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Judgment
Elipe Dharma Rao, J.—Challenging the order dated 27-10-2005 passed by the first respondent District Collector, cancelling the resolution
dated 28-9-2005 passed by the Goundachi Panchayat (in short ''the Panchayat''), disqualifying the second respondent from the membership of the
Panchayat Union and the resolution dated 12-9-2005, authorising Tmt. Selvi, a member, to sign the cheques as co-signatory along with the
president, the President as well as a member of the said Panchayat Union have filed the above writ petitions.
Facts and the issue involved are identical in both the writ petitions. Petitioners are the President and member respectively of the Goundachipudur
Panchayat Union. The second respondent was a member and also the vice-president. The panchayat union served a notice dated 1 8-8-2005,
intimating that he suffered disqualification u/s 38(j) of the Tamil Nadu Panchayats Act, 1994 since he absented himself from attending more than
three meetings consecutively. The second respondent by his letter dated 2-9-2005 denied the alleged disqualification and requested for the
restoration of his membership. The Panchayat, in its meeting held on 28-9-2005, considered the request, but rejected it. In view of the
disqualification suffered by the second respondent and his removal from the office of the vice-president, the panchayat passed a resolution on 12-
9-2005, authorising one Selvi, an elected Member, to sign the cheques as co-signatory along with the President. The said resolutions were
forwarded to the first respondent for necessary approval. The first respondent, by the impugned order, cancelled both the resolutions. Challenging
the said order, the present writ petitions have been filed.
Learned counsel for the petitioners submitted that the impugned order is not sustainable in law as the same was passed without jurisdiction. The
first respondent failed to take into consideration that the second respondent attracted disqualification by absenting himself from attending three
consecutive meetings of the Panchayat and his disqualification is automatic and by operation of law. No procedure as contemplated under the
Tamil Nadu Panchayat Act, 1994 was violated in the matter as has been observed by the first respondent in the impugned order. The impugned
order is vague and does not pinpoint as to which procedure of the Act has been violated by the Panchayat while serving the notice of
disqualification on the second respondent. The first respondent has no jurisdiction at all to restore the second respondent to the membership of the
Panchayat and to the post of Vice President. Restoration can be done only by an order of adjudication passed by the authority prescribed under
the Act, viz. the District Munsif having jurisdiction over the area. The second respondent, after receipt of letter of disqualification, has not filed any
application before the District Munsif Court for adjudication and, therefore, on the expiry of two months from the date of se rvice of the notice, he
ceased to be the Member of the Panchayat. The first respondent also erred in rejecting the resolution of the Panchayat co-opting one of its
member to sign the cheques along with the President. u/s 188(3) of the Act when the office of the Vice President is vacant, Panchayat, by passing
a resolution, may authorise any one of its members as the signing authority jointly along with the President. By rejecting the said resolution, the first
respondent has interfered with the day to day administration of the Panchayat. Th second respondent taking advantage of the impugned order is
interfering with the administration of the panchayat.
The first respondent, in his counter-affidavit, justifying the legality of the impugned order, submitted that the District Collector, as Inspector of
Panchayats, by virtue of his powers u/s 202 the Act has got powers to suspend or cancel any resolution passed, order issued or licence or
permission granted or any act of the Panchayat, if such resolution, order, licence, permission or act is illegal, contrary to the provisions of the said
Act or any other law or as a result of abuse of powers by the Panchayat and since the resolutions in question were passed in contravention of the
Act, they were cancelled by the impugned order. Further, while disqualifying the second respondent from the membership and consequently from
the office of Vice President, the procedural formalities prescribed under Sections 38, 39 and 41 were not followed in the sense that no opportunity
was given to the second respondent before passing the resolution and secondly, the matter was not placed before the meeting of the Panchayat.
More over, after disqualifying the second respondent by serving the notice dated 18-8-2005, he was invited by the Panchayat itself to attend the
meeting held on 12-9-2005 and the second respondent attended the said meeting, which had the effect of wiping out the disqualification suffered
by him. The resolution passed by the Panchayat, co-opting another member to act as signing authority along with the President is also against the
judgment of this Court.
In his counter-affidavit, the second respondent alleged that his disqualification from the Membership and from the office of the Vice President of
the Panchayat was the handiwork of one Mohan, who is none else than the husband of the President of the Panchayat, who is one of the writ
petitioners before this Court, as his attempts to get approval from the Panchayat for earmarking certain lands for common use were thwarted by
him. It is also alleged that the President was not convening any meeting in the panchayat office and the signatures of the Members were used to be
obtained by circulating the files to their houses and the final decisions are taken by the President under the dictate of her husband. In fact,
complaints were made to the Block Development Officer about the non-convening of the meetings in the Panchayat office. It is further stated that
though a meeting was scheduled to be held on 22-8-2005, no meeting was held on the said date and the matter was reported to the Block
Development Officer. The notice dated 18-8-2005, informing the alleged disqualification, was received on 29-8-2005 and on 30-8-2005 a
representation was sent to the Block Development Officer and a further representation was made to the District Collector, first respondent, on 2-
9-2005, requesting restoration of Membership. Subsequent to the notice dated 18-8-200 5, he also attended the meeting held on 12-9-2005.
