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C. Kanagavelu Vs. the Tahsildar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)1MLJ431
AppellantC. Kanagavelu
RespondentThe Tahsildar and ors.
Excerpt:
- .....is desparately trying, despite having lost the confidence of more than two-thirds of the panchayat members, to prevent the subject of ' no-confidence ' in him from coming up for discussion by raising false and frivolous pleas. the petitioner also denied the suggestion that he and other members, who gave notice of the motion of ' no-confidence,' ever resigned their membership. on these facts the petitioner filed w.p. no. 624 of 1968 praying for the issue of a writ of mandamus directing the tahsildar to hold a special meeting under section 152 (4) of the act.3. the order of the collector dated 10th january, 1968 directing the tahsildar not to hold the meeting is challenged as illegal and beyond the competence of the collector in w.p. no. 1165 of 1968.4. the collector in his.....
Judgment:
ORDER

P.S. Kailasam, J.

1. WP. No 624 of 1968 is filed by a member of the Panchayat for the issue of a writ of mandamus directing the Tahsildar, Cuddalore (first respondent) to hold a special meeting of the Kurinjipadi Panchayat under the provisions of Section 152 of the Madras Panchayat Act XXXV of 1958. W.P. No. 1165 of 1968 is filed by the same member for the issue of a writ of certiorati to call for the records of the Collector of South Arcot (first respondent) relating to P.D. 2/1463-68, dated 10th January, 1968 and quash the same.

2. The petitioner and eight other members of the Panchayat gave a notice of 'no-confidence' motion against the President of the Panchayat and delivered it to the Tahsildar of Cuddalore on 14th December, 1967. The Tahsildar by his notice dated 2nd January, 1968 intimated that a special meeting of the Panchayat will be held on 18th January, 1968 at 4 p.m. in the Panchayat office building. It is stated by the petitioner that he and the other members attended the meeting at the appointed hour on 18th January, 1968 and waited till 5 p.m. but the Tahsildar did not turn up. The petitioner sent a telegram to the Tahsildar and Collector intimating the fact of the Tahsildar's absence at the meeting. By their letter dated 29th January, 1968 the petitioner and the other members pointed out to the Tahsildar that they were hoping to hear from him regarding the fixation of a fresh date for the meeting. The Tahsildar replied by his letter dated 2nd February 1968 enclosing a copy of a letter dated, 19th January 1968 that the special meeting stood cancelled by reason of the orders of the Collector dated 10th January 1968. Then the petitioner and other members wrote to the Collector on 4th February 1968 asking to furnish them with a copy of the order dated 10th January 1968 and asking him for further particulars about his order dated 10th January 1968. It is alleged by the petitioner that the third respondent President, Panchayat Board, Kurinjipadi, is desparately trying, despite having lost the confidence of more than two-thirds of the Panchayat members, to prevent the subject of ' no-confidence ' in him from coming up for discussion by raising false and frivolous pleas. The petitioner also denied the suggestion that he and other members, who gave notice of the motion of ' no-confidence,' ever resigned their membership. On these facts the petitioner filed W.P. No. 624 of 1968 praying for the issue of a writ of mandamus directing the Tahsildar to hold a special meeting under Section 152 (4) of the Act.

3. The order of the Collector dated 10th January, 1968 directing the Tahsildar not to hold the meeting is challenged as illegal and beyond the competence of the Collector in W.P. No. 1165 of 1968.

4. The Collector in his order, dated 10th January, 1968 mentions that the President of the Kurinjipadi Panchayat represented to him that the members who had signed the supposed motion of' no-confidence ' against him, had resigned their membership already and that they had no right to move a motion of ' no-confidence ' and that he enquired into that representation. According to the Collector, 13 members of the Panchayat had sent the letter of resignation to the President and that their resignation was found to have been accepted on 30th November, 1967 by the President. The Collector then proceeds to state that the signature found in the letter of resignation were unequivocally those of the members and that there was no dispute about their signatures and in those circumstances he was of the view that those members cannot continue to be members of the Panchayat and therefore they had no locus standi to give a motion of' no-confidence ' against the President. Therefore, the Collector concluded that the holding of the meeting of the Panchayat on 18th January, 1968 as proposed by the Tahsildar of Cuddalore, was not desirable. Acting under the powers conferred by Section 147 (1) (ii) of the Act, the Collector directed that the meeting of the Kurinjipadi Town Panchayat convened on 18th January, 1968 by the Tahsildar shall not be conducted and the notices issued for the said meeting will stand cancelled.

5. The order of the Collector dated 10th January, 1968 directing the Tahsildar not to conduct the meeting is clearly beyond his powers. Section 152 of the Act prescribes the procedure for making a motion of ' no-confidence ' in the President or Vice-President of a Panchayat. The procedure prescribed is as follows. A written notice of the intention to make the motion, signed by members of the Panchayat not less in number than one-half of the sanctioned strength of the Panchayat, together with a copy of the motion which is proposed to be made, and a written statement of the charges against the President, should be delivered in person to the Tahsildar of the Taluk by any two of the members of the Panchayat signing the notice. Sub-section (3) requires that a copy of the statement of charges along with the notice of the meeting should be caused to be delivered to the President by the Tahsildar and the President should be required to give a statement in reply to the charges within a week of the receipt of the notice by him. Sub-section (4) requires the Tahsildar to convene a meeting for the consideration of the motion at the office of the Panchayat at a time appointed by him. The Tahsildar is also required to give to the members notice of not less than 15 clear days of such meeting and of the time appointed therefor. The Tahsildar has to preside at the meeting convened. In the present case the requirements of Sub-sections (2) and (3) were complied with and the Tahsildar had given notice of the convening of the meeting for the consideration of the motion of 'no confidence.' At this stage, the Collector had passed the impugned order dated 10th January, 1968. The Collector has purported to act under Section 147 of the Act. The relevant part of the section runs as follows:

