IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26/09/2003
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
Writ Petition No. 12396 of 2003
and
W.P.M.P.No. 15573/2003 and W.V.M.P.Nos. 1088 and 940/2003
M. Subramanian. .. Petitioner.
-Vs-
1. The Secretary to Government,
Local Administration Department,
Government of Tamil Nadu,
Fort St. George, Chennai-9.
2. The Revenue Divisional Officer,
Udayarpalayam, Perambalur District.
3. Chandrahasan.
(3rd Respondent was impleaded as per Order
of Court dated 15-7-2003) .. Respondents.
Petition filed under Article 226 of the Constitution of India, for issuance of
a Writ of Certiorarified Mandamus, as stated therein.
For Petitioner :: Mr. Vijaynarayan for
Mr. G.R. Swaminathan:-
For Respondents 1 and 2 :: Mr. R. Muthukumaraswami, Addl. Advocate
General, assisted by Mr. V. Subbarayan,
Spl.Govt., Pleader
Mr. S. Muthukrishnan:- For 3rd Respondent.
:ORDER
By consent of all the parties main writ petition itself is taken up for
disposal. Aggrieved by the order of the Government in G.O.Ms.No.32 Rural
Development (C1) Department dated 17-4-2003, removing the petitioner from the
post of Chairman, Panchayat Union Council, Sendurai, Perambalur District, the
petitioner has filed the above writ petition to quash the same and
consequently direct the first respondent-Government to reinstate him as
Chairman, Sendurai Panchayat Union Council.
2. The case of the petitioner is briefly state hereunder:
According to him, he was elected as Chairman of Sendurai Panchayat Union
Council on 31-10-2001. A written notice of intention to make a motion
expressing want of confidence in him was delivered to the Revenue Divisional
Officer, Udayarpalayam. Subsequently a meeting was convened on 10-12-2002.
In the meanwhile, he filed a writ petition in W.P.No. 41401/2002 assailing
the amendment made in Section 212 of the Panchayats Act and the same has been
admitted by this Court. The proceedings removing him from the post of
Chairman were fully video taped. Prescribed statutory procedures were not
followed. The motion laid against him was defeated. This was duly announced
by the Revenue Divisional Officer. Thereafter, the vested interests who were
against him instigated a pandemonium and in the process the no confidence
motion was put to vote for the second time. This is illegal and against all
principles of democracy. The papers had since been forwarded to the Secretary
to Government. He had lodged complaint stating that there was double voting.
Since he apprehended that he may not be allowed to prove this allegation, he
filed Writ Petition No. 3490/2 003 before this Court and this Court directed
the first respondentGovernment to give him an opportunity of hearing on
17-2-2003. He appeared in person and produced the video tapes. It could
clearly be seen that there was twice voting and that in the first round the
motion was defeated. Yet the first respondent had issued the impugned G.O.
without even considering or adverting to his objections In these
circumstances, in the absence of any alternative or effective remedy, filed
the present writ petition for quashing the said impugned order.
3. Special Secretary to the Government, Rural Development Department,
Chennai-9 has filed a counter affidavit wherein it is stated that the Union
Council Members of the Panchayat Union, Sendurai have decided to bring no
Confidence motion against M. Subramanian, Chairman, Panchayat Union Council,
Sendurai and obtained signatures from 16 Union Councillors. Out of 16 Union
Councillors, three of them together have presented the memorandum before the
Revenue Divisional Officer, Udyarpalayam on 1-11-2002 along with 9 allegations
and show cause notice under Section 212(3) of the Tamilnadu Panchayat Act,
1994 (Tamil Nadu Act 21 of 1994) (in short the Act) was issued to the
petitioner-Chairman, Sendurai Panchayat Union along with a copy of the
allegation on 8-11-2002, asking him to give his statement in reply to the
charges within 7 days from its receipt. The petitioner offered his
explanation on 16-11-2002. The allegation of the councillor and vice chairman
is that the petitioner failed to carry out the duty cast upon him in
administration of panchayat union as per the said Act and Rules and failed to
give proper respect to the councillors and Vice-Chairman. Hence, the Union
Councillors moved No Confidence motion against the petitioner. The 2nd
respondent issued a notice under Section 212 (4) of the said Act to the
councillors fixing the date and time of the council meeting to be convened by
the 2nd respondent under Section 212 (5) of the Act. At this stage, the
petitioner filed a petition challenging the notice dated 8-11-2002. Though
this Court has granted interim stay, the same has been vacated on 26-12-2002.
Hence the second respondent conducted, the no-Confidence Motion on 10-12-2002
after giving appropriate notice to the petitioner and other councillors. A
detailed report was submitted to the Secretary, Rural Development on
10-12-2002 stating that 15 councillors out of 19 casted their vote in favour
of the No-Confidence motion and signed in the Minutes to that effect. The
petitioner gave a representation against the Revenue Divisional Officer to the
Government stating that at the time of conducting No confidence motion on
first occasion, when the voting took place on 10-12-2002 the motion was
defeated and subsequently, there was a pentemonium and it is claimed that
there after again the motion was stated to have been passed and thereby the
NoConfidence motion said to have been passed is not in accordance with the Act
and the Rules and thereby is invalid. Even the W.P.No. 3490/2003 filed by
the petitioner has been disposed of by this Court on 5-2-200 3 directing the
petitioner to appear before the first respondent on 1 7-2-2003. He appeared
on that date and necessary opportunity was given to the petitioner. He was
also heard in person. The cassette produced by the petitioner was also seen
by the first respondent. The petitioner gave in writing that the video
cassette was witnessed. A report was called for from the District Collector,
who submitted a report on 25-2-2003 stating that the voting took place in one
sitting and thereby no confidence motion against the Chairman should be
considered as passed, since out of 19 councillors, 15 councillors voted in
favour of No Confidence Motion and the No Confidence Motion has been passed as
per Act and Rules. On receipt of the report, the first respondent passed an
order on 13-03-2003 with a view to comply the order of this Court dated
28-02-2003. After considering all the materials finally, the Government
accepted the draft Notification and passed the impugned order. The same was
gazetted on 17-04-2003 removing the petitioner from the post of Chairman of
the Panchayat Union council, Sendurai as per sub-section 13 of Section 212 of
the Act. As directed by this Court, the petitioner was heard in person. His
video cassette was seen in his presence. After getting report from the
District Collector, the Government have passed the order on 17-4-2003,
removing the petitioner from the post of Chairman, Sendurai Panchayat Union
Council.
4. Revenue Divisional Officer, Udayarpalayam, 2nd respondent herein filed a
separate but identical counter affidavit as that of the first respondent.
5. The third respondent has filed an affidavit stating that on 10-12-2002 no
confidence meeting was held and it was supported by 15 members and opposed by
four members. The second respondent properly recorded the minutes of the said
meeting and all the members of the Union council including the petitioner
signed in the minutes in the presence of the second respondent who forwarded
the same to the first respondent-Government for further action. Since the
Government had not acted quickly, he filed a writ petition in W.P.No.
6489/2003 before this Court seeking appropriate direction to the Government.
On 28-2-2003 this Court directed the Government to pass appropriate orders
within three weeks from the date of receipt of the said order. Finally after
considering all the materials, the Government have passed the impugned order.
As per the said order, in the light of the removal of the President, the
Vice-Chairman-Mrs. R. Lalitha had taken charge of the post of Chairman on
the same day i.e. on 17-4-2003. There is no illegality warranting
interference by this Court.
6. In the light of the above pleadings, I have heard Mr. Vijaynarayanan,
learned counsel for the eptitioner; Mr. R. Muthukumaraswamy, learned
Additional Advocate General for respondents 1 and 2; and Mr. S.
Muthukrishnan for third respondent.
7. Mr. Vijaynarayan, learned counsel for the petitioner, after taking me
through the impugned proceedings, would contend that the first respondent has
not taken into account the fact that there was twice voting on the subject
motion on 10-12-2002. He also contended that the first respondent ought to
have appreciated the pendency of Writ Petition No. 41401/2002 in which the
very validity of the amendment to Section 212 is in question. According to
him, no voter on any motion can be allowed to recall the vote already cast and
vote for the second time. Refuting the said contention, Mr. R.
Muthukumaraswamy, learned Additional Advocate General, after placing the
entire file relating to no confidence motion, report of the District Collector
and the order impugned, would contend that there is no violation of any of the
statutory provisions as claimed and prayed for dismissal of the writ petition.