After passing the resolution disqualifying him from membership, the President passed another resolution co-opting one Selvi, who is her relative,
and conferred her the power to sign the cheques along with her. Against this also a complaint was made to the first respondent and in respect of
which an enquiry was conducted on 5-10-2005 by the Assistant Director of the Panchayat, Erode. The present writ petitions, challenging the
impugned order, were filed with ulterior motive to eliminate him from the Panchayat membership. The petitioners are not persons aggrieved by the
impugned order and, therefore, the writ petitions at their instance are not maintainable. The resolutions passed by the Panchayat are not sustainable
in law as the procedures as contemplated under Sections 38, 39 and 41 of the Act were not complied with and, therefore, the first respondent, in
exercise of his powers u/s 202(ii)(a) and (b) of the Act, has passed the impu gned order, setting aside the resolutions. Therefore, the impugned
order does not call for any interference by this Court.
The point for consideration is whether the impugned order passed by the District Collector cancelling the resolutions passed by the panchayat
union is sustainable in law.
The issue involved in these writ petitions arose from the two resolutions passed by the panchayat union viz. (i) resolution confirming the
disqualification of the second respondent u/s 38(j) of the Tamil Nadu Panchayat Act and (ii) resolution authorising a member, who is not the vice-
president of the panchayat union, to sign the cheques along with the president. The following provisions of Tamil Nadu Panchayat Act, 1994 are
relevant for deciding the present writ petitions.
Section 38 of the Tamil Nadu Panchayat Act deals with the disqualification of members. Clause (j) of Section 38 is relevant to the issue, which
reads as under:
Disqualification of members.- Subject to the provision of Section 41, a member shall cease to hold office as such, if he
(a) ...
(b) ...
(j) absents himself from the meetings of the panchayat for a period of three consecutive months reckoned from the date of the commencement of
his terms of office, or of the last meeting which he attended, or of his restoration to office as member under Sub-section (1) of Section 39, as the
case may be, or if within the said period, less than three meetings have been held, absents himself from the three consecutive meetings held after the
said date:
Provided that no meeting from which a member absented himself shall be counted against him under this 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.
It is clear from the language of Section 38 that the provision of Section 38 is subject to the provision of Section 41, which prescribes the
authority to decide the questions of disqualification of members, and, therefore, it is pertinent to quote Section 41 also:
Authority to decide questions of disqualification of members.- (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 is not qualified or has become disqualified under Sections 33, 35, 37, 38 and 40, the
executive authority or the commissioner or the secretary 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 concerned. 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 or the secretary, as the case may be, if so directed by the panchayat or by the Tamil Nadu State
Election Commissioner, shall, or 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 on such application be entitled to act as if he is
qualified or was not disqualified.
(4) Nothing contained in this section shall be deemed to affect the provisions of Section 39.
The ""prescribed judicial authority"" under Sub-section (2) above is the District Munsif having territorial jurisdiction over the place in which the office
of the village panchayat or panchayat union council or district panchayat concerned is situated or if there is more than one such District Munisif, the
Principal District Munisif.
Sub-section (2) of Section 39 is also relevant here, which reads as under:
Where a person ceases to be a member under Clause (j) of Section 38, the executive authority or the commissioner or the secretary as the case
may be shall at once intimate the fact in writing to such person and report the same to the panchayat concerned at its next meeting. If such person
applies for restoration suo motu to the panchayat concerned on or before the date of its next meeting or within fifteen days of the receipt by him of
such intimation, such panchayat may at the meeting next after the receipt of such application restore him to his office of member:
Provided that member shall not be restored more than twice during his term of office.
In the present case, the second respondent, who was a member and also the vice-president of the Panchayat, suffered disqualification u/s 38(j)
of the Act on the allegation that he absented himself from the meetings of the panchayat for a period of three consecutive months. The President of
the panchayat, by notice dated 18-8-2005, intimated the second respondent about the alleged disqualification suffered by him u/s 38(j) of the Act.
