Madras High Court
Logeswari vs The District Collector on 4 April, 2013
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/04/2013
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.(MD)No.139 of 2013
and
M.P.(MD)Nos.1 and 2 of 2013
Logeswari ... Petitioner
Vs.
1.The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
2.The Assistant Director (Panchayat),
Tiruchirappalli District.
3.The Block Development Officer (Village Panchayat),
Panchayat Union Office,
Manachanallur,
Tiruchirappalli District. ... Respondents
Prayer
Writ Petition is filed under Article 226 of the Constitution of India
praying for the issue of a Writ of Certiorari, to call for the records of the
first respondent in Na.Ka.Aa2/728/2012, dated 23.03.2012 and quash the same.
!For Petitioner ... Mr.Sri Balaji
^For Respondents 1 and 2... Mr.R.Karthikeyan,
Additional Government Pleader
For Respondent No.3 ... Mr.M.Govindan,
Special Government Pleader
********
:ORDER
****** INTRODUCTORY:
Whether the emergency powers conferred on the Collector under Section 203 of the Tamil Nadu Panchayats Act, 1994, [hereinafter referred to as "the Act"], would enable him to take away the cheque signing power of the President and Vice President of the Village Panchayat under Sub-Section (3) of Section 188 of the Tamil Nadu Panchayats Act, 1994 is the core issue that arises for consideration in this Writ Petition.
THE FACTS:
2. The petitioner was elected as the President of Peragambi Panchayat during the year 2011. She took office on 25 October, 2011. According to the petitioner, she has been conducting the affairs of the Panchayat in a highly transparent manner. The Panchayat Assistant was not rendering any help in the matter of maintenance of accounts. The petitioner was compelled to look after the functions of the Panchayat President as well as the administrative work.
3. While the matters stood thus, the District Collector, in her capacity as the Inspector of Panchayat, issued an order on 23 March, 2012, whereby and whereunder, the cheque signing power of the petitioner was taken away. Before passing such a drastic order, no notice was issued to her.
Thereafter, the first respondent initiated proceedings under Section 205 of the Act. The order dated 23 March, 2012 under Section 203 of the Act is the subject matter of the present Writ Petition. The proceedings initiated under Section 205 of the Act was challenged in W.P.(MD)No.16755 of 2012.
4. The Assistant Director of Panchayat filed a counter-affidavit, wherein it was stated that the petitioner failed to maintain proper accounts of the Panchayat funds. The petitioner incurred expenditure from village panchayat general fund without maintaining vouchers. Since the interest of the panchayat was not taken care of by the petitioner, the first respondent was compelled to pass orders under Section 203 of the Act. The cheque signing power was given to the Block Development Officer (Village Panchayats) vide proceedings dated 23 March, 2012. The second respondent further contended that in spite of giving sufficient opportunity, the petitioner failed to produce the accounts for verification. It was only under such circumstances, notice was issued for initiating action under Section 205 of the Act. In short, the second respondent maintained that the misappropriation of panchayat funds made the District Collector to take away the cheque signing powers from the petitioner.
SUMMARY OF SUBMISSIONS:
5. The learned counsel for the petitioner contended that before passing the impugned order, no notice was issued to the petitioner to submit her response. According to the learned counsel, the order passed by the first respondent would result in civil consequences and as such, the petitioner should have been given a reasonable opportunity. The learned counsel further submitted that the failure to respond to the order passed under Section 203 of the Act made the District Collector to initiate proceedings for removal of the petitioner from office under Section 205 of the Act. The learned counsel, therefore, wanted the proceedings to be quashed on the ground of violation of the principles of natural justice.
6. The learned Additional Government Pleader submitted that the petitioner indulged in acts of misappropriation. The District Collector exercised her powers under Section 203 of the Act and curtailed the cheque signing powers given to the petitioner. According to the learned counsel, there is no prescription under Section 203 of the Act to issue prior notice and as such, the petitioner was not correct in her contention that the principles of natural justice was violated while passing the impugned order.
DISCUSSION:
7. The cheque signing power given to the petitioner under Sub- Section (3) of Section 188 of the Panchayats Act was taken away by the District Collector by invoking the emergency powers under Section 203 of the Act.
8. The moot question, therefore, is as to whether such a drastic power is available to the District Collector under Section 203 of the Act.
STATUTORY FRAMEWORK:
9. The Tamil Nadu Panchayats Act, 1994 was enacted on the strength of the provisions contained in the Constitution relating to Panchayats and Municipalities. The Act was primarily enacted to comply with the constitutional provisions introduced by the Constitution (Seventy-third Amendment) Act, 1992. The Parliament wanted to strengthen the democratic unit of self-Government. The Parliament also wanted financial autonomy to be given to the village panchayat. The intention was to develop the Panchayat as a local self-Government with necessary financial powers.
