JUDGMENT
P. Jyothimani, J.
Page 2015
1. This writ appeal is directed against the order of the learned single Judge dated 31.07.2007 passed in M.P. No. 2 of 2007 in W.P. No. 24325 of 2007.
2. The first respondent is a elected Chairman of Thirunallar Commune Panchayat, which consists of 9 Councillors. On 26.06.2007, 5 Councillors have submitted a written notice of intention to move a motion under Section 207(2) of the Pondycherry Village and Commune Panchayats Act, 1973, (Act 10 of 1973), (in short, “the Act”). On receipt of the same, the second respondent, Authorised Officer/Deputy Director, Rural Development Department of Panchayat, Puducherry has issued a notice along with the statement of charges, calling upon the first respondent, who was the elected Chairman of the said Commune, to submit his explanation within a period of one week. The first respondent, who has received the notice on 04.07.2007, submitted his explanation to the second respondent on 10.07.2007. In the meanwhile, on 09.07.2007, one of the said 5 Councillors withdrew his consent for moving the motion. In spite of the same, the second respondent has issued the impugned notice dated 12.07.2007 under Section 207(4) of the Act, fixing the date of meeting as 02.08.2007 at 10.00 AM for consideration of the motion at the Office of the Commune Panchayat Council.
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3. The first respondent has challenged the said impugned communication of the second respondent dated 12.07.2007, by filing the above writ petition. Pending the writ petition, the first respondent has filed M.P.No. 2 of 2007, praying for stay of operation of the notice of the second respondent dated 12.07.2007. The learned single Judge, by order dated 31.07.2007, has granted an order of interim stay of the impugned notice dated 12.07.2007. It is, as against the said order, respondents 2 to 6 in the writ petition have filed the above appeal.
4. The learned single Judge has granted the order of stay on the basis that even before the explanation submitted by the first respondent, one of the 5 persons, who have given notice for moving the motion has withdrawn his consent on 09.07.2007, and therefore, “the motion” mentioned under Section 207(4) of the Act does not survive, since half of the sanctioned strength of the Commune Panchayat is not supporting the motion. Further, while considering the Division Bench decision of this Court in V.C. Kadhirvelu v. Sub-Collector, Karur AIR 1976 Madras 304 relied upon by the learned senior counsel for the appellants herein, who were respondents 2 to 6 in the writ petition, the learned Judge, felt that the said decision requires reconsideration and on that basis holding that prima facie the first respondent has made out a case, an order of interim stay was granted.
5. The learned senior counsel for the appellant Mr. G. Rajagopalan, would submit that when once Section 207(1) of the Act is invoked and a written notice of an intention to make the motion is signed by the members not less than one half of the sanctioned strength of the Commune Panchayat Council and the same was received by the second respondent Authorised Officer, along with copy of the statement of charges and thereafter, it was delivered to the person concerned, viz., the first respondent herein, in this case, who is required to give a statement in reply within one week from the date of receipt of the motion, the formality is duly complied with and therefore, the second respondent has to perform his function under Section 207(4) of the Act by calling for the meeting. Mere withdrawal of the consent by one of the members is not a ground for the second respondent Authorised Officer from refusing to convene the meeting. He would also rely upon the decision of this Court reported in AIR 1996 Madras 304 (cited supra), to substantiate his contention.
6. Per contra, Mr. R. Thiyagarajan, learned senior counsel appearing for the first respondent would submit that as per Section 207(4) of the Act, which uses the term “the motion”, the required strength of members for moving the motion should continue to be present till the meeting is convened for moving the same. According to him, the word, “the motion” signifies that before the date of meeting if some members withdraw their consent for moving the motion, then it cannot be said that “the motion” continues to be in existence on the date when the motion is sought to be moved. Therefore, the motion can be moved only so far as the 5 members consent continues. By virtue of the right vested with the Councillors, if such notice has been withdrawn, which is permissible in law, the motion is deemed to have not Page 2017 moved and he would also submit that the proceedings contemplated under this Act is to be equated with that of the parliamentary procedure, where it is permitted that even before the motion is placed before the House for consideration and in a democratic process, the right of the members to withdraw the consent is inherent, therefore, according to him, the impugned order of the second respondent calling for the meeting is against law.
7. We have heard the learned senior counsel for the appellants as well the first respondent and the learned Government Pleader for Pondicherry.
8. Under the Pondicherry Village and Commune Panchayats Act, 1973 (Act 10 of 1973), Section 207 stipulates the provisions regarding “Motion of no-confidence against the Chairman or Vice-chairman of Commune Panchayat Councils”. The said section runs as under.
207. Motion of no-confidence in *[Chairman or] Vice-chairman of commune panchayat councils.- (1) Subject to the provisions of this section, a motion expressing want of confidence in the *[chairman or] vice-chairman of a commune panchayat council may be made in accordance with the procedure laid down herein.
