Madras High Court
C. Sugumaran vs The Revenue Divisional Officer on 29 August, 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/08/2003
CORAM
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
W.P. NO. 15223 OF 2003
AND W.P.NOS. 16683 & 19427 OF 2003
W.P.M.P. NOS. 19110, 20868, 21233 & 24254 OF 2003
W.V.M.P. NO. 1125 OF 2003
W.P. NO. 15223 OF 2003
C. Sugumaran .. Petitioner
-Vs-
1. The Revenue Divisional Officer
Usilampatti
Madurai District.
2. The District Collector
Madurai District
Madurai.
3. The State of Tamil Nadu
rep. by its Secretary to
Government, Government Rural
Development Department
Fort St. George
Chennai 600 009.
4. R. Prem Anand
(R4 impleaded as per order
dt. 10.6.03 in WPMP 20376/03) .. Respondents
W.P. NO. 16683 OF 2003
C. Sugumaran .. Petitioner
- Vs -
1. State of Tamil Nadu
rep. by its Secretary
to Government
Rural Development Department
Fort St. George
Chennai 9.
2. Union of India
rep. by its Secretary
Ministry of Law Justice &
Company Affairs
New Delhi.
3. The District Collector
Madurai District
Madurai.
4. The Revenue Divisional Officer
Usilampatti
Madurai. .. Respondents
W.P. NO. 19427 OF 2003
M. Ravikumar .. Petitioner
- Vs -
1. The State of Tamil Nadu
rep. by its Secretary to
Government, Government Rural
Development Department
Fort St. George
Chennai 600 009.
2. The District Collector
Madurai District
Madurai.
3. The Revenue Divisional Officer
Usilampatti
Madurai District. .. Respondents
W.P. No.15223/03 preferred under Article 226 of The Constitution of
India praying this Court to issue a Writ of Certiorari as stated therein.
W.P. No.16683/03 preferred under Article 226 of The Constitution of
India praying this Court to issue a Writ of Declaration as stated therein.
W.P. No. 19427/03 preferred under Article 226 of The Constitution of
India praying this Court to issue a Writ of Certiorari as stated therein.
!
For Petitioner : Mr. K.M.Vijayan, SC, for
Mr. K. Jegannathan
Mr. R. Gandhi, SC, for
Mr. Sivagnanam
^
For Respondents : Mr. R.Muthukumaraswamy, AAG
Mr. V.Subbarayan, Spl. G.P.
Mr. M.S. Palanisamy, AGP
Mr. K.Chandru, SC, for
Mr. K.Rajasekaran, for R4
:
COMMON ORDER
1. In W.P. 15223/03, the petitioner, Mr.C.Sugumaran, has prayed for the issue of a Writ of Certiorari to call for the records pertaining to the order passed by the first respondent, the Revenue Divisional Officer, Usilampatti, in his office proceedings in Na.Ka. No. A1/1266/2 003 dated 8.5.03 and quash the same.
2. W.P. No.16683/03 has also been filed by the very same petitioner, Mr. C.Sugumaran, seeking for the issue of a Writ of Declaration declaring the amendment to The Tamil Nadu Panchayats Act, 1994 as amended by Tamil Nadu Act 31 of 1999 amending Section 212 of The Panchayats Act enabling the removal of Chairman of Panchayat Council by "No Confidence Motion" as against the safeguards and inconsistent with Section 207 of The Tamil Nadu Panchayats Act and ultra vires to Article 243-C, 243-E, 243-F and 243-G of The Constitution of India and pass such further or other orders as this Court may deem fit.
3. W.P. No.19427/03 has been filed by Mr. M.Ravikumar for the issue of a Writ of Certiorari calling for the order passed by the 3rd respondent, the Revenue Divisional Officer, Usilampatti, in Na.Ka. No.A1/12 66/2003 dated 8.5.03 and quash the same.
4. With the consent of either side, all the three writ petitions and connected miscellaneous petitions were taken up for final disposal.
5. Heard Mr. R.Gandhi, learned senior counsel appearing for Mr. Sivagnanam for the petitioner in W.P. No.19427/03, Mr. K.M.Vijayan, learned senior counsel appearing for Mr. K.Jegannathan, for the petitioner in W.P. No.15223/03 and 16683/03, Mr. R.Muthukumaraswamy, learned Additional Advocate General appearing for the respondents 1 to 3 assisted by Mr. V.Subburayan, learned Special Government Pleader and Mr. M.S.Palanisamy, learned Additional Government Pleader and Mr. K.Chandru, learned senior counsel appearing for Mr. K.Rajasekar for the 4th respondent in W.P. No.15223/03.
