Skip to content


C. Krishnamurthi Vs. the Divisional Development Officer Chidambaram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1980)1MLJ149
AppellantC. Krishnamurthi
RespondentThe Divisional Development Officer Chidambaram and ors.
Cases ReferredIn Ramaswamy Reddiar v. State of Tamil Nadu
Excerpt:
- .....to the defaulting member and after the subject is considered by the panchayat or the panchayat union council, as the case may be, at its next meeting after the issuance of the notice. this leads on to a discussion as to whether the disqualification contemplated in section 28(1) of the act is an automatic one or whether it is subject to certain formalities, such as the one referred to by learned counsel for the appellant before us and whether the suffered disqualification should be postponed until after the above so-called prescriptions are proved to have been satisfied.5. the disqualification which is generated by the non-conformance of statutory duties gets itself attached to the defaulter eo instanti there is a proved failure of such conformance of mandates of the statute. anything.....
Judgment:

T. Ramaprasada Rao, C.J.

1. This writ appeal is against the order of Padmanabhan, J., who saw no merit in the writ petition filed by the appellant, who was a member and President of the Agaram Village Panchayat and who sought for a writ of certiorari to call for the records relating to the order of the District Munsif of Cuddalore, in O.P. No. 3 of 1976, which order he passed as a statutory functionary under the Tamil Nadu Panchayats Act, 1958 (hereinafter referred to as the Act), and to quash the same.

2. The relevant facts are as follows: The Divisional Development Officer, Chidambaram, who is the first respondent herein, caused a memo. to be served on the appellant stating that under Section 28(1) and (2) of the Act the appellant had become disqualified to be a member, and in consequence to be the President, of the panchayat in question, since he had not paid the house tax and the vehicle tax for the years 1973-74 and 1974.75 within the time prescribed for such payment. The appellant filed the original petition in question before the District Munsif of Cuddalore, who is the statutory judicial authority within the meaning of Section 28(2) of the Act, to decide the question whether the memo. had been validly issued or not and whether he was suffering under any disability or disqualification. The District Munsif concurred with the opinion expressed by the Divisional Development Officer, Chidambaram, and was of the view that the appellant did incur the disqualification. It is to quash this order of the statutory but judicial authority that the writ petition was filed.

3. Three contentions were raised by the appellant before the learned Judge, and they were repeated before us. At the outset, it is common ground now that the tax as claimed for the relative years in question was not paid in time. This being a question of fact the learned Judge felt that it was not open to the appellant to canvass the correctness of such a finding of fact which was rendered on an appreciation of the oral and documentary evidence in the case. We are not called upon to disturb the said finding.

4. The main contention recanvassed before us is that the non-payment of tax within time, even if it is an irregularity, cannot inflict the appellant with an automatic disqualification and that it would be operative only after a notice in writing is issued to the defaulting member and after the subject is considered by the panchayat or the panchayat union council, as the case may be, at its next meeting after the issuance of the notice. This leads on to a discussion as to whether the disqualification contemplated in Section 28(1) of the Act is an automatic one or whether it is subject to certain formalities, such as the one referred to by learned Counsel for the appellant before us and whether the suffered disqualification should be postponed until after the above so-called prescriptions are proved to have been satisfied.

5. The disqualification which is generated by the non-conformance of statutory duties gets itself attached to the defaulter eo instanti there is a proved failure of such conformance of mandates of the statute. Anything which has to be done after the sufference of the disqualification could only be understood as publicising such disqualification already suffered or as steps taken to implement the consequences resulting from the same. The defaulter cannot ignore the badge of infirmity which has been imprinted on him already. If he is alert the defaulter might take such steps as are necessary to efface that badge by resorting to statutory procedure prescribed by the very statute which brings about such a disqualification. In this context it is necessary for us to deal with Section 28 of the Act, in order to appreciate the main contention of learned Counsel for the appellant. Section 23 of the Act reads as follows;

Section 28(1)

Whenever it is alleged that any person who has been elected as a member of a 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, the executive authority or the Commissioner, as the case may be, shall, by notice in writing, inform such member of the allegation and place the matter at the next meeting of the panchayat or panchayat union council. If before the date of the expiry of two months from the date of receipt of such notice such member does not apply to the prescribed judicial authority under Sub-section (2) he shall become not qualified or disqualified from such date of expiry of the said two months.

2. The executive authority or the Commissioner, as the case may be, if so directed by the panchayat or panchayat union council or by the Inspector, shall, and any such member or any other member may, apply to the prescribed judicial authority, whose decision on such allegation shall be final.

(3) Where an application has been made under Sub-section (2), the member shall. pending decision on such application, be entitled to act as if he is qualified or were not disqualified.

(4) Nothing contained in this section shall be deemed to affect the provisions of Section 27.

