IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07-3-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.21822 and 34886 of 2007 ..... K. Muniyandi ... Petitioner in both the WPs. vs. 1.The State of Tamil Nadu rep. By its Secretary Municipal Administration of Water Supply Department Fort St.George, Chennai 9. 2.The Regional Director of Municipal Administration Madurai 2. ... Respondents in both the WPs. 3.S.Planisamy .. R.3 in WP.34886/07 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Declaration and Mandamus as stated therein. For petitioner : Mr. L.Chandrakumar in both WPs. For respondents: Mr. S.Ramasamy in both WPs. Addl.Advocate General II assisted by Mr.L.S.M.Hasan Fizal Government Advocate for R.1& R.2 Mr.I.Paranthaman Addl.Govt. Pleader for R.3 .. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER In W.P.No.34886 of 2007, the writ petitioner has come forward to this Court for direction against the first respondent Government to declare the continuance of the third respondent as Chairman of Theni Allinagaram Municipality as illegal and irregular pursuant to the Ordinance No.5/07 issued by the Government of Tamil Nadu in the Gazette notification dated 4.10.2007 and consequently, to reinduct the petitioner as Chairman of Allinagaram Municipality, on the basis that "No Confidence Motion" moved against the petitioner stands abated. 2. The petitioner was elected as Councillor and subsequently, as Chairman of Theni Allinagaram Municipality in October, 2006. According to him, he has carried out many public services in the public interest in an impartial manner which resulted in other elected council members having a grudge against the petitioner. The second respondent has issued a show-cause notice dated 16.05.2007, stating that on 6.6.2007 at 10.00 am "no confidence motion" would be moved against the petitioner as Chairman. After "no confidence motion" was moved on the said date, the Government passed G.O.(D) 267, Municipal Administration and Water Supply (MA5) Department dated 15.6.2007 directing the removal of the petitioner as Chairman. Challenging the said Government Order dated 15.6.2007, the petitioner has filed W.P.No.21822 of 207 for declaration that section 40-A of the Tamil Nadu District Municipalities Act, 1920 (in short,"the Act") and the order of the first respondent in G.O.(D) No.267, Municipal Administration and Water Supply (MA5) Department dated 15.6.2007 are ultra vires. 3. In the meantime, to fill up the vacancy caused due to the removal of the petitioner, steps have been taken to conduct election and that was challenged in W.P.(MD) No.2160 of 2007, which is pending on the file of Madurai Bench of this Court. Taking note of the fact that in large number of Municipalities and Town Panchayats, "no confidence motions" are freely passed, the Government passed Ordinance No.5/07 dated 4.10.2007, amending section 40-A of the Tamil Nadu District Municipalities Act, 1920, by which, all "no confidence motions" under section 40-A pending before any authority stand abated. According to the petitioner, the said provision of the Ordinance applies to the petitioner since, according to him, the resolution removing him has not been given effect to in letter and spirit and therefore, the writ petition, viz., W.P.No.34886 of 2007 has been filed for the relief as stated above on various grounds including that the continuance of the third respondent as Chairman after the promulgation of Ordinance No.5/2007 is illegal on the basis that the "no confidence motion" against the petitioner stands abated by virtue of the Ordinance. According to the petitioner, in the strict sense of the Ordinance, the third respondent should have been removed and the petitioner should have been reinducted as Chairman as "no confidence motion" passed https://hcservices.ecourts.gov.in/hcservices/ against the petitioner stands abated. 4. The Commissioner of Theni Allinagaram Municipality has filed a counter affidavit on behalf of the second respondent. According to the second respondent, the majority of the Councillors signed and two Councillors presented the petition of their intention to move "no confidence motion" against the petitioner and after receiving the petition the second respondent has convened the meeting on 6.6.2007 at 10.00 am. by intimating the same to all Councillors on 16.5.2007 as per section 40A(3) of the District Municipalities Act. The second respondent states that challenging the intimation dated 16.5.2007, the petitioner has filed W.P.No.5000 of 2007 and M.P.No.1 of 2007 before the Madurai Bench of this Court and that was dismissed on 5.6.2007. After the report of the second respondent regarding passing of "no confidence motion" by more than 3/5 majority of the sanctioned strength of the Council, the State Government has issued G.O.(D) No.267 dated 15.6.2007 by virtue of powers under section 40A(12) of the District Municipalities Act. Therefore, there is no illegality or irregularity in the Government Order passed by the Government. The second respondent states that the dismissal of writ petition in W.P.No.5000 of 2007 has been suppressed by the petitioner. 