Madras High Court
Sivaperumal vs The Government Of Tamilnadu on 13 March, 2006
Bench: P.D.Dinakaran, S.Tamilvanan
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 13/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.A.(MD) No.98 of 2006 Sivaperumal ... Appellant Vs 1.The Government of Tamilnadu rep. by Secretary to Government Rural Development Department Chennai. 2.The District Collector-cum- Inspector of Panchayats Tirunelveli District Tirunelveli. 3.The Tahsildar Tirunelveli Taluk Tirunelveli District. ... Respondents PRAYER Appeal against the order of the learned Single Judge dated 14.2.2006 made in W.P.No.7452 of 2005. !For Appellant ... Mr.R.Anand ^For Respondents ... Mr.K.Mahendran Spl. Government Pleader :JUDGMENT
(Delivered by P.D.DINAKARAN,J.) This appeal is directed against the order dated 14.2.2006 made in W.P.No.7452 of 2005 dismissing the writ petition filed by the appellant herein and giving him liberty to approach the first respondent seeking remedy against the proceedings of the second respondent dated 3.7.2005 and the consequential notification dated 27.7.2005.
2.1. The brief facts of the case leading to the filing of this appeal are as under:
The petitioner/appellant herein was elected as the President of Madhavakurichi Village Panchayat in the last local body election. The second respondent, after complying with the provisions of the Tamil Nadu Panchayat Act (for brevity, "the Act"), passed an order dated 3.7.2005 invoking Section 205(11) of the Act thereby removing the petitioner/appellant herein from the post of President on the basis of certain charges leading to monitory loss to the Government as well as misappropriation of funds. The said order dated
3.7.2005 was also communicated to the petitioner/appellant herein, which specifically says that it has been passed under Section 205(11) of the Act and it will come into effect from the date it is published in the Tamil Nadu Government Gazette. Accordingly, on 27.7.2005, the order of the second respondent was notified in the Tamil Nadu Government Gazette. Aggrieved by the same, the petitioner/appellant herein preferred the writ petition for issuance of a writ of Certiorari to call for the records of the second respondent relating to his proceedings in Na.Ka.No.A6/2874/2004, dated 3.7.2005 and the consequential notification No.VI(2)/326/2005 published in the Tamil Nadu Government Gazette No.29, dated 27.7.2005 (VI-2) and to quash the same.
2.2. The learned Single, after hearing the contentions advanced on behalf of either party, by order dated 14.2.2006 in W.P.No.7452 of 2005, kept the impugned order passed by the second respondent in abeyance for a period of thirty days from the date of the order to enable the petitioner to move the first respondent by seeking remedy under Section 205(12) of the Act. Hence, the writ appeal.
3. The core contention of Mr.R.Anand, learned counsel for the appellant is that the second respondent ought not to have issued the notification dated 27.7.2005 in consequence of the proceedings dated 3.7.2005, without exercising the power conferred under Section 205(12) of the Act to postpone the date of removal of the President from the office of the Panchayat specified in the notification. But, we are unable to appreciate the same.
4. Some of the statutory provisions which have a bearing on the issue raised in this appeal are reproduced below:
"Section:205. Removal of president.-
(1) The Inspector -
(a) of his own motion, or
(b) on a representation in writing signed by not less than two-thirds of the sanctioned strength of the village panchayat containing a statement of charges against the president and presented in person to the Inspector by any two of the members of the village panchayat, is satisfied that the president wilfully omits or refuses to carry out or disobeys any provision of this Act, or any rule, by-law, regulation, or lawful order made or issued under this Act or abuses any power vested in him, the Inspector shall, by notice in writing require the president to offer within a specified date, his explanation with respect to his acts of omission or commission mentioned in the notice.
(2) If the explanation is received within the specified date and the Inspector considers that the explanation is satisfactory, he may drop further action with respect to the notice. If no explanation is received within the specified date or if the explanation received is in his opinion not satisfactory, he shall forward to the Tahsildar of the taluk a copy of the notice referred to in sub-
section (1) and the explanation of the president if received within the specified date with a proposal for the removal of the president for ascertaining the views of the village panchayat.
