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2006 DIGILAW 1376 (MAD)

U. Deivasigamani v. Tmt. Ranjitham and Others

2006-06-16

A.P.SHAH, D.MURUGESAN

body2006
JUDGMENT Per D. MURUGESAN, J. The appellant before us was the second respondent in W.P. No. 38282 of 2005 and W.P. No. 347 of 2006, which were filed by the President (1st respondent in W.A.No. 647 of 2006) and a member (1st respondent in W.A.No. 648 of 2006) of the Goundachi Pudur Panchayat, Erode District. The appellant, who is also a member, was functioning as the Vice-President of the said panchayat. He was issued with a notice dated 18.8.2005 intimating him that he suffered disqualification under Section 38(j) of the Tamil nadu Panchayats Act, 1994 (hereinafter referred to as ""the Act"") on the ground that he absented himself from attending the meetings for three consecutive months. The appellant responded to the said notice and denied the allegation in his letter dated 2.9.2005. On the allegation that the appellant refused to sign the cheques for carrying on the day-to-day administration or the panchayat and also he did not attend the meetings regularly, by resolution No. 69 of 2005 dated 12.9.2005, the panchayat resolved to get the approval of the District Collector to authorise one Mrs. P. Selvi to sign the ""Cheques as a co-signatory along with the President. In the meantime, the panchayat also considered the explanation of the appellant dated 2.9.2005 in regard to the disqualification and by resolution No.70 of 2005 dated 28.9.2005, it resolved to disqualify the appellant from membership. As the resolutions of the panchayat had to be approved by the District Collector/Inspector of Panchayat under Section 202 of the Act, the same were forwarded to him. By proceedings dated 27.10.2005, the District collector cancelled both the resolutions and ordered the restoration of the membership of the appellant and also allowed him to sign the cheque jointly with the president. 2. Challenging the same, W.P. No. 38282 of 2005 and W.P.No. 34 of 2006 came to be filed for quashing of the order of the District Collector dated 27.10.2005 and for a consequential direction for approving the resolution of the panchayat dated 12.9.2005. The order of the District Collector was questioned mainly on the ground that it was passed without jurisdiction, as the Inspector of Panchayat cannot order restoration of the membership without there being any adjudication by the authority prescribed under the Act namely, the District Munsif having jurisdiction over the area. The order of the District Collector was questioned mainly on the ground that it was passed without jurisdiction, as the Inspector of Panchayat cannot order restoration of the membership without there being any adjudication by the authority prescribed under the Act namely, the District Munsif having jurisdiction over the area. Inasmuch as the appellant did not tile any such application before the District Munsif for adjudication and that too, within a period of two months from the date of service of notice, as he ceased to be a member of the Panchayat after the expiry of two months period, the Inspector of Panchayat ought not to have ordered restoration of the appellant as a member as well the rejection of the resolution of the Panchayat in authorizing one of its members to sign the cheque along with the President is erroneous. The learned single Judge, by a common order dated 18.4.2006, set aside the order of the District Collector and further held that the resolution of the panchayat dated 12.9.2005 authorizing Tmt. Selvi to jointly sign along with the President all the cheques for payment from the panchayat fund is valid. Aggrieved by the same, the present writ appeals have been filed. 3. For the disposal of the writ appeals, the following provisions of the Act need a reference and they are extracted below: Section 38. Disqualification of members Subject to the provision of Section 41, a member shall cease to hold office as such, if he- (a) to (i)..... (j) absents himself from the meetings of the panchayat for a period of three consecutive months reckoned from the date of the commencement of his term of office, or of the last meeting which he attended, or of his restoration to office as member under sub-Section (1) of Section 39, as the case may be, or if within the said period, less than three meetings have been held, absents himself from the three consecutive meetings held after the said date: Provided that no meeting from which a member absented himself shall be counted against him under this clause if - (i) due notice of that meeting was not given to him; or (ii) the meeting was held after giving shorter notice than that prescribed for an ordinary meeting; or (iii) the meeting was held on a requisition of members. Section 39. Restoration of members to office- (1).... Section 39. Restoration of members to office- (1).... (2) Where a person ceases to be a member under clause (j) of Section 38, the executive authority or the commissioner or the secretary as the case may be, shall, at once intimate the fact in writing to such person and report the same to the panchayat concerned at its next meeting. If such person applies for restoration suo motu to the panchayat concerned on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, such panchayat may at the meeting next after the receipt of such application restore him to his office of member: Provided that a member shall not be restored more than twice during his term or office. Section 41: Authority to decide questions of disqualifications of members- (1) Whenever it is alleged that any person who has been elected as a member or a panchayat or who becomes a member of a panchayat is not qualified or has become disqualified under Sections 33, 35, 37, 38 and 40, the executive authority or the commissioner or the secretary as the case may be, shall, by notice