The petitioner is challenging the order dated 22.06.2009, passed by the first respondent in his proceedings bearing Na.Ka.No.2555/2009/Pa-3.
2 The petitioner is the President/Chairman of Sarkarsamakulam Town Panchayat, Coimbatore District. It is her case that she was elected as Ward Councillor in October 2006 and thereafter she was elected as President and Chairman of Town Panchayat. According to the petitioner, the Vice Chairman/Vice President has been showing a hostile attitude towards her and in fact he is instigating the other ward members against her. This resulted in 13 of the Ward members submitting a letter dt.22.6.2009 to the first respondent, Assistant Director, seeking to bring a No Confidence Motion. On the basis of the letter dt.22.6.2009, the first respondent issued the impugned proceedings calling for a special meeting on 13.7.2009 at 11.00 a.m. at the Town Panchayat. Challenging the proceedings of the first respondent dt.22.6.2009, she has preferred the above writ petition to quash the same.
3 The main grounds raised by the petitioner are that the first respondent, Asst. Director has no jurisdiction at all to issue the impugned proceedings and the competent authority as per the Tamil Nadu Municipalities Act 1920 is the Regional Director of Municipal Administration. She draws support from Sec.40A of the Act and contends that it cannot be delegated at all to any other authority. It is her further case that the ratio laid down by this Court in W.P.No.12667 of 2002 on 23.10.2002 (Mr.P.Jagadeesan Vs The Collector of Kancheepuram Dist. And 2 others) is squarely applicable to the facts of the present case and as per the order dt.23.10.2002, the Govt. has no power to delegate the power of the Regional Director of Municipal Administration to the Asst. Director of Town Panchayat. The other ground raised by the petitioner is that the procedure contemplated under Sec.40A(2) of Tamil Nadu Municipalities Act 1920 was not at all followed in this case and therefore, the proceedings of the first respondent are vitiated and are to be set aside.
4 This Court on 7.7.2009 ordered notice to the private respondents and the learned Government Advocate took notice on behalf of the first respondent on 10.7.2009, this Court directed that the proposed meeting of the Councillors shall go on but the outcome shall not be made known until further orders.
5 Notices were served on all the respondents and a counter affidavit was filed by the first respondent.
6 In the the counter affidavit, the Asst. Director of Town Panchayats stated that no confidence motion proposal was brought forward by 13 Councillors mentioning that they are not satisfied with the performance of the petitioner. When such a proposal was brought by more than 3/5th of the total Councillors as the competent authority, it is his duty to convene a meeting. It is specifically stated by the first respondent that all the procedure contemplated under Sec.40A(3) of the Act have been duly complied with. It was specifically stated in the counter that by G.O.Ms.No.208 (MAWS) Dept. dt.6.12.2003, the Government modified the expression Regional Director of Municipal Administration in Sec.40(A) & (B) of the said Act and the expression Asst. Director of Town Panchayat was substituted. Therefore, the first respondent contends that he is the compent authority and he has followed the procedure contemplated under the Act. Hence, he prayed for dismissal of the writ petition.
7 Heard the learned counsel for the petitioner and the learned Additional Advocate General for the Additional Govt. Pleaders (Writs) and the learned counsel for the private respondents. I have also gone through the entire documents available on record.
8 The learned counsel for the petitioner submits that the procedure contemplated under Sec.40(A) of the Act and in particular Sec.40(A)(2) of the Act was not at all followed and therefore, the impugned proceedings are to be set aside. According to the learned counsel for the petitioner, if the Councillors wanted to pass a No Confidence motion against the petitioner, atleast 3/5th of the sanctioned strength of the Council should give a written notice of the intention to make the motion together with the copy of the motion which is proposed to be made, shall be delivered by atleast 2 of the Councillors who signed the notice in person to the Regional Director of the Municipal Administration. In this case, the learned counsel contends that what was given by the 3/5th of the sanctioned strength of the Council is not a notice that too, without a copy of the motion which is proposed to be made and further the same was delivered to the Asst. Director of Town Panchayat who is not the competent authority. The learned counsel relying on an unreported decision of this Court dt.23.10.2002 made in W.P.No.12667 of 2002 (cited supra) submits that even the State Government cannot confer the power of the Regional Director on the Asst. Director of the Town Panchayat. The learned counsel further take exception to the proceedings of the first respondent dt.22.6.2009 wherein he has gone to the extent of commenting on the merits of the motion, which is expressly prohibited under Sec.40(A)(10) of the Act. Therefore, he prayed for setting aside the impugned proceedings.