6. C.Sugumaran, Chairman, Usilampatti Panchayat Union, is the petitioner in W.P. No.15223/03 as well as in W.P. No.16683/03, while the other W.P. No.19427/03 has been filed by M.Ravikumar, Vice-Chairman of the same Panchayat Union. The 4th respondent, R.Prem Anand in W.P. No.15223/03 is one of the Councillor of the same Panchayat Union. It is sufficient to refer to the common facts in one of the writ petitions.
7. During the year 2001 election was conducted to the office of Chairman, Usilampatti Panchayat Union Council to hold the office for a period of five years. The petitioner Sugumaran was declared elected as the Chairman and he assumed office on 30.10.01 while M.Ravikumar was declared elected as Vice Chairman. The petitioner, Sugumaran, claims that he has been working for the welfare and development of public in the Panchayat Union. Some of the disgruntled councillors objected for evicting encroachers from weekly shandy joined together with a view to remove the chairman from his office. The petitioner claims that he has never acted against the interest of the public and he has utilised the funds allotted to the Union only for public interest.
8. It is stated that the councillors of Usilampatti Panchayat Union, hereinafter referred to as the Panchayat Union, presented a petition before The Revenue Divisional Officer, the first respondent, Usilampatti, on 14.2.03 containing certain allegations against the Chairman and Vice-Chairman. Councillors of the said Panchayat Union issued a notice to move a "No Confidence Motion" against the Panchayat Union Chairman and Vice-Chairman. The members of the Panchayat Union Council submitted a memorandum together with a copy of the motion, which is proposed to be made with a written statement of the charges levelled against the chairman and vice-chairman and delivered the same in person to the Revenue Divisional Officer, Usilampatti. Two-third members of the Panchayat Union Council signed the notice.
9. A copy of the statement of charges along with the motion also has been delivered on the chairman and vice-chairman as required by Section 212 of the Act. Complaining that without analysing the gravemen of allegation levelled against the petitioners, a show cause notice was issued on 17.12.03 calling for explanation from the writ petitioners to be submitted on or before 25.2.03. It is also stated that the chairman and vice-chairman have submitted their explanation on 25.2.03 setting out their version in detail and denying the imputations or allegations as baseless and motivated.
10. The first respondent, Revenue Divisional Officer decided to hold a meeting and decided to place the ""No Confidence Motion"" in the meeting to be convened on 21.3.03 by proceedings dated 3.3.03. As fifteen days notice was not given and the notice was not in conformity with the mandatory provisions, the petitioner filed O.S. No.35/03 on the file of the District Munsif-cum-Judicial Magistrate, Usilampatti and also moved I.A. No.123/03 and the said court granted ad interim injunction on 13.3.03.
11. R.Prem Anand, who is the 4th respondent in the present writ petition, moved W.P. No.8747/03 challenging the order passed by the learned District Munsif-cum-Judicial Magistrate dated 13.3.03. This Court directed the learned District Munsif-cum-Judicial Magistrate to pass orders in the application for injunction as well as vacate injunction filed by the contesting respondent on or before 25.4.03 by order dated 8.4.03. The learned District Munsif by order dated 25.4.03 held that the first respondent, Revenue Divisional Officer is at liberty to issue a fresh notice and proceed further with the motion. Thereafter, the said suit was withdrawn on 30.4.03.
12. The Revenue Divisional Officer, Usilampatti, by communication dated 30.4.03 once again sought to place the "No Confidence Motion" as against the chairman and vice chairman by his notice dated 30.4.03 fixing the date for placing the motion before the council for being taken up on 12.5.03 at 11.00 a.m. The writ petitioner once again challenged the said notice in W.P. No.14488/03 as fifteen clear days notice was not granted. In W.P. No.14488/03 this Court set aside the said notice dated 6.5.03 and directed that the Revenue Divisional Officer is at liberty to issue a fresh notice by giving fifteen clear days for the motion and proceed further accord ing to law.
13. The first respondent, Revenue Divisional Officer, issued a fresh notice on 8.5.03 fixing the date for the council meeting on as 26.5 .03 in terms of Section 212 (7) of The Tamil Nadu Panchayats Act, 199 4. Challenging the fresh communication dated 8.5.03 W.P. No.15223/03 has been filed by C.Sugumaran, Chairman of the council and W.P. No.1 9427/03 has been filed by M.Ravikumar, Vice-Chairman of the same Panchayat Union Council.
14. It is contended that there cannot be a simultaneous motion of no confidence against the Chairman and Vice-Chairman and "No Confidence Motion"
against the chairman or vice-chairman could be only alternatively on either of them and not conjunctively. It is contended that "No Confidence Motion"
cannot be passed simultaneously against both the chairman and vice-chairman of the Panchayat Union Council as there will be a vacuum. It is also contended that the issue of notice is a colourable exercise of power under Section 212 of the Act for the alleged irregularities under Section 207, which provides for scrutiny of allegation at the level of the Government. It is further contended that if a chairman has to be removed from the office on certain allegation it can be only be by a quasi judicial proceedings provided for under Section 207 and not under Section 212 of the Act. The notice of no confidence is against law and violative of The Tamil Nadu Panchayats Act, 1994. The action of the first respondent in issuing the notice is unilateral, arbitrary and abuse of power resorted just to satisfy persons, who are motivated and enimical towards the petitioners.
