High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28 .04.2008CORAMTHE HONOURABLE Mr. JUSTICE K.MOHAN RAMWrit Petition Nos.1683 and 1684 of 2008and M.P.No.1 of 2008R.Sarojini, W/o.Mr.K.PrakasamChairmanVennanthur Panchayat UnionAramathapalayam, Alavaipatti Post,Rasipuram Taluk, Namakkal District ... Petitioner in both the W.Ps.-Vs. -1. The Revenue Divisional Officer, Office of the District Revenue Officer, Namakkal2. D.Vijayabaskaran Vice-Chairman, Councillor - Ward No.3 Vennanthur Panchayat Union, 3. A.Matheswaran Councillor- Ward No.1 Vennanthur Panchayat Union, 4. K.Meenakshi, W/o. Mr. Krishnamoorthy Councillor - Ward No.2, Vennanthur Panchayat Union, 5. N.Malarvizhi, W/o.Mr. Sampath Councillor - Ward No.4, Vennanthur Panchayat Union, 6. S.Vanitha, Councillor - Ward No.5, Vennanthur Panchayat Union, 7. A.Jeyarani, Councillor - Ward No.6, Vennanthur Panchayat Union, https://hcservices.ecourts.gov.in/hcservices/

8. K.Kanagam, W/o.Mr.Periyasamy, Councillor - Ward No.7, Vennanthur Panchayat Union, 9. M.Raja, Councillor - Ward No.8 Vennanthur Panchayat Union, 10. N.Ravichandran, Councillor - Ward No.10, Vennanthur Panchayat Union, 11. The State of Tamil Nadu, Rep. by its Secretary to Government, Department of Municipal Administration, Fort St. George, Chennai - 600 009 (R-11 impleaded as per order dated 18.03.2008 in M.P.Nos.2 & 2 of 2008 in W.P.Nos.1683 & 1684 of 2008 respectively) ... Respondents in both the W.Ps.Prayer in W.P.No.1683 of 2008:- Writ Petition filed under Article226 of the Constitution of India praying for the issuance of a writof certiorari calling for the entire records in connection with theimpugned notice dated 08.01.2008 in Ref.No.Na.Ka.12580/2007 of thefirst respondent, quash the said notice fixing the date of NoConfidence Motion on 25.01.2008.Prayer in W.P.No.1684 of 2008:- Writ Petition filed under Article226 of the Constitution of India praying for the issuance of a writof declaration declaring the provisions of Section 212 of the TamilNadu Panchayat Act, 1994 in so far as the same gives unbridled powerto the 1st respondent as ultravires of the Constitution and opposedto Part-IX of the Constitution of India.For Petitioner in both the W.Ps.: Mr. Venkatachalapathy, Senior Counsel, for Mr. M.SriramFor Respondents in both the W.Ps.: Mr. L.S.M.Hasan Fizal, Govt. Advocate, for R-1 & R-11. Mr. V.Selvaraj, for R-2 to R-10. https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E RAdmit. With consent of the learned counsel on either side, thewrit petitions are taken up for final disposal at the admission stageitself. 2.The facts that are necessary for the disposal of the above writpetitions are set-out below:-The petitioner was elected as Councillor of Ward No.9 ofVennanthur Panchayat on 18.10.2006 as a member of the Congress Party;the petitioner was elected as Chairman of the Vennanthur PanchayatUnion by the majority of the other elected councillors; after beingelected as Chairman, the petitioner left congress party and joinedAll India Anna Dravida Munnetra Kazhagam Party (AIADMK); out of thetotal of 10 Ward councillors including the petitioner herein, 9councillors submitted a written notice of intention to move a NoConfidence Motion to the Revenue Divisional Officer, the firstrespondent herein, levelling certain charges against the petitioner;thereafter the first respondent herein sent a notice dated 02.01.2008to the petitioner by enclosing the petition received from WardCouncillors and calling upon the petitioner to submit her explanationwithin a period of one week from the date of receipt of the notice;for the said notice, the petitioner submitted her reply dated07.01.2008; by the impugned notice dated 08.01.2008 the firstrespondent as per the provisions contained in Section 212(4) of theTamil Nadu Panchayats Act, 1994 (hereinafter referred to as "theAct") convened a meeting of the Panchayat Union Council at 11.00 a.m.on 25.01.2008 for considering the no confidence motion moved againstthe petitioner; at that stage W.P.No.1683 of 2008 has been filedseeking to quash the said notice.3. The petitioner has also filed W.P.No.1684 of 2008 seeking awritten declaration declaring the provisions of Section 212 of theAct as ultravires of the Constitution and opposed to Part-IX of theConstitution of India. This writ petition has not yet been admitted.4. In W.P.No.1683 of 2008 the contention of the petitioner isthat a perusal of the letter dated 24.12.2007 shows that there is norhyme or reason for bringing a No Confidence Motion against thepetitioner; respondents 2 to 10 are aggrieved against the treatmentmeted out to them by the petitioner and the distribution of welfarescheme and it is alleged that the distribution of welfare scheme arewithout consulting them and the same cannot be treated as chargeslevelled against the petitioner. It is the further contention of thepetitioner that the statement of charges along with the motion dated02.01.2008 was received by the petitioner only on 05.01.2008, thetime for filing the reply expired on 12.01.2008, the first respondentis entitled to convene a meeting by giving notice of not less than 15 https://hcservices.ecourts.gov.in/hcservices/ clear days of the meeting, but without