4(a). It is the further case of the second respondent that after the motion was put to vote, 21 Councillors have supported the "no confidence motion" and two Councillors kept quiet as neutral and ten Councillors including the petitioner opposed the motion. It is also the case of the second respondent that after the lawful removal of the petitioner from the post of Chairman, the vacancy was notified and the State Election Commission, Chennai has conducted election for the post of Chairman on 17.7.2007, in which the third respondent Mr.S.Palanisamy has been duly elected, who secured 18 votes out of 33 votes. It is also stated by the second respondent that the petitioner also contested in the said election and secured only 8 votes. 5. In the writ petition filed by the petitioner challenging section 40-A of the Act, it is the contention of the petitioner that section 40-A does not prescribe any opportunity of being heard and therefore, it is against the principles of natural justice. He also states that in the present case, the written notice of intention has not been signed by the prescribed number of persons. It is also the case of the petitioner that under the impugned order the second respondent has failed to hold secret ballot and the decision was taken by raising of hands, which according to the petitioner is illegal. Further, the written notice of intention must be in such a form which is prescribed by the State Government and inasmuch as the notice has not been issued in such form, it is not valid. Even the show-cause notice issued is predetermined. According to the petitioner, no opportunity was given for debate and discussion before putting the intention to vote. https://hcservices.ecourts.gov.in/hcservices/ 6. Mr.L.Chandrakumar, learned counsel appearing for the petitioner would submit that at the first instance, section 40-A of the Act is violative of the principles of natural justice in the sense that it does not provide for opportunity to the affected person to express his views. Further, according to him, even the Government has not prescribed the form by which the motion has to be moved and in the absence of such prescribed form, the entire proceedings should be null and void. He would also submit that by virtue of Ordinance No.5/07 which has come into effect from 4.10.2007, all pending resolutions are deemed to be abated and therefore, inasmuch as the resolution by which the petitioner was sought to be removed has not been given effect to by virtue of the new amendment, the resolution is deemed to be invalid and consequently, the petitioner is entitled to reinstatement as Chairman and the third respondent has to be removed. 7. Mr.S.Ramasamy, learned Additional Advocate General appearing on behalf of the respondents, would submit that there is absolutely no merit in the case, inasmuch as section 40-A of the Act has provided the entire procedure in letter and spirit with checks and balances. He would also submit that the petitioner has, in fact, filed the writ petition challenging the intimation for convening the meeting of "no confidence motion" issued by the second respondent dated 16.5.207 and the same was dismissed by the Madurai Bench of Madras High Court and on this score, the present writ petitions are liable to be dismissed. According to him, the procedure contemplated under section 40-A of the Act has been completely followed and ultimately under section 40-A(12) when the Government issued notification removing the petitioner, it has come into effect and only thereafter, the Government has issued Ordinance No.5/07 which has come into effect from 4.10.2007 whereas the petitioner was removed from the post on 15.6.2007 and therefore, it can never be presumed to be a pending proceeding. His further submission is that the petitioner has taken contrary stand in his writ petitions. 8. Heard the learned counsel for the petitioner and respondents and perused the records. 9. Even though the petitioner has chosen to challenge the provisions of section 40-A of the Tamil Nadu District Municipalities Act, 1920, in effect, the petitioner's challenge appears to be against the Government Order in G.O.(D) 267, Municipal Administration and Water Supply (MA5) Department dated 15.6.2007, under which the Government, by virtue of the powers conferred under section 40-A(12) of the Act, has issued notification removing the petitioner from the post of Chairman. 10. In any event, since the petitioner has chosen to raise the contention that section 40-A which provides for "no confidence motion" against Chairman and Vice Chairman is ultra vires in the sense that it does not give any opportunity to the affected party to put forth his case in the Council, it is necessary to consider section 40-A of the https://hcservices.ecourts.gov.in/hcservices/ Act, which reads as follows: "Section 40-A. Motion of no-confidence in Chairman or vice- chairman.