U DEIVASIGAMANI Vs. TMT RANJITHAM

JUDGEMENT

(1.) THE appellant before us was the second respondent in W.P. No. 38282 of 2005 and W.P. No. 347 of 2006, which were filed by the President (1st respondent in W.A.No. 647 of 2006) and a member (1st respondent in W.A.No. 648 of 2006) of the Goundachi Pudur Panchayat, Erode District. THE appellant, who is also a member, was functioning as the Vice-President of the said panchayat. He was issued with a notice dated 18.8.2005 intimating him that he suffered disqualification under Section 38(j) of the Tamil nadu Panchayats Act, 1994 (hereinafter referred to as ""the Act"") on the ground that he absented himself from attending the meetings for three consecutive months. THE appellant responded to the said notice and denied the allegation in his letter dated 2.9.2005. On the allegation that the appellant refused to sign the cheques for carrying on the day-to-day administration or the panchayat and also he did not attend the meetings regularly, by resolution No. 69 of 2005 dated 12.9.2005, the panchayat resolved to get the approval of the District Collector to authorise one Mrs. P. Selvi to sign the ""Cheques as a co-signatory along with the President. In the meantime, the panchayat also considered the explanation of the appellant dated 2.9.2005 in regard to the disqualification and by resolution No.70 of 2005 dated 28.9.2005, it resolved to disqualify the appellant from membership. As the resolutions of the panchayat had to be approved by the District Collector/Inspector of Panchayat under Section 202 of the Act, the same were forwarded to him. By proceedings dated 27.10.2005, the District collector cancelled both the resolutions and ordered the restoration of the membership of the appellant and also allowed him to sign the cheque jointly with the president.

(2.) CHALLENGING the same, W.P. No. 38282 of 2005 and W.P.No. 34 of 2006 came to be filed for quashing of the order of the District Collector dated 27.10.2005 and for a consequential direction for approving the resolution of the panchayat dated 12.9.2005. The order of the District Collector was questioned mainly on the ground that it was passed without jurisdiction, as the Inspector of Panchayat cannot order restoration of the membership without there being any adjudication by the authority prescribed under the Act namely, the District Munsif having jurisdiction over the area. Inasmuch as the appellant did not tile any such application before the District Munsif for adjudication and that too, within a period of two months from the date of service of notice, as he ceased to be a member of the Panchayat after the expiry of two months period, the Inspector of Panchayat ought not to have ordered restoration of the appellant as a member as well the rejection of the resolution of the Panchayat in authorizing one of its members to sign the cheque along with the President is erroneous. The learned single Judge, by a common order dated 18.4.2006, set aside the order of the District Collector and further held that the resolution of the panchayat dated 12.9.2005 authorizing Tmt. Selvi to jointly sign along with the President all the cheques for payment from the panchayat fund is valid. Aggrieved by the same, the present writ appeals have been filed.

(3.) THE provision of Section 38 is subject to the provisions of Section 41. Sub-section (1) of Section 41 contemplates that whenever it is alleged that a member of the panchayat is disqualified under Section 38, 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. If before the expiry of two months from the date of such notice, the member is entitled to apply to the prescribed judicial authority before the date of expiry of two months from the date of receipt of such notice. If he fails to apply to the prescribed judicial authority within the said period of two months, he shall become disqualified from the date of expiry of the period of two months. Sub-section (3) of Section 41 contemplates that if an application is filed in terms of subsection (2) and the same is not disposed of and kept pending, such member is entitled to act as if he is not disqualified. However, sub-section (4) of Section 41 contemplates that the above provisions shall not affect the provisions of Section 39. Sub-section (2) of Section 39 empowers the panchayat to entertain any request from such member for restoration to the panchayat on or before the date of its next meeting or within fifteen days of the receipt of intimation, the panchayat may resolve to restore him to office as member. Even for exercise of such power, the proviso contemplates that a member shall not be restored more than twice during his term of office.