9 Per contra, learned Additional Advocate General appearing for the first respondent submits that Sec.40-A(2) & (3) of the Act were meticulously complied with by the Asst. Director of the Town Panchayat is undoubtedly a competent authority to issue the impugned proceedings as per G.O.Ms.No.208 MAWS Dept. dt.6.12.2003. The learned Addl. Advocate General relying on a decision of this Court reported in 2008(4) M.L.J. 11 (S.Vimala and another Vs Secretary to Government, Municipal Administration and Water Supply Dept., Chennai and others) submits that a similar contention with regard to the competence of the Asst. Director of Town Panchayat was advanced before the learned Judge in that decision and the learned Judge after referring to G.O.Ms.No.208 dt.6.12.2003 held that there is no substance in such contention as Govt. is competent to issue a notification modifying the provisions of the Act when the provisions are applied to a Town Panchayat. The learned Addl. Advocate General pointed out that the earlier judgment of this Court dt.23.10.2002 made in W.P.No.12667 of 2002 was also referred to by the learned Judge in the later Judgment.
10 In so far as the non-compliance of Sec.40(A) (2) of the Act is concerned, the learned Addl. Advocate General after referring to the representation of the Ward members dt.22.6.2009 submits that 3/4th of the member signed the representation and they also expressed their intention that to make a No confidence motion against the petitioner. He further pointed out that though a copy of the motion which is proposed to be made was not enclosed, the same was very much stated in the representation itself and therefore, it cannot be said that the representation of the Councillor dt.22.6.2009 was not in consonance with Sec.40A(2) of the Act. In support of his submission, the learned Addl. Advocate General relies on a decision of this Court in 1976(1) M.L.J. 303 (V.C.Kadirvelu Vs Sub Collector, Karur, Trichy District) .
11 The learned counsel for the private respondents submits that once a representation/notice is given by 3/5th of the members, the first respondent has no option excepting to proceed further and in this case, the first respondent cannot be faulted for exercising his statutory function. In so far as the compliance of Sec.40-A(3) is concerned, he submits that what is material is the intention is to move a motion of no confidence and as long as it is there, the first respondent has other option excepting to convene a meeting. In support of his submission, the learned counsel relies on the following judgments.
1 1962(II) M.L.J. 388 (S.Ethiraja Mudaliar Vs The Revenue Divisional Officer, Chengalput) 2 1962(II) M.L.J. 300 (M.S.A.Jayaraman vs The Revenue Divisional Officer, Namakkal and others) 3 2003(1) C.T.C. 522 (R.M.Murugan Vs The Government of Tamil Nadu, Rep. by the Secretary to the Local Administration (Municipalities), Fort St.George, Chennai 9 and 6 others) 12 I have considered the rival submissions carefully with regard to facts and citations.
13 In the light of the above submissions, the only question that arises for consideration in this petition is whether the procedure contemplated under Sec.40(A) of the Act has been duly complied with before the impugned proceedings are issued by the first respondent.
14 To answer this question, it is useful to refer Sec.40(A) (1)(2) & (3) of the Act, which are extracted below:
"40-A Motion of no confidence in (chairman or vice-chairman (1) Subject to the provisions of this section, a motion expressing want of confidence in the (chairmanor vice-chairman) may be made in accordance with procedure laid down herein.
(2) Written notice of intention to make the motion, in such form as may be fixed by the State Government, signed by such number of councillors as shall continue not less than three-fifth of the sanctioned strength of the council, together with a copy of the motion which is proposed to be made, shall be delivered by any two of the councillors signing the notice in person together, to the (Regional Director of Municipal Administration).
(3) The Regional Director of Municipal Administration shall, then, convene a meeting for the consideration of the motion, to be held at the municipal office, at a time appointed by him which shall not be later than thirty days from the date on which the notice under sub section (2) was delivered to him. He shall give to the Councillors notice of not less than fifteen clear days of such meeting and of the time appointed therefor."
15 From the above, it is clear that if 3/5th of the councillors sign a written notice of intention to move a motion expressing want of confidence, in the Chairman or Vice-Chairman, they can do by preparing a written notice together with a copy of the motion which is proposed to be made.
