Madras High Court
V.S.Dharmaraj vs The District Collector on 28 April, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.1820 of 2006 and W.P.M.P.No.2010 of 2006 V.S.Dharmaraj .... Petitioner Vs. 1.The District Collector, Theni, Theni District. 2.The Revenue Divisional Officer, Periyakulam, Theni District. .... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, forbearing the respondents herein in any manner to proceed with his notice in Na.Ka.No.794/2006 A2 dated 13.02.2006 under Section 212 of the Tamil Nadu Panchayats Act, 1994 in any manner against the restrictions contained in sub section 914) of Section 212 of the said Act. !For Petitioner .... Mr.K.Vijayan Senior Counsel ^For Respondents .... Mr.K.V.Vijayakumar, Special Government Pleader. :ORDER
Heard the learned counsel appearing for the petitioner and the learned Special Government Pleader for the respondents.
2. This writ petition is filed for a direction forbearing the respondents in any manner proceeding with the notice dated 13.02.2006 under section 212 of the Tamil Nadu Panchayats Act. The petitioner is the Chairman of K.Mailaduthurai Panchayat Union. The members of the Panchayat Union council by a letter dated 10.11.2005 represented to the second respondent for the removal of the Chairman under Section 212 of the Act by a no confidence motion and explanation was called for by the first respondent on 14.11.2005 and the petitioner has submitted his explanation on 21.11.2005. A meeting was scheduled to consider the no confidence motion on 06.12.2005. When the said meeting was challenged in W.P.No.10826 of 2005 and interim stay was passed on 01.12.2005 directing that the meeting shall go on but resolution shall not be implicated. However, the first respondent has adjourned the meeting scheduled on 06.12.2005 to 14.12.2005. When the said proceeding was also challenged by the petitioner in W.P.No.11536 of 2005 on the ground that when once the meeting is scheduled it cannot be adjourned, this Court has granted an interim order on 13.12.2005. However, the respondent has withdrawn the impugned notice in both the writ petitions calling for the meeting on 06.12.2005 and the adjourned meeting on 14.12.2005. The said withdrawal of the impugned notice was on 18.01.2006. Thereafter, the first respondent on the basis the letter of the members of the Panchayat Union Council by a letter dated 27.01.2006 withdrew the proposal to make a no confidence motion against the petitioner.
3. Therefore, according to the petitioner, this amounts to not carrying out of the no confidence motion under Section 212(14) of the Tamil Nadu Panchayats Act and there cannot be any further no confidence motion till the expiry of the year. Whileso, the second respondent by the impugned memo dated 13.02.2006 purported to have been issued under Section 212(14) of the Tamil Nadu Panchayats Act that 10 out of 14 members of the Panchayat have given notice for no confidence motion out of whom five persons have directly submitted no confidence letter and the respondents directed the petitioner to give explanation. It is this notice purported to have been issued under Section 212 of the Tamil Nadu Panchayats Act which is challenged by the petitioner on various grounds including that when once a previous notice issued by the members dated 10.11.2005 for raising no confidence motion under Section 212(14) of the Tamil Nadu Panchayats Act was withdrawn by the first respondent, on the basis of the letters of the members of the Panchayat Union council dated 27.01.2006, it is deemed to be a motion not carried out under Section 212(14) of the Tamil Nadu Panchayats Act and therefore, subsequently no confidence motion cannot be moved within one year. In the present case, by the impugned memo dated 13.02.2006 a no confidence motion sought to be revived which according to the petitioner is against the provisions of the Tamil Nadu Panchayats Act under Section 212(14) of the Act.
4. The first respondent has filed counter affidavit. According to the first respondent the letter of the Panchayat Union Council dated 10.11.2005 was for the purpose of removing the petitioner from the Chairmanship which is under Section 207 of the Tamil Nadu Panchayats Act. In fact, the communication of the second respondent dated 03.12.2005 itself mentioned that the proposal of the members dated 10.11.2005 was for the removal of the petitioner and not for the purpose of moving no confidence motion. It was that proposal for removal of the petitioner under Section 207 of the Tamil Nadu Panchayats Act dated 10.11.2005 which was dropped by the first respondent on 30.01.2006. It is not correct to stated that the said proposal dated 10.11.2005 was for the purpose of bringing no confidence motion against the petitioner under Section 212(14) of the Act. The mere mentioning by the second respondent in his proceeding dated 23.11.2005 as if based on the representation dated 10.11.2005, the no confidence motion was proposed to be moved against the petitioner is only by mistake whereas as stated above, in the notice dated 03.12.2005 the second respondent has clearly stated that it was a proposal under Section 207(2) of the Act. It was only on 06.02.2006 the Vice Chairman and 9 members of the Panchayat Union Council have directly presented a petition to the second respondent for brining a no confidence motion against the Chairman which alone is in conformity under Section 212(2) of the Act. According to the respondents, inasmuch as the earlier notice dated 10.11.2005 was not under Section 212 of the said Act, there is absolutely no bar for proceeding against the petitioner on 06.02.2006 under Section 212 of the ACt.
