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2015 DIGILAW 2700 (MAD)

R. Senthil Kumar v. District Collector, (Inspector of Panchayats), Sivagangai District

2015-07-31

R.MAHADEVAN

body2015
ORDER : R. Mahadevan, J. 1. This writ petition has been focussed, to quash the impugned order passed by the first respondent vide Na. Ka. A7/1101/2013, dated 12.02.2015 and direct the first respondent to provide the petitioner the power of maintaining Bank accounts and signing the cheques as second signatory relating to Kanchipatti Village Panchayat, kalaiyarkoil Panchayat Union, Sivagangai District. Brief facts necessary for the disposal of this writ petition, are as follows: 1.1. The case of the petitioner is that he was elected as Vice President of Marakkathur Village Panchayat and the fourth respondent, the President of Kanchipatti Village Panchayat, had committed several irregularities and misappropriated the funds of the Panchayat. Therefore, he made a representation dated 12.07.2014 to the third respondent seeking necessary action against the fourth respondent, followed by reminders. Meanwhile, the first respondent has issued a show cause notice dated 18.11.2014, under Section 203 of the Tamil Nadu Panchayats Act, 1994, (in short 'the Act') as to why action should not be initiated to cancel his cheque signing power, to which, the petitioner also made a representation dated 25.11.2014. Without considering the same, the first respondent has passed the impugned order dated 12.02.2015, cancelling the cheque signing power of the petitioner. Aggrieved by the same, the petitioner is before this Court. 1.2. The fourth respondent filed the counter affidavit resisting the claim of the petitioner and contended that the petitioner had not co-operated with the fourth respondent in the administration of the Panchayat and he refused to sign the cheques and hence, the entire functioning of the Panchayat has been stalled by the petitioner and because of the same, no welfare schemes could be implemented and the fourth respondent made a complaint to the authorities concerned, based on which, the third respondent, vide proceedings dated 17.03.2014, directed the petitioner to sign the cheques. Even thereafter, the petitioner refused to do so. A criminal case is also pending against the petitioner in Cr. No. 325 of 2012 on the file of the Kalayarkoil Police Station. Even thereafter, the petitioner refused to do so. A criminal case is also pending against the petitioner in Cr. No. 325 of 2012 on the file of the Kalayarkoil Police Station. As the petitioner has been evading from discharging his duties, the second respondent directed the third respondent to conduct enquiry on the allegations against the petitioner and thereafter only, the first respondent passed the impugned order, cancelling the cheque signing power of the petitioner and handed over the same to the third respondent until further orders and therefore, prayed for the dismissal of this writ petition. 2. Mr. D. Shanmugarajasethupathi, learned Counsel for the petitioner, made the following submissions: 2.1. The first respondent has no power under Section 203 of the Act to take away the cheque signing power of the petitioner and he cannot initiate disciplinary proceedings under the guise of the said power against the petitioner; 2.2. The power vested upon the first respondent under Section 203 of the Act could only be exercised only in case of emergency; 2.3. The statutory power given to the petitioner cannot be taken away by the first respondent by exercising the emergency powers. 2.4. In the absence of a specific power conferred upon the first respondent to take away the cheque signing power of the petitioner, the impugned order passed by the first respondent is untenable in law. 2.5. Despite the allegations made by the petitioner as against the fourth respondent for misappropriation of the funds of the Panchayat, the first respondent has passed the impugned order, based on the false complaint given by the fourth respondent; 2.6. The power given to the petitioner to sign the cheques is a statutory power conferred on him under sub-section (3) of Section 188 of the Act, which, could not be taken away by the first respondent, in exercise of the emergency powers under Section 203 of the Act. 2.7. In effect, the impugned order passed by the first respondent warrants interference by this Court. 2.8. In support of his submissions, he relied on the decision of this Court in Logeswari v. The District Collector, Tiruchirappalli reported in 2013 (2) CTC 846 . 3. Though the respective learned Government Pleaders took notice for the respondents, no counter affidavit has been filed by the respondents 1 and 2 so far. 4. Mr. 2.8. In support of his submissions, he relied on the decision of this Court in Logeswari v. The District Collector, Tiruchirappalli reported in 2013 (2) CTC 846 . 3. Though the respective learned Government Pleaders took notice for the respondents, no counter affidavit has been filed by the respondents 1 and 2 so far. 4. Mr. T.R. Janarthanan, learned Additional Government Pleader appearing for the respondents 1 and 2 submitted that the petitioner has been duly advised to cooperate with the administration of the Panchayat, but, he continued to refrain from signing the cheques, which, resulted in hindrance to the implementation of the welfare schemes to the Panchayat and on several occasions, the petitioner has been given opportunity to discharge his duties, however, it went in vain. He further submitted that based on the complaints made against the petitioner, the first respondent has initiated appropriate proceedings against him in exercise of the powers conferred on him under Section 203 of the Act and that such power has been exercised by the first respondent, based on the enquiry report of the third respondent and thereafter, the impugned order has been passed, cancelling the cheque signing power, in order to ensure the implementation of the welfare schemes to the Panchayat and otherwise, the interest of the public would be prejudiced by the acts of the petitioner. Hence, he prayed for the dismissal of this writ petition. 