- (1) Subject to the provisions of this section, a motion expressing want of confidence in the chairman or vice-chairman may be made in accordance with the procedure laid down herein. (2) Written notice of intention to make the motion, in such form as may be fixed by the State Government, signed by such number of councillors shall constitute not less than one-half of the sanctioned strength of the council, together with a copy of the motion which is proposed to be made, shall be delivered by any two of the councillor, signing the notice in person together, to the Regional Director of Municipal Administration. (3) The Regional Director of Municipal Administration shall then convene a meeting for the considerations of the motion, to be held at the municipal office, at a time appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him. He shall give to the councillors notice of not less than fifteen clear days of such meeting and of the time appointed therefor. (4) The Regional Director of Municipal Administration shall preside at the meeting convened under this section, and no other person shall preside there at. If within half an hour after the time appointed for the meeting Regional Director of Municipal Administration is not present to preside at the meeting, the meeting shall stand adjourned by a time to be appointed and notified to the councillors by the Regional Director of Municipal Administration under sub-section (5). (5) If the Regional Director of Municipal Administration is unable to preside at the meeting, he may, after recording his reasons in writing, adjourn the meeting to such other time as he may appoint. The date so appointed shall not be later than thirty days from the date appointed for the meeting under sub- section (3). Notice of not less than seven clear days shall be given to the councillors of the time appointed for the adjourned meeting. (6) Save as provided in sub-sections (4) and (5) a meeting convened for the purpose of considering a motion under the section, shall not for any reason be adjourned. (7) As soon as the meeting convened under this section has commenced, the Regional Director of Municipal Administration shall read to the council the motion for the consideration of which it has been convened, and declare it to be open for debates. (8) No debate on any motion under this section shall be adjourned. (9) Such debate shall automatically terminate on the expiry of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. Upon the conclusion of https://hcservices.ecourts.gov.in/hcservices/ the debate or upon the expiry of the said period of two hours, as the case may be, the motion shall be put to the vote of the council. (10) The Regional Director of Municipal Administration shall not speak on the merits of the motion, nor shall he be entitled to vote thereon. (11) A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon shall forthwith on the termination of the meeting be forwarded by the Regional Director of Municipal Administration to the State Government. (12) If the motion is carried with the support of not less than three-fifths of the sanctioned strength of the council, the State Government shall, by notification, remove the chairman or vice-chairman. (13) If the motion is not carried by such a majority as aforesaid, or if the meeting cannot be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the same chairman or vice-chairman shall be received until after the expiry of six months from the date of the meeting. (14) No notice of a motion under this section shall be received within six months of the assumption of office by a chairman or vice-chairman." 11. It is seen from section 40-A of the Act that the procedure for moving "no confidence motion" against Chairman and Vice Chairman is stated in the following manner: (i)A written notice of intention in the form fixed by the Government and signed by not less than one half of the sanctioned strength of the council along with a copy of the motion proposed to be made shall be delivered in person by minimum two councillors signing the notice, to the Regional Director of Municipal Administration. (ii)Thereafter, the Regional Director of Municipal Administration shall convene a meeting fixing the time which shall not be later than 30 days from the date on which the notice under section 40A(2) was delivered to him. However, he has to give 15 days clear notice before the meeting. (iii)Only the Regional Director of Municipal Administration shall preside over the meeting and within half an hour if he fails to attend the meeting, the meeting shall stand adjourned to another date as notified by the Regional Director of Municipal Administration. If the Regional Director of Municipal Administration is unable to preside over the meeting, the reason for the same has to be recorded and the meeting can be adjourned. Except these two instances, the meeting shall not be adjourned for any other reason. (iv)In the meeting, the Regional Director of Municipal Administration shall read to the Council the motion for consideration and declare it to be open for debate. Under sub-section (8), it is made clear that the debate on motion shall not be adjourned. Two hours time is given for debate and within this time, the motion must be put to vote of the https://hcservices.ecourts.gov.in/hcservices/ council. (v)The Regional Director of Municipal Administration shall not speak on merits