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Judgment
E. Padmanabhan, J.—The petitioner prays for the issue of a writ of certiorarified mandamus to call for the records of the 2nd respondent in
his proceedings dated 1.4.2002 in Na.Ka. No.956/2002 Po-3 and quash the same and consequently forbear the respondents from holding the
proposed meeting slated for 16.4.2002 to consider the ''No Confidence Motion''.
According to the petitioner, he is the Chairman of Ullagaram Puzhithivakkam Town Panchayat. The Town Panchayat consists of 18 councillors
of whom seven owe allegiance to AIADMK and nine to DMK and two independents. Some of the members who belong to AIADMK have been
obstructing the smooth functioning of the Town Panchayat by the petitioner as its elected Chairman. As the petitioner took exception to the
undemocratic conduct on the part of the particular section of councillors, they submitted a false complaint against the petitioner to Collector,
Kanchipuram. On the basis of the false complaint, without any notice or affording opportunity of hearing to the petitioner to place the real facts, the
Collector of Kanchipuram directed the 2nd respondent, Assistant Director of Town Planning to convene a meeting of the councillors on 16.4.2002
to consider the motion of no confidence against the writ petitioner. The notice dated 1.4.2002 was actually served on the petitioner on 8.4.2002 at
the Central Prison, Chennai, where the petitioner was confined on certain trumped up charges.
A notice is purported to be issued u/s 40-B of The Tamil Nadu District Municipalities Act, which has since been repealed by Tamil Nadu Urban
Local Bodies Act, 1998 with effect from 1.8.2000. The said notice has been issued without any prior communication by way of any enquiry or
proceedings prelude to going to the truth or otherwise of the allegations made against the petitioner. Hence, the petitioner has come forward with
the present writ petition seeking to challenge the said proceedings of the 2nd respondent dated 1.4.2002.
It is contended that the notice dated 1.4.2002, which has been issued under Tamil Nadu District Municipalities Act as illegal and without
jurisdiction as the District Municipalities Act has been repealed by the provisions of the Tamil Nadu Urban Local Bodies Act, 1998. Such an
action is illegal and bad in law. It is contended that such a notice has been issued at the behest of minority councillors belonging to a rival political
party , complaint, if any, in this respect or a no confidence motion or action, if any, in this respect to bring a no confidence motion should be placed
before the Regional Director of Municipal Administration and not before the 2nd respondent to convene the meeting of councillors to consider the
no confidence motion. The action is illegal.
That apart, an opportunity should have been given to the petitioner, the chairman, to place his version or stand and only thereafter the council
meeting has to be confined for consideration of the no confidence motion. Therefore, the action is illegal and contrary to the statutory provisions.
Only four councillors have given the complaint and they do not satisfy the requirement prescribed for lodging such a complaint under the statutory
provision. There is violation of principles of natural justice and the impugned action of the 2nd respondent is illegal and liable to be quashed.
At the time of admission, interim order was passed staying further proceedings. The 2nd respondent moved W.V.M.P. No.735 of 2002 to
vacate the interim order granted in WMP No.17045 of 2002 on 15.4.2002.
In the counter affidavit filed by the 2nd respondent it is contended that there are no merits in the writ petition and the writ petition is not
maintainable. It is true that the petitioner is the Chairman of Town Panchayat. There are 18 councillors as of today. Eleven out of 18 councillors
owe allegiance to AIADMK, six belong to DMK and the remaining is an independent candidate. Some of the DMK councillors staged switched
over their allegiance from DMK to AIADMK party.
The Chairman threatened Damodaran, a staff of Town Panchayat not to do any duty directed by the Executive Officer without prior permission
of the Chairman. There has been certain happenings or instance which were totally unhappy or uncalled for. Even during the council meeting the
petitioner used unparliamentary words even in the presence of women councillors. The women councillors and other councillors complained to the
first respondent on 19.2.2002 that the Chairman is using unparliamentary words towards the Executive Officer and other staff as well as women
councillors as he likes. The women councillors were compelled to leave the council meeting to save their reputation. The writ petitioner was
arrested by the police for alleged offences under Sections 307 and 420 IPC by police and number of crimes have been registered against him.
The petitioner was arrested under the PCR Act. The councillors did not have confidence over the petitioner either in his personal behaviour
towards the councillors and the staff and the behaviour in the administration. The petitioner failed in his duty to safeguard the inhabitants of the
Town Panchayat and acted against the interest of the Town Panchayat.