5. Mr. R. Velmurugan, learned Government Advocate appearing for the respondents 3 and 4, reiterated the averments in the counter affidavit filed by the third respondent and contended that since the petitioner had caused prejudice to the interest of the welfare of the Panchayat, the first respondent has taken away the cheque signing power from the petitioner, however, the third respondent was given such power to implement the welfare projects in the interest of the Panchayat and if no action is initiated as against the petitioner, then, the interest of the public would be derogated. He, therefore, prayed for the dismissal of the writ petition. 6. I have considered the rival submissions and perused the materials available on record. 7. The core question that involves in the present writ petition, is, as to whether the first respondent could take away the cheque signing power of the petitioner in exercise of the emergency powers conferred under Section 203 of the Act? 8. 6. I have considered the rival submissions and perused the materials available on record. 7. The core question that involves in the present writ petition, is, as to whether the first respondent could take away the cheque signing power of the petitioner in exercise of the emergency powers conferred under Section 203 of the Act? 8. Section 203 of the Act empowers the District Collector to take up emergently the activities of the Panchayats, without obtaining formal orders from the Panchayat or Executive Authority, in case, the District Collector is of the view that the execution of a particular work is imminent or the doing of a particular thing is necessary for the safety of the public and in such circumstances, it is open to the District Collector to take up such works without association of the Panchayat or Executive Authority. 9. A careful reading of the impugned order passed by the first respondent, reveals the following: (i) The fourth respondent made a complaint dated 02.09.2014, to the first respondent, alleging that the petitioner refused to cooperate with the administration of the Panchyat and refrained from signing the cheques. (ii) Based on the same, the first respondent directed the authorities concerned to conduct an enquiry, wherein, the petitioner agreed to co-operate with the administration of the Panchayat and sign the cheques without any delay. (iii) However, the petitioner continued to stay away from the welfare measures of the Panchayat, by not signing the cheques in time and the third respondent found that the petitioner has not signed in more than 20 cheques, which, caused undue delay in carrying out the works. (iv) Therefore, the first respondent issued a show cause notice dated 14.11.2014, calling upon the petitioner to submit his explanation and the petitioner also submitted his explanation, vide his letter dated 25.11.2014. (v) Later, the third respondent also conducted the spot inspection in the Village Panchayat and submitted a report that the entire functioning of the Panchayat has come to a standstill only because of the petitioner. (vi) On consideration of the entire materials available on record, the first respondent has passed the impugned order, cancelling the cheque signing power of the petitioner and thereby, appointing the third respondent to sign the cheques. 10. (vi) On consideration of the entire materials available on record, the first respondent has passed the impugned order, cancelling the cheque signing power of the petitioner and thereby, appointing the third respondent to sign the cheques. 10. At this juncture, this Court has to examine whether the first respondent could pass such an order, in the light of the decision of this Court in Logeswari v. The District Collector, Tiruchirappalli reported in 2013 (2) CTC 846 , wherein this Court had an occasion to deal with an identical issue and held as under: "17. The powers conferred upon the Collector under Section 203 is not intended to act as an authority to take disciplinary proceedings against the President or Vice President. The Government wanted the activities of the Panchayats to be taken up emergently, without obtaining formal orders from the Panchayat or executive authority. In case the Collector is of the view that the execution of a particular work is imminent or the doing of a particular thing is necessary for the safety of the public, it is open to him to take up such works without the association of the panchayat or executive authority. A careful reading of Section 203, in the light of Section 86 of the Act, would make the position very clear that the power is intended to exercise only in emergency. 18. In case emergent action is necessary, and it is not practically possible to obtain the sanction of the village panchayat or the panchayat union council, it is open to the executive authority or the Commissioner to execute such work and to pay the expenses of executing such work out of the village panchayat fund or the panchayat union fund, as the case may be. The emergency power conferred on the executive authority or the Commissioner under Section 86 of the Panchayat Act is also given to the Inspector of Panchayats under Section 203 of the Act. 19. Section 37 of the Tamil Nadu District Municipalities Act and Section 203 of the Tamil Nadu Panchayat Act deals with emergency powers conferred on the District Collector to take emergent action in certain urgent situations. Such powers should be treated only as extraordinary powers. 19. Section 37 of the Tamil Nadu District Municipalities Act and Section 203 of the Tamil Nadu Panchayat Act deals with emergency powers conferred on the District Collector to take emergent action in certain urgent situations. Such powers should be treated only as extraordinary powers. Powers of this nature cannot be exercised in a routine manner to deny the legally elected members of the Panchayat from exercising statutory powers conferred on them by the Tamil Nadu Panchayat Act, 1924 and the related orders issued by the Government. 