(3) The Tahsildar shall then convene a meeting for the consideration of the notice and the explanation, if any, and the proposal for the removal of the president, at the office of the village panchayat at a time appointed by the Tahsildar.
(4) A copy of the notice of the meeting shall be caused to be delivered to the president and to all the members of the village panchayat by the Tahsildar at least seven days before the date of the meeting.
(5) The Tahsildar shall preside at the meeting convened under this section and no other person shall preside thereat. If, within half an hour appointed for the meeting, the Tahsildar is not present to preside at the meeting, the meeting shall stand adjourned to a time to be appointed and notified to the members and the president by the Tahsildar under sub-section (6).
(6) If the Tahsildar is unable to preside at the meeting, he may, after recording his reasons in writing, adjourn the meeting to such other time as he may appoint. The date so appointed shall be not later than thirty days from the date so appointed for the meeting under sub-section (3). Notice of not less than seven clear days shall be given to the members and president of the time appointed for the adjourned meeting.
(7) Save as provided in sub-sections (5) and (6), a meeting convened for the purpose of considering the notice and the explanation, if any, and the proposal for the removal of the president under this section shall not for any reason, be adjourned.
(8) As soon as the meeting convened under this section is commenced, the Tahsildar, shall read to the village panchayat the notice of the Inspector and the explanation if any, of the president and the proposal for the removal of the president, for the consideration of which it has been convened.
(8A) There shall be no debate in any meeting under this section.
(9) The Tahsildar shall not speak on the merits of the notice or explanation nor shall he be entitled to vote at the meeting.
(10) The views of the village panchayat shall be duly recorded in the minutes of the meeting and a copy of the minutes shall forthwith on the termination of the meeting be forwarded by the Tahsildar to the Inspector.
(11) The Inspector may, after considering the views of the village panchayat in this regard, in his discretion either remove the president from office by notification with effect from a date to be specified therein or drop further action.
(12) The Government shall have power to cancel any notification issued under sub-section (11) and may, pending a decision on such cancellation, postpone the date specified in such notification.
(13) Any person in respect of whom a notification has been issued under sub- section (11) removing him from the office of president shall, unless the notification is cancelled under sub-section (12), be ineligible for election as president until the date on which notice of the next ordinary elections to the village panchayat is published in the prescribed manner, or the expiry of one year from the date specified in such notification as postponed by the order, if any, issued under sub-section (12) whichever is earlier.
Section:218. Delegation of powers.-
(1) The Government may, by notification, authorise any authority or officer not below the rank of a Collector to exercise in regard to any panchayat or any class of panchayats in any area or all panchayats in any area, any of the powers vested in them by this Act except the power to make rules and may in like manner withdraw such authority.
(2) The Inspector or the Collector may by notification authorise any officer not below the rank of a Revenue Divisional Officer to exercise in respect of any panchayat union council or any class of panchayat union councils or all panchayat union councils in the area under the jurisdiction of such officer, any of the powers vested by this Act on the Inspector or the Collector as the case may be and may in like manner withdraw such authority.
(3) The Inspector or the Collector may, by notification, authorise any officer not below the rank of a commissioner to exercise in respect of any village panchayat or any class of village panchayats or all village panchayats in the panchayat development block any of the powers vested by this Act on the Inspector or the Collector as the case may be and may in like manner withdraw such authority.
(4) The exercise of any power delegated under sub-sections (1) to (3) shall be subject to such restrictions and conditions as may be prescribed or as may be specified in the notification and also to control and revision by the delegating authority, or where such authority is the Government by such officer as may be empowered by the Government in this behalf. The Government shall also have power to control and revise the acts or proceedings of any officer so empowered.
(5) The exercise of any power conferred on the Inspector or the Collector by any of the provisions of this Act including sub-sections (2) to (4) of this section shall whether such power is exercised by the Inspector or the Collector himself or by any officer to whom it has been delegated under sub-section (2) or (3) be subject to such restrictions and conditions as may be prescribed and also control by the Government or by such officer as may be empowered by them in this behalf. The Government shall also have power to control the acts or proceedings of any officer so empowered.
