P. Ramakrishnan, J.
1. The petitioner, Murugappa Kadanthiar, is aggrieved against an order dated 6th April, 1966 passed by the first respondent, the Inspector of Pan-chayats-cum-Collector of South Arcot, Cuddalore, declaring, on the strength of a no-confidence resolution passed by the Melur Panchayat, Vridhachalam Taluk, on 29th January, 1966, that the petitioner had ceased to be President of the Panchayat. This order was passed by the first respondent under Section 152 (13) of the Madras Panchayats Act, 1958 (Act XXXV of 1958) (hereinafter called the Act). The petitioner's prayer is to quash the above order by a writ of certiorari under Article 226 of the Constitution in the following circumstances.
2. The panchayat has got nine members. Six of them, whose names are mentioned in paragraph 2 of the affidavit of the petitioner, had absented themselves for three consecutive panchayat meetings between 1st September, 1965 and 20th December, 1965. Thereby they became subject to the disqualification in Section 26 (j) of the Act. The petitioner as president and executive authority of the panchayat, acting under the provisions contained in Section 27 (2) of the Act, intimated the members that they had lost their membership. At a meeting which the panchayat held 15 days subsequent to the issue of the notices to them, the panchayat also passed a resolution for the removal of the above members. The fact was also communicated by the petitioner to the Revenue Divisional Officer, Vridhachalam, and the Commissioner, Panchayat Union, Nallur. In pursuance of the communication, the Commissioner, Panchayat Union, Nallur, issued notices to the six members stating that they had been removed from membership of the panchayat with effect from 21st December, 1965. One other member of the panchayat, a woman member, who had been co-opted had also resigned her membership on 27th January, 1966. While matters stood thus, a special meeting was held by the second respondent, the Tahsildar, Vridhachalam, on 29th January, 1966 for the purpose of considering a no-confidence motion brought against the petitioner. Notwithstanding the fact that the six members mentioned above had lost their membership on 21st December, 1965 and notwithstanding the fact that the co-opted woman member had resigned on 27th January, 1966 the Tahsildar, the second respondent, allowed them to participate in the meeting on 29th January, 1966 and thereafter passed a resolution of no-confidence in the petitioner by a more than two-thirds majority. The petitioner wanted to attend the meeting and bring to the notice of the Tahsildar the fact of disqualification of the above members. The meeting was scheduled to be held at 4 p. m. But when the petitioner went to the place of the meeting at 3-45 p. m. he was told that the meeting was already over and that a resolution of no-confidence had been passed. The petitioner's contention is that the six members, who had partaken in the no-confidence resolution against him, had ceased to be members from 21st December, 1965 and consequently the resolution itself was illegal and should be quashed. No point was raised at the hearing of the writ petition about the disqualification of the lady member.
3. As against this, in the counter affidavit filed on behalf of the respondents by the Collector of South Arcot the following allegations are made regarding the facts of the case. At the instance of some members of the Panchayat, the second respondent issued a notice on 20th December, 1965 to the petitioner along with a copy of the no-confidence motion, which was proposed to be passed against him. Shortly afterwards, the petitioner sent a petition on 8th January, 1966 to the second respondent stating that six of the members had ceased to be members under Section 26 (j) of the Act. He enclosed to the communication a copy of the resolution of the panchayat on 6th January, 1966 about the six members losing their membership. The Commissioner of the Panchayat Union Council also intimated the second respondent on 27th January, 1966 of the resolution of the Panchayat. But the no-confidence motion was scheduled to be considered on 29th January, 1966. The counter-affidavit of the respondents then goes on to discuss the merits of the alleged disqualification of the six members on the ground that they did not attend three consecutive meetings of the Panchayat. It was stressed in the counter-affidavit that due notices had not been given to them as required under the rules. In the above circumstances, it is alleged in the counter-affidavit, that it must be held that the six members were not disqualified under Section 26 (j) ,and the resolution of the Panchayat that they were so disqualified must be viewed as illegal. It is also alleged in the counter-affidavit that the notice of disqualification to the six members was issued by the petitioner only on 21st December, 1965, that is, after the six members had applied to the Tahsildar expressing want of confidence in the petitioner. The counter-affidavit says that the Panchayat Union Commissioner, Nallur, had no authority to perform any function under Sections 26 to 28 of the Act and pass orders about the disqualification of members. That power is vested, when there is a dispute, in the civil Court, under Section 28 (1) of the Act. In regard to the resignation of the woman co-opted member, the counter-affidavit goes on to say that the respondents deny the allegation that she has resigned. The counter-affidavit states that the questions whether the six members did actually became disqualified under Section 26 (j) of the Act and whether the co-opted woman member had actually resigned are not matters which could be gone into by this Court in writ proceedings. They should be left for decision to the civil Court under Section 28 (1) of the Act.