of motion and he shall not vote. (vi)After the meeting is over, the minutes of the meeting along with a copy of the motion and the result of the voting must be forwarded by the Regional Director of Municipal Administration to the State Government. (vii)If the motion is carried with the support of not less than 3/5th of the sanctioned strength, the State Government shall notify the removal of the Chairman or Vice Chairman. (viii)If the motion is not carried by the majority as required and for want of quorum, no subsequent meeting can be convened for removal of the Chairman again for a period of six months. Therefore, a reading of the entire provision makes it clear that it gives sufficient opportunity to the members to deliberate on the notice which includes the right of the person sought to be removed to speak. The contention that by fixing the time limit of two hours for debate on the motion, the right of the Chairman who is sought to be removed is taken away cannot be accepted and on that score, the provision cannot be held to be ultra vires. 12. As far as the voting is concerned, no prescribed method of voting is found in the Act. In view of the same, it is open to the Regional Director of Municipal Administration to decide the way of voting, that is, whether the raising of hands would alone be sufficient, to decide the question that the required strength for the purpose of carrying out the motion viz., 3/5th of the sanctioned strength of the council have voted in favour of the motion for the removal of the Chairman or Vice Chairman. Therefore, in my view, there is absolutely no substance in the writ petition filed by the petitioner against the provisions of the Act. 13. Coming to the resolution passed against the petitioner, it is clear that the second respondent has convened the meeting on 6.6.2007 by giving a notice on 16.5.2007, thereby giving a clear 15 days notice. A reference to the impugned Government Order makes it clear that out of 33 Councillors present including the petitioner, 21 have voted in favour of the motion and 10 Councillors including the petitioner voted against the motion and two Councillors remained neutral. In such circumstances, 21 Councillors who have voted for the motion have certainly represented 3/5th of the sanctioned strength. It is also clear that once the Government is satisfied with the conduct of the meeting and the result of the meeting is notified, the removal comes into operation as per section 40-A(12) of the Act. In the present case, the Government has issued notification on 15.6.2007. It is also pertinent to point out that even the notice issued by the second respondent dated 16.5.2007 itself was questioned in W.P.No.5000 of 2007 which came to be dismissed on 5.6.2007. In fact, subsequent to the removal of the petitioner from the post of Chairman, the election to the post of Chairman was notified https://hcservices.ecourts.gov.in/hcservices/ by the State Election Commission, Chennai on 2.7.2007 and ultimately, the election was held and the third respondent, S.Palanisamy was elected, who got 18 votes in his favour out of 33, the required number of votes for election being half of the sanctioned strength. 14. It is true that the Government has issued an Ordinance, viz., the Tamil Nadu Municipal Laws (Amendment) Ordinance, 2007 which has come into force on 4.10.2007 under which section 9 states as follows: " 9. Any motion expressing want of confidence in the chairman or vice-chairman made under section 40-A and pending before any officer, authority or the Government, as the case may be, as provided in section 40-A, immediately before the commencement of this Ordinance, shall abate." 15. The Ordinance has come into effect on 4.10.2007. The question to be decided is, whether the resolution passed by the Municipality in removing the petitioner in the meeting of the Council held on 6.6.2007 and subsequently notified by the Government on 15.6.2007 can be treated to be 'pending before any officer, authority or the Government'? 16. On the face of record, there is no difficulty to come to the conclusion that inasmuch as the resolution passed by the Council in removing the petitioner from the post of Chairman has been notified legally by the Government on 15.6.2007, nothing remains to be pending thereafter and everything has come to a conclusion. In view of the same, the contention of the learned counsel for the petitioner that as per the Ordinance in letter and spirit, the resolution is deemed to be pending has no locus to stand at all. In view of the same, the writ petitions fail and the same are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1.The Secretary State of Tamil Nadu Municipal Administration of Water Supply Department Fort St.George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Regional Director of Municipal Administration Madurai 2. 3.S.Palanisamy S/o.Subban 63 Karunanidhi st., Samadharmapuram, Theni. 1 cc to Mr.I. Paranthaman, Addl. Govt. Pleader, SR.No.12827 1 cc to L. Chandrakumar SR.No.12952 1 cc to L. Chandrakumar SR.No.12953 SJI (CO) MMP 14.3.08 W.P.Nos.21822 & 34886 of 2007 https://hcservices.ecourts.gov.in/hcservices/