15. Identical contention has been advanced in W.P. No.19427 of 2003.
16. The petitioner in W.P. No.15223/03 has subsequently moved W.P. No.16683/03 seeking for the issue of a writ of Declaration declaring the amendment to Tamil Nadu Panchayats Act, 1994, as introduced by Tamil Nadu Act 31 of 1999 as unconstitutional and inconsistent with Section 207 of The Panchayats Act, besides being ultra vires to Article 2 43-C, 243-E, 243-F and 243-G of The Constitution of India. It is not necessary to refer to details of the amendments set out in the affidavit filed in support of W.P. No.16683/03.
17. The 2nd respondent in W.P. No.15223/03 filed a counter contending that Mr. R.Prem Anand and Tmt. Inbamalar councillors of Usilampatti Panchayat Council presented notice of "No Confidence Motion" to the Revenue Divisional Officer on 14.2.03 in person against the chairman and vice-chairman and duly signed by nine members of the Panchayat Union Council. Copies of the notice were sent to the chairman and vice-chairman and their reply to the charges were obtained as prescribed by Section 212 (3) of The Tamil Nadu Panchayats Act, 1994. The Revenue Divisional Officer fixed the meeting of the council to consider the "No Confidence Motion" on 21.3.03 by following the formalities required under Section 212 of The Tamil Nadu Panchayats Act, 1994. The Revenue Divisional Officer, Usilampatti, issued a notice giving clear interval of sixteen days on 4.3.03. The details of earlier suit O.S. No.35/03 and certain particulars have been set out.
18. Pending the said suit, Prem Anand filed W.P. No.8747/03 on the file of this Court seeking for the issue of the Writ of Prohibition prohibiting the learned District Munsif, Usilampatti from proceeding further with the suit O.S. No.35/03 as well as injunction application I.A. No.123/03. This Court, by order dated 8.4.03 directed the learned District Munsif to pass orders in the interlocutory application, pending before him on or before 25.4.03. The learned District Munsif disposed of the interlocutory application dismissing the same and vacating the orders of injunction passed by him on 13.3.03. A meeting of the Panchayat Union Council was called on 12.5.03 to consider the "
No Confidence Motion". At that stage the petitioner, Sugumaran, moved W.P. No.14488/03 and this Court disposed of the same on 6.5.03 with a direction to give fresh notice giving fifteen clear days notice as stipulated in Section 212 (5) of the Act. Hence, the Revenue Divisional Officer issued a fresh notice on 8.5.03 giving fifteen clear days notice and the meeting of the council was scheduled on 26.5.03.
19. Again the said Sugumaran filed the present writ petition challenging the notice dated 8.5.03. This Court by order dated 20.5.03 directed that the meeting proposed to be held on 26.5.03 shall go on and if the motion is in favour of the motion expressing want of confidence in the petitioner, the same shall be kept in abeyance till 18.6.03. Accordingly, in the meeting of the council votes on the motion for want of Confidence Motion against the chairman and vice-chairman was conducted by the Revenue Divisional Officer on 26.5.03 and a report has already been submitted to the Government.
20. It is contended that the various contention advanced by the petitioner are devoid of merits and that action has been taken strictly in accordance with the statutory provisions. It is further pointed out that in terms of Sections 212 (7) and 212 (5) of the Act, fifteen days clear notice has been issued. It is contended that the contention advanced by the petitioner in all the writ petitions are unsustainable and untenable both in law and on facts. It is also pointed out that the provision prescribed for removal of the chairman or vicechairman is a different procedure as against motion for want of Confidence tabled by the majority of the councillors. It is pointed out that in the event of the office of chairman and vice-chairman falling vacant, the Revenue Divisional Officer shall be the ex-officio member and chairman of the Panchayat Union Council and therefore, there would be no vacancy and the contention advanced to the contra overlooks Section 54 (2) of the Act. "No Confidence Motion" is being brought by the councillors of the Panchayat Union Council and not by the administration or by the Government. There is no attempt to severe the office of the elected members either by the Legislature of by the Administration.
21. The impugned communication is only an intimation to the councillors informing them of the date on which the vote will be taken on the motion expressing want of confidence brought by the majority of the councillors. Such an action is not liable to be interfered with as it is one of the well accepted democratic process in elected bodies like local authority. The impugned notice has been issued as per the earlier direction issued by this Court on 6.5.03 in W.P. No.14488/03.
