R. Maheswaran v. Inspector of Panchayats

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.2.2009C O R A MTHE HONOURABLE Mr.JUSTICE S.NAGAMUTHUWrit Petition No.29421 of 2008and M.P.Nos.1 and 2 of 2008R.Maheswaran..Petitioner -Vs-1.The District Collector & Inspector of Panchayats, Coimbatore.2.The Block-Development Officer, (Panchayat) Periyanaickenpalayam, Coimbatore District...Respondents Petition filed under Article 226 of the Constitution of Indiapraying for issuance of a Writ of Certiorari to call for the recordson the file of the 1st respondent in connection with the order passedby him in his proceedings Na.Ka.No.3751/2008/A3 dated 22.09.2008 andquash the same.For petitioner ...Mr.R.SingaravelanFor respondents ...Mrs.Malarvizhi Udhayakumar,Special Government PleaderO R D E RThe petitioner is the Vice-President of Pannimadai VillagePanchayat in Coimbatore District. One Mr.P.Senthil Kumar was thePresident of the said Panchayat. Unfortunately, in an accident, thePresident Mr.P.Senthilkumar died. On the demise of Mr.Senthil Kumar,by operation of Section 47(1) of the Tamil Nadu Panchayats Act, 1994(hereinafter in short as Act), he shall exercise the functions of thePresident until a new President is declared elected and assumesoffice. But contrary to the same, the first respondent namely, theInspector of Panchayats, by his proceedings in Na.Ka.No.3751/2008/A3dated 22.09.2008 has nominated the Block Development Officer, https://hcservices.ecourts.gov.in/hcservices/ Periyanaickenpalayam to exercise the powers of the Village PanchayatPresident. Challenging the same, the petitioner has come forwardwith this writ petition.2. Admittedly, on a previous occasion, the first respondent byhis Proceedings dated 17.7.2008 withdrew the cheque signing power ofthe Vice President. Challenging the same, the Vice President filed awrit petition before this Court. This Court by an interim orderdated 31.7.2008 has granted stay. It appears that such stay is stillin operation. 3. The contention of the petitioner is that under Section 47(1)of the Act, the petitioner is entitled to exercise all the powers ofthe President until a new President is declared elected and assumesoffice and thus the impugned order is without jurisdiction and so thesame is therefore, liable to be quashed. 4. The learned Special Government Pleader produced a draftcounter of the first respondent. Relying on the same, the learnedSpecial Government Pleader would submit that on verification of booksof accounts, it was noticed that the petitioner has alreadymisappropriated Panchayat funds to the tune of Rs.20.00 Lakhs and asurcharge Proceeding is pending against him in respect of the same.It is further contended that with a view to prevent the misuse ofPanchayat funds by the petitioner, he was not allowed to act asPresident. In view of the interest of the Panchayat as per Section9-A of the Act, the Block Development Officer has been nominatedwith special powers to administer the Panchayat as a Special Officertill election of the next President or a period of six monthswhichever is earlier. It is further contended that under Section 47(3) of the Act, when the President is not available, the Vice-President is of-course entitled to discharge the functions of thePresident, but, when the Vice-President is found incapacitated or ifhe is found ineligible, according to the counter, the Inspector ofPanchayats has got power to nominate any other competent person todischarge the functions of the President. In this case, according tothe counter, since there was no other qualified member of thePanchayat available to act as President, the Inspector of Panchayatshad to nominate the Block Development Officer to discharge thefunctions. Therefore, according to the learned Special GovernmentPleader, the impugned order is perfectly correct and the same doesnot require interference of this Court.5. I have considered the rival submissions.6. Before going to the facts of the case, let me first analysethe legal position. Section 47(1)(2)&(3) of the Act read as follows:-47. Devolution of President's functions andfilling up of vacancies in the office of https://hcservices.ecourts.gov.in/hcservices/ President- (1) When the office of President isvacant, the Vice-President shall exercise thefunctions of the President until a new Presidentis declared elected and assumes office.