giving 15 clear days notice on08.01.2008 itself date for the meeting of the Panchayat Union Councilfor considering the no confidence motion has been fixed and hence themandatory requirements of Section 212 (3) of the Act have not beencomplied with.5. The petitioner is challenging the virus of Section 212 of theAct on the following grounds:-The proceedings under Section 212 when compared toSection 207, which deals with the same subject, ismutually contradictory and later provision isdiscriminatory and is liable to be declared ultravires;the very powers conferred under Section 212 are ex-facie arbitrary, unreasonable and unbridled in view ofthe fact that there is a multi coalition Government atthe State level though Panchayats are not based onparties, such kind of No confidence motions are likelyto go against the very basis of democrative set-up oflocal Governments and on that score also the saidprovisions contained in Section 212 of the Act suffersfrom infirmities and hence liable to be declared asultravires of the Constitution. It is furthercontended that bringing of motion cannot be termed aslegislative function of the Panchayat, it is anadministrative action and penal action against theChairman with reference to the written statement of thecharges against the Chairman and therefore it isimperative on the part of the Government or some otherauthority to consider the merits of the charges andsince there are no safe-guards in the provisionscontained in Section 212 of the Act, the provisions arearbitrary, unreasonable and ultravires of theConstitution. 6. In both the writ petitions respondents 2 to 8 and 10 havefiled a common counter affidavits inter-alia contending as follows:-When the petitioner was elected as Chairman, she belonged tocongress party and later she joined to the AIADMK party leaving thecongress party; it is the democratic right of the elected members toun-seat the petitioner when she has committed an unethical act ofjoining the AIADMK party; the petitioner's conduct was not up toexpectation; she behaved in a manner un-becoming of the Chairman ofthe Panchayat Union; there is a difference between the proceedingsunder Section 207 and no-confidence motion under Section 212 and anelaborated procedure is prescribed under Section 212 of the Act andthere is absolutely no arbitrariness or illegality as alleged in theaffidavit; the councillors have been served with the notice inaccordance with law that clear 15 days notice has been given to allthe members including the petitioner. It is contended that thepetitioner, who was elected by the Ward Councillors, can always be https://hcservices.ecourts.gov.in/hcservices/ removed by them if they lose confidence in the petitioner and thepetitioner cannot expect the ward councillors to repose confidenceeven after she has deserted the party on whose behalf she contestedand got elected. It is further contended that the meeting called forby the first respondent was conducted on 25.01.2008 and theresolution approved the no confidence motion has been passed and assuch the writ petition has become infructuous.7. Heard Mr. Venkatachalapathy learned senior counsel for thepetitioner and Mr. L.S.M.Hasan fizal learned Government Advocate forthe first and eleventh respondents and Mr. V.Selvaraj learned counselfor respondents 2 to 10. 8. At the outset it has to be pointed out that though thelearned senior counsel made submissions in W.P.No.1683 of 2008 he hadnot chosen to advance arguments in W.P.No.1684 of 2008 wherein theconstitutional validity of Section 212 of the Act has beenchallenged. The grounds raised for challenging the constitutionalvalidity of Section 212 of the Act are so vague and unsubstantiated.Article 243(c)(5) of the Constitution which speaks about thecomposition of the Panchayats, leaves it to the legislature of aState to make provisions with respect to it. Clause (5) of theArticle 243 (c) provides that the Chairperson of the Panchayat at thevillage level shall be elected in such manner as the StateLegislative may, by law, provide. Article 243-C (5) reads asfollows:-"The Chairperson of -(a) a Panchayat at the village level shall beelected in such manner as the Legislature of a Statemay, by law, provide; and(b) a Panchayat at the intermediate level ordistrict level shall be elected by, and from amongst,the elected members thereof."As per Clause (5) of the Constitution the Chairperson of thePanchayat at the intermediate level or district level shall beelected by, and from amongst, the elected members thereof. To giveeffect to that provision, the State has enacted Section 50 of theTamil Nadu Panchayat Act, which reads as follows:-"Election of Chairman of Panchayat Union Council:50. (1) The Chairman shall be elected by the PanchayatUnion Council from among its elected members inaccordance with such procedure as may be prescribed."9. Thus it is clear that the Chairman of the Panchayat UnionCouncil has to be elected by the ward councillors of the PanchayatUnion. The contention of the petitioner as could be discerned fromthe grounds raised in the affidavit filed in support of the abovewrit petition seems to be that since the duration of the PanchayatUnion council is five years the elected