8. In the light of the specific claim of the petitioner with regard to the No
Confidence Motion moved against the petitioner, who was elected as Chairman of
Sendurai Panchayat Union Council, apart from perusing the counter affidavit of
respondents 1 and 2, I summoned the original File. Pursuant to the direction,
learned Additional Advocate General has placed the relevant File. It is seen
that Panchayat Union Councillors of Sendurai Taluk had brought a no confidence
and removal motion against Chairman as early as June, 2002. Inasmuch as no
confidence motion cannot be entertained for the first year of the office of
Chairman as per the Act, the same was not permitted. However, the councillors
boycotted the council meeting convened by the Chairman and meetings could not
be convened on 12-08-2002 and 24-10 -2002 for want of quorum. It is further
seen that as soon as the statutory one year period was passed, a no confidence
motion was brought against the Chairman. It is seen from the report of the
District Collector, Perambalur District that after completion of all the
formalities, the voting on the motion was scheduled on 10-12-2002. There was
no dispute over the following proper procedure on motion till voting. It is
further seen that the confusion arose only on the day of voting. According to
the District Collector, a ballot paper was circulated which has two columns
saying ” ek;gpf;if cz;L or ek;gpf;if ,y;iy”. The details about the motion or
(Nambikai on whom) were not on ballot paper. No Confidence Motion was not
written on board. It should have been read out, but Block Development Officer
said that he read only the statement of allegation and members were asked to
vote. Since the ballot paper did not mention anything, the members as per the
individual understanding voted. The report further says that as soon as the
counting had started the members started shouting saying that they had voted
against the Chairman i.e., what they meant by ticking means, they do not have
confidence in Chairman and not that they have no confidence in the motion. As
the voting taken place under utter confusion and from the discussion with the
Revenue Divisional Officer, Block Development Officer and councillors, the
first ballot paper cannot be taken as valid ballot because the ballot paper
did not contain the details of the motion, nor the members were explained that
what they are voting for i.e., whether they are voting for confidence in
Chairman or for no confidence. The members realised that immediately as
counting started and before the counting was over started demanding that the
voting cannot be taken as voting against the ‘No Confidence motion’ they had
voted against the chairman. The report shows that the process cannot be taken
as fair as the individual members were unaware of exact method of voting. In
those circumstances, a new ballot paper with exact details of motion was
circulated and voting took place. Thereafter, the members voted against the
Chairman and the No Confidence Motion was passed. Immediately a Minute Book
was also signed by all the members. This proves the fact that no confidence
motion has passed. Learned Additional Advocate General has produced copy of
the Minutes which contain signatures of all the members. It also shows the
acceptance of result of voting. The petitioner herein-Chairman has also
signed the Minutes Book and accepted the voting. As rightly argued by the
learned Additional Advocate General, if he was in disagreement of motion or
procedure, he should have refused to sign the Minute Book. The Collector has
also stated in his report that both voting took place in one sitting and
before the second voting the members were not permitted to go out or relax or
discuss. The Collector has concluded that out of ignorance, lack of
understanding and lack of clarity in ballot paper the confusion occurred. He
also concluded that no confidence motion against the Chairman should be
considered as passed and the first vote cannot be considered as valid voting
from the reasons mentioned above. As observed earlier, I have verified all
the records including the details of the Minutes which which would go to show
that majority of more than 2/3rd of the councillors have voted against the
Chairmanpetitioner as he lost the confidence of Panchayat Union council.
Though the notification issued by the first respondent-Government does not
disclose all the details, the File produced by the Additional Advocate General
shows all the details and I am unable to accept the argument of the learned
counsel for the petitioner.
9. As rightly argued, though there is no provision to hear the person
concerned by the Government while considering the report of the Revenue
Divisional Officer under Section 212 of the Tamil Nadu Panchayat Act, in view
of the earlier direction of this Court dated 5-2-2003 in W.P.No. 3490 of
2003, the Government before taking a decision on the report of the Revenue
Divisional Officer, the petitioner was given notice of personal hearing and
his video cassette was screened in the presence of the petitioner, Secretary
and Director of the Department. Thereafter, the Government also called for a
report with reference to the same from the District Collector. Considering
all the materials and after affording opportun ity to the petitioner, hearing
his objection etc., after satisfying that the motion expressing want of
confidence in M. Subramanian, Chairman, Sendurai Panchayat Union Council was
carried out with the support of 15 members out of sanctioned strength of 19
members in the meeting convened by the Revenue Divisional Officer,
Udayarpalayam on 10-12-2002 after following the procedure specified in Section
212, the Government issued a Notification removing the petitioner from the
office of the Chairman of Panchayat Union council, Sendurai. I am satisfied
that the meeting was convened by the Revenue Divisional Officer in accordance
with the statutory provision that no confidence motion was carried out by a
majority of members and the same was approved by the Government by exercising
power under Section 212 of the Act and issued the impugned Notification. I do
not find any error or infirmity in the order impugned; consequently the Writ
Petition fails and the same is dismissed. No costs.
R.B.
Index:-Yes
Internet:- Yes.
To:-
1. The Secretary to Government,
Local Administration Department,
Government of Tamil Nadu,
Fort St. George, Chennai-9.
2. The Revenue Divisional Officer,
Udayarpalayam, Perambalur District.