22.It is contended that moving of "No Confidence Motion" is one of the well accepted democratic processes, which procedure could be invoked by the councillors and the petitioner cannot claim immunity against the "No Confidence Motion" nor such a contention is available to the petitioner. The notice of "No Confidence Motion" issued is in conformity to the provisions of The Tamil Nadu Panchayats Act, 1994. Respondents 1 and 2 are neither empowered or competent to level any charges or allegations against the petitioner in the impugned notice regarding the "No Confidence Motion" and there is no need for issue of any fresh show cause notice in terms of the Act. The impugned order is neither unilateral nor arbitrary nor it is liable to be interfered. The first respondent has performed the duties entrusted to him in terms of the statutory provisions of The Panchayats Act. All the allegations to the contra have been denied by the first respondent.
23. The councillor, R.Prem Anand, who got himself impleaded has also filed an affidavit setting out the circumstances under which "No Confidence Motion" has been moved and also contends that no interference is called for in all the three writ petitions and he has also filed an application to vacate the order of interim stay.
24. It is admitted that the Revenue Divisional Officer convened a meeting for consideration of the "No Confidence Motion" in the office of the Panchayat Union Council at the date and time already notified by him after giving not less than fifteen days clear notice. The Revenue Divisional Officer presided over the meeting convened under Section 212 and the Revenue Divisional Officer at the meeting convened for the purpose read out to the Panchayat Union Council the motion placed for the consideration of Union Council and has been confined, the statement of charges and the statement of the chairman and vicechairman in reply to the said charges. It is asserted that there was no debate on the motion nor the Revenue Divisional Officer had spoken on the merits of the motion. In terms of Sub-section (12) of Section 212, a copy of the minutes of the meeting together with the copy of the motion and result of the voting thereon, on termination of the meeting, has already been forwarded by the Revenue Divisional Officer to the State Government. In view of the interim orders, the Government is yet to notify as to whether the motion has been carried with support of not less than two-thirds of the sanctioned strength of the Panchayat Union Council or otherwise. At this stage, the writ petition itself is taken up for final disposal.
25. In the third writ petition, the validity of amendment to The Tamil Nadu Panchayats Act, introduced by Tamil Nadu Act 31 of 1999, to Section 212 of the Act is being challenged as unconstitutional.
26. Mr.Vijayan and Mr. R.Gandhi, learned senior counsel appearing for the respective writ petitioners in the writ petitions contended that the "No Confidence Motion" simultaneously against the chairman and vice-chairman is inconsistent with Section 207 of The Tamil Nadu Panchayats Act and there cannot be a combined or a simultaneous "No Confidence Motion" against the chairman and vice-chairman. It is further contended that Section 207 of the Act is inconsistent with the constitutional provision.
27. It is further contended that there is a violation of principles of natural justice, in that the ultimate result of the "No Confidence Motion" and removal of the chairman is one and the same in respect of "No Confidence Motion" and the "No Confidence Motion" is illegal as it runs counter to the provision which provides for removal of the President, which provides for certain safeguards for exercise of such power of removal. It is further contended that the amendment introduced by the Tamil Nadu Amending Act 31 of 1999 amending Section 212 of The Tamil Nadu Panchayats Act is unconstitutional and ultra vires of Articles 243-C, 243-E, 243-F and 243-G of The Constitution as it confers powers for passing a "No Confidence Motion" without any safeguard, while Section 212 which provides for removal of the chairman or vice-chairman provides for certain safeguards. Therefore, the provision is unconstitutional and liable to be declared so.
28. R.Prem Anand, 4th respondent in W.P. No.15223/03 has also filed a counter and contended that the contentions advanced by the petitioners are untenable.
29. The following points arise for consideration in all these writ petitions :-
"i) Whether the requirements of Section 212 has been complied with in calling for the meeting of the council and placing the subject of want of confidence on the Chairman and Vice Chairman before the council ?
ii) Whether in law there could be a simultaneous motion for want of confidence as it against the chairman and vice-chairman as it results in a vacuum in the administration of the Panchayat Union ?
iii) Whether Section 212 of The Panchayats Act as amended by Tamil Nadu Act 31 of 1999 providing for passing a "No Confidence Motion" is arbitrary, violative of Article 14 and violative of Articles 243-C, 24 3-E, 243-F and 243-G and inconsistent with Section 207 ?
iv) To what relief, if any ?"
30. Part IX of The Constitution provides for "The Panchayats". Article 243 defines various expressions. Article 243-Bprovides for a Village Panchayat or Gram Sabha at the village level as the Legislature of a State may by law provide. Article 243-B provides for the constitution of Panchayat at the village, intermediate and District levels in accordance with the provisions of the said part. Article 243-C provides for the composition of Panchayats. Article 243-D provides for reservation of seats. Article 243-E provides for duration of Panchayats, etc. Article 243-F prescribes the disqualifications for membership. Article 243-G prescribes the powers, authority and responsibilities of Panchayats. Article 243-H provides the power to impose tax and fees by Panchayats. Article 243-N provides for continuance of existing laws relating to Panchayats in force in a State immediately before the commencement of The Constitution from the Third Amendment Act 1992.