chairperson cannot be removedfrom during tenure of five years by no confidence motion even the https://hcservices.ecourts.gov.in/hcservices/ Chairperson ceased to enjoy the confidence of the ward councillors.The contention of the petitioner is that there is a specificprovision in Section 207 for the removal of the chairperson of thePanchayat Union in certain circumstances and hence there is no needfor a provision enabling the moving of no confidence motion againstthe elected chairperson of the Panchayat Union Council.10. It has to be pointed out that the tenure of a Panchayat orPanchayat Union Council is different from the election of Presidentor Vice President of a Panchayat or chairperson or vice chairpersonof the Panchayat Union Council. When the Act provides for anelection of a chairperson of the Panchayat Union Council by majorityof the ward councillors it goes without saying that at all points oftime during the entire tenure, the chairperson should enjoy theconfidence of the majority of the members of the Panchayat UnionCouncil and without which the functions of the Panchayat UnionCouncil cannot be carried on smoothly. That is the reason why aprovision for moving no confidence motion has been incorporated inthe Act.11. It has to be pointed out that since large number of noconfidence motions are being moved against the Presidents and VicePresidents of Village Panchayats and Chairman and Vice Chairman ofthe Panchayat Union Councils and District Panchayats and such motionsmay also be attributed to unethical practices and to diverts thefocus of concerning the welfare of the people and to smooth andcordial atmosphere of the Panchayats are disturbed and the conduct ofthe meetings of the Panchayats is affected, the Government thought ofamending the Panchayat Act. Accordingly, the Tamil Nadu Panchayats(Seventh Amendment) Ordinance 2007 has been promulgated amendingSections 211 and 212 of the Tamil nadu Panchayats Act. By the saidOrdinance sub-section (2) of Section 212, sub-section (13) of Section212 and sub-section (15) of Section 212 of the Act have been amended.Before amendment, the written notice of intention to make the noconfidence motion could be given if the same is signed by not lessthan one-half of the sanctioned strength of the Panchayat UnionCouncil. Now after the amendment, such a motion should be signed by3/5th members of the sanctioned strength of the Panchayat UnionCouncil. Similarly before the amendment no confidence motion shouldbe passed by 2/3rd of the sanctioned strength of the Panchayat UnionCouncil but after the amendment for a no confidence motion to bepassed the support of 4/5th of the members of the sanctioned strengthof the Panchayat Union Council is necessary.12. Further by amending sub-section (15) of Section 212 of theAct it has been provided that no notice of motion under Section 212shall be received within a period of one year of assumption of officeby the chairman or the vice chairman or during the last year of termof office of a chairman or vice chairman. The above safeguardssufficiently protect the interest of the duly elected chairperson or https://hcservices.ecourts.gov.in/hcservices/ vice chairperson of the Panchayat Union Council. If the chairpersonor vice chairperson of the Panchayat Union Council loses theconfidence of 4/5th of the sanctioned strength of the Panchayat UnionCouncil members, it is futile to expect such chairperson or vicechairperson to successfully conduct the meetings of the PanchayatUnion Councils or to carry on the developmental activities of thePanchayat Union Council and serve the interest of the public.Therefore it cannot be said that Section 212 of the Act is ultraviersof the Constitution.13. The elaborate procedure provided for Section 212 of the Actcontains sufficient procedural safe-guards. Once if a written noticeof intention to make the motion duly signed by the members of thePanchayat Union Council is received by the Revenue DivisionalOfficer, that too being submitted in person by two members, thenotice calling for the reply is issued to the chairperson or vicechairperson as the case may be and the reply is obtained andthereafter the meeting of the Panchayat Union Council is convened toconsider the motion of no confidence and the reply received from thechairman or vice chairman as the case may be and if the reply ofchairman or vice chairman is convincing and the same is accepted bythe majority of the members of the Panchayat Union Council, they maynot support the motion, but only when they do not accept the reply ofthe chairperson or vice chairperson as the case may be and they losetheir confidence, they vote for the motion for removing him / herfrom the office. Such a procedure cannot be said to be violative ofthe principles of natural justice or arbitrary. 14. At this juncture, it will be useful to refer to theprovisions contained in Section 207 (13) of the Act, which reads asfollows:-"207....