5. Mr.K.N.Vijayan, learned Senior Counsel appearing for the petitioner would contend that even the communication of the first respondent dated 14.11.2005 by referring about the complaints given by the members of the Panchayat Union council dated 10.11.2005 the subject categorically states that the 10 members initiated to move no confidence motion against the petitioner based on certain charges. Under the provisions of the Tamil Nadu Panchyats Act, it is only Section 212 which provides for moving a no confidence motion against the Chairman and others. Even in the subsequent communication dated 23.11.2005 the second respondent has used the same term as no confidence motion referring to the complaints of the members of the Panchayat Union Council dated 10.11.2005. It cannot be said that the communication of the second respondent dated 23.11.2005 alone is a mistake. A reference to both the letters dated 14.11.2005 and 23.11.2005 of the respondents would show that there is absolutely no mistake and what was proposed by the members on 10.11.2005 was only a no confidence motion under Section 212 of the Act. When admittedly, such proposal for no confidence motion dated 10.11.2005 was withdrawn by the members themselves and based on which the proceedings have been dropped, the same has to be construed as if the motion was not carried out by such majority as per Section 212(14) of the Act and therefore, before a lapse of one year the present notice issued under Section 212 is not valid in law.
6. On the other hand Mr.K.V.Vijayakumar, learned Special Government Pleader appearing for the respondents would submit that merely because a mistake has occurred in the communication dated 14.11.2005 and 23.11.2005 by referring the request of the members dated 10.11.2005 as no confidence motion it does not mean that it is a no confidence motion under Section 212 of the Act. The real intention of the members was to remove the Chairman on certain charges. Admittedly, for the charges when the petitioner has given reply it can only be deemed to be a proposal for removal under Section 207 of the Tamil Nadu Panchayats Act. In fact in the proceedings of the second respondent dated 03.12.2005 as also the first respondent dated 30.01.2006 it has been made very clear. When the members wanted to remove the Chairman by way of representation, it was only the proceeding under Section 207 of the Act which was dropped. Therefore, there was absolutely no bar for taking action against the petitioner under Section 212 of the Tamil Nadu Panchayats Act.
7. I have heard the learned counsel for the petitioner as also the learned counsel for the respondents and also perused the entire records.
8. At the outset, it has to be analysed the legal position under the Tamil Nadu Panchayats Act when a proposal for no confidence motion against the Chairman and the Vice Chairman of the Panchayat Union Council is to be moved under Section 212 (14) of the Act. A written notice of intention to make such motion signed by the members of the Council not less in number than one-half of the sanctioned strength of the Panchayat Union council, together with a copy of motion which is proposed to be made and a written statement of the charges against the Chairman shall be delivered in person to the Revenue Divisional Officer by any two members of the Panchayat Union council signing the notice. Thereafter the Revenue Divisional Officer shall cause such charges asking the Chairman or Vice Chairman to give a statement in reply to the charges within one week. After receiving the reply, the Revenue Divisional Officer convene a meeting for consideration of the motion for which not less than fifteen days clear days has to be given for the meeting. For such meeting convened for the purpose of moving a no confidence motion. The Revenue Divisional Officer presides and within 30 minutes for appointed time if the Revenue Divisional Officer is not present to preside over the meeting, the meeting adjourned by giving specific date for the adjourned meeting and such meeting shall not be later than 30 days from the date appointed for the first meeting. For such adjourned meeting seven clear days has to be given. On the date of the said meeting the Revenue Divisional Officer reads to the Panchayat Union Council the motion for the consideration apart from the statement of the charges and reply. There is no debate on the issue in respect of any other issue. When such a motion moved and the Revenue Divisional Officer shall not speak on the merits of the motion. The minutes of the meeting is forwarded to the Government by the Revenue Divisional Officer. If the motion is carried with the support of not less than two-thirds of the sanctioned strength of the Panchayat Union Council, the Government shall notify the removal of the Chairman or Vice Chairman of the Panchayat Union Council.
However Section 212 (14) contemplates as follows:
"14.If the motion is not carried by such a majority as aforesaid, or if the meeting cannot be held for want of the quorum referred to in sub- section(13), no notice of any subsequent motion expressing want of confidence in the same(chairman or vice chairman) shall be received until after the expiry of (one year) from the date of the meeting."
9. Therefore, if the motion is not carried out by the majority or if the adjourned meeting is not held for want of quorum, there cannot be any subsequent no confidence motion until after one year.