Section:219.Revision.-
(1) The Government may, after consulting the Inspector, Collector or such other officer or authority as they may deem fit, at any time, either suo motu or on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by-
(a) the Inspector or the Collector or any officer authorised by the Inspector or the Collector under sub-section (2) or (3) of section 218; or
(b) any officer autorised by the Government under sub-section (1) of that section or any officer empowered by them under sub-section (4) of that section; or
(c) any other authority or officer;
for the purpose of satisfying themselves as the legality or propriety of such order, or as to the regularity of such proceeding and pass such order in reference thereto as they think fit.
(2) The powers of the nature referred to in sub-section (1) may also be exercised by such authority or officer as may be empowered in this behalf by the Government."
(emphasis supplied) 5.1. A reading of Section 205 of the Act makes abundantly clear the procedure to be followed for removal of President. The proposal to remove the President can be initiated by the Inspector of Panchayat, namely the Collector, on his own motion as indicated in Section 205(1)(a) of the Act or on a representation in writing as contemplated under Section 205(1)(b) of the Act. If Inspector is satisfied that the president wilfully omits or refuses to carry out or disobeys any provision of the Act, or any rule, by-law, regulation or lawful order made or issued under the Act or abuses any power vested in him, he can issue notice in writing, requiring the president to offer his explanation.
5.2. Under Section 205(2) of the Act, if the Inspector is satisfied with the explanation, he may drop the proceedings. On the other hand if no explanation is received within the specified date or if the explanation received is not satisfactory, he shall forward to the Tahsildar of the taluk a copy of the notice referred to in sub-section (1) and the explanation of the president if received within the specified date with a proposal for the removal of the president for ascertaining the views of the village panchayat. The language of Section 205(2) of the Act makes it clear that this provision is mandatory in nature and the proposal for removal has to be sent to the concerned Tahsildar for ascertaining the views of the village panchayat.
5.3. Sub-sections (3) to (9) to Section 205 of the Act lay down the procedure to be followed regarding convening of the meeting in consideration of the notice and the proposal for removal of the president.
5.4. Section 205(10) of the Act makes it clear that the views of the Village panchayat shall be duly recorded and a copy of the minutes shall be forwarded by the Tahsildar to the Inspector.
5.5. Section 205(11) of the Act thereafter empowers the Inspector, after considering the views of the village panchayat, to either remove the president or drop further action.
5.6. Section 205(12) of the Act empowers the Government to cancel any notification issued under Section 205(11) of the Act and to postpone the date specified in such notification pending decision on such cancellation of notification.
5.7. Section 205(13) of the Act envisages that until the notification is cancelled or until expiry of one year from the date specified in the notification, the quondam president would be ineligible to contest in the election for the post of president.
6. From a careful reading of various sub-sections of Section 205 of the Act, there appears to be a lacuna between Sections 205(11) and 205(12) of the Act in exercising the power conferred on the Government in this regard. Even though the power of the Government under Section 205(12) of the Act, to cancel any notification under Section 205(11) of the Act, would arise both in the case where the Inspector of Panchayat passed a notification under Section 205(11) of the Act either to remove the president from the Office or by dropping further action, postponing the date specified in the notification, pending a decision on such cancellation, would operate only in the case where the Inspector of Panchayat passed an order removing the President and not in a case of where further action has been dropped. Consequently, it is clear that the power of postponing the date specified in such notification provided to the Government in the second limb of Section 205(12) of the Act is only a power to enable the Government to pass an interim order pending the proceedings for cancellation of notification in the case of removal of the President and therefore, there cannot be any other way of interpretation of the power conferred on the Government under Section 205(12) of the Act.