(13) Any person in respect of whom a notification hasbeen issued under sub-section (12) removing him fromthe office of chairman shall be ineligible forelection as chairman and for holding any of thoseoffices until the date on which notice of the nextordinary elections to the panchayat union council ispublished in the prescribed manner or the expiry ofone year from the date specified in the notificationwhichever is earlier."A reading of the said provision shows that a disqualification isattached to the person, who has been removed under Section 207 of theAct from contesting the election for a particular period. If thisprovision is compared with the provisions contained in Section 212 ofthe Act, it could be seen that no such disqualification is attachedto a person against whom a no confidence motion has been passed underSection 212 of the Act. Therefore it is clear that the two sectionstake care of two different and distinct situations. Hence thecontention of the writ petitioner that there is a mutual https://hcservices.ecourts.gov.in/hcservices/ contradiction between the provisions contained in Section 207 of theAct and Section 212 of the Act cannot be countenanced. The actiontaken against the person under Section 207 of the Act is in thenature of punishment for proved the charges but whereas the actiontaken under Section 212 of the Act cannot be said to be so. UnderSection 212 of the Act, as pointed out above, only when 4/5th of thetotal strength of the Panchayat Union Council supports the noconfidence motion, such motion will be taken as passed and the personconcerned will be removed. For the said reasons, the said contentionof the learned senior counsel cannot be countenanced. Therefore thecontentions of the petitioner are liable to be rejected andaccordingly rejected and the W.P.No.1684 of 2008 is dismissed.15. In W.P.No.1683 of 2008 the learned senior counsel for thepetitioner raised two contentions namely:-The notice dated 02.01.2008 issued by the first respondentcalling upon the petitioner to submit his reply was received by thepetitioner on 05.01.2008 and the seven days time available to submitthe reply as per Section 212(3) of the Act expired on 12.01.2008.The Revenue Divisional Officer as per Section 212(5) of the Act isbound to give to the members the notice not less than 15 clear daysof the meeting and as such the 15th day expired only on 27.01.2008but the meeting of the members of the Panchayat Union Council wasfixed for 25.01.2008 and hence there is violation of the provisionscontained in Section 212 (5) of the Act.16. Learned senior counsel for the petitioner further submittedthat the charges levelled against the petitioner as contained in thewritten notice submitted by the ward councillors are so vague and onthat basis no confidence motion could not have been moved. Insupport of the said contentions the learned senior counsel for thepetitioner relied upon a decision of a learned single Judge of thisCourt reported in 2006-3-L.W.383 (Seeniammal v. The State of TamilNadu & 2 others). In the said decision in paragraph 10 it isobserved as under:-"10. From the facts and circumstances and thematerials available on record, it is alleged that themoving of No Confidence Motion against the petitioneris politically motivated. The petitioner was electedto the office of Chairperson of the village panchayatby the local villagers in a democratic manner. It isnot brought out on record produced before this Courtany specific allegation against the petitioner, whichpromoted the local Member of the Legislative Assesmblyto instigage and encourage the other councillors of thepanchayat union to initiate a No Confidence Motionagainst the petitioner. The petitioner was the choiceof the local villagers, who elected her as theChairperson of the village union. In a democratic set-up, the mandate of the people is the supreme and their https://hcservices.ecourts.gov.in/hcservices/ choice of selecting a representative from among themthrough a democratically held election should behonoured and protected. The initiation of NoConfidence Motion on filmsy and vague allegationsagainst the elected representatives of the people, aswas done in the present case, is not conductive in theinterest of the general public. This Court stronglydeprecates such illegal and unlawful attempts by theMembers of the Legislative Assembly in ousting theelected representatives of the village panchayats, whowere elected by the people, by moving No ConfidenceMotion on baseless and vague allegations and theExecutive authorities shall not be a party to suchillegal and unlawful acts."17. Learned senior counsel for the petitioner basing reliance onthe said observation submitted that on the basis of flimsy and vagueallegations made against the petitioner, the first respondent oughtnot to have initiated the no confidence motion and further submittedthat the allegations made against the petitioner by the wardcouncillors who gave the notice are flimsy and vague. 