After receipt of the communication dated 18-8-2005, the second respondent by his letter dated 2-9-2005 submitted his explanation and requested
for restoration of his membership u/s 39(2) of the Act, but his request was rejected and a resolution was passed confirming his disqualification. In
view of the disqualification suffered by the second respondent, the panchayat, by its resolution dated 12-9-2005, authorised one Mrs.Selvi, a
member of the panchayat, to sign the cheques as cosignatory along with the President. These resolutions of the panchayat were communicated to
the Block Development Officer as well as the District Collector for necessary approval.
Pursuant to the letter dated 10-10-2005 sent by the Block Development Officer, soliciting appropriate orders on the resolutions passed by the
panchayat, the first respondent District Collector passed the impugned order, cancelling the resolutions passed by the panchayat. On the question
of disqualification of the second respondent, the District Collector cancelled the resolution on the ground that the procedure as contemplated under
the Act was not followed while disqualifying the second respondent from membership of the panchayat and on the second issue, viz. authorising a
member to sign in the cheques as co-signatory along with the president, the District Collector cancelled the resolution on the ground the authority
of the vice-president to sign the cheques as co-signatory with the President is a statutory right attached to the post of Vice President and,
therefore, the same cannot be exercised by any one else other than the vice-president.
When the panchayat wrote letters to the Block Development Officer and the District Collector requiring necessary approval on the resolutions
passed by the panchayat union, the District Collector, by the impugned order, cancelled the resolutions. It seems that the District Collector passed
the impugned order in exercise of his powers u/s 202 of the Act, which empowers the Inspector (District Collector) to pass an order suspending
or cancelling any resolution passed by the panchayat, if he is of the opinion that such resolution has not been legally passed or such resolution was
in excess of the powers conferred by the Act or any other law or an abuse of such powers. The District Collector, however, before passing any
such order, should give the authority or person concerned an opportunity for explanation.
A prima facie reading of the impugned order shows that the District Collector passed the impugned order merely on the basis of the letter of
the Block Development Officer dated 10-10-2005, without giving any opportunity for explanation to the authority or the person concerned.
Therefore, the impugned order has to go for non-compliance of the provisions of Sub-section (2) of Section 202 of the Act. Further, after going
through the provisions of law having a bearing on the issues involved in these writ petitions, the executive authority has taken action against the
second respondent u/s 38(j) for absenting himself from attending the meetings of the panchayat for a period of three consecutive months and it was
communicated to the second respondent by communication dated 18-8-2005. The second respondent, on receipt of the intimation dated 18-8-
2005, by his letter dated 2-9-2005, requested for restoration of his membership u/s 39(2) of the Act, but his request was rejected. If the request
for restoration of membership was not accepted then, the only course open to the second respondent under the Act is to approach the prescribed
judicial authority u/s 41(2) of the Act within two months from the date of receipt of intimation of disqualification to decide the question of the
alleged disqualification, whose decision is final. If such an application was made by the second respondent u/s 41(2), the second respondent,
pending decision on such application, was entitled under Sub-section (3) of Section 41 to continue as a member as if he was not disqualified. This
is the legal position. The second respondent, however, has not chosen to make an application u/s 41(2) of the Act within the prescribed period of
two months from the date of intimation of his alleged disqualification. He kept quiet. Therefore, he ceased to be a member on the expiry of the two
months period from the date of receipt of intimation of his alleged disqualification. As stated above, a member can wipe out his disqualification only
under two methods, viz. either by seeking restoration of membership u/s 39(2) or by an order of the prescribed judicial authority on the application
made u/s 41(2) of the Act. The Act does not contemplate any other mode by which a disqualification of a member u/s 38(j) can be removed.
More over, the District Collector in exercise of his powers u/s 202, can suspend or cancel any resolution passed only after giving the authority or
the person concerned an opportunity for explanation, which the first respondent has failed to follow in this case. Further, the disqualification
suffered by the second respondent u/s 38(j) of the Act is purely personal and if he is aggrieved by such disqualification, he has to seek the remedy
provided either u/s 39(2) or u/s 41(2) of the Act and his disqualification cannot be wiped out by the District Collector by passing an order u/s 202
of the Act. Therefore, when the legislature in its wisdom has prescribed a procedure and an authority to deal with specific issues, the impugned
order passed by the District Collector and that too without giving any opportunity for submitting an explanation is contrary to the provisions of the
Act. The impugned order is one passed without jurisdiction as the District Collector has no jurisdiction to pass such order, but he had assumed the
jurisdiction and power of the prescribed judicial authority under the Act to decide the question of alleged disqualification, which did not vest in him.
Therefore, the order of the District Collector cancelling the resolution passed on the subject of disqualification suffered by the second respondent
u/s 38(j) of the Act cannot be sustained in law.
