IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.29535 of 2010 and M.P.No.1 of 2010 D.Chandrasekar .. Petitioner Vs. 1.The District Collector, Thiruvallur District, Thiruvallur. 2.The Revenue Divisional Officer, Ponneri, Thiruvallur District. 3.Budhur A.Venugopal Ward Member, Budhur Village, Sholavaram Via, Thiruvallur District. (R-3 impleaded as per order order dt.01.04.2011 in M.P.No.1 of 2011) .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the proceedings in Na.Ka.6105/2010 A1 dated 3.12.2010 on the file of the second respondent herein and to quash the same. For Petitioner : Mr.P.Raja for M/s.R.C.Paul Kanagaraj For Respondents : Mr.R.Ravichandran, AGP for M/s.M.C.Swamy, SGP Mr.M.Muthappan for R-3 ORDER The writ petition is filed by the petitioner who is a vice Chairman of Sholavaram Panchayat Union, challenging the proceedings, dated 03.12.2010 passed by the second respondent, i.e., Revenue Divisional Officer, Ponneri and seeks to set aside the same. By the impugned proceedings, the second respondent https://hcservices.ecourts.gov.in/hcservices/ informed the petitioner that the members of the Sholavaram Panchayat Union have given a "No Confidence Motion" under Sections 208 and 212 of the Tamil Nadu Panchayat Act, 1994 and therefore, in order to consider the said No Confidence Motion and for voting on the motion, a meeting was being convened on 24.12.2010 at 11.00 a.m. at the Panchayat Union office under the chairmanship of the second respondent. 2.In the writ petition, the petitioner was directed to take private notice to the respondents and pending notice, an interim stay was granted. Subsequently, the interim stay was extended from time to time. In the meanwhile, the person who gave the original complaint and was the 14th Ward member got himself impleaded by an order dated 1.4.2011. He had also filed an application to vacate the interim order and that application is yet to be numbered. 3.The case of the petitioner was that he was the Vice Chairman of the panchayat union for the past four years. The second respondent had issued a notice to the petitioner on 3.8.2010 said to have signed by 16 members of the panchayat union Council seeking to bring a No Confidence Motion against him. The second respondent on receipt of the same had asked for an explanation from the petitioner. The petitioner also gave his explanation on 17.9.2010. 4.In the meanwhile, a similar set of complaint was also given against the Chairman of the said Panchayat Union and the same was challenged before this court in W.P.No.22179 of 2010. This Court by an order, dated 6.10.2010 found that inasmuch as a copy of the motion for no confidence was not furnished and only the notice convening a meeting alone was furnished, it would infringe the provisions of the Act. Therefore the said notice was set aside. The respondents were given liberty to proceed afresh. The petitioner contended that similar lacunae was found in the present impugned notice. He was never given a copy of the complaint, dated 18.10.2010 to offer his explanation. He also submitted that the proceedings initiated by the second respondent on the basis of the complaints, dated 3.8.2010, 5.8.2010, 26.8.2010 and 18.10.2010 were all illegal, opposed to principle of natural justice and contrary to Section 212 of the Tamil Nadu Panchayat Act. 5.The first and second respondents have not filed any counter affidavit. But, the third respondent in his counter affidavit has stated that the no confidence motion letter, dated 5.8.2010 was submitted by him and the other members. The petitioner was evading service of notice. The petitioner being the Vice Chairman was elected only by the Ward members and that majority of ward members were against the style of functioning of the petitioner. There is no case made out for interference with the impugned notice. The petitioner can very well be advised to participate in the said meeting to know the views of the members. 6.Mr.P.Raja, learned counsel appearing for Mr.R.C.Paul https://hcservices.ecourts.gov.in/hcservices/ Kanagaraj, counsel for the petitioner submitted that the Tamil Nadu Panchayat Act was amended by the Tamil Nadu Act 10/2008 and that Section 212 of the Act had undergone a change. By the amendment, no motion can be received during last year of the term of office of either the Chairman or the Vice Chairman. By the earlier amendment, it was prohibited that no motion can be received within one year from the assumption of office. Therefore, as the law stands today, no motion can be received either within one year of assumption of office or during the last year of the term of office of the Chairman or Vice Chairman. 7.The learned counsel for the third respondent as well as the learned Additional Government Pleader submitted that that word "received" found in the amendment to mean on motion being received by the authority competent to convene a meeting. At present the petitioner is in the last year of his office and by October, 2011, his period itself will come to an end. Inasmuch as the motion was given before October, 2010, there was no impediment for the second respondent to receive the motion and for the council to consider it. The amendment to Section 212 will not apply to the case on hand. 8.This court is unable to agree with the same. While Section 212(2) talks about the members of the panchayat union council delivering in person a written notice of intention to make a motion to the authority concerned, nowhere it talks about the competent authority receiving the motion. In fact, what was delivered to the authority was a written notice of intention to make a motion. Thereafter the said motion along with the statement of charges will be given to the Vice Chairman. The Revenue Divisional Officer is empowered to convene the meeting and to give notice to the members about the convening of the meeting and he also presides over the meeting. 