IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28 .04.2008 CORAM THE HONOURABLE Mr. JUSTICE K.MOHAN RAM Writ Petition Nos.1683 and 1684 of 2008 and M.P.No.1 of 2008 R.Sarojini, W/o.Mr.K.Prakasam Chairman Vennanthur Panchayat Union Aramathapalayam, Alavaipatti Post, Rasipuram Taluk, Namakkal District ... Petitioner in both the W.Ps. -Vs. - 1. The Revenue Divisional Officer, Office of the District Revenue Officer, Namakkal 2. D.Vijayabaskaran Vice-Chairman, Councillor - Ward No.3 Vennanthur Panchayat Union, 3. A.Matheswaran Councillor- Ward No.1 Vennanthur Panchayat Union, 4. K.Meenakshi, W/o. Mr. Krishnamoorthy Councillor - Ward No.2, Vennanthur Panchayat Union, 5. N.Malarvizhi, W/o.Mr. Sampath Councillor - Ward No.4, Vennanthur Panchayat Union, 6. S.Vanitha, Councillor - Ward No.5, Vennanthur Panchayat Union, 7. A.Jeyarani, Councillor - Ward No.6, Vennanthur Panchayat Union, https://hcservices.ecourts.gov.in/hcservices/ 8. K.Kanagam, W/o.Mr.Periyasamy, Councillor - Ward No.7, Vennanthur Panchayat Union, 9. M.Raja, Councillor - Ward No.8 Vennanthur Panchayat Union, 10. N.Ravichandran, Councillor - Ward No.10, Vennanthur Panchayat Union, 11. The State of Tamil Nadu, Rep. by its Secretary to Government, Department of Municipal Administration, Fort St. George, Chennai - 600 009 (R-11 impleaded as per order dated 18.03.2008 in M.P.Nos.2 & 2 of 2008 in W.P.Nos.1683 & 1684 of 2008 respectively) ... Respondents in both the W.Ps. Prayer in W.P.No.1683 of 2008:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the entire records in connection with the impugned notice dated 08.01.2008 in Ref.No.Na.Ka.12580/2007 of the first respondent, quash the said notice fixing the date of No Confidence Motion on 25.01.2008. Prayer in W.P.No.1684 of 2008:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring the provisions of Section 212 of the Tamil Nadu Panchayat Act, 1994 in so far as the same gives unbridled power to the 1st respondent as ultravires of the Constitution and opposed to Part-IX of the Constitution of India. For Petitioner in both the W.Ps.: Mr. Venkatachalapathy, Senior Counsel, for Mr. M.Sriram For Respondents in both the W.Ps.: Mr. L.S.M.Hasan Fizal, Govt. Advocate, for R-1 & R-11. Mr. V.Selvaraj, for R-2 to R-10. https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Admit. With consent of the learned counsel on either side, the writ petitions are taken up for final disposal at the admission stage itself. 2.The facts that are necessary for the disposal of the above writ petitions are set-out below:- The petitioner was elected as Councillor of Ward No.9 of Vennanthur Panchayat on 18.10.2006 as a member of the Congress Party; the petitioner was elected as Chairman of the Vennanthur Panchayat Union by the majority of the other elected councillors; after being elected as Chairman, the petitioner left congress party and joined All India Anna Dravida Munnetra Kazhagam Party (AIADMK); out of the total of 10 Ward councillors including the petitioner herein, 9 councillors submitted a written notice of intention to move a No Confidence Motion to the Revenue Divisional Officer, the first respondent herein, levelling certain charges against the petitioner; thereafter the first respondent herein sent a notice dated 02.01.2008 to the petitioner by enclosing the petition received from Ward Councillors and calling upon the petitioner to submit her explanation within a period of one week from the date of receipt of the notice; for the said notice, the petitioner submitted her reply dated 07.01.2008; by the impugned notice dated 08.01.2008 the first respondent as per the provisions contained in Section 212(4) of the Tamil Nadu Panchayats Act, 1994 (hereinafter referred to as "the Act") convened a meeting of the Panchayat Union Council at 11.00 a.m. on 25.01.2008 for considering the no confidence motion moved against the petitioner; at that stage W.P.No.1683 of 2008 has been filed seeking to quash the said notice. 3. The petitioner has also filed W.P.No.1684 of 2008 seeking a written declaration declaring the provisions of Section 212 of the Act as ultravires of the Constitution and opposed to Part-IX of the Constitution of India. This writ petition has not yet been admitted. 