On the basis of the complaint given by the councillors, the first respondent directed the 2nd respondent to convene a meeting of the councillors
on 16.4.2002 to consider a no confidence motion. The notice of the said meeting has been served on the petitioner on 8.4.2002 while he was at
Central Prison. Notice has been served on the petitioner u/s 40-B of The Tamil Nadu District Municipalities Act, which enactment is in force.
There is no irregularity in issuance of notice to the petitioner. The notice served on the petitioner is in conformity with the provisions and action
taken u/s 40-B of the Act is in itself an opportunity to know the view of the councillors in the meeting. Before even the councillors could meet, the
petitioner has secured orders of stay. The proceedings taken against the petitioner u/s 40-B is valid in law as the Tamil Nadu Act 9 of 1999 has
been suspended by Act 33 of 2000.
The writ petitioner has filed a reply denying the contents of the counter affidavit and setting out the various facts, which according to him as
being the correct facts. It is further stated that the police has acted hand in glove with the ruling party members. It is contended that request for the
meeting for moving the no confidence motion has not been submitted by the requisite number of members. The 2nd respondent is prejudiced
against the petitioner and he has clear bias in favour of the ruling party councillors.
Assuming that the District municipalities Act, 1920 still applies, the proceedings taken u/s 40-B of the Municipalities Act is ex-facie illegal,
without jurisdiction and against the very Section 40-B itself. It is submitted that the notice which has to be given to the Regional Inspector by the
number of requisite members is prescribed, but only four members have submitted a written notice to the first respondent and even that copy has
not been communicated to the petitioner. The 2nd respondent constituted under the Tamil Nadu Urban Local Bodies Act, 1998 has no jurisdiction
and the action taken without affording an opportunity to the petitioner in terms of the statutory provision is illegal.
Heard Mr.A.Venkatesan, learned counsel appearing for the writ petitioner, Mr.Subbarayan, learned counsel appearing for the 2nd
respondent, Mr.B.Kumar, learned senior counsel appearing for the 3rd respondent. On notice, the learned Advocate General appeared before the
Court to answer a specific query in respect of validity of notification, namely, G.O. (D) No.93 Municipal Administration and Water Supply (LEC)
Department, dated 4.3.99, wherein the question whether the Assistant Director of Town Panchayat is the competent authority to exercise the
powers u/s 40-A and 40-B of The District Municipalities Act.
By the impugned proceedings dated 1.4.2002 the 2nd respondent convened the council meeting to consider the no confidence motion u/s 40-
B of The District Municipalities Act on 16.4.2002 at 11.00 a.m., at the council hall and that he will be conducting the council meeting, which will
take up the no confidence motion. Such a notice has been issued on the basis of a complaint submitted before the District Collector by the
councillors of Ward Nos. 8, 11, 15 and 17 on 26.3.2002 wherein certain allegations have been made against the writ petitioner by the said
councillors. Challenging the said notice, the present writ petition has been filed.
The following points arise for consideration in this writ petition :-
i) Whether the action taken by the 2nd respondent in convening the council meeting to pass a no confidence motion and for the removal of
Chairman is in violation of Section 40-B of The District Municipalities Act, 1920?
ii) Whether the action taken by the 2nd respondent without reference to the Tamil Nadu Urban Local bodies Act, 1998 is illegal ?
iii) Whether the 2nd respondent is the competent authority and has the jurisdiction to act in terms of Section 40-B of The District Municipalities
Act ?
iv) Whether the notice in writing given by the councillors of their intention to make a mention against the Chairman u/s 40-B is valid ?
v) To what relief, if any ?
All these points could be considered together.
It could be straight away pointed out that Tamil Nadu Urban Local Bodies Act, 1998 which repealed various enactments including the Tamil
Nadu District Municipalities Act, 1920 received the assent of the President of India on 4.5.99 and was published in the Government Gazette dated
19.5.99. In terms of sub-section 13 of Section 1, the notification has been issued and the Act also came into force from the first day of August
2000 as seen from the Government Gazette dated 19.7.2000. Hence, the substantial contention advanced is that action taken under the repealed
enactment and, therefore, it is illegal and without jurisdiction.
