Manivannan v. The Government of Tamil Nadu, Represented by its Secretary, Department of Local Administration & Rural Development
2009-09-10
T.S.SIVAGNANAM
body2009
DigiLaw.ai
Judgment :- By consent, the writ petition is taken up for final disposal. 2. The above writ petition has been filed to quash the proceedings of the second respondent dated 03.01.2009 and the notification issued in the Government Gazette dated 11.02.2009 and direct the respondents to allow the petitioner to function as the President of Kulasekarapatty Village Panchayat. 3. The present issue has had a chequered history before this Court and the present writ petition is the one of several series of the writ petitions filed by the petitioner to protect his elected office. The matter arises under the Tamil Nadu Panchayats Act, 1994 (hereinafter referred to as the Act) and the impugned proceedings dated 03.01.2009 and the consequential Gazette notification is an order passed invoking the provisions of Section 205 (2) of the Act. The pleadings and the documents filed in support of the pleadings in the writ petition are voluminous. But however, for the purpose of disposal of the writ petition, it may be unnecessary to recapitulate all the earlier details as regards the action taken by the respondent authorities, the various petitions filed by the petitioner and the orders passed by this Court in the said writ petitions. 4. Mr.Issac Mohanlal, learned counsel for the petitioner would submit that though the case has had a chequered history his client being a person who is democratically elected President is entitled to safeguard his office as he has been elected by the mandate of the local public and such mandate is supreme and their choice of selecting their representative through a democratically held election should be honoured and protected. (See: 2006 (4) MLJ 312 [Seeniammal Vs. State of Tamil Nadu, rep.by Secretary to Government, Rural Development Department, Chennai and others) & 2001(6) SCC 260 (Tarlochan Dev Sharma Vs. State of Punjab and others) 5. The sole ground on which the impugned order is being is attacked by stating that this Court in an earlier order dated 05.09.2008 in W.P.No.4979 of 2008 had directed the second respondent to send his proposal under Section 205(2) of the Act to the Tahsildar, Tenkasi to ascertain the views of the Panchayat and this direction has not been complied with and therefore, the entire proceedings are vitiated for non adherence of the mandatory provisions of Section 205(2) (3) and (8) of the Act.
At this stage, it is useful to look into Section 205 (2) (3) and (8) which reads as follows: "(2)If the explanation is received within the specified date and the Inspector considers that the explanation is satisfactory, he may drop further action with respect to the notice. If no explanation is received within the specified date or if the explanation received is in his opinion not satisfactory, he shall forward to the Tahsildar of the taluk a copy of the notice referred to in sub-section (1) and the explanation of the President if received within the specified date with a proposal for the removal of the president for ascertaining the views of the village panchayat. (3) The Tahsildar shall then convene a meeting for the consideration of the notice and the explanation, if any and the proposal for the removal of the president, at the office of the village panchayat at a time appointed by the Tahsildar. (8) As soon as the meeting convened under this section is commenced, the Tahsildar, shall read to the village panchayat the notice of the Inspector and the explanation if any, of the president [and the proposal for the removal of the president], for the consideration of which it has been convened". 6. The contention being that sub-Section (2) of Section 205 of the Act contemplates for a proposal to be made by the second respondent for the purpose of removal of the President for ascertaining the views of the Village Panchayat. It is thereafter, in terms of sub-Section 3 of Section 205 of the Act, the Tahsildar has to convene a meeting for the consideration of the notice issued under Section 205 (1) and explanation submitted by the concerned President and the proposal for the removal of President, at the office of the village panchayat at a time appointed by the Tahsildar. 7. In terms of sub-Section (8), the Tahsildar, shall read to the village panchayat the notice issued by the second respondent and the explanation if any, submitted by the President and the proposal for the removal of the President for consideration for which the meeting has been convened. 8. Therefore, the only issue to be looked into for the purpose of disposal of the present writ petition is as to whether there has been compliance of sub-Sections 2, 3 and 8 of Section 205. 9.