7. Once such power is vested on the Government to take appropriate decision suo motu it becomes inevitable to trace such power of the Government under the Statute, in the absence of any provision under Section 205 of the Act itself. In our considered opinion, such power is traceable under Section 219 of the Act, which gives a general power of revision to the Government, which can be exercised suo motu or on application by the aggrieved party. With a risk of repetition, we hereby reproduce Section 219 of the Act:
"Section:219.Revision.-
(1) The Government may, after consulting the Inspector, Collector or such other officer or authority as they may deem fit, at any time, either suo motu or on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by-
(a) the Inspector or the Collector or any officer authorised by the Inspector or the Collector under sub-section (2) or (3) of section 218; or
(b) any officer autorised by the Government under sub-section (1) of that section or any officer empowered by them under sub-section (4) of that section; or
(c) any other authority or officer;
for the purpose of satisfying themselves as the legality or propriety of such order, or as to the regularity of such proceeding and pass such order in reference thereto as they think fit.
(2) The powers of the nature referred to in sub-section (1) may also be exercised by such authority or officer as may be empowered in this behalf by the Government."
(emphasis supplied)
8. It is a cardinal principle of construction that the Statute and the Rule or the Regulation must be held to be constitutionally valid unless and until it is established they violate any specific provision of the Constitution. Further it is the duty of the Court to harmoniously construe different provisions of any Act or Rule or Regulation, if possible, and to sustain the same rather than striking down the provisions outright. In other words, the Court has to make an attempt to see if the different provisions of the Regulation can survive and in making that attempt it is open for the Court to read down a particular provision to clarify any ambiguity so that the provision can be sustained but not to re-legislate a provision, K. Anjaiah v. K. Chandraiah, (1998) 3 SCC 218.
9. A reading of Section 219 of the Act, in the light of the above principle of construction, makes it clear that by exercising the power conferred under Section 219 of the Act, the Government is empowered to suo motu or on an application by the aggrieved party, call for and examine the record of any order passed or proceedings recorded by authorities mentioned under sub-sections 1(a) to 1(c) of Section 219 of the Act. Such revisional jurisdiction is applicable not only with reference to the order passed by any authority or officer under sub-sections 1(a) to 1(c) of Section 219 of the Act, but also with respect to such orders which have been passed by the authorities by virtue of the delegation of power under Section 218 of the Act.
10. In the instant case, since the impugned order of removal of the President was passed by the Inspector of Panchayat exercising the power conferred under Section 205(11) of the Act, who is also one of the authority stated under Section 219(1)(a) to 219(1)(c) of the Act, the correctness of the said order of removal of President can be examined by way of revision by the Government, either suo motu or on an application by the aggrieved party. In our considered opinion, the lacuna of not filling up the forum for appeal against the order passed under Section 205(11) of the Act can be filled by resorting to Section 219 of the Act, which provides a revisional authority to the Government.
11. In the premises aforesaid, the liberty given to the appellant to work out his right under Section 205(12) of the Act by the learned Single Judge in the order dated 14.2.2006 made in W.P.No.7452 of 2005, in our considered opinion, deserves interference as the only remedy available to the appellant in the statute is to work out his right under Section 219 of the Act, in as much as Section 205(12) of the Act only empowers the Government to grant appropriate interim order pending the proceedings for cancellation of notification in the case of removal of the President suo motu, purportedly by exercising the power under Section 219 of the Act. We, therefore, do not find any merit in the contention of the learned counsel for the appellant that the second respondent ought not to have issued the notification dated 27.7.2005 in consequence of the proceedings dated 3.7.2005, without exercising the power conferred under Section 205(12) of the Act to postpone the date of removal of the President from the office of the Panchayat specified in the notification.
In the result, while dismissing the appeal as being devoid of merits, the appellant is permitted to work out his right under Section 219 of the Act. No costs. Consequently, W.A.M.P.No.145 of 2006 is closed.
sasi To:
1. The Government of Tamilnadu rep. by Secretary to Government Rural Development Department Chennai.
2. The District Collector-cum-
Inspector of Panchayats Tirunelveli District Tirunelveli.
3. The Tahsildar Tirunelveli Taluk Tirunelveli District.