10. The Tamil Nadu Panchayats Act contains detailed provisions with regard to the constitution of village panchayats, powers and duties of the executive authority, besides provisions relating to conduct of election to the local body and other incidental provisions.
11. Section 83 of the Act confers power on the executive authority of the village panchayat. Section 86 of the Act confers emergency powers on the executive authority and Commissioner, to undertake urgent works. The said power is akin to that of Section 203 of the Act. Section 199 gives power to the Government to appoint such officers, as may be required, for the purpose of inspecting or superintending the operations of all or any of the panchayats constituted under the Act. Section 200 provides for the powers of inspecting officers. Section 203 gives emergency powers to the Collector and Inspector. Section 205 empowers the Inspector of Panchayat to remove the President and Vice President of the Panchayat. Section 214 gives power to the Government to dissolve a village panchayat, in case the village panchayat is incompetent to perform or persistently makes default in performing the duties imposed on it by law, or exceeds or abuses its powers.
12. The Collectors have been exercising powers under Section 203 of the Act in a routine manner for the purpose of taking away the cheque signing powers of the President and Vice President of the Panchayat.
13. Section 203 of the Act reads thus:
"203. Emergency powers of collector and Inspector.-
Subject to such control as may be prescribed, the Inspector or the Collector may, in cases of emergency, direct or provide for the execution of any work, or the doing of any act which a Panchayat or Executive Authority or Commissioner or Secretary is empowered to execute or do, and the immediate execution or doing of which is in his opinion necessary for the safety of the public and may direct that the expense of executing such work or doing such act shall be paid by the person having the custody of the Village Panchayat Fund or the Pancahyat Union (General) Fund or the District Panchayat (General) Fund in priority to any other charges against such Fund except charges for the service of authorised loans."
14. Similar power is given to the executive authority and Commissioner of Village Panchayat under Section 86 of the Act. The provision reads thus:
"86. Emergency powers of Executive Authority and Commissioner.- The Executive Authority or the Commissioner may in cases of emergency direct the execution of any work or the doing of any act which requires the sanction of the Village Panchayat or the Panchayat Union Council, as the case may be, and the immediate execution or doing of which is, in his opinion, necessary for the health or safety of the public, and may direct that the expenses of executing such work or doing such act shall be paid from the Village Panchayat Fund or the Panchayat Union Fund, as the case may be:
Provided that-
(a) he shall not act under this section in contravention of any order of the Village Panchayat or the Panchayat Union Council prohibiting the execution of any particular work or the doing of any particular act; and
(b) he shall report the action taken under this section and the reasons therefor to the Village Panchayat or the Panchayat Union Council at its next meeting."
15. The District Collectors are given similar powers under the provisions of the District Municipalities Act.
16. Section 37 of the Tamil Nadu District Municipalities Act, 1920 is a pari materia provision. This provision gives emergency powers to the District Collector. The provision reads thus :-
"(1)The District Collector, may, in case of emergency, direct or provide for the execution of any work, or the doing of any act which the council or [executive authority] is empowered to execute or to do, and the immediate execution or the doing of which is, in his opinion, necessary for the safety of the public and may direct that the expense of executing such work or doing such act incurred as the emergency may require shall be paid from the municipal fund; (2) If the expense is not so paid, such Collector may make an order directing the person having the custody of the municipal fund to pay it in priority to any other charge against the fund.
(3) Such person shall, so far as the funds to the credit of the municipal council admit, be bound to comply with such order.
(4) Every case in which the powers conferred by this section are exercised shall be forthwith reported to the [State Government] by the District Collector with the reasons in full for the exercise of such powers; and a copy of the letter shall, at the same time, be sent to the municipal council for information."
17. The powers conferred upon the Collector under Section 203 is not intended to act as an authority to take disciplinary proceedings against the President or Vice President. The Government wanted the activities of the Panchayats to be taken up emergently, without obtaining formal orders from the Panchayat or executive authority. In case the Collector is of the view that the execution of a particular work is imminent or the doing of a particular thing is necessary for the safety of the public, it is open to him to take up such works without the association of the panchayat or executive authority. A careful reading of Section 203, in the light of Section 86 of the Act, would make the position very clear that the power is intended to exercise only in emergency.
18. In case emergent action is necessary, and it is not practically possible to obtain the sanction of the village panchayat or the panchayat union council, it is open to the executive authority or the Commissioner to execute such work and to pay the expenses of executing such work out of the village panchayat fund or the panchayat union fund, as the case may be. The emergency power conferred on the executive authority or the Commissioner under Section 86 of the Panchayat Act is also given to the Inspector of Panchayats under Section 203 of the Act.