20. The District Collector cannot act as an extra constitutional authority over democratically elected President and Vice President of the Panchayat. In case the elected President or Vice President indulges in acts of misuse of authority and the cheque signing power should be taken away, it is for the legislature to incorporate appropriate provisions to confer such express powers of suspension on the District Collector. 21. The Collectors are very often exercising this power to take away the cheque signing powers of the President and Vice President. The power to sign cheque is a statutory power conferred on the President and Vice President under Sub-Section (3) of Section 188 of the Act. The President and the Vice President are under the general control of the village panchayat. The statutory power given to the President of the Panchayat or Vice President cannot be taken away by the Inspector of Panchayat, by exercising the emergency powers. Since the cheque signing facility is given by the statute, there should be a specific power conferred upon the Inspector of Panchayats to take away such power. So long as there are no specific provisions to take away the cheque signing power of the President or Vice President, the Collector cannot invoke incidental or emergent powers to divest the elected representatives of their statutory right. 22. The Inspector of Panchayats is given power under Section 205 of the Act to remove the President from office. Similar powers are given under Section 206 of the Act for the purpose of removal of Vice President. Sub-Section (b) of Section 205(1) of the Act gives authority to the Inspector of Panchayats to take action against the President of Panchayat, in case it is made out that the President abused the power vested in him. Similar powers are given under Section 206 of the Act for the purpose of removal of Vice President. Sub-Section (b) of Section 205(1) of the Act gives authority to the Inspector of Panchayats to take action against the President of Panchayat, in case it is made out that the President abused the power vested in him. In case it is made out that the President abused the cheque signing power, and misappropriated the public funds, the same can be a valid reason to initiate action for removal under Section 205 of the Act. 23. The President is an elected representative of the people of the village. The Constitution and the Panchayat Act wanted to give financial powers to the local body and it was only for the said purpose, the legislature has vested the executive authority on the Panchayat. The Legislature has given the cheque signing power to the President and Vice President. The cheques have to 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 another member authorized by the village panchayat. Such a power cannot be taken away by the District Collector lightly by invoking the emergency powers. ********** Declaration of Law: 25. The law is, therefore, clear that the District Collector has no power under Section 203 of the Panchayat Act to take away the cheque signing power of the President and the Vice President. 26. Therefore, I am of the view that the first respondent was not justified in invoking the jurisdiction under Section 203 of the Act to divest the President of her cheque signing power." (emphasis supplied.) 11. A cursory reading of the aforesaid decision of this Court would make it clear that if the first respondent, in his opinion, finds that the execution of a particular work is imminent or the doing of a particular thing is necessary for the safety of the public, it is open to him to take up such works without the association of the panchayat or executive authority. Further, the provisions of Section 203, coupled with Section 86 of the Act, would demonstrate the position very clear that the said power is intended to exercise only in emergency. 12. Further, the provisions of Section 203, coupled with Section 86 of the Act, would demonstrate the position very clear that the said power is intended to exercise only in emergency. 12. Here, the first respondent has taken away the cheque signing power from the petitioner stating that he had acted against the interest of the Panchayat, that resulted in delay of many welfare projects. However, in the above said decision, this Court has categorically held that the District Collector, namely, the Inspector of Panchayats, has no power under Section 203 of the Panchayat Act to take away the cheque signing power of the President and the Vice President. 13. In the case on hand, the first respondent issued a show cause notice dated 14.11.2014 calling for explanation as to the complaint received against the petitioner, who has also submitted his explanation to the same. Thereafter, the first respondent, being not satisfied with the same, passed the impugned order invoking the powers under Section 203 of the Act, which, in the considered opinion of this Court, is untenable in law, for the reason that in the impugned order dated 12.02.2015, the first respondent failed to set out such emergency situations that made him to pass such order and also, in his opinion, if he feels so, he ought to have undertaken such works without the association of the panchayat or executive authority in the interest of the public at large, as held by this Court in the above said decision. Therefore, this Court is of the view that the impugned order dated 12.02.2015, passed by the first respondent is vitiated in law and accordingly, it is liable to be quashed. In fine, this writ petition is allowed and the impugned order passed by the first respondent vide Na.Ka.A7/1101/2013, dated 12.02.2015, is quashed. Consequently, the connected miscellaneous petition is closed. No costs.