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Judgment
P.K. Misra, J.—Heard the learned counsel appearing for the parties.
Even though the matter was listed for considering the question of stay and vacation of stay, since the questions involved were the same the writ
petition itself is taken up for disposal on consent of the learned counsels appearing for the parties.
The petitioner has prayed for quashing the notice dated 18.12.2002 in Na.Ka.No.16898/2002-A3 wherein the date was fixed for holding the
meeting of the Nagercoil Municipality for considering the no-confidence motion against the Vice-Chairman(the present petitioner).
4.The learned counsel appearing for the petitioner has invited my attention to the provisions contained in Sections 40 and 40 A of the Tamil Nadu
District Municipalities Act, 1920 and has contended that the notice of no-confidence motion is void being in contravention of the aforesaid two
provisions. The provisions contained in Sections 40 and 40-A are extracted here under.
''40.State Government to remove vice-chairman.- (1) The State Government may, by notification, remove any vice-chairman, who in their opinion
wilfully omits or refuses to carry out or disobeys the provisions of this Act or any rules, by-laws, regulations or lawful order issued thereunder or
abuses the powers vested in him.
(2) The State Government shall, when they propose to take action under Sub-section (1), give the vice-chairman concerned an opportunity for
explanation, and the notification issued under the said sub-section shall contain a statement of the reasons of the State Government for the action
taken.
(3) Any person removed under Sub-section (1) from the office of vice-chairman shall not be eligible for election to the said office until the date on
which notice of the next ordinary elections to the municipal council is published in the prescribed manner, or the expiry of (one year from the date
specified in such notification.)
40-A, Motion of no-confidence in vice-chairman-(1) subject to the provisions of this section, a motion expressing want of confidence in the vice-
chairman may be made in accordance with the 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 constitute not less than one-half 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 Inspector of Municipalities.
(3) The Regional Inspector of Municipalities, 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 therefore .
(4) The Regional Inspector of Municipalities shall preside at the meeting convened under this section, and no other person shall preside thereat. If
within half an hour after the time appointed for the meeting the Regional Inspector of Municipalities is not present to preside at the meeting, the
meeting shall stand adjourned to a time to be appointed and notified to the councillors by the Regional Inspector of Municipalities under Sub-
section (5).
(5) If the Regional Inspector of Municipalities is unable to preside at the meeting, he may, after recording his reasons in writing, adjourn the meeting
to such other time as he may appoint. The date so appointed shall not be later than thirty days from the date appointed for the meeting under Sub-
section (3). Notice of not less than seven clear days shall be given to the councillors of the time appointed for the adjourned meeting.
(6) Save as provided in Sub-section(4) and (5) a meeting convened for the purpose of considering a motion under this section, shall not for any
reason be adjourned.
(7) As soon as the meeting convened under this section has commenced, the Regional Inspector of Municipalities shall read to the council the
motion for the consideration of which it has been convened, and declare it to be open for debate.
(8) No debate on any motion under this section shall be adjourned.
(9) Such debate shall automatically terminate on the expiry of two hours from the time appointed for the commencement of the meeting, if it is not
concluded earlier. Upon the conclusion of the debate or upon the expiry of the said period of two hours, as the case may be, the motion shall be
put to the vote of the council.
(10) The Regional Inspector of Municipalities shall not speak on the merits of the motion, nor shall he be entitled to vote thereon.
(11) A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon shall forthwith on the termination
of the meeting be forwarded by the Regional Inspector of Municipalities to the State Government.
(12) If the motion is carried with the support of not less than three-fifths of the sanctioned strength of the council, the State Government shall, by
notification, remove the vice-chairman.
(13) If the motion is not carried by such a majority as aforesaid, or if he meeting cannot be held for want of a quorum, no notice of any subsequent
motion expressing want of confidence in the same vice-chairman shall be received until after the expiry of six months from the date of the meeting.
(14) No notice of a motion under this section shall be received within six months of the assumption of office by a vice-chairman.
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 u/s 40, the question of considering the motion of no-confidence u/s 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. u/s 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, the 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 a 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 u/s 40-A is not dependent upon any action
proposed to be taken by the State Government u/s 40. Therefore, the main contention of the petitioner is not acceptable
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.
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 Municipal council to decide in the meeting contemplated u/s 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.
For the above reasons, I do not find any ground to quash the impugned notice and the writ petition is accordingly rejected. All interim orders are
vacated. No costs. W.P.M.P.No67466/2002, W.V.M.P.Nos.4 & 206 of 2003 are closed.
Since the meeting had been stayed by the order of the Court and such order is now vacated, the Regional Inspector of Municipality is now
required to convene a meeting for consideration of the motion as required u/s 40-A (3).