(2) If the President has been continuouslyabsent from jurisdiction for more than thirtydays or is incapacitated, his functions duringsuch absence or incapacity shall, except in suchcircumstances as may be prescribed, devolve onthe Vice-President. (3) When the office of President is vacantor the President has been continuously absentfrom jurisdiction for more than thirty days or isincapacitated and there is either a vacancy inthe office of Vice-President or the Vice-President has been continuously absent fromjurisdiction for more than thirty days or isincapacitated, the functions of the Presidentshall devolve on a member of the VillagePanchayat appointed by the inspector in thisbehalf, and if no member of the Village Panchayatis available for such appointment on such personas may be appointed by the inspector in thisbehalf.The member of the Village Panchayat or theperson so appointed (who shall be called as thetemporary President) shall perform the functionsof the President subject to such restrictions andconditions as may be prescribed, until a newPresident or Vice-President is declared electedand assumes office, or either the President orthe Vice-President returns to jurisdiction orrecovers from his incapacity, as the case may be.A plain reading of Section 47(1) would disclose that as soon as thepost of a Village Panchayat becomes vacant, by operation of law, theVice-President shall automatically exercise the functions of thePresident until a new President is declared elected and assumesoffice. Thus, there is no need for any other authority includingInspector of Panchayats to pass any order authorising the Vice-President to exercise the functions of the President. As I havealready stated the moment, the post of President becomes vacant,automatically, the Vice-President shall start exercising thefunctions of the President.7. For any reason, if, in the opinion of the Inspector ofPanchayats, the Vice-President is considered to be disqualified to https://hcservices.ecourts.gov.in/hcservices/ continue to function as Vice-President then resort could be made toSection 206 of the Act.8. Coming to the facts of the case, admittedly, no suchproceeding has been initiated against the petitioner. The petitioneris very much available as Vice-President and so he shall exercise thepowers of the President. In the absence of any order under Section206 of the Act, he cannot be divested of the powers of the Presidentso long as the said post of President is vacant. 9. In the counter, as I have already stated, reliance is made onSection 9-A of the Act. In my considered opinion, Section 9-A alsois not applicable to the facts of the present case. Section 9-Areads as follows:-9-A.Appointment of Special Officer in certaincircumstances :-(1)Notwithstanding anythingcontained in this Act, or in any other law for thetime being in force, in respect of VillagePanchayats specified in Schedule -VI, which (couldnot be constituted) even after resorting toelections process, the Government may, bynotification, appoint Special Officers to exercisethe powers and discharge the functions of theVillage Panchayats, until the day on which thefirst meeting of the Village Panchayats are heldafter elections to the said Village Panchayats.(2) The Special Officer appointed under sub-section (1) shall hold office only (upto the 24thday of April, 2004) (24th day of October 2004)(24th day of April 2005) (24th day of October 2005)(24th day of April 2006) (24th day of October 2006)or for such shorter period as the Government, may,by notification, specify in this behalf.)10. A glance through Section 9-A would make abundantly clear thatpower to appoint a Special Officer in certain circumstances is vestedwith the Government. Such power cannot be exercised by an Inspectorof Panchayats. Therefore, the contention of the respondents thatunder Section 9-A, the Block Development Officer has been appointedas Special Officer also cannot be countenanced. In view of theabove, as rightly pointed out by the learned counsel for thepetitioner, the impugned order is wholly without jurisdiction andhence, it is liable to be quashed. 11. In the result, the writ petition is allowed and the impugnedorder is quashed. However, it is made clear that the firstrespondent is at liberty to initiate proceedings under Section 206 ofthe Act if it is so warranted. Further, this order will not stand in https://hcservices.ecourts.gov.in/hcservices/ the way of the Government to pass an order under Section 9-A of theAct if so warranted. No costs. Consequently, connected M.P.Nos.1 and2 of 2008 are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnvsriTo1.The District Collector & Inspector of Panchayats, Coimbatore.2.The Block-Development Officer, (Panchayat) Periyanaickenpalayam, Coimbatore District.1 CC To Mr.R.Singaravelan, Advocate, SR NO.57481 CC to the Government Pleader, SR NO.6039W.P.No.29421 of 2008bv(co)pmk/16.2.2009.