5. The stand taken by the respondents in this case in their counter-affidavit is that as the notices for the meetings to the six members were not issued in the proper form, they did not incur the disqualification under Section 26 (j), and that the view, that they were so disqualified, held by the President, the petitioner, and subsequently affirmed by the Panchayat at the resolution on 9th January, 1966 is not correct. The counter-affidavit also states that since there is a dispute regarding the six members incurring disqualification, it should be adjudicated by the civil Court (the prescribed judicial authority) under Section 28 (1) of the Act, and not by any other authority including the Commissioner of the Panchayat Union and this Court itself in writ proceedings, for the reason that the question will require consideration of facts besides law. One obvious answer to this argument is that while the matter is still not decided by the appropriate judicial authority, it is equally outside the province of the respondents to go into the question of disqualification and give an opinion, as they have done in the counter-affidavit, that as the six members had not incurred the disqualification, they were entitled to participate in the no-confidence resolution.
6. The questions therefore which arise are the following :When a member of a Panchayat fails to attend three consecutive meetings and prima facie incurs the disqualification in Section 26 (j) of the Act and the view is taken that he has become so disqualified, by the President as well as by the Panchayat and he is also intimated that fact which is the authority that has to decide the dispute about the disqualification, what are the rights of the member in the interregnum before the dispute is decided, and to what extent is any resolution passed by the Panchayat to which he has subscribed in the interregnum valid?
7. The provisions of the Panchayats Act in Section 26, and in particular Section 26 (j), Section 27 and Section 28 are in pari materia with the corresponding provisions in the District Municipalities Act (Act V of 1920) as well as the Madras Local Boards Act (Act XIV of 1920). There are prior decisions under these Acts which throw light on the above questions. The gist of these decisions appears to be that absenee of a member at three consecutive meetings as provided in Section 26 (j) of the Act will make him incur the disqualification on prima facie grounds. On the incurring of the disqualification, he will also ipso facto cease to be a member. Section 27 (2) of the Act reads thus:
27. (2) Where a person ceases to be a member under Clause (j) of Section 26, the Executive Authority or the Commissioner shall at once intimate the fact in writing to such person and report the same to the Panchayat or the Panchayat Union Council as the case may be as its next meeting. If such person applies for restoration suo motu to the Panchayat or the Panchayat Union Council, as the case may be, on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Panchayat or the Panchayat Union Council, as the case may be, may at the meeting next after the receipt of such application restore him to his office of member.
Provided that a member shall not be so restored more than twice during his term of office.
8. This section, therefore, makes it clear that on the incurring of the disqualification in Section 26 (j), the member loses his membership automatically. It is for him thereafter to apply for restoration to the Panchayat, on or before the date of its next meeting. The Panchayat is given the power, at the meeting held next after the receipt of the application, to restore him to his office if they consider it proper to do so. In the proviso to Section 26 (j) of the Act it is stated that no meeting from which a member absented himself shall be counted against him if due notice was not given to him or if the meeting was held after giving shorter notice than that prescribed for an ordinary meeting or if the meeting was held on a requisition of members. It will be for the member aggrieved by the intimation made to him of his disqualification by the Executive Authority or the Commissioner (the President of the Panchayat in this case) under Section 27 (2) of the Act, to approach the panchayat and seek restoration, and put forward these circumstances as grounds on which he relies for justifying his absence. He is given a further right of getting the matter decided, if he still disputes the fact of the disqualification or if the Panchayat itself has not given him relief or restored him to the office, by the prescribed authority, namely, the District Munsif under Section 28 of the Act. Section 28 is in the following terms ::
28. Authority to Decide Questions of Disqualification of members.--(l)Whenever it is alleged that any person who has been elected as a member of the Panchayat or who becomes a member of a Panchayat Union Council is not qualified or has become disqualified under Sections 22, 24, 25, 26 or 27-A and such person does not admit the allegation, or whenever any member is himself in doubt whether or not he is not qualified or has become disqualified under Sections 24, 25, 26 or 27-A such member or any other member may, and the Executive Authority or the Commissioner as the case may be shall, on the direction of the Panchayat or Panchayat Union Council or of the Inspector, apply to the prescribed judicial authority whose decision shall be final.