The section engrafts both substantive and procedural law. The substantive part of it relates to the allegation that a member of a panchayat or a panchayat union council has become disqualified under one or the other of Sections 22, 24, 25, 26 or 27-A. The procedural aspect relates to the information to be given by the executive authority or the Commissioner of the Panchayat or the panchayat union council, as the case may be, which should be given in writing to the member who has become so disqualified. Another phase of the procedural aspect adumberated in the section touches upon the duty of the Commissioner to place such matter at the next meeting of the panchayat or the panchayat union council. The latter part of Section 28 highlights the automatic nature of the disqualification which a member would suffer, if he does not avail himself of the relief, which again touches upon procedure, by applying to the prescribed judicial authority to decide whether such allegation is true or not. The period within which he could seek such a relief is also set out in the latter part of Section 28. Sub-section (2) of Section 28 gives an option or the Panchayat Union Council, or the Inspector, who is appointed by the Government, to exercise or perform any of the powers or duties of the Inspector under the Act, to direct the Commissioner to move the prescribed judicial authority for decision whether the disqualification complained of could be said to have been suffered by the member concerned. Incidentally Sub-section (2) also refers to the relief made available to the member. It enables the member, as already stated, to approach the judicial authority himself challenging the allegation as to disqualification. It makes the decision of the judicial authority final.

6. Thus it is seen from the analysis of the section as above that no overt act is necessary on the part of the executive authority or the Commissioner to bring home the disqualification suffered by a member under Sections 22, 24, 25, 26 or 27-A. Under similar circumstances a Bench of this Court in Kuppuswami v. Corporation of Madras I.L.R. (1964) 1 Mad. 14 expressed the view that, once a councilor absented himself consecutively for three months, a vacancy did arise in the Council, Corporation of Madras. This decision arose under the Madras City Municipal Act. The principle therein however is of universal application. This pronouncement makes it clear that the disqualification once suffered by reason of one or the other of the above sections continues after its sufferance and that there is no snapping of such disqualification, until, the defaulter takes action on his own initiative, or the Panchayat or the panchayat union council, as the case may be, takes such action, which results in the effacement of such disqualification. The view expressed by the Division Bench that the continuous absence of a councillor for a period of three months creates a vacancy in the Council means that the disqualification is automatic and that it continues from the date of the infliction, until the member takes steps for the removal of such disqualification in a manner known to law.

7. Two learned single Judges of this Court have taken a similar view in Murugappa Chettiar v. Inspector of Panchayats-cum-Collector of South Arcot : (1969)1MLJ615 Ramakrishnan, J. observed:

The provisions of the Panchayats Act in Section 26, and in particular, Section 26(j) Section 27 and Section 28, are in paria materia with the corresponding provisions of the District Municipalities Act (V of 1920) as well as Madras Local Boards 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 absence 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.

The learned Judge concluded by saying that Section 27 of the Act made it clear that, on the incurring of the disqualification under Section 26(j), the member lost his membership automatically and that it was for him thereafter to apply for restoration to the Panchayat on or before the date of its next meeting.

8. In Ramaswamy Reddiar v. State of Tamil Nadu (1976) 1 M.L.J. 3 1 : 89 L.W 218 Ramaswami, J. considered a case where there was default in the payment of house tax within the prescribed time. The learned Judge also expressed the view that Section 26 of the Act was imperative and that the member ceased to hold the office on incurring any of the disqualifications referred to therein.

9. We agree with the ratio in the above pronouncements and confirm the view that the disqualification referred to in Section 28, said to have been suffered by the member of the panchayat or panchayat union council under Sections 22, 24, 25, 26 or 27-A is automatic and that it continues until there is a removal of such a disqualification in the manner prescribed by Section 28.

10. The second contention of Mr. Venkataraman, learned Counsel for the appellant, is that the question of disqualification of the appellant not having been placed before the next meeting of the Panchayat, the first respondent had no jurisdiction to issue the impugned memo. Here again the contention has to be adverted to with reference to the nature of the disqualification suffered. As already stated, the information to be conveyed by the executive authority revolves round the procedural aspect already referred by us and found in Section 28. So long as such a passing of the information to the panchayat or the panchayat union council by the Commissioner does not in any way efface or snap the continuity of the disqualification suffered by the defaulting member, the non-conveyance of such information does not go to the root of the matter and work to the advantage of the member. This is because the disqualification is automatic and is not contingent upon the happening of any supervening or subsequent event. If at least it had been provided in Section 28(1) that on the passing of such information by the Commissioner to the panchayat or the panchayat union council, as the case may be, the disqualification already suffered will be kept in abeyance, then matters would have been different. The section does not provide for such a situation. On the other hand, the section further provides a relief to the defaulting member by giving him an opportunity to apply to the prescribed judicial authority under Sub-section (2) of Section 28 and get an adjudication on the factual position whether he has become disqualified or not. But until such an adjudication is rendered by the prescribed judicial authority, the disqualification would continue. If he is successful, then the pronouncement of the judicial authority would efface the disqualification. If he is not successful, the disqualification already suffered, having continued would remain attached to the member in question.

11. Another channel of relief provided under Section 28(2) of the Act is referable to the steps which may be taken by the panchayat or the panchayat union council or the Inspector as defined, in the Act, enabling one or the other of the nominated authorities to apply to the prescribed judicial authority on the question whether the member has suffered the disqualification or not. No such steps have been taken this case. Even if such steps were taken, it does not alter the position.

12. Another contention, though raised by the appellant, was not seriously pressed into service before us. The contention is that, as the appellant was the President of the Panchayat, Section 28, which speaks of amember, would not apply to the President. But learned Counsel for the appellant did not press this contention, as in the scheme of the Act no such distinction can be drawn so far as the subject is concerned.

13. We are therefore of the view that the order of Padmanabhan, J., has to be sustained. The writ appeal is accordingly dismissed.

14. The point which arises in this appeal does not raise a question of law of general importance which has to be decided by the Supreme Court. The oral application for leave to appeal to the Supreme Court is, therefore refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //