IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2011
CORAM:
THE HONBLE MR. JUSTICE K.CHANDRU
W.P.No.25148 of 2010
& M.P.Nos.1 and 2 of 2010 and 1 of 2011
P.Thenmozhi Subramaniam .. Petitioner
Vs.
1. The District Collector/
Inspector of Panchayat
Erode District, Erode
2. The Revenue Tahsildar
Gobichettipalayam
Erode District
3. K.V.Palanisamy
4. M.Sivakumar
5. L.Shanmugam
6. T.Loganathan
7. M.Easwari
8. A.Thilagavadhi
9. T.Sivagami
(Respondents 3 to 9 were impleaded
as per order dated 6.1.2011 in
M.P.No.3 of 2010)
.. Respondents
Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the 1st respondent by proceedings in NAKA No.4779/2009/A2 dt.30.9.2010 ending with proceedings of the 2nd respondent in NAKA No.13980/2010/A5 dated 26.10.2010 and quash the same.
For Petitioner :: Mr.P.Saravana Sowmiyan
For Respondents :: Mr.R.Murali, G.A.for R1 & R2
Mr.P.Mohanraj for R3 to R9
O R D E R
The petitioner, who is an elected President of Akkarai Kodivery Panchayat in Thukkanaickampalayam, Erode District, has come forward to file the present Writ Petition seeking to set aside the order of the 1st respondent District Collector dated 30.9.2010, which concluded with the proceedings of the 2nd respondent dated 26.10.2010 and seek for setting aside the same.
2. Notice of Motion was ordered on 8.11.2010. Pending the Notice of Motion, this Court on the facts and circumstances of the case allowed the meeting, which was convened on 9.11.2010, but the decision taken in the meeting was directed not to be given effect to for a period of two weeks.
3. In the meanwhile, aggrieved by the interim order obtained by the petitioner, 7 Ward Members of the Village Panchayat led by K.V.Palanisamy filed M.P.No.3 of 2010 and get themselves impleaded vide order dated 6.1.2001. They have also filed M.P.No.1 of 2011 for vacating the interim order together with the counter affidavit dated 24.11.2010.
4. The petitioner has raised two questions. With reference to the impugned notice, the first was that the impugned notice dated 30.9.2010 was signed by one P.Kumaravel Pandian describing himself as Inspector of Panchayat cum District Collector incharge. Therefore, it is stated that insofar as the signatory to the impugned notice was not authorised by any special order under the Act, he has no jurisdiction to issue the notice. The second contention was that the 2nd respondent, in the absence of any order passed under Section 205(1) of the Panchayats Act by the actual District Collector, could not convene the meeting to consider the motion presented by the impleaded respondents. A further statement was also made that the original representation was not actually signed by them and it should not be taken note of.
5. A perusal of the records shows that the impleaded respondents earlier filed W.P.No.17977 of 2010 seeking for a direction to dispose of their representation. This Court by an order dated 19.8.2010 directed the District Collector to take appropriate action. The grievance projected by these persons was that despite their request to take action against the President, the District Collector was not taking action. It is pursuant to the direction, the impugned notice came to be issued. Though the petitioner alleged that the Writ Petition was filed by forging the signature, this Court is not inclined to accept the said contention because the very same persons have come forward to file M.P.No.3 of 2010 seeking themselves to implead as party respondents in the main Writ Petition. They have also filed an application to vacate stay in M.P.No.1 of 2011. Therefore, the allegation that the impleaded respondents did not subscribe their signature or did not authorise any one to file the Writ Petition cannot be accepted.
6. The second contention that the District Collector is not authorised under the provisions of the Act also cannot be accepted because under Section 2(16) of the Tamil Nadu Panchayats Act, the “Inspector of Panchayat” has been defined and it would only mean that any officer not below the rank of District Collector appointed by the Government to exercise or perform any of the powers or duties of the Inspector under the Act. The contention of the petitioner that the District Collector was not notified by a special notification cannot be accepted because in the case of the petitioner, the very same District Collector by a Gazette Notification dated 4.4.2008 describing himself as Inspector of Panchayat has issued a Notification permitting the petitioner to perform the duties by herself without convening the meeting of the Counsellors in terms of the power exercised under Section 204(3) of the Tamil Nadu Panchayat Act. The petitioner having got the benefit of such a notification from the same authority cannot turn back and question the powers of the said authority. In any event, the State Government has recognised the District Collector as the Inspector of the Panchayat and no other person has been notified for that post. Therefore, the first submission must fall.
7. The other contention that the impugned order has been signed by the District Collector incharge also cannot be accepted because the incharge Collector has the same power as that of the District Collector. The question as to whether the person who is holding the post as incharge has got power to discharge the statutory powers, came to be considered by a Full Bench of this Court in A.Savariar vs. the Secretary, Tamil Nadu Public Service Commission, Chennai-2 reported in 2008 (4) CTC 753 and the contention to the contrary was rejected. It was held by this Court that the persons who are holding the post as incharge is entitled to perform the duties of the said officer. It is useful to refer to the following passage found in paragraph 7 of the said judgment:
“7. Under such circumstances, unless contrary intention is expressed by the Government either by way of a statutory provision or by way of an executive instruction, a Government servant who holds the post as in-charge has got power/to discharge the statutory functions and responsibilities of the said post.”
8. The second Notification came to be issued pursuant to the statutory power exercised by the District Collector cum Inspector of Panchayat under Section 205(1) of the Act. Under Section 205(3) of the Act, it is the Tahsildar, who is the authority to convene the meeting. Therefore, there is no illegality or want of jurisdiction in the impugned order. In the counter filed by the impleaded respondents, it was stated in para 12 that the meeting had already taken place on 9.11.2010 and only because of the interim order, the results have not been published. Since the petitioner has not made out a case, the Writ Petition stands dismissed. No costs. The connected Miscellaneous Petitions stand closed. However, there is no impediment for the official respondents to publish the results of the meeting held on 9.11.2010 and act accordingly.
ajr
To
1. The District Collector/
Inspector of Panchayat
Erode District, Erode
2. The Revenue Tahsildar
Gobichettipalayam,
Erode District