147. (1) The Inspector may, by order in writing:

(i) suspend or cancel any resolution passed, order issued, or licence or permission granted or

(ii) prohibit the doing of any act which is about to be done or is being done, in pursuance or under colour of this Act, if in his opinion,:

(a) such resolution, order, licence, permission or act has not been legally passed, issued granted or authorised,

(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other law or an abuse of such powers or is considered by the Inspector to be otherwise undesirable, or

(c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human health or safety, or is likely to lead to a riot or an affray....

Before taking action under this section the Inspector is required to give the authority or person concerned an opportunity for explanation. Section 147 authorises the Collector to suspend or cancel any resolution passed or order issued, or licence or permission granted by the Panchayat. The power under Section 147 (1) (ii) prohibiting the doing of any act which is about to be done or is being done, is with regard to the resolution passed, order issued or licence or permission granted, which was not done legally by the Panchayat. In this case the Collector does not specify under what sub-clause of Section 147 (1) (ii) he was acting. But the several sub-clauses under Section 147 (1) (ii) relate to resolution, order, licence, permission or act which had not been legally passed, issued, granted or authorised, or such resolution, order, licence, permission or act which is in excess of the powers conferred by the Act or any other law or an abuse of such powers or is considered by the Inspector to be otherwise undesirable and the execution of such resolution or order, or the continuance in force of such license or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or any affray. Thus, the three sub-clauses in Section 147 (1) (ii) obviously relate to resolution, order, licence, permission or act of the Panchayat and has no reference to a motion of ' no confidence ' in the President moved by the members of the Panchayat. In any event, even if the Collector had purported to act under any of the sub-sections of Section 147, he is prohibited from taking any action before giving the authority or person concerned an opportunity for explanation. It is needless to state that the observations of the Collector in his order that the signatures found in the letter of resignation were unequivocally those of the members and that there was no dispute about the signatures of the members cannot stand. Therefore, the order of the Collector is unsustainable in that it is beyond his powers and was passed without giving an opportunity to the authority or person concerned for an explanation. On this finding, W.P. No. 1165 of 1968 will have to be allowed.

6. So far as W.P. No. 624 of 1968 is concerned, it is the statutory duty of the Tahsildar to convene a meeting on receipt of a due notice of motion of' no confidence in the President under Section 152 (2) of the Act. In this case the Tahsildar had in fact convened a meeting, giving notice of it. The notice of the motion of' no confidence ' was given on 14th December, 1967 and the Tahsildar had fixed the meeting, for 18th January, 1968. That meeting has yet to take place. The petitioner's complaint is that it is due to the anxiety of the third respondent to continue in office, in spite of having lost the confidence of more than two-thirds of the Panchayat members. The allegations made by the petitioner in his affidavit in support of W.P. No. 624 of 1968 have already been referred to. The submission on his behalf is that the third respondent is desperately trying, despite having lost the confidence of more than two-thirds of the Panchayat members, to prevent the subject from coming for discussion by raising all sorts of false and frivolous pleas. They have also stated that the petitioner and the other members have heard that the President is relying upon an alleged resignation of members. It is the petitioner's case that the plea of resignation is totally baseless. It is significant that the Tahsildar himself saw no reason why the meeting ought not to be convened pursuant to the notice of the petitioner and others. The learned Government Pleader submitted that he had been instructed by Government not to defend this writ petition. The third respondent, strangely, has not filed any counter affidavit. It is stated from the Bar that the counter-affidavit is ready; there is no satisfactory explanation as to why it has not been filed in Court. At the request of the parties these two writ petitions were posted for hearing to this date. In the absence of a counter-affidavit from the third respondent the Court will have to proceed on the basis that the allegations in the affidavit of the petitioner have not been controverted.

7. Learned Counsel for the petitioner relied on a communication of the Revenue Divisional Officer, Chidambaram to the Collector of Cuddalore, dated 6th January, 1968, in support of his contention that the petitioners and other members never resigned. But the learned Counsel for the third respondent relied on a phone message given by the Executive Officer of the Panchayat in which it is stated that the last meeting of the Panchayat was held on 3rd November, 1967. From this statement the learned Counsel wanted to submit that the members could not have attended any meeting after the date of their resignation. It is unnecessary to go into this question for, in the absence of any counter-affidavit from the third respondent and in view of the stand taken by the Government, it must be taken that the allegations made by the petitioner stand proved. In this view, a writ of mandamus directing the Tahsildar, Cuddalore, to discharge his statutory duty will have to issue. The Tahsildar will proceed to convene the meeting as required by Section 152 of the Act.

8. Learned Counsel on both sides brought to my notice that on 17th October, 1968 a civil suit has been filed by the President and that an interim injunction has been obtained against the thirteen members and the Panchayat of Kurinjipadi. The direction to the Tahsildar to convene the meeting will be subject to the orders of the civil Court in the petition for grant of interim injunction or in any other proceeding before it.

8. The two writ petitions are allowed with costs. Counsel's fee Rs. 250 in each writ petition. The costs will be paid by the third respondent in W.P. No. 624 of 1968 and the second respondent in W.P. No. 1165 of 1968.


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