The District Collector, by the very same impugned order, also cancelled the resolution of the panchayat authorising one Tmt. Selvi, a member,
to sign the cheques as co-signatory along with the president. In this context, it is relevant to note the provision of Sub-section (3) of Section 188 of
the Act, which reads as follows:
(3) Subject to such general control as the village panchayat may exercise from time to time, all cheques for payment from Village Panchayat Fund
or other funds constituted under Sub-section (2) shall be signed jointly by the president and vice-president and in the absence of the president or
vice-president, as the case may be, by the vicepresident or the president and another member authorised by the village panchayat at a meeting in
this behalf.
It is very clear from the language of Sub-section (3) of Section 188 that all cheques for payment from the panchayat fund shall be signed jointly by
the President and Vice-president and in the absence of the vice-president, the cheques may be signed by the President and another member
authorised by the village panchayat at a meeting in this behalf. In the present case, in view of the disqualification suffered by the second respondent,
who was also the vice-president of the panchayat, u/s 38(j) of the Act, the panchayat council in its meeting held on 12-9-2005 passed a resolution
authorising a member by name Tmt. Selvi to sign as co-signatory along with the president on the cheques issued for payment from panchayat fund.
Such authorisation is in consonance with the provisions of Sub-section (3) of Section 188. The District Collector, however, has cancelled the said
resolution on an erroneous interpretation of the judgment of this Court in W.P. Nos. 7810 of 2003 etc. The question that arose for consideration in
the said judgment was what could be the alternative for the panchayat to operate the funds when the president/vice-president refuse to sign the
cheques u/s 188(3) of the Act and what action could be taken against the president/vice-president for refusing to sign the cheques on untenable
and unjustifiable grounds. Considering the said issue in the light of the provisions of Section 188(3), 203, 205 and 206 of the Act, the learned
Judge observed that the authority of the vice-president to sign the cheques along with the president is a statutory right attached to the post of vice-
president and so long as the vice-president continues in the office, such right cannot be delegated or assigned to any other member by passing a
mere resolution in the panchayat council. The learned Judge proceeded further to observe the powers and duties of the District Collector to initiate
action against the president/vice-president when they refuse to sign the cheques for any unjustifiable and untenable grounds. Further more, that was
a case in which the vice president while in office had refused to sign the cheques in contradistinction to the present case where the second
respondent, ceased to be the member view of the disqualification suffered u/s 38(j) of the Act. Therefore, the panchayat council passed the
resolution in terms of Section 188(3) of the Act co-opting another member to sign the cheques jointly along with the President. The Distrit
Collector cancelled the resolution on a complete erroneous interpretation of the above said judgment of this Court, which has no application to the
facts and circumstances of the present case.
The judgment relied on by the learned Counsel for the second respondent, viz. Thiruvanaikoil Co-operative Urban Bank Limited Vs. The
Presiding Officer, Labour Court, Tiruchirapalli and N.P. Ravishankar, has no application to the present case. That was a case where the absence
of the member from attending the meetings of the panchayat was due to preventive detention and the learned Judge, while interpreting the provision
of Section 38(j) held that the word ""himself"" employed by the legislature in Section 38(j) of the Act explicitly confirms that the absence of a
member to the meeting should be deliberate and due to his own lapse, but not due to an external situation, such as preventive detention which
cannot be attributed as deliberate absence of the member himself. Such is not the situation here. Therefore, the said decision is of no assistance to
the case of the second respondent.
To sum up, when a member of the panchayat union suffers disqualification u/s 38(j) of the Act, the course available to him to wipe out such
disqualification is either to make an application u/s 39(2) of the Act to the panchayat, explaining the circumstances which prevented him from
attending the meetings of the panchayat and seek for restoration of his membership and the panchayat may, considering the explanation offered by
the member, may restore his membership or he may, within two months from the date of receipt of intimation of his alleged disqualification, make
an application u/s 41 before the prescribed judicial authority, i.e. the District Munsif, whose decision is final on the question of the alleged
disqualification. The District Collector has no jurisdiction and power u/s 202 of the Act to interfere with the action taken u/s 38(j) of the Act and,
therefore, the order passed by the District Collector in cancelling the resolution passed by the panchayat confirming the disqualification of the
second respondent u/s 38(j) of the Act is is unsustainable in law. Secondly, u/s 188(3) of the Act, in the absence of the vice-president, the
panchayat may authorise another member to sign jointly along with the president all cheques for payment from the village panchayat fund or other
funds constituted under the Act and, therefore, the consequential resolution passed by the panchayat authorising Tmt. Selvi to sign jointly along
with the president all cheques for payment from the panchayat fund is sustainable in law.
For the reasons stated above, the impugned order is liable to be set aside and, accordingly, it is set aside. The writ petitions are allowed. No
costs.