in writing inform such member of the allegation and place the matter at the next meeting of the panchayat concerned. If before the date of the expiry of two months from the date of receipt of such notice, such member does not apply to the “prescribed judicial authority” under sub-section (2), he shall become not qualified or disqualified from such date of expiry of the said two months. (2) The executive authority or the commissioner or the secretary, as the case may be, if so directed by the panchayat or by the Tamil Nadu State Election Commissioner, shall, or any such member or any other member may apply to the prescribed judicial authority whose decisions on such allegation shall be final. (3) Where an application has been made under sub-section (2), the member shall, pending on such application be entitled to act as it he is qualified or was not disqualified. (4) Nothing contained in this Section shall be deemed to affect the provisions, or Section 39. Section 202. Power to suspend or cancel resolution, etc. (3) Where an application has been made under sub-section (2), the member shall, pending on such application be entitled to act as it he is qualified or was not disqualified. (4) Nothing contained in this Section shall be deemed to affect the provisions, or Section 39. Section 202. Power to suspend or cancel resolution, etc. under the Act.- (1) The Inspector may, by order in writing- (i) suspend or cancel any resolution passed, order issued, or licence or permission granted, or (ii) prohibit the doing of any act which is about to be done or is being done, in pursuance or under colour of this Act, if in his opinion, (a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised, or (b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other law or an abuse of such powers or is considered by the Inspector to be otherwise undesirable, or (c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray; Provided that nothing in this sub-section shall enable the Inspector to set aside any election which has been held. (2) The Inspector shall, before taking action on any of the grounds referred to in clauses (a) and (b) of sub-section (1), give the authority or person concerned an opportunity for explanation. (3) The power conferred on the Inspector under clause (c) of sub-section (1) may be exercised by the collector in accordance with the provisions of that clause 4."" 4. Section 38 relates to disqualification of members. Sub-section (j) or Section 38 relates to the disqualification of a member who ceases to hold office if he absented himself from the meetings of the panchayat for a period of three consecutive months reckoned from the date of the commencement of his term of office, or of the last meeting which he attended, or of his restoration to office as member under sub-section (1) of Section 39, or if within the said period, less than three meetings have been held, absented himself from the three consecutive meetings held after the said date. But the proviso contemplates that no meeting from which a member absented himself shall be counted against him, if due notice of that meeting was not given to him or the meeting was held after giving shorter notice than that prescribed for an ordinary meeting or the meeting was held on a requisition of members. The provisions of Section 38(j) are clear in its terms as to the disqualification of a member in the event of his absence from the meeting for a period of three consecutive months. The only pre-condition would be that for the purpose of counting each meeting, the proviso should be strictly adhered to and non-compliance of the proviso will render action under sub- section (j) of Section 38 illegal. 5. The provision of Section 38 is subject to the provisions of Section 41. Sub-section (1) of Section 41 contemplates that whenever it is alleged that a member of the panchayat is disqualified under Section 38, the executive authority or the commissioner or the secretary, as the case may be, shall by notice in writing inform such member of the allegation and place the matter at the next meeting of the panchayat. If before the expiry of two months from the date of such notice, the member is entitled to apply to the prescribed judicial authority before the date of expiry of two months from the date of receipt of such notice. If he fails to apply to the prescribed judicial authority within the said period of two months, he shall become disqualified from the date of expiry of the period of two months. Sub-section (3) of Section 41 contemplates that if an application is filed in terms of subsection (2) and the same is not disposed of and kept pending, such member is entitled to act as if he is not disqualified. However, sub-section (4) of Section 41 contemplates that the above provisions shall not affect the provisions of Section 39. Sub-section (2) of Section 39 empowers the panchayat to entertain any request from such member for restoration to the panchayat on or before the date of its next meeting or within fifteen days of the receipt of intimation, the panchayat may resolve to restore him to office as member. Even for exercise of such power, the proviso contemplates that a member shall not be restored more than twice during his term of office. 6. Even for exercise of such power, the proviso contemplates that a member shall not be restored more than twice during his term of office. 6. As per Rule 4 of the Tamil Nadu Panchayats (Quorum and Procedure for the Convening and Conduct of Meetings of Village Panchayats) Rules, 1999, three days notice for convening a meeting is contemplated. The appellant did not attend the meetings for three consecutive months i.e., on 29.4.2005, 31.5.2005 and 29.7.2005. Hence a notice dated 18.8.2005 for disqualification was issued and the appellant submitted his explanation on 2.9.2005. Only after considering the explanation, the resolution dated 12.9.2005 was passed withdrawing the cheque signing power and thereafter on 28.9.2005, a resolution confirming the notice of disqualification dated 18.8.2005 was also passed. In terms of Section 41, even when the appellant has become disqualified in terms of Section 38(j), he ought to have approached the prescribed judicial authority under sub-section (2) of Section 41. As per Rule 2 of the Tamil Nadu Panchayats (Judicial Authority to decide questions of Disqualifications of Members) Rules, 1999, the judicial authority shall be the District Munsif having territorial jurisdiction over the area in which the village panchayat is situated. Factually he did not do so. When once the notice under Section 38(j) was not questioned, under sub-section (2) of Section 41, a member shall become disqualified from such date of expiry of two months. Factually the notice under Section 38(j) was issued on 18.8.2005 and till 18.10.2005, the appellant did not approach the prescribed judicial authority in terms of sub-section (2) of Section 41 and by virtue of the same, he has become disqualified from that date. 7. Next question that falls for our consideration is as to the power of the Inspector of Panchayat either to suspend or cancel the resolution of the panchayat in exercise of power under Section 202 of the Act. There cannot be any dispute that the Inspector of Panchayat is empowered either to suspend or cancel any resolution passed in terms of clause (i) of subsection (1) of Section 202. That power must be exercised in conformity with sub-section (2) of Section 202, as by that section the Inspector of Panchayat, before either suspending or cancelling any resolution, should give an opportunity to the authority or person concerned and call for explanation. That power must be exercised in conformity with sub-section (2) of Section 202, as by that section the Inspector of Panchayat, before either suspending or cancelling any resolution, should give an opportunity to the authority or person concerned and call for explanation. The power under the said Section cannot be exercised arbitrarily as it has two limbs, firstly, an opportunity to the local authority or person concerned who would be likely to be affected by the order of the Inspector of Panchayat and secondly, the explanation, if any, submitted should be considered by applying his mind independently before any decision is taken. The satisfaction of the Inspector of Panchayat must be based on materials. In fact, the power under Section 202 should be exercised by the Inspector of Panchayat in a judicial manner, as such power is in the nature of exercising a quasi judicial function. It is the specific case of the President that before the order impugned in the writ petitions was passed by the Inspector of Panchayat, no opportunity was given as contemplated under sub-section (2) of Section 202, This position is not disputed by the Inspector of Panchayat. For the same reason, the order or the Inspector of Panchayat is unsustainable for non-compliance of the provision of sub-section (2) of Section 202. That apart, a perusal of the impugned order does not indicate as to the application of mind by the Inspector of Panchayat to the facts of the case. The relevant paragraph of the order of the Inspector of Panchayat needs a reference and the same reads as under: - ""The notice of intimation issued by the President, Kaundachipudur Panchayat under reference second cited has been considered. As per Section 38(j) of the Tamil Nadu Panchayat Act, 1994 if a member absents himself from the ordinary meetings of the panchayat for three consecutive months even after due intimation of the meetings, then explanation has to be called for and a decision taken on the explanation in the next ordinary meeting after discussion. However, as the notice of disqualification of the Vice-President and Member, Ward No. 4, Kaundachipudur Panchayat was sent without following due procedure the same is hereby ordered to be cancelled.“ 8. However, as the notice of disqualification of the Vice-President and Member, Ward No. 4, Kaundachipudur Panchayat was sent without following due procedure the same is hereby ordered to be cancelled.“ 8. A cursory reading of the above paragraph does not indicate of any application of mind to the fact that the appellant did not attend the meetings of the panchayat for three consecutive months namely, 29.5.2005, 31.5.2005 and 29.7.2005, and for the said reason he was issued with the notice under Section 380) on 18.8.2005. The Inspector of Panchayat has also not considered the fact that the notice of disqualification was confirmed by a subsequent resolution on 28.9.2005 only after considering the explanation of the appellant dated 2.9.2005. Had these aspects been taken into consideration, the order impugned in the writ petitions could not have been passed by the Inspector of Panchayat. 9. Next question that falls for our consideration is as to the power of Inspector of Panchayat to interfere in the resolution of the panchayat relating to cheque signing power under Section 188 of the Act. As the notice of disqualification was issued to the appellant as early as on 18.8.2005, the panchayat had necessarily to confer the cheque signing power on any other member as a joint signatory for carrying on the day to day administration. In this context, a reference could be made to sub-section (3) of Section 188, which reads as under: ”Section 188. Village Panchayat Fund.- (1) .... (2).... (3) Subject to such general control as the village panchayat may exercise from time-to-time, all cheques for payment from Village Panchayat Fund or other funds constituted under sub- Section (2) shall be signed jointly by the president, and Vice-President and in the absence of the president or Vice-President, as the case may be, by the Vice-President or the president and another member authorised by the village panchayat at a meeting in this behalf.