16 Such written notice of intention shall be delivered by two of the signing Councillors in person to the Regional Director of Municipal Administration. The Regional Director, then convene a meeting for the consideration of the motion to be held at the Municipal office at a time appointed by him which shall not be later than 30 days from the date of receipt of Sec.40A(2) notice. The Regional Director shall also give to the Councillors notice of not less than 15 clear days of such meeting and of the time appointed therefor.
17 The crux of the argument advanced on behalf of the petitioner is that what was submitted on 22.6.2009 by the Councillors is not a notice and a copy of the motion which is proposed to be made is not at all enclosed as contemplated under Sec.40A(2) of the Act. Yet another ground of attack is that the first respondent/Asst. Director of Town Panchayats is not the authority competent and it is only the Regional Director of Municipal Administration.
18 First, let me consider the first limb of the argument that is what were submitted on 22.6.2009 is not a notice and only a letter, therefore, it is vitiated.
19 A perusal of the copy of the representation dt.22.6.2009 (made available in the typedset filed by the first respondent) would show that it was signed by 13 Councillors out of the total strength of 15. It was clearly stated in the representation that they are making allegations against the petitioner and therefore they are bringing no confidence motion against her. They further requested the first respondent to convene a meeting to pass the no confidence motion. Therefore, I have no hesitation at all to hold that in this representation dt.22.6.2009, 13 out of 15 Councillors made their intention very clear that they want to move a motion expressing want of confidence in the petitioner. This is definitely in consonance with Sec.40-A of the Act. In the very section itself stated that the written notice of the intention is to be in such form as may be fixed by the State Government and it is not the case of the petitioner that a form was fixed by the State Government. Therefore, I am rejecting the argument that the representation dt.22.6.2009 cannot be said to be a written notice of the intention to make a no confidence motion as per Sec.40A(2) of the Act.
20 Now, let me consider the second limb of the argument i.e., the representation dt.22.6.2009 does not contain a copy of the motion which is proposed to be made which is mandatory as per Sec.40A(2) of the Act.
21 To consider this submission of the learned counsel for the petitioner the representation dt.22.6.2009 is to be perused again. A perusal of the same would show that 13 of the 15 Councillors made allegations against the petitioner and expressed their intention to move a no confidence motion against the petitioner. In the concluding portion of the representation dt.22.6.2009, it was specifically stated by the Councillor that to pass this no confidence motion the first respondent should convene a meeting and to take further action. If that being so, the representation dated 22.6.2009 not only conveys the intention of the councillors but also states that what is the motion that is proposed to be made against the petitioner. It is true that a copy of that motion which is proposed to be made is not separately enclosed but the same is unambiguously mentioned in the representation itself. This according to me is sufficient and substantive compliance of Sec.40A(2) of the Act. Therefore, I am rejecting the argument of the learned counsel for the petitioner in this regard.
22 In 1976(1) M.L.J. 303 (cited supra), this Court held as under:
"4. I am not inclined to agree with either of these contentions. Firstly, it is seen that the respondent has acted upon the notice of intention signed by 19 members of the Panchayat Union and presented before him under Sec.153(2) of the Act by issuing a notice to the petitioner on 24th August, 1975 and calling for his reply to the said charges. From the fact that 7 members who were signatories to the notice of intention presented earlier, had withdrawn their consent, the action earlier initiated under section 153(3) of the Act 24th August, 1975 by the respondent will not become invalid. Once the petitioner has been called upon to explain the charges levelled against him in the statement of charges and if the respondent considers that the petitioner's reply to the statement of charges is not convincing, he can proceed to convene the meeting for consideration of the no-confidence motion. The fact that subsequent to the initiation of the proceedings under section 153(3) of the act, seven of the members have withdrawn their consent, will not take away the jurisdiction of the respondent which he has chosen to exercise properly on the presentation of a notice of motion under section 153(2) of the Act by the requisite number of members. As regards the second contention that the procedure contemplated in section 153(3) of the Act has not been followed, I find from the copy of the notice dated 24th August, 1975 served on the petitioner that a statement of charges along with the motion has been sent to him. According to the learned counsel for the petitioner, it is not enough to merely serve a copy of the statement of charges along with the notice of intention to make the motion. But it is necessary, under the said section to serve on the petitioner the actual no-confidence motion to be moved. I do not understand the section in the manner suggested by the learned counsel. It is the copy of the notice of intention to make the motion which is referred to in section 153(2) of the Act and which is required to be served on the petitioner. That has been done in this case. The respondent's notice dated 24th August, 1975 calling for the petitioner's explanation produced before me contains an enclosure which is in two parts, the first part containing a notice of intention to make the motion and the other containing the statement of charges levelled against the petitioner. I do not think that apart from the copy of the notice of intention moved by the requisite number of members under section 153(2) of the Act, the actual no-confidence motion to be moved at the meeting is required to be served on the petitioner. Both the contentions, therefore, fail. The writ petition is, therefore dismissed."