(2) Pending such decision, the member shall be entitled to act as if he is qualified or were not disqualified.
9. It is not necessary for a person to await the decision of the Panchayat on his application under Section 27 (2). He could apply to the prescribed judicial authority under Section 28 (1) straightway and get a decision. If he resorts to this course, he has got the further privilege of relying upon Section 28 (2) that pending decision of the prescribed judicial authority, he is entitled to act as if he is qualified or were not disqualified. In other words, if in the interregnum he had attended meetings and taken part in the passing of the resolutions, they would be valid, even if the ultimate decision was that he was disqualified. But if he does not make the application to the prescribed judicial authority under Section 28, he cannot rely upon the provisions of Section 28 (2) for claiming validity for the decisions in which he has taken part.
10. Obviously, in the present case, the six members, who were intimated about their disqualification by the President in Section 26 (j) of the Act, did not resort to either of the two courses above for getting rid of the disqualification alleged against them. On their own initiative they ignored the allegation of disqualification and acted as if they were qualified, and took part in the no-confidence resolution. There is no warranty in the Act for them to ignore the statutory intimation of their prima facie disqualification by the President under Section 27 (2) of the Act, and to proceed to vote for the no-confidence resolution as if the disqualification did not exist, and as if they had the authority of a judicial decision of the prescribed authority removing their prima facie disqualification. Nor can they claim the benefit of Section 28 (2) as they had not applied to the prescribed authority under Section 28 (1).
11. Prior earlier decisions of this Court no doubt under the parallel enactments mentioned above, in my opinion, clearly support this view. In Subbaroya Goundan V. Muthukumaraswami Goundan : AIR1926Mad1001 , the petitioner who was the President of the Taluk Board of Palladam, failed to attend the meetings of the Taluk Board for three consecutive months and thereby incurred the disqualification under Section 56 of the Madras Local Boards Act (Act XIV of 1920), which contains the provisions in pari materia with Section 26 (j) of the Act. Section 56 (4) of the Local Boards Act, corresponds to Section 27 (2) of the Act. Section 57 of the Local Boards Act gives the aggrieved person the right to move the District Judge for a decision about his disqualification and is similar to Section 28 (1). Section 57 (3) is analogous to the provisions in Section 2 (8) of the Act and says that pending decision of the District Judge, the member shall be deemed to be qualified. In that case, the petitioner did not apply to the Local Board for restoration. He applied to the District Judge who found that he was disqualified. But in the meantime the petitioner got himself again elected as President by the Taluk Board. This fact was relied upon by the petitioner for holding that he continued to be a member as well as President. That claim was negatived by Wallace, J., in the revision petition, and the District Judge's decision was upheld about the member ceasing to hold the office. In the course of the decision, the learned Judge observed:
Prima facie...the petitioner ceased under Section 56 to be a member. If no application had been put in under Section 57 and he is not restored under Section 56 (4), then his cessation continues. If an application was put in under Section 57 and the District Judge decided that he did cease to be a member, then he did cease to be a member from the date fixed in Section 56, but for the purpose of saving the validity of proceedings in which he may have taken part after he had ceased to be a member, he is deemed to be qualified during that period.
12. Wallace, J., also observed:
Section 57 (3) does not say that he remains a member. It says that he shall be ' deemed to be qualified'. That was intended, I have no doubt, to prevent the proceedings of meetings in which a member who on an enquiry under Section 57 has been declared to have ceased to be a member had continued to attend and take part being invalidated by his having taken part, and is similar in intention to Section 35. There is no justification in the language of Section 57 for holding that the mere presentation of an application under Section 57 has the effect of restoring pro tem to office one who had ceased to hold office.
13. In Thiruppuliswamy v. Manickam (1954) 2 M.L.J. 680, P. V. Rajamanner, C.J., has followed the decision of Wallace, J., mentioned above. That was a case which arose under the District Municipalities Act of 1920. Section 51 of the District Municipalities Act is analogous to Section 28, and Clause (3) of Section 51 is analogous to Clause (2) of Section 28 of the Panchayats Act. The learned Judge observed:
That section (section 50 (1) (b) of the District Municipalities Act, 1920) enacts that if a Councillor becomes subject to one or other of the disqualifications enumerated therein, he shall cease to hold his office. No doubt, in case of dispute, Section 51 provides for recourse to the District Judge. But it is not as a result of the order of the District Judge that a Councillor ceases to hold his office. The Councillor ceases to hold office because of the supervening disqualification. It may be that no application has been filed under Section 51. It may be that an application is filed late.