10. On the other hand, Section 207 of the Tamil Nadu Panchayats Act which contemplates the removal of the Chairman of Panchayat Union Council prescribes the procedure wherein also the proposal can be by the Government suo motto or representation of the two-thirds of the sanctioned strength of the Panchayat Union Council with charges against the Chairman and presented in person to any officer appointed by the Government by two members of the Panchayat Union Council. After explanation is received from the Chairman, the Government may drop the proceedings if it is satisfied about the explanation. In cases where no explanation is received or the explanation received is not satisfactory the same is forwarded to the Revenue Divisional Officer with the copy of the notice and explanation of the Chairman for ascertaining the views of the Panchayat Union Council. Thereafter, the Revenue Divisional Officer convene a meeting for the consideration of the notice and the explanation, the Revenue Divisional Officer who presides over the meeting shall record the proceedings namely the views of the Panchayat Union Council as minutes of the meeting and copies sent to the Government. The Government after consideration decides about the removal of the Chairman.
11. In the present case, the basic question that has to be considered is as to whether the proposal given by the members of the Council who are totally 14 out of whom 10 members have given proposal on 10.11.2005 to the first respondent is for the purpose of removal of the petitioner is a president or for bringing a no confidence motion. If it is a no confidence motion, when once it is not carried out for the reasons stated under Section 212 of the Act as narrated by me above, there cannot be further no confidence motion for a period of one year. A reference to the proposal given by 10 members dated 10.11.2005 by the learned counsel for the respondents would show in the following words.
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12. Therefore, the intention of the members as seen from the proposal dated 10.11.2005 was not bring a no confidence motion against the petitioner but for the removal of the petitioner for certain charges. Subsequently, the said 10 members who have given said proposal on 10.11.2005 have submitted a petition to the first respondent dated 27.01.2006 which reads as follows:
kjpg;gpw;Fhpa $ah' flkiyf;Fz;L kapyhLk;ghiw Cuhl;rp xd;wpaf;FG bgUe;jiyth; kPJ xd;wpaf;FG cWg;gpdh;fshfpa ehq;fs; fle;j 10.11.2005k; njjp bgUe;jiyth; jpU. tp.v];.jh;kuh$; mth;fis gjtp ePf;fk; bra;af;nfhhp kD bfhLj;jpUe;njhk;. Mdhy; jw;nghJ xd;wpa bgUe;jiyth; kPJ ehq;fs; ek;gpf;ifapy;yh jPh;khdk; bfhz;Ltu jPh;khdpj;Js;nshk;. vdnt ehq;fs; 10.11.2005k; njjp bgUe;jiytiu gjtpePf;fk; bra;af;nfhhp bfhLf;fg;gl;l kDit thg]; bgw;Wf;bfhs;fpnwhk; vd;gij jq;fspd; fdpthd ghh;itf;F rkh;g;gpf;fpnwhk;.
13. Therefore, the proposal by the members to withdraw the earlier proposal dated 10.11.2005 also refers about the withdrawal of the proposal for removal of the President. It is only based on the said proposal dated 10.11.2005, the first and second respondents have initiated action in accordance with the provisions of the Tamil Nadu Panchayats Act. The mere reference in the communication of the first respondent dated 14.11.2005 and also the communication of the second respondent dated 23.11.2005 referring to the said proposal of the Panchayat Union members dated 10.11.2005 as no confidence motion will not itself make the said proposal dated 10.11.2005 as a proposal for no confidence motion.
14. As I stated earlier, the proposal dated 10.11.2005 on the face of it speaks about the removal of the Chairman and not bringing no confidence motion. Therefore, in my considered view, the petitioner cannot take advantage of the mistake committed by the first and second respondents in their communication dated 14.11.2005 and 23.11.2005 referring it as a no confidence motion. However, in the subsequent communication dated 03.12.2005 and also 30.01.2006, the first and second respondents have clearly referred about the provisions of Section 207 of the Act and also stating the proposal of the members as a proposal for removal.
15. Therefore, in my considered view that the proposal of the members dated 10.11.2005 was only for the purpose of the removal of the Chairman which can only be under Section 207 of the Act. This can never be presumed to be a proceeding under Section 212 (14) of the Act. Eventhough, some doubt has been raised about 212(14) of the Act as to whether the withdrawal of such motion even otherwise would amount to not being carried out by the majority, I do not propose to go into that issue, for the simple reason that as I have already held that the proposal of the members dated 10.11.2005 is not for the purpose of bringing no confidence motion and therefore, by no stretch of imagination Section 212 can have any application.
16. In view of the same, the impugned notice issued is not a bar under Section 212(14) of the Tamil Nadu Panchayats Act. Therefore, the writ petition fails and the same is dismissed. However, there will be no order as to costs. Consequently, connected W.P.M.P. is also closed.
sms To
1.The District Collector, Theni, Theni District.
2.The Revenue Divisional Officer, Periyakulam, Theni District.