31. Part XI, as already pointed out was introduced by the Constitution (by 73rd Amendment Act, 1992), which came into force on 24.4.93.
32. The Tamil Nadu Panchayats Act, 1994, was enacted by the State Legislature. In terms of Part IX of The Constitution, in order to impart certainty, continuity and to strengthen the democratic unit of self-Government. The object of The Tamil Nadu Panchayats Act, 1994, would show that the Tamil Nadu Panchayats Act, 1958 was repealed for the establishment of a three tier panchayat system in the State.
33. Chapter II of the Act provides for Gram Sabha. Chapter III of the Act provides for formation and constitution of Village Panchayats, Panchayat Union Council and District Panchayats. Section 15 of the Act provides for constitution of Panchayat Union Council. Section 16 provides for the constitution of Panchayat Union Council for each Panchayat Union with effect from the notified date. Section 17 prescribes the strength of the Panchayat Union Council. Section 18 prescribes the duration of the Panchayat Union Council. Section 19 provides for selection of members for Panchayat Union Council. Section 20 provides for reservation of seats. Section 22 provides that the members shall ordinarily hold office for the term of five years.
34. Section 49 provides that there shall be a chairman and vicechairman for every Panchayat Union Council. Section 50 provides that chairman shall be elected by the Panchayat Union Council from among those elected members in accordance with the procedure as may be prescribed. Section 51 provides that a vice-chairman shall be elected by the Panchayat Union Council from among its elected members in accordance with the procedure prescribed. Section 52 prescribes the functions of the chairman. Section 53 provides for cessation of office of chairman and vice-chairman and the disqualifications thereof.
35. There is no doubt that in the present case the petitioner in WP No.15223/03 has been elected as the chairman and the petitioner in W. P. No.19427/03 has been elected as the vice-chairman of the Usilampatti Panchayat Union Council.
36. Section 52 of the Act provides as to when the chairman and vice chairman shall cease to hold office. Section 54 provides that when the office of the chairman is vacant, the vice chairman shall exercise the functions of a chairman until a new chairman assumes office. Sub-section (2) of Section 54 provides that whn the office of chairman is vacant and there is either vacancy in the office of vice-chairman or the vice-chairman has been continuously absent from jurisdiction for more than 30 days or is incapacitated and until a new chairman or vice-chairman is elected and assumes office or the vice-chairman returns to jurisdiction or recovers from his incapacity, as the case may be, the Revenue Divisional Officer concerned shall be the ex-officio member and chairman of the Panchayat Union Council.
37. Chapter X of The Tamil Nadu Panchayats Act prescribes the controlling authorities. Sections 205 and 206 provides for removal of President and Vice-President of the Panchayat. Section 207 provides for removal of Chairman of the Panchayat Union Council, with which provision we are not concerned here. Section 212 of The Tamil Nadu Panchayats Act provides for passing of a motion expressing want of confidence in the chairman or vice-chairman. Section 212 originally provided for passing a motion expressing want of confidence against the chairman alone, but subsequently by Tamil Nadu Act 31 of 1999, Section 212 has been amended providing for passing motion for want of confidence both against the chairman and vice-chairman. This is being challenged in W.P. No.16683/03.
38. Section 212 of the Act provides the exhaustive procedure. In terms of sub-section (1) of Section 212, a motion expressing want of confidence in the chairman and vice-chairman of the Panchayat Union Council may be made in accordance with the procedure laid down under Section 212. In the present case, sub-sections (2), (3), (4), (5), (6), (8), (9), (10) and (11) of Section 212 has been complied with and copy of the minutes of the meeting together with the copy of the motion and the result of the voting thereon has already been forwarded to the Government by the Revenue Divisional Officer in terms of subsection (12) of Section 212. The Government is yet to issue a notification in terms of sub-section (13) of Section 212. The above formalities have been followed strictly in accordance with statutory provisions.
39. There is no quarrel that all the statutes as prescribed by subsection (2) of sub-section (12) of Section 212 has been followed in letter and spirit. In the above background we have to consider the legal contentions advanced by the learned Senior Counsel.
40. Primarily it was contended that the provisions of Section 212 providing for passing of "No Confidence Motion" against the chairman and vice-chairman is against the safeguards and inconsistent with Section 207 of the Act and the provision is ultra vires to Article 243-C, 2 43-E, 243-F and 243-G of The Constitution. The contention has to be rejected as a misconception or misreading of the said provision.