(2) A written notice of intention to make the motion, signed by members of the commune panchayat council not less in number than one half of the sanctioned strength of the commune panchayat council, together with a copy of the motion which is proposed to be made and a written statement of the charges against *[the chairman or the vice-chairman, as the case may be,] shall be delivered in person to any officer specified by the Government in this behalf (hereinafter in this section referred to as the specified officer) by any two of the members of the commune panchayat council signing the notice.
(3) A copy of the statement of charges along with the motion shall be caused to be delivered to the *[chairman or] vice-chairman concerned by the specified officer and the *[chairman or] vice-chairman concerned shall be required to give a statement in reply to the charges within a week of the receipt of the motion by the *[chairman or] vice-chairman.
(4) The specified officer shall then convene a meeting for the consideration of the motion at the office of the commune panchayat council at a date and time appointed by him.
(5) The specified officer shall give to the members notice of not less than fifteen clear days of the meeting and of the time appointed therefor.
(6)(a) The specified officer shall preside at the meeting convened under this section, and no other person shall preside threat.
(b) If within half an hour after the time appointed for the meeting, the specified officer is not present to preside at the meeting, the meeting shall stand adjourned to a time to be appointed and notified to the members by the specified officer under Sub-section (7).
(7)(a) If the specified officer 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.
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(b) The date so appointed shall not be later than thirty days from the date appointed for the meeting under Sub-section (4).
(c) Notice of not less than seven clear days shall be given to the members of the time appointed for the adjourned meeting.
(8) Save as provided in Sub-sections (6) and (7), a meeting convened for the purpose of considering a motion under this section shall not for any reason be adjourned.
(9) As soon as the meeting convened under this section has commenced, the specified officer shall read to the commune panchayat council the motion for the consideration of which it has been convened, the statement of charges and the statement, if any, of the *[chairman or] vice-chairman in reply to the said charges and declare it open for debate.
(10)(a). Such debate shall automatically terminate on the expiry of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier.
(b) Upon the conclusion of the debate or upon the expiry of the said period of two hours, as the case may be, the motion shall be put to the vote of the members.
(11) The specified officer shall not speak on the merits of the motion nor shall he be entitled to vote thereon.
(12) A copy of the minutes of the meeting together with a copy of the motion an the results of the voting thereon shall forthwith on the termination of the meeting, be forwarded by the specified officer to the Government.
(13) If the motion is carried with the support of not less than two-thirds of the sanctioned strength of the commune panchayat council, the Government shall, by notification, remove *[the chairman or] vice-chairman of *[the commune panchayat council, as the case may be.].
(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 six months from the date of the meeting.
(15) No notice of a motion under this Section shall be received within six months of the assumption of office by *[the chairman or] vice-chairman, *[as the case may be.].
9. On the facts of the present case, it is seen that the Thirunallar Commune Panchayat consists of 9 Councillors and therefore, to move the motion of no-confidence against the Chairman, viz., the first respondent herein, minimum number of persons required for giving written notice of intention is 5. Admittedly, the required number of members, viz., 5 Councillors have given their written notice to move the motion against the first Page 2019 respondent on 26.06.2007 as per Section 207(2) of the Act and it is also not in dispute that the notice of intention to move the motion has accompanied the written statement of charges against the first respondent Chairman and the same was delivered to the second respondent Authorised Officer as per Section 207(2). It is also clear that the second respondent Authorised Officer has in his turn delivered the said notice along with the statement of charges to the first respondent in accordance with Section 207(3), asking for his explanation to the charges. Admittedly, the first respondent has received the said notice on 04.07.2007 and it is also not in dispute that the first respondent has submitted his written explanation on 10.07.2007. It is the case of the first respondent that on 09.07.2007, one of the 5 members who have given the written notice of intention to move the motion has withdrawn his consent. Therefore, according to the first respondent, the motion does not survive.
10. It is seen on the factual situation in this case that based on the notice of intention to move the motion given by the required number of members/Councillors as per Section 207(2) of the Act, the charges have been communicated to the first respondent and therefore, the procedure contemplated under Section 207(3) has been initiated by the Authorised Officer. The contention on behalf of the first respondent is that on the date when the notice of meeting was issued by the second respondent Authorised Officer, viz., on 12.07.2007, which is impugned in the writ petition, the motion as contemplated under Section 207(4) of the Act is not in existence since according to the first respondent, by withdrawal of the notice of intention by one of the members, the written notice of intention to move motion as per Section 207(2) of the Act becomes invalid and non-est in the eye of law. We do not agree with the said contention and we are of the considered view that when once the written notice of intention to move the motion as required under Section 207(2) of the Act has been submitted to the Authorised Officer signed by the required number of persons, viz., not less than half of the sanctioned strength of the Commune Panchayat Council, the notice of intention to move the motion is crystallised and acted upon by setting the process of law in motion, the same cannot be thrown out simply because subsequently one of the members has withdrawn the consent. In addition to this, the second respondent Authorised Officer has in fact communicated the notice to the first respondent along with the charges calling upon him to give explanation as statutorily prescribed under Section 207(3) of the Act. Therefore, it is clear that the process has been initiated by the Authorised Officer and in such circumstances, merely because one of the members withdrawn his consent, will not make the motion invalid. It is always open to the members to freely participate in the meeting to decide the issue irrespective of the written notice of intention to move the motion. In our view, by giving notice of intention to move the motion, the law as contemplated under Section 207(2) is set in motion and that has to be decided only in the meeting convened for the purpose of discussion of the motion and not before that.