4. In W.P.No.1683 of 2008 the contention of the petitioner is that a perusal of the letter dated 24.12.2007 shows that there is no rhyme or reason for bringing a No Confidence Motion against the petitioner; respondents 2 to 10 are aggrieved against the treatment meted out to them by the petitioner and the distribution of welfare scheme and it is alleged that the distribution of welfare scheme are without consulting them and the same cannot be treated as charges levelled against the petitioner. It is the further contention of the petitioner that the statement of charges along with the motion dated 02.01.2008 was received by the petitioner only on 05.01.2008, the time for filing the reply expired on 12.01.2008, the first respondent is entitled to convene a meeting by giving notice of not less than 15 https://hcservices.ecourts.gov.in/hcservices/ clear days of the meeting, but without giving 15 clear days notice on 08.01.2008 itself date for the meeting of the Panchayat Union Council for considering the no confidence motion has been fixed and hence the mandatory requirements of Section 212 (3) of the Act have not been complied with. 5. The petitioner is challenging the virus of Section 212 of the Act on the following grounds:- The proceedings under Section 212 when compared to Section 207, which deals with the same subject, is mutually contradictory and later provision is discriminatory and is liable to be declared ultravires; the very powers conferred under Section 212 are ex- facie arbitrary, unreasonable and unbridled in view of the fact that there is a multi coalition Government at the State level though Panchayats are not based on parties, such kind of No confidence motions are likely to go against the very basis of democrative set-up of local Governments and on that score also the said provisions contained in Section 212 of the Act suffers from infirmities and hence liable to be declared as ultravires of the Constitution. It is further contended that bringing of motion cannot be termed as legislative function of the Panchayat, it is an administrative action and penal action against the Chairman with reference to the written statement of the charges against the Chairman and therefore it is imperative on the part of the Government or some other authority to consider the merits of the charges and since there are no safe-guards in the provisions contained in Section 212 of the Act, the provisions are arbitrary, unreasonable and ultravires of the Constitution. 6. In both the writ petitions respondents 2 to 8 and 10 have filed a common counter affidavits inter-alia contending as follows:- When the petitioner was elected as Chairman, she belonged to congress party and later she joined to the AIADMK party leaving the congress party; it is the democratic right of the elected members to un-seat the petitioner when she has committed an unethical act of joining the AIADMK party; the petitioner's conduct was not up to expectation; she behaved in a manner un-becoming of the Chairman of the Panchayat Union; there is a difference between the proceedings under Section 207 and no-confidence motion under Section 212 and an elaborated procedure is prescribed under Section 212 of the Act and there is absolutely no arbitrariness or illegality as alleged in the affidavit; the councillors have been served with the notice in accordance with law that clear 15 days notice has been given to all the members including the petitioner. It is contended that the petitioner, who was elected by the Ward Councillors, can always be https://hcservices.ecourts.gov.in/hcservices/ removed by them if they lose confidence in the petitioner and the petitioner cannot expect the ward councillors to repose confidence even after she has deserted the party on whose behalf she contested and got elected. It is further contended that the meeting called for by the first respondent was conducted on 25.01.2008 and the resolution approved the no confidence motion has been passed and as such the writ petition has become infructuous. 7. Heard Mr. Venkatachalapathy learned senior counsel for the petitioner and Mr. L.S.M.Hasan fizal learned Government Advocate for the first and eleventh respondents and Mr. V.Selvaraj learned counsel for respondents 2 to 10. 8. At the outset it has to be pointed out that though the learned senior counsel made submissions in W.P.No.1683 of 2008 he had not chosen to advance arguments in W.P.No.1684 of 2008 wherein the constitutional validity of Section 212 of the Act has been challenged. The grounds raised for challenging the constitutional validity of Section 212 of the Act are so vague and unsubstantiated. Article 243(c)(5) of the Constitution which speaks about the composition of the Panchayats, leaves it to the legislature of a State to make provisions with respect to it. Clause (5) of the Article 243 (c) provides that the Chairperson of the Panchayat at the village level shall be elected in such manner as the State Legislative may, by law, provide. Article 243-C (5) reads as follows:- "The Chairperson of - (a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and (b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof." As per Clause (5) of the Constitution the Chairperson of the Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof. To give effect to that provision, the State has enacted Section 50 of the Tamil Nadu Panchayat Act, which reads as follows:- "Election of Chairman of Panchayat Union Council: 50. (1) The Chairman shall be elected by the Panchayat Union Council from among its elected members in accordance with such procedure as may be prescribed." 9. Thus it is clear that the Chairman of the Panchayat Union Council has to be elected by the ward councillors of the Panchayat Union. The contention of the petitioner as could be discerned from the grounds raised in the affidavit filed in support of the above writ petition seems to be that since the duration of the Panchayat Union council is five years the elected chairperson cannot be removed from during tenure of five years by no confidence motion even the https://hcservices.ecourts.gov.in/hcservices/ Chairperson ceased to enjoy the confidence of the ward councillors. The contention of the petitioner is that there is a specific provision in Section 207 for the removal of the chairperson of the Panchayat Union in certain circumstances and hence there is no need for a provision enabling the moving of no confidence motion against the elected chairperson of the Panchayat Union Council. 10. It has to be pointed out that the tenure of a Panchayat or Panchayat Union Council is different from the election of President or Vice President of a Panchayat or chairperson or vice chairperson of the Panchayat Union Council. When the Act provides for an election of a chairperson of the Panchayat Union Council by majority of the ward councillors it goes without saying that at all points of time during the entire tenure, the chairperson should enjoy the confidence of the majority of the members of the Panchayat Union Council and without which the functions of the Panchayat Union Council cannot be carried on smoothly. That is the reason why a provision for moving no confidence motion has been incorporated in the Act. 11. It has to be pointed out that since large number of no confidence motions are being moved against the Presidents and Vice Presidents of Village Panchayats and Chairman and Vice Chairman of the Panchayat Union Councils and District Panchayats and such motions may also be attributed to unethical practices and to diverts the focus of concerning the welfare of the people and to smooth and cordial atmosphere of the Panchayats are disturbed and the conduct of the meetings of the Panchayats is affected, the Government thought of amending the Panchayat Act. Accordingly, the Tamil Nadu Panchayats (Seventh Amendment) Ordinance 2007 has been promulgated amending Sections 211 and 212 of the Tamil nadu Panchayats Act. By the said Ordinance sub-section (2) of Section 212, sub-section (13) of Section 212 and sub-section (15) of Section 212 of the Act have been amended. Before amendment, the written notice of intention to make the no confidence motion could be given if the same is signed by not less than one-half of the sanctioned strength of the Panchayat Union Council. Now after the amendment, such a motion should be signed by 3/5th members of the sanctioned strength of the Panchayat Union Council. Similarly before the amendment no confidence motion should be passed by 2/3rd of the sanctioned strength of the Panchayat Union Council but after the amendment for a no confidence motion to be passed the support of 4/5th of the members of the sanctioned strength of the Panchayat Union Council is necessary. 12. Further by amending sub-section (15) of Section 212 of the Act it has been provided that no notice of motion under Section 212 shall be received within a period of one year of assumption of office by the chairman or the vice chairman or during the last year of term of office of a chairman or vice chairman. The above safeguards sufficiently protect the interest of the duly elected chairperson or https://hcservices.ecourts.gov.in/hcservices/ vice chairperson of the Panchayat Union Council. If the chairperson or vice chairperson of the Panchayat Union Council loses the confidence of 4/5th of the sanctioned strength of the Panchayat Union Council members, it is futile to expect such chairperson or vice chairperson to successfully conduct the meetings of the Panchayat Union Councils or to carry on the developmental activities of the Panchayat Union Council and serve the interest of the public. Therefore it cannot be said that Section 212 of the Act is ultraviers of the Constitution. 