The petitioner is the Vice-President of Pannimadai Village Panchayat in Coimbatore District. One Mr.P.Senthil Kumar was the President of the said Panchayat. Unfortunately, in an accident, the President Mr.P.Senthilkumar died. On the demise of Mr.Senthil Kumar, by operation of Section 47(1) of the Tamil Nadu Panchayats Act, 1994 (hereinafter in short as Act), he shall exercise the functions of the President until a new President is declared elected and assumes office. But contrary to the same, the first respondent namely, the Inspector of Panchayats, by his proceedings in Na.Ka.No.3751/2008/A3 dated 22.09.2008 has nominated the Block Development Officer, Periyanaickenpalayam to exercise the powers of the Village Panchayat President. Challenging the same, the petitioner has come forward with this writ petition.
2. Admittedly, on a previous occasion, the first respondent by his Proceedings dated 17.7.2008 withdrew the cheque signing power of the Vice President. Challenging the same, the Vice President filed a writ petition before this Court. This Court by an interim order dated 31.7.2008 has granted stay. It appears that such stay is still in operation.
3. The contention of the petitioner is that under Section 47(1) of the Act, the petitioner is entitled to exercise all the powers of the President until a new President is declared elected and assumes office and thus the impugned order is without jurisdiction and so the same is therefore, liable to be quashed.
4. The learned Special Government Pleader produced a draft counter of the first respondent. Relying on the same, the learned Special Government Pleader would submit that on verification of books of accounts, it was noticed that the petitioner has already misappropriated Panchayat funds to the tune of Rs.20.00 Lakhs and a surcharge Proceeding is pending against him in respect of the same. It is further contended that with a view to prevent the misuse of Panchayat funds by the petitioner, he was not allowed to act as President. In view of the interest of the Panchayat as per Section 9-A of the Act, the Block Development Officer has been nominated with special powers to administer the Panchayat as a Special Officer till election of the next President or a period of six months whichever is earlier. It is further contended that under Section 47(3) of the Act, when the President is not available, the Vice-President is of-course entitled to discharge the functions of the President, but, when the Vice-President is found incapacitated or if he is found ineligible, according to the counter, the Inspector of Panchayats has got power to nominate any other competent person to discharge the functions of the President. In this case, according to the counter, since there was no other qualified member of the Panchayat available to act as President, the Inspector of Panchayats had to nominate the Block Development Officer to discharge the functions. Therefore, according to the learned Special Government Pleader, the impugned order is perfectly correct and the same does not require interference of this Court.
5. I have considered the rival submissions.
6. Before going to the facts of the case, let me first analyse the legal position. Section 47(1)(2)&(3) of the Act read as follows:-
47. Devolution of President's functions and filling up of vacancies in the office of President- (1) When the office of President is vacant, the Vice-President shall exercise the functions of the President until a new President is declared elected and assumes office.
(2) If the President has been continuously absent from jurisdiction for more than thirty days or is incapacitated, his functions during such absence or incapacity shall, except in such circumstances as may be prescribed, devolve on the Vice-President.
(3) When the office of President is vacant or the President has been continuously absent from jurisdiction for more than thirty days or is incapacitated and there is either a vacancy in the office of Vice-President or the Vice-President has been continuously absent from jurisdiction for more than thirty days or is incapacitated, the functions of the President shall devolve on a member of the Village Panchayat appointed by the inspector in this behalf, and if no member of the Village Panchayat is available for such appointment on such person as may be appointed by the inspector in this behalf.
The member of the Village Panchayat or the person so appointed (who shall be called as the temporary President) shall perform the functions of the President subject to such restrictions and conditions as may be prescribed, until a new President or Vice-President is declared elected and assumes office, or either the President or the Vice-President returns to jurisdiction or recovers from his incapacity, as the case may be.
A plain reading of Section 47(1) would disclose that as soon as the post of a Village Panchayat becomes vacant, by operation of law, the Vice-President shall automatically exercise the functions of the President until a new President is declared elected and assumes office. Thus, there is no need for any other authority including Inspector of Panchayats to pass any order authorising the Vice-President to exercise the functions of the President. As I have already stated the moment, the post of President becomes vacant, automatically, the Vice-President shall start exercising the functions of the President.
7. For any reason, if, in the opinion of the Inspector of Panchayats, the Vice-President is considered to be disqualified to continue to function as Vice-President then resort could be made to Section 206 of the Act.
8. Coming to the facts of the case, admittedly, no such proceeding has been initiated against the petitioner. The petitioner is very much available as Vice-President and so he shall exercise the powers of the President. In the absence of any order under Section 206 of the Act, he cannot be divested of the powers of the President so long as the said post of President is vacant.
9. In the counter, as I have already stated, reliance is made on Section 9-A of the Act. In my considered opinion, Section 9-A also is not applicable to the facts of the present case. Section 9-A reads as follows:-
9-A.Appointment of Special Officer in certain circumstances :-(1)Notwithstanding anything contained in this Act, or in any other law for the time being in force, in respect of Village Panchayats specified in Schedule -VI, which (could not be constituted) even after resorting to elections process, the Government may, by notification, appoint Special Officers to exercise the powers and discharge the functions of the Village Panchayats, until the day on which the first meeting of the Village Panchayats are held after elections to the said Village Panchayats.
(2) The Special Officer appointed under sub-section (1) shall hold office only (upto the 24th day of April, 2004) (24th day of October 2004) (24th day of April 2005) (24th day of October 2005) (24th day of April 2006) (24th day of October 2006) or for such shorter period as the Government, may, by notification, specify in this behalf.)
10. A glance through Section 9-A would make abundantly clear that power to appoint a Special Officer in certain circumstances is vested with the Government. Such power cannot be exercised by an Inspector of Panchayats. Therefore, the contention of the respondents that under Section 9-A, the Block Development Officer has been appointed as Special Officer also cannot be countenanced. In view of the above, as rightly pointed out by the learned counsel for the petitioner, the impugned order is wholly without jurisdiction and hence, it is liable to be quashed.
11. In the result, the writ petition is allowed and the impugned order is quashed. However, it is made clear that the first respondent is at liberty to initiate proceedings under Section 206 of the Act if it is so warranted. Further, this order will not stand in the way of the Government to pass an order under Section 9-A of the Act if so warranted. No costs. Consequently, connected M.P.Nos.1 and 2 of 2008 are closed.
nvsri To
1.The District Collector & Inspector of Panchayats, Coimbatore.
2.The Block-Development Officer, (Panchayat) Periyanaickenpalayam, Coimbatore District