41. Section 207 provides for removal of the chairman of the Panchayat Union Council by the Government, if the Government of its own motion or on a representation in writing sent by not less than two-thirds of the strength of the Panchayat Union Council containing a statement of charges against the chairman of the council and presented in person to any officer appointed by the Government in this behalf by any two of the members of the Panchayat Union Council are satisfied that the chairman wilfully omits or refuses to carry out or disobeys any provisions of this Act, or any rules, by-laws, regulations or lawful orders issued thereunder or abuses any power vested in him, the Government shall by a notice in writing, call upon the chairman to state his explanation with respect to the alleged acts of omissions or commissions and the Government has to consider the explanation. If the explanation is satisfactory, the Government may drop further action with respect to the notice. If the explanation is not satisfactory, the Government shall forward to the Revenue Divisional Officer of the Division concerned a copy of the notice referred to in sub-section (1) and the explanation of the chairman with a proposal of the removal of the chairman from the post for ascertaining the views of the Panchayat Union Council.
42. The Revenue Divisional Officer shall then convene a meeting for the consideration of the notice and the explanation, if any, and the proposal for removal of the chairman at the office of the Panchayat Union Council at a time specified by the Revenue Divisional Officer. A copy of notice of the meeting shall be caused to be delivered to the concerned chairman and all the members giving at least seven days clear notice. The Revenue Divisional Officer has to preside over the meeting so convened under Section 207. The meeting convened for the purpose of considering the notice and the explanation, if any, and the proposal for removal of the chairman under this Section and as soon as the meeting is convened, the Revenue Divisional Officer shall read to the Panchayat Union Council the notice of the Government and the explanation, if any, of the chairman or vice-chairman and the proposal for the removal of the chairman. The council shall not debate in the said meeting and neither the Revenue Divisional Officer could speak on merits of the charges or imputations averred or explanation nor the Revenue Divisional Officer shall be entitled to vote at the meeting.
43. The views of the Panchayat Union Council shall be duly recorded in the minutes of the meeting and the minutes shall forthwith on termination of the meeting be forwarded by the Revenue Divisional Officer to the Government. The Government after considering the views of the Panchayat Union Council in this regard in their discretion either remove the chairman from office by notification with effect from the date to be specified therein or drop further action. Such a chairman so removed shall be ineligible for election as a chairman and for holding any of those office until the date on which notice of ordinary election to the Panchayat Union Council is published.
44. The provisions of Section 207 deals with the removal of Panchayat Union Chairman and by the authority of the Government after following the procedure prescribed, while Section 212 provides for passing of "want of confidence motion" by the very council, which elected the chairman. The scope of the two sections are different. The removal is by the State Government, while "No Confidence Motion" is carried out by the members who elected the Chairman and who is present in the council meeting. It is an exercise of power by the Government under Section 207 under certain contingencies for certain acts of omissions or commissions or if the chairman wilfully omits or refuses to carry out or disobeys any provisions of this Act, or any rules, by-laws, regulations or lawful orders issued thereunder or abuses any power vested in him.
45. Section 207 disqualifies a chairman so removed for a period of one year for re-election on removal as chairman and for holding any of those office until the date on which notice of ordinary election of the next Panchayat Union Council is published. There should be charges of wilful disobedience, but if we look up Section 212, it is one of confidence or want of confidence in the chairman or vice-chairman or the Panchayat Union Council by the majority of the members and not for any misconduct or omission or commission by two-thirds of the sanctioned strength of the Panchayat. The "No Confidence Motion" shall not be moved within one year of assumption of office by the chairman or vice-chairman. The removal of vice-chairman by way of "No Confidence Motion", if motion is carried our with support of not less than two-thirds of the sanctioned strength of the Panchayat Union Council, it is not a disqualification to contest in the election. It is the confidence on the Panchayat Union Chairman who could carry out the work or results by the majority is the rule of majority, which is the basis of Section 212 and it is not a stigma nor it is for any charges nor it for any violation or disobedience or any other contingency as provided by Section 207 of the Act. Section 207 of the Act operates in a different contingency or field, while Section 212 operates with notice of intention to move the motion of want of confidence before the Panchayat Union Council which elected the Chairman by not less in number than one half of the sanctioned strength of the Panchayat Union Council to move and such notice of motion for no confidence shall be carried out by two-thirds of the sanctioned strength of the Panchayat Union Council in the meeting specially convened to consider the same.
46. Therefore, the safeguard, which is available in respect of Section 207 is neither relevant nor it is required, if a "No Confidence Motion" is brought under Section 212. The local body acts through the elected representative of the body and it is essential that the Panchayat Union Council chairman commands majority. If he fails to command majority for want of confidence by the body, which elected him, he has to leave or come out of the office, which would be the effect. Therefore, there is no inconsistency between Section 207 and Section 21 2 as sought to be contended.