8. Therefore, the only issue to be looked into for the purpose of disposal of the present writ petition is as to whether there has been compliance of sub-Sections 2, 3 and 8 of Section 205. 9. The learned counsel for the petitioner would submit that when a statute prescribes a matter to be done in a particular manner, the same shall be done in the manner so prescribed. In support of the said submission, learned counsel placed reliance on the following decisions of the Supreme Court as well as this Court in 1984 (2) SCC 500 (A.R.Antulay Vs. Ramdas Srinivas Nayak and another), 1996(9) SCC 495 (J.N.Ganatra Vs.Morvi Municipality, Morvi), 2003 (2) SCC 111 (Bhavnagar University Vs. Palitana Sugar Mill(P) Ltd., and others) and 2007(4) MLJ 584 (Vallivalam Desikar Polytechnic Educational Society, rep.by its Chairman, Nagapattinam Vs. District Registrar (Society Registration), Nagapattinam and another. 10. The proposition which emerges out of the above judgments is that if a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all and the State and other authorities while acting under the statute are only creature of statute. They must act within the four corners thereof. 11. Learned counsel for the petitioner would submit that in the instant case, there is no proposal from the second respondent and therefore, the entire proceedings are vitiated. This issue has been specifically raised in the affidavit filed in support of the writ petition in grounds c, d & e. 12. Mr.D.Sasikumar, learned Government Advocate appearing for the respondents would rely upon the counter affidavit and narrate the various proceedings initiated by the petitioner and contend that sufficient opportunity has been given to the petitioner and the petitioner is dragging on the matter and after having misappropriated the funds to the tune of Rs.11,41,796/- without proper vouchers and records if allowed to continue as President of the Village Panchayat, it would not be in the interest of the public. However, in the counter affidavit, in reply to the grounds raised by the petitioner, it has been stated that there is no violation of procedure or violation of direction of this Court at any stage of the proceedings and there is no procedural lapse and each and every step has been taken by observing all the formalities under Section 205 of the Act.
It is to be noted that there is no specific denial for the plea raised by the petitioner that there is no proposal as required under Section 205(2) of the Act. 13. Based on the earlier direction of this Court, learned Government Advocate had produced relevant files. On perusal of the files, learned Government Advocate would state that this Court allowed W.P.No.4979 of 2008 on 05.09.2008 and thereafter from 15.10.2008, the petitioner was allowed to act as a President by proceedings dated 15.10.2008. A direction was issued to the third respondent to convene a meeting and on 23.10.2008 the third respondent sent a notice to all the members fixing the meeting on 07.11.2008. However, on 07.11.2008 the meeting could not be convened and the third respondent sent another notice on the same day fixing the date of meeting on 03.12.2008. According to the respondents, on 03.12.2008, the issue was discussed in the meeting and 11 members attended in the meeting and 7 supported the case of the petitioner and 4 were against. The third respondent has accordingly sent a report on 03.12.2008 and the impugned order came to be passed 03.01.2009 and published in the Tamil Nadu Gazette on 11.02.2009. Thus, it is to be seen that there has been no proposal submitted by the second respondent for the removal of the President for the purpose of ascertaining the views of the Village Panchayat in terms of sub-Section 2 of Section 205 of the Act. In fact, learned Government Advocate also went through the files and would submit that there is no specific order/proposal for such purpose. 14. In view of the said factual situation, it is to be noted that there has been a procedural violation committed by the second respondent while passing the impugned order. The proceedings dated 15.10.2008 is not a proposal but it is only an order issued by the second respondent directing the third respondent to convene a meeting. It is relevant to note that in the list of enclosures along with the order dated 15.10.2008, there are only three documents annexed namely, show cause notice issued to the petitioner under Section 205(1) of the Act, the reply sent by the petitioner and a copy of Section 205 of the Act. 15. Therefore, the contentions raised by the learned counsel for the petitioner merit acceptance.
15. Therefore, the contentions raised by the learned counsel for the petitioner merit acceptance. Learned counsel for the petitioner would also submit that in the counter affidavit at page 7 of the affidavit, it has been stated that the meeting was convened on 03.12.2008 and the whole issue has been "discussed" in the meeting. 16. Learned counsel placing reliance on this statement would submit that the procedure adopted by the third respondent is erroneous since there is a specific bar under sub-Section 8-A of Section 205 of the Act to the effect that there shall be no debate in meeting under Section 205. Further, the third respondent shall not speak on the merits of the notice or explanation nor shall he be entitled to vote on the meeting. All that is required is that the views of the Village Panchayat shall be duly recorded in the minutes of the meeting and a copy of the minutes shall forthwith on the termination of the meeting be forwarded by the Tahsildar to the second respondent in terms of sub-Section 10 of 205 of the Act. However, this issue need not be gone into at this stage since I am satisfied that the impugned order is liable to be set aside on the ground of violation of provisions of Section 205(2) (3) and (8) of the Act, inasmuch as, there is no proposal had been submitted by the second respondent along with his direction to convene the meeting. 17. In view of the above reasons, I hold that the order of the second respondent, removing the petitioner from the Office of the Presidentship of the Kulasekarapatty Village Panchayat are illegal and therefore, the same is set aside. The second respondent is directed to take into consideration the explanation submitted by the petitioner on 02.06.2008 to the show cause notice issued on 25.07.2007 and draw a proposal in accordance with law under Section 205 of the Act and along with such proposal forward the same to the third respondent for the purpose of convening a meeting in terms of sub-Section 3 of Section 205 of the Act and thereafter, proceed in accordance with the statute. The writ petition is allowed. No costs. Consequently, M.P.(MD)No.1 of 2009 is closed.