19. Section 37 of the Tamil Nadu District Municipalities Act and Section 203 of the Tamil Nadu Panchayat Act deals with emergency powers conferred on the District Collector to take emergent action in certain urgent situations. Such powers should be treated only as extraordinary powers. Powers of this nature cannot be exercised in a routine manner to deny the legally elected members of the Panchayat from exercising statutory powers conferred on them by the Tamil Nadu Panchayat Act, 1924 and the related orders issued by the Government.
20. The District Collector cannot act as an extra constitutional authority over democratically elected President and Vice President of the Panchayat. In case the elected President or Vice President indulges in acts of misuse of authority and the cheque signing power should be taken away, it is for the legislature to incorporate appropriate provisions to confer such express powers of suspension on the District Collector.
21. The Collectors are very often exercising this power to take away the cheque signing powers of the President and Vice President. The power to sign cheque is a statutory power conferred on the President and Vice President under Sub-Section (3) of Section 188 of the Act. The President and the Vice President are under the general control of the village panchayat. The statutory power given to the President of the Panchayat or Vice President cannot be taken away by the Inspector of Panchayat, by exercising the emergency powers. Since the cheque signing facility is given by the statute, there should be a specific power conferred upon the Inspector of Panchayats to take away such power. So long as there are no specific provisions to take away the cheque signing power of the President or Vice President, the Collector cannot invoke incidental or emergent powers to divest the elected representatives of their statutory right.
22. The Inspector of Panchayats is given power under Section 205 of the Act to remove the President from office. Similar powers are given under Section 206 of the Act for the purpose of removal of Vice President. Sub-Section
(b) of Section 205(1) of the Act gives authority to the Inspector of Panchayats to take action against the President of Panchayat, in case it is made out that the President abused the power vested in him. In case it is made out that the President abused the cheque signing power, and misappropriated the public funds, the same can be a valid reason to initiate action for removal under Section 205 of the Act.
23. The President is an elected representative of the people of the village. The Constitution and the Panchayat Act wanted to give financial powers to the local body and it was only for the said purpose, the legislature has vested the executive authority on the Panchayat. The Legislature has given the cheque signing power to the President and Vice President. The cheques have to be signed jointly by the President and Vice President and in the absence of the President or Vice President, as the case may be, by another member authorized by the village panchayat. Such a power cannot be taken away by the District Collector lightly by invoking the emergency powers.
THE LEGAL PRINCIPLES:
24. The importance of Panchayat Raj Institutions in the light of Constitution (Seventy-third Amendment) Act, 1992 was indicated by the Supreme Court in Village Panchayat, Calangute v. Director of Panchayat [2012(7) SCC 550]. The Supreme Court observed:
"22. An analysis of Article 40 and Articles 243 to 243-O shows that the Framers of the Constitution had envisaged the village panchayat to be the foundation of the country's political democracy-a decentralised form of government where each village was to be responsible for its own affairs. By enacting the Constitution (Seventy-third Amendment) Act, Parliament has attempted to remedy the defects and remove the deficiencies of the Panchayat Raj system evolved after Independence, which failed to live up to the expectation of the people in rural India. The provisions contained in Part IX provide firm basis for self-governance by the people at the grass root through the institution of panchayats at different levels.
23. For achieving the objectives enshrined in Part IX of the Constitution, the State Legislatures have enacted laws and made provision for devolution of powers upon and assigned various functions listed in the Eleventh Schedule to the panchayats. The primary focus of the subjects enumerated in the Eleventh Schedule is on social and economic development of the rural parts of the country by conferring upon the panchayat the status of a constitutional body. Parliament has ensured that the panchayats would no longer perform the role of simply executing the programs and policies evolved by the political executive of the State. By virtue of the provisions contained in Part IX, the panchayats have been empowered to formulate and implement their own programs of economic development and social justice in tune with their status as the third tier of the Government which is mandated to represent the interests of the people living within its jurisdiction. The system of panchayats envisaged in this part aims at establishing strong and accountable systems of governance that will in turn ensure more equitable distribution of resources in a manner beneficial to all."
DECLARATION OF LAW:
25. The law is, therefore, clear that the District Collector has no power under Section 203 of the Panchayat Act to take away the cheque signing power of the President and the Vice President.
26. Therefore, I am of the view that the first respondent was not justified in invoking the jurisdiction under Section 203 of the Act to divest the President of her cheque signing power.
DISPOSITION:
27. In the result, the order dated 23 March, 2012 is set aside. The Writ Petition is allowed. Consequently, the connected miscellaneous petitions are closed. No costs.
SML To
1.The District Collector, Tiruchirappalli District, Tiruchirappalli.
2.The Assistant Director (Panchayat), Tiruchirappalli District.
3.The Block Development Officer (Village Panchayat), Panchayat Union Office, Manachanallur, Tiruchirappalli District.