18.Countering the said submissions Mr.V.Selvaraj learned counselfor respondents 2 to 10 submitted that for the notice dated02.01.2008 issued by the first respondent the petitioner hadadmittedly submitted her reply on 07.01.2008 and thereafter on08.01.2008 the impugned notice convening the Panchayat UnionCouncil has been issued by the first respondent. According tothe learned counsel, it is not the case of either the petitioneror other ward councillors that all of them had not received thesaid notice and they did not have 15 clear days notice for themeeting. He further submitted that the contention of thelearned senior counsel that the 15 days time should becalculated from the expiry of seven days i.e., from 02.01.2008has no basis. He further submitted that for the notice dated02.01.2008 the petitioner had admittedly sent a reply on07.01.2008 and on the next day i.e., on 08.01.2008 the firstrespondent had issued notice convening the Panchayat UnionCouncil meeting for 25.01.2008 and thus 15 days clear notice hasbeen given to the Ward Councillors and therefore there is noviolation of the provisions contained in sub-section (5) ofSection 212 of the Act.19. I have carefully considered the said submissions made by thelearned counsel on either side and this Court is of the consideredview that the contentions put forth by the learned senior counsel forthe petitioner cannot be countenanced. The materials placed onrecord and the undisputed facts disclosed that on 08.01.2008 thenotice contemplated under sub-section (5) of Section 212 had been https://hcservices.ecourts.gov.in/hcservices/ issued fixing 25.01.2008 as the date of meeting of the PanchayatUnion Council and as such 15 days clear notice had been given to theWard Councillors which satisfies the requirements of the saidprovision.20.Coming to the next contention of the learned senior counselnamely that the allegations made against the petitioner areflimsy and vague, it will be useful to refer to the allegationsmade against the petitioner. Respondents 2 to 10 in theirsigned written notice had alleged that the petitioner neglectedthem and treated them with disrespect and they were not givenany kind of respect by the petitioner. It had been furtheralleged that while distributing the development work in theUnion, they were not taken into confidence and nothing wasdiscussed with them and only because of the said allegationsthey have loss their confidence in the petitioner. The saidallegations by no stretch of imagination could be said to beeither flimsy or vague. If the respondents 2 to 10 namely theward councillors who elected the petitioner as the chairman ofthe Panchayat Union Council are neglected and not given duerespect and they were shown disrespect and they were notconsulted on the distribution of development work in thePanchayat Union Council they naturally will get offended andconsequently they will lose confidence in the petitioner andonce they lose their confidence in the petitioner are they notentitled to move the no confidence motion as provided for underSection 212. Even if the ward councillors who supported thepetitioner are neglected and treated with disrespect, it is toomuch to except them to repose confidence in the petitionerduring the entire term of office of the petitioner. Had theallegations made by respondents 2 to 10 were not true, thepetitioner could have convinced them and persuaded them tosupport her and got the no confidence motion defeated. But inthis case as submitted by the learned counsel on either sideadmittedly the no confidence motion has been passed by majorityof eight out of 10 which itself shows that the petitioner hadlost the confidence of more than 4/5th of the total strength ofthe Panchayat Union Council.21. I have carefully considered the submissions made by thelearned senior counsel based on the decision reported in 2006-3-L.W.383 (referred to supra) and I am of the considered view that thefacts of that case are totally different from the facts on hand. Inthat case it has been specifically pointed out by the learned Judgethat it has not been brought out on record produced before the Courtthat any specific allegation has been made against the petitioner inthat case; there the whole action was initiated at the instance ofLocal Member of the Legislative Assembly and not at the instance ofthe elected Ward Councillors. Only considering such facts of that https://hcservices.ecourts.gov.in/hcservices/ case the learned Judge on facts held that the charges levelledagainst the writ petitioner in that case was flimsy and vague but, aspointed out above, the allegations made against the petitioner hereinhave been found to be not flimsy and vague and therefore the saiddecision is not applicable to the facts of this case. 22. For the said reasons, this Court is not inclined tointerfere with the impugned proceedings. Accordingly the above writpetition (W.P.No.1683 of 2008) also fails and the same is dismissed.The interim direction dated 22.01.2008 passed by this Court directingthe first respondent not to take a final decision is vacated and itis made clear that it is open to the first respondent to proceedfurther in the matter in accordance with law. 23. No costs. Consequently the connected MP is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrkTo1. The Revenue Divisional Officer, Office of the District Revenue Officer, Namakkal2. The Secretary to Government, State of Tamil Nadu, Department of Municipal Administration, Fort St. George, Chennai - 600 009+ 2 ccs to Mr.M.Sriram , Advocate, SR No.25128+ 1 cc to Mr. V.Selvaraj , Advocate, SR No.26116•1 cc to the Government Pleader, SR No.25233W.P.Nos.1683 & 1684 of 2008and M.P.No.1 of 2008 rs [co]gkg/5.5