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11. Similar issue arose in respect of Tamil Nadu Panchayat Act (Act 35 of 1958) in AIR 1976 Madras 304 (cited supra). In that case, as per Section 153(2) of the Tamil Nadu Panchayat Act, out of total number of members of the Panchayat Union numbering 26, 19 members have presented a notice of intention signed in writing to move no confidence motion against the Chairman of Thanthoni Panchayat Union and that was as per the requirement of Section 153(2) and various charges have been levelled against the Chairman. The said charges along with the notice of motion signed by 19 members was communicated to the Chairman and in that case also the Chairman was called upon to reply within a week’s time. He received the notice and charge on 24.08.1975. It was the case of the Chairman that on 26.08.1975, 7 of the 19 members who have given their notice of intention to move the motion against him have sent individual letters to the Sub-Collector withdrawing the intention to move the no confidence motion. Apart from giving explanation to the charges, he has also stated that the motion does not survive then, since out of 19 members who have given written notice of intention to move the motion, 7 have withdrawn and therefore, as it does not enjoy the required number of persons as per Section 153(2) of the Tamil Nadu Panchayat Act, 1958. There also ignoring the said reply, the Authority has issued a notice for convening the meeting on 19.07.1995. it was at that stage the writ of prohibition came to be filed. While deciding the similar issue, this Court has held that the Authority has acted upon the notice of intention signed by 19 members of Panchayat Union under Section 153(2) of the Act by issuing notice to the Chairman calling upon him to give reply and merely because 7 members have subsequently withdrawn their consent, that will not take away the jurisdiction of the Authority, which he has chosen to exercise properly on presentation of notice of motion under Section 153(2) of the Act. The operative portion of the said judgment is as follows:
4. …Firstly, it is seen that the respondent has acted upon the notice of intention signed by 19 members of the Panchayat Union and presented before him under Section 153(2) of the Act by issuing a notice to the petitioner on 24.8.1975 and calling for his reply to the said charges. From the fact that 7 members who were signatories to the notice of intention presented earlier, had withdrawn their consent, the action earlier initiated under Section 153(3) of the Act on 24.8.1975 by the respondent will not become invalid. Once the petitioner has been called upon to explain the charges levelled against him in the statement of charges and if the respondent considers that the petitioner’s reply to the statement of charges is not convincing, he can proceed to convene the meeting for consideration of the no-confidence motion. The fact that subsequent to the initiation of the proceedings under Section 153(3) of the Act 7 of the members have withdrawn their consent, will not take away the jurisdiction of the respondent which he has chosen to exercise properly on the presentation of a notice of motion under Section 153(2) of the Act by the requisite number of members.
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12. It is clear that the provisions of the Tamil Nadu Panchayat Act is similar to that of the present Act which we are dealing in this appeal viz., The Pondicherry Village and Commune Panchayat Act, 1973. When once the 5 Councillors have given written notice of intention to make the motion, which is the requirement as per Section 207(2) of the Act along with the statement of charges and the officer authorised by the Government, namely, the second respondent has received the same and thereafter he has proceeded to deliver the statement of charges along with the motion to the first respondent, which was received by the first respondent on 04.07.2007, calling upon him to give explanation as per Section 207(3) of the Act. Merely because one Councillor has withdrawn his consent will not take away the jurisdiction of the second respondent in proceeding to convene the meeting for consideration of the motion. Section 207(9), (10) and (11) gives sufficient safeguard to all members to participate freely in the debate. In the present case, on fact, it is clear that the Authorised Officer, viz., the second respondent has acted upon the written notice of motion even on 04.07.2007 by delivery of notice of motion along with the statement of charges to the first respondent and even as per the case of the first respondent one of the members have withdrawn his intention to move the motion only on 09.07.2007, by which time the process has been initiated by the authority concerned and therefore, it cannot be said that the motion does not survive on the date when the meeting was called for under the impugned notice dated 12.07.2007. In view of the same, we have no hesitation to come to the conclusion that the order of stay granted by the learned single Judge, to the impugned notice of the second respondent dated 12.07.2007, is not in conformity with the established legal principles and therefore, the stay granted by the learned single Judge is vacated and the writ appeal stands allowed. No costs. Consequently, connected miscellaneous petition is closed.