13. The elaborate procedure provided for Section 212 of the Act contains sufficient procedural safe-guards. Once if a written notice of intention to make the motion duly signed by the members of the Panchayat Union Council is received by the Revenue Divisional Officer, that too being submitted in person by two members, the notice calling for the reply is issued to the chairperson or vice chairperson as the case may be and the reply is obtained and thereafter the meeting of the Panchayat Union Council is convened to consider the motion of no confidence and the reply received from the chairman or vice chairman as the case may be and if the reply of chairman or vice chairman is convincing and the same is accepted by the majority of the members of the Panchayat Union Council, they may not support the motion, but only when they do not accept the reply of the chairperson or vice chairperson as the case may be and they lose their confidence, they vote for the motion for removing him / her from the office. Such a procedure cannot be said to be violative of the principles of natural justice or arbitrary. 14. At this juncture, it will be useful to refer to the provisions contained in Section 207 (13) of the Act, which reads as follows:- "207.... (13) Any person in respect of whom a notification has been issued under sub-section (12) removing him from the office of chairman shall be ineligible for election as chairman and for holding any of those offices until the date on which notice of the next ordinary elections to the panchayat union council is published in the prescribed manner or the expiry of one year from the date specified in the notification whichever is earlier." A reading of the said provision shows that a disqualification is attached to the person, who has been removed under Section 207 of the Act from contesting the election for a particular period. If this provision is compared with the provisions contained in Section 212 of the Act, it could be seen that no such disqualification is attached to a person against whom a no confidence motion has been passed under Section 212 of the Act. Therefore it is clear that the two sections take care of two different and distinct situations. Hence the contention of the writ petitioner that there is a mutual https://hcservices.ecourts.gov.in/hcservices/ contradiction between the provisions contained in Section 207 of the Act and Section 212 of the Act cannot be countenanced. The action taken against the person under Section 207 of the Act is in the nature of punishment for proved the charges but whereas the action taken under Section 212 of the Act cannot be said to be so. Under Section 212 of the Act, as pointed out above, only when 4/5th of the total strength of the Panchayat Union Council supports the no confidence motion, such motion will be taken as passed and the person concerned will be removed. For the said reasons, the said contention of the learned senior counsel cannot be countenanced. Therefore the contentions of the petitioner are liable to be rejected and accordingly rejected and the W.P.No.1684 of 2008 is dismissed. 15. In W.P.No.1683 of 2008 the learned senior counsel for the petitioner raised two contentions namely:- The notice dated 02.01.2008 issued by the first respondent calling upon the petitioner to submit his reply was received by the petitioner on 05.01.2008 and the seven days time available to submit the reply as per Section 212(3) of the Act expired on 12.01.2008. The Revenue Divisional Officer as per Section 212(5) of the Act is bound to give to the members the notice not less than 15 clear days of the meeting and as such the 15th day expired only on 27.01.2008 but the meeting of the members of the Panchayat Union Council was fixed for 25.01.2008 and hence there is violation of the provisions contained in Section 212 (5) of the Act. 16. Learned senior counsel for the petitioner further submitted that the charges levelled against the petitioner as contained in the written notice submitted by the ward councillors are so vague and on that basis no confidence motion could not have been moved. In support of the said contentions the learned senior counsel for the petitioner relied upon a decision of a learned single Judge of this Court reported in 2006-3-L.W.383 (Seeniammal v. The State of Tamil Nadu & 2 others). In the said decision in paragraph 10 it is observed as under:- "10. From the facts and circumstances and the materials available on record, it is alleged that the moving of No Confidence Motion against the petitioner is politically motivated. The petitioner was elected to the office of Chairperson of the village panchayat by the local villagers in a democratic manner. It is not brought out on record produced before this Court any specific allegation against the petitioner, which promoted the local Member of the Legislative Assesmbly to instigage and encourage the other councillors of the panchayat union to initiate a No Confidence Motion against the petitioner. The petitioner was the choice of the local villagers, who elected her as the Chairperson of the village union. In a democratic set- up, the mandate of the people is the supreme and their https://hcservices.ecourts.gov.in/hcservices/ choice of selecting a representative