In Kuppuswami v. Corporation of Madras I.L.R. (1964) 1 Mad. 14 : (1964) 2 M.L.J. 380, the question arose under the Madras City Municipal Act and came before a Bench of Ramachandra Ayyar, C.J. and Venkataraman, J. This decision is authority for the proposition that even if the Executive Authority does not report about a member ceasing to be a member under Section 27 (2) to the Panchayat, the disqualification continues and on the member's application for restoration, the Panchayat has jurisdiction to consider and grant it only at its next meeting and not at any subsequent meetings. Particularly, this decision lays down the raison d'etre for laying down such a disqualification which automatically accrues to a member when he absents himself from three consecutive meetings. At page 386 of the report, the Bench said
It is the essence of proper civic administration that the elected councillors who represent the various divisions in the city should attend the meetings of the council and protect the interest of those whom they represent. Failure to attend meetings would affect the rate-payers who are represented by the concerned councillor. Section 53 (corresponding to Section 26 (j) of the Panchayats Act), therefore, provides a sanction against the default by forfeiture of office for continuous absence. It also makes a provision for a fresh representation by election by the division whose representatives thus fail to attend. At the same time, an exception is provided by Sub-section (4) by vesting discretionary power in the council to restore the member. Such power, if exercised will have the effect of preventing a fresh election.
In Chinnathambi v. Executive Officer (1965) 1 M.L.J. 397, Veeraswami, J., held that the disqualification under Section 26 (j) of the Act is sustained automatically, and unless the member concerned is restored, he ceases to be a member. The learned Judge followed the Bench decision in Kuppuswami v. Corporation of Madras I.L.R. (1964) 1 Mad. 14 : (1964) 2 M.L.J. 380. There is one more Bench decision in Kumaraswami v. Joint Collector : AIR1965Mad431 , which lays down that where an Act itself provides a statutory mode of determining a controversy of facts (whether a member is disqualified or not) it would be wholly out of place for a party claiming to be aggrieved, to seek relief at the hands of the High Court under Article 226 of the Constitution. In that case, the writ petitioner was aggrieved against a no-confidence resolution passed against him by the Panchayat. He alleged that the resolution was not valid because four of the participating members had become disqualified by reason of non-attendance at three consecutive meetings of the Panchayat. Srinivasan, J., who dealt with the writ petition found that the version of the President (petitioner before him) that a meeting took place could not be accepted for the reasons stressed by the learned Judge. It led to the consequence that the ground of disqualification failed to be established. The Tahsildar, who presided at the meeting at which the no-confidence resolution was passed, also considered the question of alleged disqualification and decided that the objection was not sustain-able and that the vote of no-confidence was validly passed. Before the Bench in writ appeal, it appears that the question whether the petitioner had incurred the disqualification validly or not, was raised. But the learned Judges stated that in view of the specific provision in the act of adjudicating such a dispute in Section 28 (1) of the Act, writ jurisdiction cannot be invoked for a decision on the question, which was a question of fact. But it has to he remembered that in the above Bench decision no ground was taken as to whether the communication to the members by the Executive Officer under Section 27 (2) of their having incurred disqualification will prima facie make them cease to be members, until they are able to get themselves restored to their membership on application to the Panchayat or by moving the prescribed authority; nor has the question as to the scope of Section 28 (2) been considered in the Bench decision. But these are points which are clearly considered in the three decisions cited above--(Subbaroya Goundan v. Muthukumaraswami Goundan : AIR1926Mad1001 , Thiruppuliswamy v. Manickam (1954) 2 M.L.J. 680 and Chinnathambi v. Executive Officer (1965) 1 M.L.J. 397.
14. As against this, learned Counsel for the respondents has referred to three un-reported decisions of Kailasam, J., in. Writ Petitions Nos. 39o of 1966, 512 of 1966, and 1772 of 1966. Relying upon the decision in Kumaraswami v. Joint Collector : AIR1965Mad431 , the learned Judge seems to have dismissed the writ petitions in W. P. No. 390 of 1966 and W. P. No. 512 of 1966 in limine holding that when a machinery is provided under the Act for deciding question of disability under the Act, it will be wholly out of place for the party to have the question decided in writ proceedings. In Writ Petition No. 1772 of 1966 while, dismissing it in limine the learned Judge observed:
The disqualification of a member under Section 26 can, therefore, take effect only after a decision is rendered as contemplated in Section 28. If it is found by the judicial authority that the person came by the disqualification on a particular day, he might have ceased to be a member from that date. But till such a decision is rendered, he continues to be a member and under Section 28 (2), the member is entitled to act as if he is qualified.