23 In the above decision, this Court while considering the procedure contemplated under Sec.153(3) of Tamil Nadu Panchayat Act (Act 35 of 1958) observed that apart from the copy of the intention moved by the requisite number of members under Sec.153(2) of the Act, the actual no confidence motion to be moved at the meeting is not required to be served.
24 In 1962(II) M.L.J. 300 (cited supra), a Division Bench of this Court held that on the terms of Sec.40-A of the Tamil Nadu District Municipalities Act, 1920, it is not necessary for the Revenue Divisional Officer to convene the meeting for the purpose of moving a no confidence motion against the Chairman to supply the members of the Council with copies of the motion or of the charges that might be annexed thereto.
25 In 1962(1) M.L.J. 388 (cited supra), this Court held that so long as the material placed before the Revenue Divisional Officer confirms to the statutory requirements, the Revenue Divisional Officer has no alternative but to carry out the further duties enjoined upon him by Sec.40A(3) of the Tamil Nadu District Municipalities Act.
26 In 2003(1) C.T.C. 522 (cited supra), this Court observed as follows:
"5. It is the contention of the learned counsel for the petitioner that the provisions contained in Sections 40 and 40-A must be read together and unless the State Government has come to the conclusion as required under
Section 40(2), the question of considering the motion of no-confidence under
Section 40-A would not arise. This argument of the learned counsel for the petitioner is difficult to accept. A perusal of the provisions makes ample clear that the two provisions are independent provisions, to be applied under different circumstances. Under
Section 40, the State Government may remove the Vice-Chairman, if in the opinion of the State Government the Vice-Chairman has wilfully omitted or refused to carry out or disobeyed the provisions of the act or any rules, by-laws, regulations or lawful order issued thereunder or abused the powers vested in him. However, before exercising such power, State Government is required to give an opportunity to the concerned vice-chairman for explanation. More over, the notification or the order regarding the removal shall contain a statement of the reasons of the State Government. Such an action can be taken by the Government even if the Municipality has got full faith in the Vice-Chairman. On the other hand,
Section 40-A is also special and self-contained statutory provision wherein the councillors have been given the power to remove the Vice-Chairman by passing a no-confidence motion in the manner indicated in
Section 40-A. The question of considering the motion of no confidence as contemplated under
Section 40-A is not dependent upon any action proposed to be taken by the State Government under
Section 40. Therefore, the main contention of the petitioner is not acceptable.
6 The learned counsel for the petitioner has also contended that the allegations made against the petitioner in the notice of no confidence motion are not correct. For the aforesaid purpose, he has relied upon Schedule III and contended that there had been no dissent on the date of the meeting and on the basis of the baseless allegations, notice of no-confidence motion had been served.
7 This Court is not expected to give any opinion on this aspect. Whether the allegations made against the particular Vice-Chairman are correct or not is a matter for the Muncipal council to decide in the meeting contemplated under
Section 40-A. Merely because, the allegations against the particular Vice-Chairman may appear to be frivolous or baseless, there is no power vested in this Court to quash the no-confidence motion or to quash the notice regarding no-confidence motion."
27 The above judgments relied on by the learned Addl. Advocate General and the learned counsel for the private respondents do support the case of the respondents. However, I am of the considered view that notwithstanding the above judgments the representation dt.22.6.2009 does confirm to Sec.40-A(2) and therefore, I do not find any infirmity in this regard.
28 Now, let me consider the last limb of the argument about the competency of the first respondent. Placing heavy reliance on the unreported judgment of this Court dt.23.10.2002 (cited supra) the learned counsel for the petitioner submits that the first respondent is not the competent authority and the State Government has no power to take away the power of Regional Director and confer the same on the Asst. Director.
29 It is true that a reading of the above said judgment certainly supports the case of the petitioner but the same pales into insignificance in view of the subsequent judgment of this Court reported in 2008(4) M.L.J. 11 (cited supra).