47. It is now contended that it is violative of Articles 243-C, 243E, 243-F and 243-G of The Constitution. In my considered view, it is neither inconsistent nor it is violative of the said provisions of The Constitution. The said provisions of The Constitution provides for the constitution of the Panchayat Union Council. Article 243-C provides for composition of the Panchayats. Article 243-E prescribes for the duration of Panchayats. Article 243-F prescribes the disqualification for panchayat membership etc., and Article 243-G provides the power, authority and responsibility of Panchayats. There is nothing in the provisions of The Tamil Nadu Panchayat Act which runs counter to the said constitutional provisions. The Tamil Nadu Act provides either for removal of President or for removal of the chairman or for voting out the chairman or vice-chairman out of office for want of confidence and there is no registration in the constitutional provisions in this behalf.. Article 243-C (5) prescribes that the chair person of a panchayat at the intermediate level shall be elected by and from among the elected members thereof. The panchayat at the intermediate level, which elected the chairman and vice-chairman, when it has no confidence, pass a vote of no confidence and the resultant position is the chairman or vice-chairman, as the case may be, is compelled to demit the office or sent out of office.
48. The said enactment viz., The Tamil Nadu Panchayats Act falls within Entry 5 of List II State List of Seventh Schedule, which reads thus :-
"(5) The local Government, that is to say, the constitution and powers of Municipal Corporations improvement trusts, District Boards, Mining settlement authorities and local authorities for the purpose of local self-Government or village administration."
This entry is very wide and it confers power on the State Legislature to legislate with respect to any subject with respect to local Government including the constitution of such local authority. The enactment, which provides for constitution of local bodies like Panchayats or Panchayat Union Council as the case may be, which provides for the constitution, election and removal or passing of "No Confidence Motion" against the elected representatives is well within the legislative competency of the State Legislature.
49. Section 212 provides the right to move the motion of no confidence, which vest on the members of the Panchayat Union Council, namely, elected representatives, who elected the chairman and its recall of the chairman or vice-chairman by the electorate itself. The elected representative is accountable to his electorate, which has the inherent power to recall. Section 212 of the Act is to remove the elected representative, who has lost confidence of the body, which elected him.
50.In this respect, the attention of this Court is drawn to the pronouncement in MOHAL LAL TRIPATHI VS. DISTRICT MAGISTRATE, RAI BAREILLY & OTHERS reported in 1992 (4) SCC 80, where the Supreme Court upheld identical provisions regarding passing "No Confidence Motion". It was held that electing a representative to govern, is neither a fundamental right nor a common law right, but a special right accorded by the statute. When the statute provides for removal of an elected representative, it is well within the power of the Legislature to enact a law for the recall of officers so elected. The Apex Court in this respect held thus :-
"2. Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a ' fundamental right' nor a 'common law right' but a special right created by the statutes, or a 'political right' or 'privilege' and not a ' natural', 'absolute' or 'vested right'. 'Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied.' Right to remove an elected representative, too, must stem out of the statute as 'in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary the right of recall is defined as, 'a provision enabling voters to remove an elected official from office before his or her term expired'. American Jurisprudence explains it thus, 'Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an election called for such purpose by a specified number of citizens'. It was urged that 'recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another more in accordance with popular will' therefore the appellant could have been recalled by the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since, 'A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy' the removal of the appellant by a vote of noconfidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that a " public officer is indeed a 'servant of the people' and can therefore be dismissed by them". In modern political set 2Dup direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. 'Under a constitutional provision authorizing municipalities of a certain population to frame a charter for their own government consistent with and subject to the Constitution and laws of the State, and a statutory provision that in certain municipalities the Mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision'. Therefore, the validity or otherwise of a no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy.
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4. Vote of no confidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of ' Poor' as said by Aristotle or of 'Masses' as opposed to 'Classes' but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable of projecting views of the electorate.(emphasis supplied) In the said pronouncement the Supreme Court upheld the validity of identical provision, which provides for removal even by a smaller body than the body, which elected.
51. Section 212 is a provision by which the electorate, which elected the chairman/Vice Chairman to remove the chairman/Vice Chairman for loss of confidence, while the other provision, Section 207 is a provision, which enables the State viz., The Administrative authority to remove the chairman for various acts of commissions or omissions or violations or failure as the case may be and the two sections operate in two different contingencies or fields, why on different occasions.