9.The amendment that was introduced by the Act 31/1999 as well as Act 10/2008 is found under Section 212(15). The said section is placed after the procedure for discussing the motion by the council and voting on it thereafter. Therefore, the term "no confidence" shall be received under the section means that it is to be received by the council which has to consider the motion. It did not refer to the officer who receives a written notice of intention to make the motion. Otherwise, the amendment introduced under Section 212(15) will become meaningless. The idea behind the said provision was that there must be harmony at least during the starting year as well as concluding year of the term of office. If the idea was that either during inaugural year or the concluding year they should not to be disturbed, then no motion can be allowed to be passed during the said period. Any other construction will result in the Revenue Divisional Officer receiving the motion just one day prior to the start of the last year of the term of office and he can conduct proceedings during the last year and thereafter remove the Chairman or Vice Chairman as the case may be contrary to https://hcservices.ecourts.gov.in/hcservices/ the letter and spirit of the Amending Act, 10/2008. 10.It must be noted that the provision for no confidence motion is a creature of the legislature and the said provision will have to be strictly construed. The Supreme Court vide its judgment in Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd., reported in (1987) 1 SCC 424 in paragraph 33 gave guidelines for interpreting a particular provision found in the statute. It is useful to refer to paragraph 33 of the said judgment, which reads as follows: 33.Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression “Prize Chit” in Srinivasa1 and we find no reason to depart from the Court’s construction. 11.Further the Supreme Court in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama reported in (1990) 1 SCC 277, in paragraph 16 made a similar observation, which reads as follows: "16.The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. “Words are certainly not crystals, transparent and unchanged” as Mr Justice Holmes has wisely and properly warned. (Towne v. Eisner5) Learned Hand, J., https://hcservices.ecourts.gov.in/hcservices/ was equally emphatic when he said: “Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.” (Lenigh Valley Coal Co. v. Yensavage6) (218 FR 547, 553)." 12.A division bench of the Punjab and Haryana High Court vide its judgment in Nirbhai Singh Vs. State of Punjab and others in Civil Writ Petition No.7392 of 2011, dated 12.5.2011 dealt with a similar amendment made to the Punjab Panchayati Raj Act, 1994. The Punjab Panchayati Raj Act came to be amended by an Amending Act, 2011, whereby the legislature had deleted Section 19 from that Act with effect from 1.7.2010. It was because due to the village factionalism, the Panches want to remove their Sarpanch to whom they have elected two years earlier and such provision engaged groupism in the village which was not considered good for the development of the village. The division bench upheld the amendment. In paragraph 12, the division bench had observed as follows: "12.It is clear that under the scheme of the Constitution, panchayats are required to be constituted and its members are to be directly elected. The election of Chair person is left by the Constitution to the State legislature. A provision for No Confidence Motion has been held to be valid and within the legislative competence. There is, however, no provision in the Constitution compelling the State Legislature to incorporate a provision for No Confidence Motion. A legislation can be struck down by the Court only if the same is violative of any constitutional provision either on account of lack of legislative competence under Articles 245 or on account of violation of fundamental rights or otherwise. No doubt, the scope of Article 14 has been expanded to cover any arbitrary action – administrative or legislative, there is a presumption of validity of a legislation and also that the legislature correctly understands the needs of the people. If a choice of policy is available, the legislature may make such choice in absence of compulsion of incorporating a provision. Mere fact that a provision for No Confidence Motion may be valid, does not imply that absence of such a provision or deletion of an existent provision for No Confidence Motion would be beyond the legislative competence. Right of removing a Sarpanch by passing a No Confidence Motion cannot be recognised as fundamental right under Article 14 in view of Mohan Lal. Therein, it has been expressly held that right to remove an elected representative must stem out of a statute. Its existence or validity can be decided on the provisions of Act and not as a matter of policy. This being the position, to hold that No https://hcservices.ecourts.gov.in/hcservices/ Confidence Motion provision cannot be deleted will be against the principles laid down in Mohan Lal. As regards observations in Bhanumati, the same are in the context of upholding a provision for No Confidence Motion. A judgment is an authority for the proposition it lays down and not what may logically appear to flow therefrom. Moreover, the said judgment cannot be held to have reversed the view taken in Mohan Lal holding that right of No Confidence Motion flows from a statute. Even if we find merit in the contention that No Confidence Motion is desirable, it may not be possible to give a direction for incorporation of such a provision or set aside deletion thereof by a legislation. Accordingly, we are unable to hold that the impugned Act to the extent it deletes the provision for No Confidence Motion, unconstitutional." 