P. Ramachandran vs The Tahsildar, Srivilliputtur

Srinivasan, J.—The Petitioner was the President of Khansapuram Panchayat. The panchayat consists of sixteen members. The Collector of

Ramanathapuram issued a notice to the Petitioner u/s 150(1) of the Madras Panchayats Act of 1958 and called for the explanation of the

Petitioner within seven days of the receipt of the notice. The Petitioner submitted his explanation. Thereafter, under the directions of the Collector,

the Tahsildar of Sriviiliputtur issued a notice stating that a meeting of the Panchayat will be held on 31st October 1961 at 11 a.m. to consider the

charge-sheet of the Collector and the explanation offered by the President. The Petitioner claims that this notice was served upon all the members

of the Panchayat, including four members, who the Petitioner asserts, had become disqualified by reason of their failure to attend meetings.

According to the averments in the petition, between 20th June 1959 and 11th December 1959, six ordinary meetings of the Panchayat were held

and four members absented themselves for all the six meetings, in spite of proper notice of the meetings having been served upon them. It is

claimed that they ceased to be members of the Panchayat by virtue of the provisions of Section 17(k) of the Madras Village Panchayats Act of

1950. This fact was intimated to these four members by registered post and the matter was brought up at the next meeting of the Panchayat on

30th December 1959. The Panchayat held that these members had become disqualified. It is further stated that these members did not apply for

restoration, nor did they move the appropriate judicial authority in accordance with the provisions of Section 8(2) of the 1950 Act. These matters

were brought to the notice of the concerned authority by the Petitioner and the Petitioner asked that authority to clarify whether the members were

eligible to be considered as still continuing to be members of the Panchayat for the purpose of the meeting that was proposed to be held. The

Extension Panchayat Officer informed the Petitioner that the four members referred to had not become disqualified pending the decision of the

Judicial authority. The Petitioner contends that in the light of the facts set out above, these members had become disqualified and that they could

not in any event participate in the meeting directed to be held by the Collector in pursuance of the proceedings started by him u/s 150(1). He

disputes the correctness of the clarification issued by the Extension Panchayat Officer that despite the resolution of the Panchayat regarding the

disqualification of the four members and despite the failure of those members to seek restoration in accordance with the provisions of the Act or to

obtain a judicial determination of the question, they still continue to be members of the Panchayat. It is in these circumstances that the Petitioner has

filed this petition under Article 226 for the issue of a writ of prohibition to restrain the Tahsildar from holding the meeting contrary to the provisions

of the Madras Village Panchayats Act, that is to say, by permitting disqualified members to participate therein.

On behalf of the Tahsildar, it is stated that the Petitioner as the President of the Panchayat had sent registered letters to four of the members of

the panchayat u/s 18(2) of the Act informing them that they had ceased to be members of the Panchayat u/s 17(k) of the Act. It is also stated that

these four members had denied the allegation and that when matter was brought to the notice of the Additional District Panchayat Officer, he

informed the Petitioner that these four members had not ceased to be member of the Panchayat. The Divisional Panchayat Officer seems to have

informed the Petitioner that as the four members did not admit their disqualification, they should be treated as qualified members till a final decision

is given by a competent judicial authority. It is claimed by the Respondent that in these circumstances the Tahsildar was justified in issuing the

notice of the meeting to all of the members, including those who, the Petitioner claimed, had-become disqualified. It is urged further in the counter-

affidavit that pending a decision by a competent judicial authority, the members shall be entitled to act as if they were not disqualified. It is

accordingly claimed that the petition for the issue of a writ of prohibition cannot be sustained.

The question that has to be considered calls for a close examination of Sections 17, 18 and 19 of the Madras Village Panchayats Act, 1950.

Mr. Mohan Kumaramangalam argues that the disqualification specified in Section 17(k) of the Act is automatic. This provision reads:

Subject to the provisions of Section 19, a member shall cease to hold office as such if he ....