52. In BABUBHAI MULJIBHAI PATEL VS. NANDLAL KHODIDAS BAROT & OTHERS reported in 1974 (2) SCC 706, it has been held that there is a difference between a motion of no confidence and a censure motion. The Apex Court, while considering the language of Section 36 of The Gujarat Municipalities Act, held thus :-
"It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge or impropriety or lapse on the part of that authority. The essential connotation of a " No Confidence Motion" is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members. We may in the above context refer to page 591 of Practice and Procedure of Parliament, Second Ex. By Kaul and Shakdher wherein it is observed as under :-
"A "No Confidence Motion" in the Council of Ministers is distinct from a censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions, a motion of no confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the "No Confidence Motion"." ( emphasis supplied)
53. The above pronouncement squarely applies to the present case on all fours. The contention regarding violation of Article 14 has been dealt with in an identical situation by the Supreme Court in RAM BETI VS. DISTRICT PANCHAYAT RAJ ADHIKARI & OTHERS reported in 1998 (1) SCC 680, where the Supreme Court following the earlier pronouncement in Mohan Lal Tripathi's case and held thus :-
"6. ....... The considerations, which weighed with this Court for upholding the validity of sub-section (2) of Section 87-A of the U.P. Municipalities Act, 1916 relating to the removal of the President of a Municipal Board in Mohan Lal Tripathi are, in our opinion, also applicable to the removal of the Pradhan of the Gram Sabha. Although under Section 14 of the Act the power of removal of a Pradhan is conferred on the members of the Gram Panchayat, which is a smaller body than the Gram Sabha, but the members of the Gram Panchayat, having been elected by the members of the Gram Sabha, represent the same electorate which has elected the Pradhan. The removal of a Pradhan by twothird members of the Gram Panchayat who are also elected representatives of the members of the Gram Sabha, is in fact, removal by the members of the Gram Sabha through their representatives. Just as the Municipal Board is visualised as a body entrusted with the responsibility to keep a watch on the President, whether elected by it or by the electorate, so also the Gram Panchayat is visualised as a body entrusted by it and is elected by the members of the Gram Sabha. An arbitrary functioning of a Pradhan in disregard of the statute or his acting contrary to the interests of the electorate could be known to the members in the Gram Panchayat only and, in the circumstances, it is but proper that the members of the Gram Panchayat are empowered to take action for removal of the Pradha, if necessary.
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7. For the reasons aforementioned we are unable to hold that Section 14 of the Act, insofar as it empowers the members of the Gram Panchayat to remove the Pradhan of a Gran Sabha by moving a motion of no confidence, is unconstitutional and void being violative of the concept of democracy or is arbitrary and unreasonable so as to be hit by Article 14 of the Constitution."
This pronouncement is a complete answer and following the same this contention deserves to be rejected.
54. In the circumstances, this Court holds that it is neither violative of Article 14 nor Section 212 or violative of Article 243-C, 243E, 243-F and 243-G nor Section 207 of The Panchayats Act is in any way inconsistent with the above constitutional provisions.
55. One another contention advanced being that there cannot be a simultaneous action for removal of chairman and vice-chairman. Initially before the amendment introduced by Tamil Nadu Act 31 of 1999, Section 212 provided for the removal of chairman alone and by the Amending Act, the chairman and vice-chairman have been included and there is nothing in the Act, which bars a simultaneous motion of want of confidence on the chairman and vice-chairman, nor the Act or the Rules contemplate passing of separate motion of want of confidence being tabled or moved. Normally in respect of such public office, there shall be no vacuum. In this even if the Chairman and vice-chairman are removed by way of simple "No Confidence Motion", in terms of Section 54 (2), the Revenue Divisional Officer concerned automatically steps in, becomes the ex-officio member of the council and ex-officio chairman of the council. Therefore, there is no vac uum. In a given circumstance, where the chairman and vice-chairman acts jointly or in such a fashion or manner and loses confidence of the council, which elected them, then it is always well open to the council, which elected them to recall them either one by one or simultaneously or together. As such, there is no illegality in the "No Confidence Motion" tabled by the majority members in terms of Section 212 as against the chairman and vice-chairman of the council. There is neither an irregularity nor there is any violation of statutory provision, much less a mandatory provision for the chairman and vice-chairman being kicked out of office by way of a single "No Confidence Motion" and more so when there is no vacuum at all as the Revenue Divisional Officer of the locality automatically steps in and becomes the ex-officio member and chairman of the council. Therefore, this contention is a hyper-technical contention and the same also cannot be sustained.
56. With respect to the last point, this Court on merits holds that there has been a strict compliance of Section 212 of the Act in letter and spirit and therefore, there are no merits in all the three writ petitions.
57. Hence, all the three writ petitions fail and consequently, connected miscellaneous petitions are dismissed and vacate miscellaneous petitions are closed. It is open to the State Government to issue a notification in terms of Section 212 (13 of The Tamil Nadu Panchayats Act at any time.
58. In the result, all the writ petitions are dismissed. Consequently, connected miscellaneous petitions are dismissed and vacate miscellaneous petitions are closed.
The parties shall bear their respective costs.
Index : Yes Internet : Yes GLN To
1. The Secretary to Government Government of Tamil Nadu Rural Development Department Fort St. George Chennai 9.
2. The Secretary to Government Ministry of Law Justice & Company Affairs New Delhi.
3. The District Collector Madurai District Madurai.
4. The Revenue Divisional Officer Usilampatti Madurai.