances of the case, there is nodifficulty to conclude that the order of the second respondent dated19.5.2009 and publication of notification in the official gazette on4.6.2009 are totally opposed to the procedure laid down as statedabove. https://hcservices.ecourts.gov.in/hcservices/

10. In addition to the above, even the second respondent in hisorder dated 19.5.2009 has enabled the petitioner to file appeal tothe Government under Section 205(12) of the Act and pursuant to thatwhen the appeal has admittedly been filed to the first respondent,who has conducted enquiry as directed by this Court, it was certainlyincumbent on the part of the first respondent to pass orders in theappeal and instead of passing orders in the appeal filed by thepetitioner against the orders of the second respondent, the firstrespondent has by the impugned communication sent all the papers tothe second respondent for a re-enquiry which is permissible onlyafter the first respondent setting aside the order of the secondrespondent and remanding the matter for fresh decision in accordancewith the decision of the Full Bench. In the absence of such actiontaken by the first respondent on the appeal filed by the petitioner,the impugned communication to the second respondent is unsustainable.In such view of the matter, the writ petition stands allowed andthe impugned communication of the first respondent dated 24.11.2009is set aside with a direction to the second respondent to whom thepapers have been sent back by the first respondent to proceed afreshin accordance with law and by following the procedure as laid down bythe Full Bench stated above. No costs. Consequently, M.P.Nos.1 and 2of 2009 are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo:1. The Secretary to Government Rural Development and Panchayat Raj Fort St.George, Chennai – 600 009.2. The Inspector of Panchayat -cum-District Collector (Incharge) Thiruvallur District, Thiruvallur.+ 1 cc to Govt., Pleader (SR 70671)+ 1 cc to Mr.S.Kumara Devan, SR 70291W.P.No.25975 of 2009TEJ (CO)RH (30.12.09)