(k) absents himself from the meetings of the panchayat for a period of three consecutive months reckoned from the date of the commencement of

his term of office, or of the last meeting which he attended, or of his restoration to office as member u/s 18, Sub-section (1), as the case may be, or

if within the said period, less than three meetings have been held, absents himself from three consecutive meetings held after the said date:

Provided that no meeting from which a member absented himself shall be counted against him under the clause if:

(i) due notice of that meeting was not given to him; or

(ii) the meeting was held after giving shorter notice than that prescribed for an ordinary meeting; or

(iii) the meeting was held on a requisition of members.

The section is perfectly clear that if after receipt of due notice of the meetings a member absents himself from the meetings for three consecutive

months from the date of the last meeting which he attended (that part of the provision applies to the present case), he shall cease to hold office as

such. In so far as the argument that the disqualification attaches automatically is concerned, I am of the view that Mr. Mohan Kumaramangalam,

learned Counsel for the Petitioner, is well-founded in this contention; Section 18, Sub-clause 2, reads thus:

Where a person ceases to be a member under Clause (k) of Section 17, the executive authority shall at once intimate the fact in writing to such

person and report the same to the panchayat at its next meeting. If such person applies for restoration suo motu to the panchayat on or before the

date of its next meeting or within fifteen days of the receipt by him of such intimation, the panchayat may at the meeting next after the receipt of

such application restore him to his office of member.

This provision lays a duty upon the executive authority, who is the President to intimate the disqualification which attaches to the member u/s 17(k)

of the Act in writing to the member. The matter has also to be brought before the Panchayat at its next meeting. A disqualified member has two

courses open to him. He can immediately apply for restoration on or before the date of the next meeting, or he may apply within fifteen days of the

date of the receipt of the notice when the question of the restoration shall be considered by the Panchayat at the meeting held next after the receipt

of his application. In the present case, presumably the Panchayat acting on the report of the executive authority records the fact of the

disqualification incurred by the member at its meeting. If an application is made, whether before the meeting of the Panchayat to which the fact of

disqualification is reported or within fifteen days from the date specified, the Panchayat is entitled to consider the matter and restore the disqualified

member. If the disqualified member does not choose to approach the Panchayat with a request for restoration, and takes no steps whatsoever, the

result would be that the disqualification is not removed by this provision.

Section 19 is important in the present context. It deals with a case where it is alleged that a member has become disqualified u/s 17(k) and does

not admit the allegation, or when such member is himself in doubt whether he has become disqualified in such cases a determination of the question

by the appropriate judicial authority is provided for. The provision says:

...such member or any other member may, and the executive authority shall, on the direction of the panchayat or of the Inspector, apply to the

prescribed judicial authority whose decision shall be final.

The averments in the counter-affidavit of the Respondent rest upon this provision and it is contended that so long as the judicial authority has not

rendered a decision in the matter, a member to whom disqualification u/s 17(k) attaches shall be entitled to act as if he is qualified or were not

disqualified. The question is whether this interpretation is correct.

I am of opinion that this interpretation cannot be supported. The aspect in which the question will have to be considered is when does Section

19 come into play. At the outset it may be noticed that the disqualification in Section 17 becomes absolute if the member absents himself from

meetings of the Panchayat as indicated therein. The section states that subject to the provisions of Section 19 a member shall cease to hold office.

The disqualification is the result of the operation of law. Before Section 19 can be invoked, Section 18 becomes applicable in certain

circumstances. Sub-section 2 starts by saying.

Where a person ceases to be a member under Clause (k) of Section 17.

The use of the word ceases also confirms the view that the disqualification attaches the moment the member fails to attend the meetings of the

Panchayat as provided in Section 17(k). Thereupon, certain duties are cast upon the Panchayat itself. The executive authority, that is, the President

of the Panchayat, shall at once intimate the fact in writing to such member and report the same to the Panchayat at its next meeting. Two

consequences can follow one is that the member so disqualified may apply for restoration suo motu to the Panchayat. That is provided in Section

18(2) itself. At the meeting to which the fact of non-attendance of the member is reported by the executive authority, presumably the Panchayat

records the fact as part of its statutory duties, and it is only if the Panchayat agrees that the disqualification has attached that its further power of

restoring the member on his application can be brought into play. If, however, the Panchayat does not consider that the disqualification has

attached, I presume that it is entitled to say so, whereupon it is as if the disqualification never attached; or the Panchayat may feel some doubt in

the matter, in which event it has the power to direct the executive authority to apply to the prescribed judicial authority. It is also open u/s 19 of the

Act for the member himself to deny the disqualification and move the appropriate judicial authority for a decision of the question. Any other

member of the Panchayat can also act likewise. It is also possible for the Inspector of the Panchayats to whose notice the matter may be brought,

by the attached member, to direct the executive authority to take the matter to the prescribed judicial authority for a decision of the question.

