R. Jaya v. The Commissioner Chengalpattu Municipality Chengalpattu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.10.2009CORAM THE HONOURABLE THIRU JUSTICE K. VENKATARAMANW.P.No.16756 of 2009 & M.P.No.1 of 2009R.JAYA [ PETITIONER ] Vs1 THE COMMISSIONER CHENGALPATTU MUNICIPALITY CHENGALPATTU.2C.K.KRISHNAMURTHY3.SRIDEVI(3rd respondent amended as perorder in M.P.No.2 of 2009 dated 1.10.2009)4M.G.SSIT5 GEETHA6C.K.MURTHY7SANDHYA8M.SAIT9K.BALAJI10THILAKAVATHI11PUSHPALATHA12VADIVALNATHAN13K.GIRIBABU14LALITHA15PANNEERSELVAM16RAGHUNATHANAddress of 2 to 16 C/o.Municipal Office,Chengalpattu [ RESPONDENTS ] Petition filed under Article 226 of the Constitution ofIndia, praying for a Writ of Certiorarified Mandamus, calling forthe records of the first respondent in Na.Ka.2111/09/H1dt.30.7.2009 and quash the same and further forbear the respondents2 to 16 from attending the meeting of the Municipal Council ofChengalpattu Municipality as they are disqualified to hold the postof Councilors of Chengalpattu Municipality.For Petitioner : Mr.K.ChandrasekaranFor Respondents : Mr.J.Rajakalifulla for R1 Mr.V.R.Thangavelu for R2 to R16 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner has come up with the present writ petitionchalllenging the proceedings of the first respondent dated30.7.2009 and further forbear the respondents 2 to 16 fromattending the meeting of the Municipal Council of ChengalpattuMunicipality as they are disqualified to hold the post ofCouncilors of Chengalpattu Municipality.2. The case of the petitioner as put forth by the petitionerin the affidavit in support of the Writ Petition in nutshell isstated hereunder:(2.1)The petitioner is a Chairman of the ChengalpattuMunicipality. Besides her, there are 32 Ward Councilors, of which15 Councilors are respondents 2 to 16 in this Writ Petition.(2.2)Section 50(i) of the Tamil Nadu DistrictMunicipalities Act, 1920 deals with disqualification of Chairman orCouncilors. A reading of Section 50(i) would render a Councilordisqualified if he absents for three consecutive meetings of thelast meeting which he attended and in case he is so disqualified,the first respondent should intimate such Councilor the factum ofhis disqualification in writing and report the same to the councilat its meeting. If the disqualified Councilior applied forrestoration suo motu to the council on or before the next date ofthe meeting within 15 days of the receipt of the information, thecouncil may at the next meeting restore him or her to the saidoffice.(2.3) The respondents 2 to 16 did not attend the councilmeeting on 2.3.2009 and 29.5.2009. For the meeting held on15.7.2009, the respondents 2 to 16, after receiving the notice sentby the 1st respondent just before the meeting commenced came to thechamber of the petitioner or came to the meeting hall signed theattendance register and immediately went out of the municipaloffice building. Thus, consecutively they did not attend themeeting held on 2.3.2009, 29.5.2009 and 15.7.2009. The petitionertherefore addressed a communication to the first respondent on29.7.2009 about the said fact, but however, a reply was sent bythe first respondent dated 30.7.2009 stating that the respondents 2to 16 were not disqualified, in view of the fact that they didattend the meeting. Therefore, the petitioner was obliged toapproach this Court by filing the present Writ Petition.3. Counter affidavit was filed on behalf of the 13threspondent, wherein the following facts have been set out:(3.1) The Councilors have moved the authorities for takingnecessary action against the petitioner, who by her illegal act haddefeated the purpose of reservation and holds the post of Chairmanof the first respondent, which she is not entitled to. Therepresentation made to the first respondent for disqualification isbecause the respondents 2 to 16 have moved the authorities for her https://hcservices.ecourts.gov.in/hcservices/ removal. He attended the meeting along with other Councilors andplaced on record the protest for the subjects as well as protestedfor the Chairman heading the Council meeting because she does nothave the qualification to hold the said post.(3.2)The meeting held on 2.3.2009 would not come withinthe purview of the routine council meeting, since the same was anurgent meeting. As regards the council meeting held on 29.5.2009,he was present along with other Councilors at the time of schedulefor council meeting. The petitioner had taken away the attendanceregister and the respondents 2 to 16 could not sign the register.On 15.7.2009, council meeting was to be held and the agenda forthe same was circulated. The councilors attended the meeting on15.7.2009, signed the attendance register and thereafter protestedfor the various resolutions. Thus, the records will amply provethat the respondents 2 to 16 have attended the council meeting on15.7.2009. The counter affidavit, therefore, seeks for dismissalof the Writ Petition.4. I have heard Mr.K.Chandrasekaran, learned counsel forthe petitioner, Mr.J.Raja Kalifulla, Government Advocate appearingfor the 1st respondent and Mr.V.R.Thangavelu, learned counselappearing for the respondents 2 to 16.5.The first and foremost submission that was made on behalfof the petitioner, by the learned counsel appearing for thepetitioner is that the respondents 2 to 16 have not attended themeeting on 2.3.2009, 29.5.2009 and 15.7.2009 consecutively andhence they are disqualified as per Section 50(i) of the Tamil NaduDistrict Municipalities Act, 1920 (hereinafter called as "Act").Further, according to the learned counsel appearing for thepetitioner, mere signing of the attendance register by therespondents 2 to 16 on 15.7.2009 will not hold good and cannot beconsidered as attending the meeting, as contemplated under section50(i) of the said Act. 6. However, Mr.Raja Kalifullah, learned counsel appearing forthe first respondent and Mr.Thangavelu, learned counsel appearingfor the respondents 2 to 16 contended that the respondents 2 to 16have attended the meeting on 29.5.2009 and 15.7.2009 and it is nottrue to say that they did not attend the said meetings. As far asthe meeting that took place on 2.3.2009 is concerned, since it isan urgent meeting, it will not come within the purview of theroutine council meeting as per Section 50(i) of the said Act.7. Before dealing with the question whether the respondents 2to 16 have attended the meeting on 29.5.2009 and 15.7.2009 or not,I am inclined to deal with the meeting that was held on 2.3.2009.A specific averment was made in the counter affidavit filed by the13th respondent that the meeting held on 2.3.2009 was an urgentmeeting, which would not come within the purview of the routinecouncil meeting. Admittedly, there is no denial of the said factby filing a reply affidavit. https://hcservices.ecourts.gov.in/hcservices/