from among them through a democratically held election should be honoured and protected. The initiation of No Confidence Motion on filmsy and vague allegations against the elected representatives of the people, as was done in the present case, is not conductive in the interest of the general public. This Court strongly deprecates such illegal and unlawful attempts by the Members of the Legislative Assembly in ousting the elected representatives of the village panchayats, who were elected by the people, by moving No Confidence Motion on baseless and vague allegations and the Executive authorities shall not be a party to such illegal and unlawful acts." 17. Learned senior counsel for the petitioner basing reliance on the said observation submitted that on the basis of flimsy and vague allegations made against the petitioner, the first respondent ought not to have initiated the no confidence motion and further submitted that the allegations made against the petitioner by the ward councillors who gave the notice are flimsy and vague. 18.Countering the said submissions Mr.V.Selvaraj learned counsel for respondents 2 to 10 submitted that for the notice dated 02.01.2008 issued by the first respondent the petitioner had admittedly submitted her reply on 07.01.2008 and thereafter on 08.01.2008 the impugned notice convening the Panchayat Union Council has been issued by the first respondent. According to the learned counsel, it is not the case of either the petitioner or other ward councillors that all of them had not received the said notice and they did not have 15 clear days notice for the meeting. He further submitted that the contention of the learned senior counsel that the 15 days time should be calculated from the expiry of seven days i.e., from 02.01.2008 has no basis. He further submitted that for the notice dated 02.01.2008 the petitioner had admittedly sent a reply on 07.01.2008 and on the next day i.e., on 08.01.2008 the first respondent had issued notice convening the Panchayat Union Council meeting for 25.01.2008 and thus 15 days clear notice has been given to the Ward Councillors and therefore there is no violation of the provisions contained in sub-section (5) of Section 212 of the Act. 19. I have carefully considered the said submissions made by the learned counsel on either side and this Court is of the considered view that the contentions put forth by the learned senior counsel for the petitioner cannot be countenanced. The materials placed on record and the undisputed facts disclosed that on 08.01.2008 the notice contemplated under sub-section (5) of Section 212 had been https://hcservices.ecourts.gov.in/hcservices/ issued fixing 25.01.2008 as the date of meeting of the Panchayat Union Council and as such 15 days clear notice had been given to the Ward Councillors which satisfies the requirements of the said provision. 20.Coming to the next contention of the learned senior counsel namely that the allegations made against the petitioner are flimsy and vague, it will be useful to refer to the allegations made against the petitioner. Respondents 2 to 10 in their signed written notice had alleged that the petitioner neglected them and treated them with disrespect and they were not given any kind of respect by the petitioner. It had been further alleged that while distributing the development work in the Union, they were not taken into confidence and nothing was discussed with them and only because of the said allegations they have loss their confidence in the petitioner. The said allegations by no stretch of imagination could be said to be either flimsy or vague. If the respondents 2 to 10 namely the ward councillors who elected the petitioner as the chairman of the Panchayat Union Council are neglected and not given due respect and they were shown disrespect and they were not consulted on the distribution of development work in the Panchayat Union Council they naturally will get offended and consequently they will lose confidence in the petitioner and once they lose their confidence in the petitioner are they not entitled to move the no confidence motion as provided for under Section 212. Even if the ward councillors who supported the petitioner are neglected and treated with disrespect, it is too much to except them to repose confidence in the petitioner during the entire term of office of the petitioner. Had the allegations made by respondents 2 to 10 were not true, the petitioner could have convinced them and persuaded them to support her and got the no confidence motion defeated. But in this case as submitted by the learned counsel on either side admittedly the no confidence motion has been passed by majority of eight out of 10 which itself shows that the petitioner had lost the confidence of more than 4/5th of the total strength of