But the trend of the earlier decisions cited above shows on the other hand that following the absence of a member at three consecutive meetings, when the Executive Officer intimates the member that he has ceased to be a member under Section 26 (j) it operates as a prima facie disqualification, leading to the loss of his membership until he is restored to office by the Panchayat or a decision in his favour is given by the prescribed authority on application made to that authority under Section 28. Kailasam, J. in Writ Petition No. 1772 of 1966 has referred to want of authority for the proposition that the moment it is alleged, but not admitted, that a member is disqualified, he becomes disqualified from that date, even though the dispute is not referred to the judicial authority for decision under Section 28. But this point appears to be covered by the decision in Thiruppuliswamy v. Manickam (1954) 2 M.L.J. 680, where, following the decision in Subbaroya Goundan v. Muthukumaraswami Goundan : AIR1926Mad1001 , the following observation is made:
It does not mean, however, that merely because an application has not been filed or had not been filed within certain time that the councillor, though disqualified under any one of the provisions (a) to (i), nevertheless does not cease to hold his office till determination by the District Judge. This point is, I think covered by the observations of Wallace, J., in Subbaroya Goundan v. Muthukumaraswami Goundan : AIR1926Mad1001 .
There is, therefore, no room at all for entertaining any doubt on the point in the light of the several earlier decisions of this Court, as to the scope of the several provisions now under consideration. They lead to the following conclusions : (1) When the Executive Authority intimated the six members concerned in this case, that by their absence at three consecutive meetings they had ceased to hold office, he was exercising a statutory power conferred on him under Section 27 (2) of the Act. (2) The members, thus appraised of their disqualification, cannot continue to he members and take part in the meetings of the Panchayat without applying for restoration under Section 27 (2) of the Act, or resorting to the alternative remedy which they have to move the prescribed authority under Section 28 and get a decision in their favour and be restored to office. (3) After they have filed the application under Section 28 (1) and during the pendency of the application before the prescribed authority, by relying on Section 28 (2), they may be entitled to act as if they were not disqualified but this is intended for validating the proceedings in which they have taken part in the interregnum. But they cannot claim such a privilege without first applying for relief to the prescribed authority under Section 28 (1) of the Act. It is admitted that in this case, the six members have not resorted to any of the abovementioned courses, and consequently, the resolution of no-confidence must be treated to be one as not valid because it had the support of six members who were not entitled to vote, and therefore it lacked the support of 2/3 of the membership of the Panchayat.
15. In the counter-affidavit reference is made to Section 56 of the Act as a provision which will in any event validate the no-confidence resolution. That section reads thus:
56. Acts of Panchayats, Panchayat Union Councils, etc. not to be invalidated by informality, vacancy, etc.--No act of a Panchayat or of a Panchayat Union Council or of a committee thereof or of any person acting as President, Vice-President, Chairman, Vice-Chairman or member of such Panchayat or Panchayat Union Council or of a chairman or member of a committee shall be deemed to be invalid by reason only of a defect in the establishment of such Panchayat or Panchayat Union Council or Committee, or on the ground that the President, Vice President, Chair-Chairman, Vice-Chairman or member of such panchayat or Panchayat Union Council or chairman or member of a committee was not entitled to hold or continue in such office by reason of any disqualification or by reason of any irregularity or illegality in his election, or by reason of such act having been done during the period of any vacancy in the office of President, Vice-President, Chairman, Vice-Chairman or member of such Panchayat, Panchayat Union Council or Committee.
This section will validate a resolution of a Panchayat only if the sole reason alleged for the invalidity of the resolution of the Panchayat is that a member (or members) who supported the resolution was not qualified to vote. But here, the invalidity of the resolution is based really on the fact that it did not get the support of 2/3rds of the membership of the Panchayat, which is necessary under the statute for a valid passing of the no-confidence resolution. On the other hand, by way of example in a Panchayat, with nine members, if seven members had voted for the no-confidence resolution and it is found that one of them is disqualified to vote, that circumstance alone will not invalidate the resolution the reason being that there were, still six members of the Panchayat who validly supported the resolution. Section 56 covers such a case. But in the above example if the supporting valid votes fall below the required 2/3rds of the membership, the resolution is invalid, not solely because some invalid votes were cast in its support but because it did not have the required minimum support of 2/3rds of the membership of the Panchayat, qualified to vote. This objection of the respondents also is without substance.
16. The writ petition is, therefore, allowed. No order as to costs.