8. Explanation to Section 50(i) of the said Act states that"a meeting held under sub-rule (2) of rule 2 of Schedule III orrule 3 of that Schedule shall not be deemed to be a meeting withinthe meaning of the said clause". Sub Rule 2 of Rule 2 of ScheduleIII reads as follows:"In case of urgency, the Chairman may convene ameeting on giving prior notice other than the noticespecified in Sub Rule 1"9. It is the case of the respondents 2 to 16 that the meetingheld on 2.3.2009 was urgently called by the Chairman and hence itshall not be deemed to be a meeting normally called for. Thisstatement made in the counter affidavit is not denied by filing areply affidavit, by the petitioner. Thus, the statement made bythe respondents 2 to 16 that the meeting held on 2.3.2009 was anurgent meeting convened by the Chairman, which will not come withinthe purview of the meeting as per Section 50(i) of the Act has tobe accepted. If so, it cannot be said that the respondents 2 to 16absented themselves for three consecutive meetings.10. Even otherwise, it is stated by the petitioner that therespondents 2 to 16 have not attended the meeting on 15.7.2009,which fact is being disputed by the respondents 2 to 16 and as wellas by the 1st respondent.11. Mr.Chandrasekaran, learned counsel appearing for thepetitioner would submit that mere signing the register will nothold good and they should have attended and participated in themeeting. However, Mr.Raja Kalifullah, learned counsel for thefirst respondent and Mr.Thangavelu, learned counsel appearing forthe respondents 2 to 16 would submit that the respondents 2 to 16have attended the meeting on 15.7.2009, signed the attendanceregister and thereafter placed on record, protesting for theresolutions and hence it shall be constructed as "attendedmeeting".12. Admittedly, the word "attend" is not defined in the Act.It would be useful to extract Section 50(i) of the Act and the sameis reproduced hereunder:(i) absents himself from the meetings of the council for aperiod of three consecutive months reckoned from the dateof commencement of his term of office, or of the lastmeeting which he attended, or of his restoration to officeas councilor under sub-section (4), as the case may be,within the said period, less than three meetings have beenheld, absents himself from three consecutive meetings heldafter the said date:Provided that no meeting from which a councilorabsents himself shall be counted against him under thisclause, if due notice of that meeting was not given tohim. https://hcservices.ecourts.gov.in/hcservices/ Explanation:- A meeting held under sub-rule (2) ofrule 2 of Schedule III or rule 3 of that Schedule shallnot be deemed to be a meeting within the meaning of thisclause."13. The said provision states that absent from the meeting ofthe council for a period of three consecutive months reckoned fromthe date of the commencement of the term of office ssor of the lastmeeting which he attended or of within the said period, less thanthree meetings have been held, absents himself from threeconsecutive meetings held after the said date, will disqualify theCouncilors. The said provision does not speak about participatingin the meeting. It clearly says only 'absenting'. In the givencase on hand, it is the definite case of the respondents 2 to 16that they have attended the meeting on 15.7.2009 and signed theattendance register and thereafter left the meeting after placingon record their protest for the resolutions. Even it is not thecase of the petitioner that the respondents 2 to 16 have notattended the meeting at all. It is the case of the petitioner thatthe respondents 2 to 16 came , signed the register and went off.Nowhere in the Act, it is stated that mere signing of the registercannot be construed as absenting the council meeting.14. The learned counsel appearing for the petitioner drew myattention to Clause 5 of Schedule III. Schedule III deals withRules regarding proceedings of the council. Clause 5 reads that"all questions which may come before the council at any meetingshall be decided by a majority of the members present and voting atthe meeting and in every case of equality of votes, the presidingmember shall have and exercise a second or casting vote. The saidprovision cannot be equated with Section 50(i) of the Act for thepurpose of disqualification. As per Section 50 (i) of the Act, heor she ought to have absented himself or herself in threeconsecutive meetings. The word that has been used in the saidprovision is "attend". It does not mean participation in thecouncil meeting. For "deciding a matter in issue",Mr.Chandrasekaran, learned counsel for the petitioner may be rightin quoting Rule 5 of Schedule III.15. The first respondent considered the grievance of thepetitioner and it passed the impugned order on the representationmade by the petitioner dated 29.7.2009 stating that the respondents2 to 16 have attended the meeting on 29.5.2009 and 15.7.2009.16. I do not see any error in the order of the firstrespondent. In fine, the Writ Petition stands dismissed. However,there shall be no order as to costs. The connected MiscellaneousPetition is closed.ajrSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToTHE COMMISSIONER CHENGALPATTU MUNICIPALITY CHENGALPATTU.+1 cc to Mr. J. Raja Kalifulla, Advocate, SR.No.50816.+1 cc to Mr. V.R. Thangavelu, Advocate, SR.No.50817.+1 cc to Mr. K. Chandrasekaran, Advocate, SR.No.50000.W.P.No. 16756 of 2009rsy(co)ar/20.10.2009.