IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.29485 of 2010 and M.P.Nos.1 and 2 of 2010 K.Chinnasamy ...Petitioner Vs. 1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai – 600 009. 2.The District Collector/ Inspector of Panchayat, Erode District, Erode. 3.The Commissioner, Chennimalai Panchayat Union, Chennimalai, Erode District. 4.The Tamil Nadu State Election Commission, Vadapalani, Chennai – 600 026. 5.P.Gopalakrishnan ...Respondents Petition filed under Article 226 of the Constitution, praying for the issuance of a Writ of Certiorari, calling for the records of the second respondent in and by his proceeding in Na.Ka.No.1488/2010/A4, dated 04.12.2010, and quash the same. For Petitioner : Mr.V.Bharathidasan For Respondents : Mr.R.Ravichandran, AGP for R1 and R2 Mr.V.Ayyadurai for R5 O R D E R The petitioner is the President of Chennimalai Panchayat Union. He has come forward to challenge an order dated 04.12.2010 issued by the District Collector-cum-Inspector of Panchayat, Erode District. https://hcservices.ecourts.gov.in/hcservices/ 2. In the impugned order, it was observed that one P.Gopalakrishnan, the 5th respondent herein, who was the member of the 12th Ward of Chennimalai Panchayat Union was sought to be disqualified in terms of not attending three consecutive meetings of the Panchayat Union Council and Resolution No.203 dated 20.04.2010 was passed in this regard by the Council. A proposal was sent to the Tamil Nadu State Election Commission by the District Collector on 27.11.2010. Therefore, it was ordered that pending final decision by the Tamil Nadu State Election Commission, the said P.Gopalakrishnan will be considered as a qualified and not a disqualified person. The Commissioner was directed to take note of the case pending before the District Munsif Court, Perundurai in O.P.No.2 of 2010. Challenging the said order, the writ petition came to be filed. 3. When the matter came up on 23.12.2010, this Court ordered private notices to be served on the respondents. Pending the private notice, an interim stay was granted. On notice being served, Mr.V.Ayyadurai, learned counsel appears on behalf of the 5th respondent and Mr.R.Ravichandran, learned Additional Government Pleader appears on behalf of respondents 1 and 2. 4. The facts leading to the case are as follows:- The 5th respondent was an elected member of the 12th Ward and right from the date of election, he frequently absented himself from attending the Panchayat Union Council meeting, despite receipt of notices for the meetings. He had failed to attend the meetings fixed on 28.10.2009, 23.12.2009 and 22.02.2010. By virtue of Section 38(3)(i) of the Tamil Nadu Panchayat Act, 1949 he will cease to hold office because of his absence. A show cause notice dated 07.03.2010 was given to him. The 5th respondent submitted his explanation to the third respondent on 15.03.2010 stating that on 28.10.2009 and 23.12.2009, he was in Chennai in respect of Public Welfare Scheme and on 22.02.2010, he could not attend the meeting due to his ill-health. The Council considered his explanation and passed a Resolution No.203 dated 20.04.2010, confirming his disqualification by a majority and it was also communicated to him. After receipt of the notice, the 5th respondent filed a petition before the District Munsif-cum-Judicial Magistrate, Perundurai being O.P.No.2 of 2010. The said OP is still pending. He also filed a writ petition before this Court being W.P.No.9966 of 2010, challenging the said resolution as well as the communication sent by the Commissioner and obtained an order of interim stay. Subsequently, on the petitioner moving this Court, the said writ petition was dismissed as withdrawn. It is at this juncture, the second respondent District Collector-cum-Inspector of Panchayat passed the impugned order. 5. The second respondent, by the impugned order had informed that since he had sought for information from the State Election Commission and until opinion is obtained, the 5th respondent is entitled to act as if he is qualified and that he was not https://hcservices.ecourts.gov.in/hcservices/ disqualified. In essence, the District Collector himself had referred the matter for the opinion of the State Election Commission. Pending the opinion from the Election Commission, by virtue of the order, a status quo order was given in favour of the 5th respondent. 6. It was contended by the petitioner that Section 41 of the Tamil Nadu Panchayat Act, by which the authority to decide questions of disqualification or cessation of members have been amended by Tamil Nadu Amendment Act 39 of 2008. The amended provision reads as follows:- 41. Authority to decide questions of disqualification or cessation of members.- (1)If any question arises as to whether any person who has been elected as a member of a panchayat or who becomes a member of a panchayat is not qualified or has become disqualified under Section 33 or Section 34 or Section 35 or sub-section (3) of Section 38 or 38-A or cessation under Section 40 the question shall be referred by the Inspector to the Government whose decision shall be final. (2)Before taking any such decision on such question, the Government shall obtain the opinion of the Tamil Nadu State Election Commission and shall act according to such opinion." (Emphasis added) 7. Before the amendment, 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 decision on such allegation shall be final. Pending such reference, the member is entitled to Act as if he is qualified or was not disqualified. 8. But after the amendment, the issue has been taken away from a judicial determination rendered by a Civil Court. The Inspector will have to merely refer the case to the Government whose decision will be final. It was with a further rider that the Government must obtain the opinion of the Election Commissioner and must act according to such opinion. 9. Therefore, it was contended that it was not open to the District Collector to seek for a opinion directly from the Tamil Nadu State Election Commission and he must only forward the matter to the State Government. It is for the State Government to decide in accordance with law and after obtaining the opinion of the State Election Commission. Obviously, the statutory change had not been taken note of by the second respondent when he passed the impugned order. https://hcservices.ecourts.gov.in/hcservices/ 10. In the light of the above, the impugned order is liable to be set aside. Accordingly, it is set aside. The writ petition stands allowed. Notwithstanding the setting aside of the impugned order, it is open to the District Collector-cum-Inspector of Panchayat to forward the resolution to the State Government for its decision in accordance with law. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai – 600 009. 2.The District Collector/ Inspector of Panchayat, Erode District, Erode. 3.The Commissioner, Chennimalai Panchayat Union, Chennimalai, Erode District. 4.The Tamil Nadu State Election Commission, Vadapalani, Chennai – 600 026. +1 CC to Mr.V.Bharathidasan, Advocate, S.R.No.36484 +1 CC to Mr.V.Ayyadurai, Advocate, S.R.No.36107 W.P.No.29485 of 2010 SR(CO) SRA(1/7/2011) https://hcservices.ecourts.gov.in/hcservices/