30 In 2008(4) M.L.J. 11 (cited supra), the learned Judge referred to the previous judgment dt.23.10.2002. In the judgment dt.23.10.2002, the learned Judge relying on Sec.3 of Tamil Nadu Municipalities Act held that the said section enables the Government by notification to direct any of the provisions of the Act either in the same manner or by modification or by addition or by restriction to be made applicable in respect of Town Panchayat. The learned Judge in the order dt.23.10.2002 held that Sec.3 of the Tamil Nadu Municipalities Act could be relied upon only in respect of prevailing enactments and it cannot be relied upon nor it is a source of power to confer an authority or delegate the power on the Assistant Director to exercise the power as if he was the Regional Director.
31 After referring to the above mentioned observations of the learned Judge in the order dt.23.10.2002, the learned Judge who passed the order in 2008(4) M.L.J. 11 (cited supra) observed as follows:
"25. Therefore, it is clear that the Government's power under Sections-3-M or 3-AA in Chapters I-A and 1-B of the Tamil Nadu District Municipalities act, 1920 is not to straightaway delegate the powers to the Assistant Director of Town Panchayat, who is performing the functions of the Town Panchayat as its executive, but by making necessary notification, to modify the provisions of the Act in order to make it applicable for the administration of the Town Panchayat. Therefore, by issuing such notification it is not as if the Government should perform its legislative function. The intention of the Government in extending the provisions of the District Municipalities Act for the administration of Town Panchayat in a modified form is not for the purpose of making amendment to the District Municipalities Act, 1920, but it is only for the purpose of applying the provisions by modification by means of issue of notification for administration of the Town Panchayat.
26. On the factual position of this case, it is clear that it is not as if by the impugned notification any substantial change in the provisions of the Act was sought to be made, but the change is only in respect of an executive who is in the administration of the Town Panchayat, authorising him to perform the functions of the authority, viz., the Regional Director of Municipal Administration, who is the administrative authority or executive in respect of District Municipalities and it is not necessary that the authority performing the functions in respect of District Municipalities must perform the functions for the administration of Town Panchayat also. To borrow the provisions from the District Municipalities Act for enabling an executive of Town Panchayat, viz., the Assistant Director of Town Panchayat to perform the functions of such provisions, a notification prescribed under Section 3-M and 3-AA of Chapters I-A and I-B as stated above is sufficient and such notification cannot be held to be invalid. That was the purport of the order of this Court stated supra.
27. In consonance with the order of this Court, dated 23.10.2002, G.O.Ms.No.208 dated 28.12.2003 has been passed by issuing notification under Section 3-M of the Act thereby authorising the Assistant Director to Town Panchayat to perform the functions under
Section 40-A of the Act, which has been borrowed for the administration of the Town Panchayats. In such circumstances, I am of the considered view that there is absolutely no substance in the contention of the learned counsel for the petitioners in these writ petitions."
32 From the above, it is very clear that similar and identical arguments that were made before me were made before the learned Judge and the learned Judge after going through Sec.3-M, Sec.3 AA and G.O.Ms.No.208 held that the Asst. Director of Panchayat is the competent authority in so far as the Town Panchayat is concerned. I am in respectful agreement with the decision of the learned Judge and accordingly, I hold that the Government is well within its jurisdiction and power to issue G.O.Ms.No.208 MAWS Department dt.6.12.2003 and on the basis of the G.O., the first respondent is competent to proceed under Sec.40A of the Tamil Nadu District Municipalities Act 1920 in so far as the Town Panchayats are concerned.
33 With regard to the argument of the learned counsel for the petitioner that the first respondent has exceeded his jurisdiction by speaking on the merits of the motion, I do not find any merits at all.
34 First of all, in the impugned proceedings, the first respondent did not say anything on the motion and as rightly pointed out by the learned Addl. Advocate General, he simply reproduced the contents of the representation dt.22.6.2009 submitted by the 13 councillors. Even otherwise, Sec.40-A (10) will not apply to the facts of the present case as that proviso deals with the further proceedings subsequent to the convening of the meeting.
35 In the present case, admittedly the petitioner approached this Court before the meeting was convened and therefore, I do not find any merits in this submission also.
36 In the result, the writ petition is dismissed. No cost. All the connected miscellaneous petitions are closed.
23.11.2009 Index:Yes/No Internet:yes/no vaan Note to Office: Issue order copy on 24.11.2009 To The Asst. Director of Town Panchayats (General), Coimbatore Zone, Coimbatore District.
S.RAJESWARAN,J.
vaan W.P. No.12436 of 2009 & M.P.Nos.1 & 2 of 2009 Dated: 23.11.2009