“ In terms of the said section, all cheques for payment from the village panchayat fund or other funds constituted under sub- section (2) shall be signed jointly by the president and Vice-President. However, in the absence of the president or Vice-President, as the case may be, by the Vice-president or the president and another member authorised by the village panchayat at a meeting in this behalf. However, in the absence of the president or Vice-President, as the case may be, by the Vice-president or the president and another member authorised by the village panchayat at a meeting in this behalf. The provisions of sub-section (3) of Section 188 came up for consideration before a Division Bench of this Court in the decision in Pugazhendran, President Brammapuram Village Panchayat, Katpadi Panchayat Union, Katpadi Taluk, Vellore District v. B. G. Balu, Brammapuram Panchayat, Katpadi Taluk, Vellore District and Others, 2005 (1) CTC 545 : (2005) 1 MLJ 549 ” wherein the word “absence” was considered. The relevant paragraphs of the Division Bench judgment reads as under: “21. The word” absence “ can have several connotations. It can mean physical absence, but it can also mean mental absence, in the sense of showing ‘lack of attention’, vide ”The Concise Oxford Dictionary (Tenth Edition). 22. In collins ‘Concise Dictionary’ (21st Century Edition), the word ‘absent’ has been defined as: (1) away or not present, (2) lacking (3) inattentive. Thus, the word ‘absent’ does not merely mean being not physically present, but ‘it can also mean lacking or inattentive, which really means ‘mental absence’. 23. In “The Chambers Dictionary (1998 Edition)”, the word ‘absent’ has been defined as: “being away; not present; inattentive or dreamy”. The word ‘absence’ has been defined in the same dictionary as follows: “state of being away or not present; want or lack; non- existence; abstraction; inattention; sudden loss of consciousness of which the sufferer is later unaware.” The above definition in Chambers Dictionary would also indicate that the word ‘absence’ does not have one single meaning. 24. In “The New International Webster’s Dictionary and Thesaurus” the word ‘absence’ has been defined as follows: “(1) The state, fact, or time of not being present; (2) Lack; want; (3) Mental abstraction; lack of attention.” Thus, the above definition also indicates that one can be absent in the sense of being inattentive or being mentally absent without being physically absent. 25. In our opinion, we can give a wider meaning to the word “absence” than mere “physical absence”. One word can have several meanings, just as several words can have one meaning (synonyms). It all depends on the context in which it has been used. 25. In our opinion, we can give a wider meaning to the word “absence” than mere “physical absence”. One word can have several meanings, just as several words can have one meaning (synonyms). It all depends on the context in which it has been used. For example, the word ‘desertion’ appearing in Section 13 of the Hindu Marriage Act implies not only factum of separation, but also “animus deserendi”, Vide Lachman v. Meena, AIR 1964 SC 40 . There can be constructive desertion. The husband and wife may be living together under the same roof, but the husband may have legally deserted her (wife) by his conduct. Similarly the word ‘absence’ is a word of wide connotation, and is not necessarily limited to ‘physical absence’. The indifferent or obstructionist attitude of a person or avoidance can, in our opinion, amount to absence in some situations.“ 10. In this case, admittedly, the appellant (Vice-President) did not participate in the meetings for three consecutive months from April, 2005 onwards, which resulted in his disqualification under Section 38(j) of the Act. In our considered view, the word” absence “ employed in sub-section (3) of Section 188 also covers where the president or Vice-President, as the case may be, fails to attend the meetings of the panchayat for three consecutive months, it would amount to the ‘”absence’ ‘of the president or Vice-President, as the case may be in terms of Section 188 of the Act. In that view of the matter, the resolution or the panchayat dated 12.9.2005 authorizing one P.Selvi, another member of the panchayat to be a co-signatory along with the president to sign the cheques cannot be termed to be in violation of the provisions of the Act, more particularly, sub-section (3) of Section 188. Here again, the Inspector of Panchayat had proceeded only on the basis that the right of the Vice-President to be a co-signatory is conferred under sub-section (2) of Section 188 and it cannot be taken away. Here again, the Inspector of Panchayat had proceeded only on the basis that the right of the Vice-President to be a co-signatory is conferred under sub-section (2) of Section 188 and it cannot be taken away. In our opinion, though the president or Vice-President, as the case may be, has got a right under sub-sections (2) and (3) of Section 188 to be the co-signatory, such power is subject to his availability to sign the cheques, and in the event the president or the vice president is absent for signing the cheque, another member authorized by the village panchayat at a meeting in this behalf can be a co-signatory. The power under subsection (2) of Section 188 cannot be read in isolation, as it has to be read along with subsection (3) of that section. Hence we are of the considered view that the Inspector of Panchayat has not applied his mind before passing the order of cancelling the resolutions of the panchayat. 11. For all the above reasons, we do not find a case is made out to interfere with the order of the learned single Judge. Accordingly, the writ appeals fail and the same are dismissed. No costs. Consequently, W.A.M.P. Nos. 1312 and 1313 of 2006 are also dismissed.