13.At the same time, the court held that retrospectivity given to the said amendment was unconstitutional and such amendment cannot nullify the earlier lawfully passed motion. In paragraphs 18 and 19, the division bench had observed as follows: 18.Applying the above principles to the present case, we are of the view that Section 1(2) of the Act to bring into force the Amendment Act from 1.7.2010 is arbitrary. The effect of the amendment would be to nullify a lawfully passed No Confidence Motion and to remove a lawfully elected Sarpanch if in his place any other arrangement may have been put in place and operated for a period of more than six months. Only reason put forward to justify retrospectively is the smooth functioning of the panchayats. The said reason cannot be held to be valid as a Sarpanch who had lost confidence of 2/3rd members and was removed and substituted by another arrangement in his place cannot be held entitled to be put back in the name of smooth functioning. Putting him back will infact obstruct the functioning. There is nothing to show on what basis it can be held that putting back Sarpanch who had lost confidence of motion of 2/3rd members will be a smooth functioning. Moreover, in Bhanumati, a similar contention was considered and rejected in para 52 of the judgment. Retrospectively ignores the march of events which have gone by and arbitrarily affects rights which have been crystalised. 19.Accordingly, we partly allow this petition and declare Section 1 (2) of the impugned Act to be ultravires the Constitution. It is made clear that since the issue which has been dealt with may affect other similarly situated persons, this order will apply to all such cases. https://hcservices.ecourts.gov.in/hcservices/ 14.The said judgment was taken on appeal by the State of Punjab before the Supreme Court in Special Leave to Appeal (Civil) No.15385 of 2011. But, however the Supreme Court had dismissed the appeal in State of Punjab and others Vs. Nirbhai Singh by a speaking order dated 27.05.2011, which reads as follows: This petition is directed against the order dated 12.5.2011 passed by the Division Bench of the Punjab & Haryana High Court whereby the writ petition filed by the petitioner questioning the constitutional validity of the Punjab Panchayat Raj (Amendment) Act, 2011 was partly allowed and Section 1(2) of the Amendment Act was declared unconstitutional. After arguing the case at some length and realising that the Court is not inclined to upset the striking down of the retrospective applicability of the Amendment Act, learned Additional Advocate General made a request that the petitioner may be permitted to withdraw the special leave petition. The request of the learned counsel is accepted and the special leave petition is dismissed as withdrawn subject to the condition that the petitioner shall not be entitled to file fresh petition questioning the correctness of the order passed by the High Court." 15.Thus, the law relating to the no confidence motion is very clear. The legal position can be summarised as follows: (a)The State legislature has power to bring a law providing for no confidence motion to be brought against the office bearers of a Panchayat. (b)The power to bring such a provision under the Panchayat Raj Act will also include power to curtail the period within which such motions can be brought in. (c)An Amending Act cannot nullify an earlier no confidence motion validly passed by giving retrospective effect to the provision. 16.In the present case, if it is seen in the above angle, admittedly the motion was yet to be considered by the Council. However, the petitioner is in the last year of his tenure. The term 'received' during the last year means received for consideration by the village panchayat or panchayat union council and not the notice intending to move the motion being received by the Revenue Divisional Officer. Therefore, by virtue of the Tamil Nadu Act 10/2008, the motion that is sought to be considered in the meeting convened by the impugned notice is not valid in the eye of law. 17.In order to remove any doubt, Section 4 of the Tamil Nadu Panchayats (Amendment) Act, 2008 (Tamil Nadu Act 10/2008) also introduced Section 4, which reads as follows: "4.Abatement of no confidence motion.-Any motion expressing want of confidence in the Vice-President https://hcservices.ecourts.gov.in/hcservices/ of a Village Panchayat, Chairman or Vice-Chairman of a Panchayat Union Council or Chairman or Vice- Chairman of a District Panchayat, made under the principal Act and pending before any officer, authority or the Government, as the case may be, immediately before the commencement of this Act, shall abate." 18.As can be seen, Section 4 of the Amended Act consists of two portions. First portion is a motion expressing want of confidence made under the principal Act and that the second portion is the motion pending before any officer, authority or the Government. In both circumstances, the Act makes such a motion getting abated. In the present case, the first portion of Section 4 is not under challenge either by the petitioner or by any other persons. Therefore, applying the ratio of the Nirbhai Singh's case (cited supra) did not arise. As of now, the motion is only pending consideration and not concluded. Inasmuch as the petitioner is in the last year of the term of his office and Section 211(15) prohibits receipt of any motion during last year of the term of his office and also the second part of Section 4 makes such motion to abate, the impugned notice cannot stand the scrutiny of law. 19.In the light of the above, the impugned order stands set aside. The writ petition will stand allowed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vvk To 1.The District Collector, Thiruvallur District, Thiruvallur. 2.The Revenue Divisional Officer, Ponneri, Thiruvallur District. +1 CC to Mr.M. Muthappan, Advocate, Sr.35026 +1 CC to Government Pleader Sr.35438 W.P.NO.29535 of 2010 SJ (CO) BMD https://hcservices.ecourts.gov.in/hcservices/