Several alternatives are thus provided, and the one to which special reference has to be made in this case is the function of the Panchayat itself in

this regard. As I have pointed out, the fact that a member has become disqualified has to be reported to the Panchayat and unless the Panchayat

feels that the matter has to be determined by a judicial authority, the Panchayat is competent to record the fact and await an application from the

member for restoration or the executive authority may be directed either by the Panchayat itself or by the Inspector to move the appropriate

judicial authority. Failing any of these incidents, it should necessarily follow that when the fact has been recorded by the Panchayat, the

disqualification has attached in accordance with Section 17(k). It is not open to any authority other than the Panchayat itself to restore the member

to office, or to any authority other than the prescribed judicial authority to pronounce upon the question of disqualification. The Inspector''s function

is merely to direct the executive authority to move the prescribed judicial authority. He cannot himself say that the disqualification has not attached.

He has no jurisdiction to examine the circumstances and render his opinion in the matter. In the present case, the District Panchayat Officer seems

to have taken it upon himself to declare that the members have not become disqualified. Section 19 does not authorise the decision of that question

by that officer. The position may well have been different if the Inspector had directed the Panchayat to make an application to the prescribed

judicial authority.

It seems to me that this is the only rational construction which can be placed upon the provision. Otherwise, members who had become

disqualified may through sheer inaction on the part of the Panchayat or of the members themselves continue to act as members. If a person after

being elected does not attend the meetings at all and the Panchayat takes no steps whatsoever in the matter as required by Section 18(2) and even

the member does not seeks for restoration or move the proper judicial authority, is the continuance of his membership to be countenanced? I am

wholly opposed to any such interpretation of the provision. The view taken by the District Panchayat officer seems to be that by reason of Section

19(2) of the Act, the disqualification cannot attach. This sub-section states,

...pending such decision, the member shall be entitled to act as if he is qualified or were not disqualified.

The expression such decision refers to the decision of the prescribed judicial authority. Apparently, the District Panchayat Officer is of the

opinion that the matter can only be decided by the prescribed judicial authority and as long as such decision is not rendered, there can be no

disqualification at all and that the member can continue to act as if he were not disqualified. If that should be the view, then, as I have pointed out,

inaction on the part of the members of the Panchayat may well lead to the position that a disqualified member would continue to figure as a

member of the Panchayat. Such a view also ignores the statutory powers that are given to the Panchayat itself to record the fact of absence and to

restore the member to office on his application. The disqualification undoubtedly attaches, immediately following upon the non-attendance of the

member, and the disqualification is only kept in abeyance, as it were, if an application is made to the prescribed judicial authority and pending such

decision of that authority. If no application is at all made to the judicial authority; it cannot follow that the disqualification itself has not been attached

by the operation of Section 17(k) of the Act. Support of this view is found is Thiruppliswamy v. Manickam (1954) 2 M.L.J. 680.

I am accordingly satisfied that the view taken by the District Panchayat Officer is erroneous and the order directing the holding of the meeting

with the four members whose disqualification has been recorded by Panchayat as part of its statutory functions, cannot be supported. The position

may well be different if, at the meeting, for the first time the disqualification of the members is alleged, the Panchayat itself not having been called

upon to exercise its statutory function u/s 18 of the Act. It may then follow that the authority holding the meeting is competent to determine the

question for the purposes of the meeting. But, in the circumstances that I have set out above, such a course is not possible.

The Petition is accordingly allowed. The rule is made absolute. There will be no order as to costs.