It is brought to the notice of the Court that the Tamil Nadu Urban Local Bodies Act, 1998, has since been suspended by Tamil Nadu Act 33
of 2000. Therefore, the contention that action, if any, could be under The Tamil Nadu Urban Local Bodies Act, 1998, alone cannot be sustained
and even as on date, the Tamil Nadu District Municipalities Act governs the Municipalities and Municipal Town Panchayats. Therefore, we have to
examine the illegality or otherwise of the impugned proceedings with reference to The District Municipalities Act, 1920, as amended.
Section 40-B of The District Municipalities Act, hereinafter referred to as The Act, provides for removal of Chairman. According to Section
40-B, the councillors consisting of 1/3-rd sanctioned strength of the council may by written notice presented by any two of them to the Regional
Director of Municipal Administration with a copy to the Chairman, express their intention to make a motion against the Chairman when the
Chairman wilfully omits or refuses to carry out or disobey any provisions of the Act or any rule or by-law or any regulation or lawful order made or
issued under the Act or abused any power bestowed in him. Therefore, 1/3-rd of the sanctioned strength of the councillors have to sign the written
notice, but it could be presented by any two of them to the Regional Director of Municipal Administration. In the present case, on a verification of
the file and the original written notice, this Court finds that more than 1/3-rd strength of the councillors have signed the written notice and the
contention that only less than 1/3-rd councillors have signed the notice is a factual misconception and it deserves to be rejected.
It is nextly contended that when 1/3-rd of the sanctioned strength of the council presented a written notice they should have sent a copy to the
Chairman, express their intention to make a motion against the Chairman. In the present case, admittedly copy of the written notice submitted by
1/3-rd of the sanctioned strength has not been forwarded to the writ petitioner, who is the Chairman. This is an infirmity, which is factually admitted
and there is no dispute.
The written notice submitted by 1/3-rd of the sanctioned strength should be submitted before the Regional Director with a copy to be
forwarded to the Chairman of the council members motion against the Chairman. Without a copy being sent to the Chairman, the impugned
proceedings has been issued by the 2nd respondent convening the council meeting to consider the subject of no confidence against the Chairman.
The procedure prescribed u/s 40-B (2), (3), (4), (5), (6), (7) and (8) are mandatory in nature and these procedures are required to be
complied with as it has an object and clear intendment to serve the purpose. Of course, in the present case, immediately after receipt of the notice
from the 2nd respondent, the present writ petition has been filed.
The proceedings of the 2nd respondent is liable to be quashed on the short ground that the copy of the written notice sent by the councillors
constituting 1/3-rd of the sanctioned strength has not been sent to the Chairman, who is the petitioner in this writ petition. However, it is contended
that the very notice of the 2nd respondent would be a compliance of the provision. This Court is unable to sustain such a contention advanced by
the counsel for respondents 1 and 2 or that matter the 3rd respondent as such contention runs counter to the statutory provision.
It is also pointed out that whatever the written notice submitted by the council members, the same has not been forwarded to the petitioner and
the petitioner had no occasion to know what are the contents of such a petition. The impugned proceedings, though set out a summary of what is
set out in the written notice, but that will not satisfy the statutory requirement of Section 40-B. It is mandatory that councillors constituting 1/3-rd of
the sanctioned strength, while presenting a written notice, simultaneously should have forwarded a copy of the written notice to the Chairman as
such a move for motion is against the Chairman for his removal. In this case, admittedly there is a failure to comply with this mandatory provision.
Hence, the impugned proceedings deserves to be quashed as violative of Section 40-B, besides being violative of principles of natural justice as
such principle has to be read with the provisions of the Act.
It is contended that the 2nd respondent is not the Regional Director of Municipal Administration and, therefore, he has no authority to convene
a meeting of the township nor he is competent to issue the present proceedings. Section 40-B of the District Municipalities Act speaks of
''Regional Director of Municipal Administration'' and not the 2nd respondent, who is the Assistant Director of Town Panchayat. The Assistant
Director of Town Panchayat is not one of the authorities constituted under the District Municipalities Act, 1920. Assistant Director or Zonal
Director of Town Panchayat is a Regional Director as defined u/s 2 (33) of The Tamil Nadu Urban Local Bodies Act, 1998. The provisions of the
said Act has been suspended and is inoperative. Therefore, it follows that the 2nd respondent is not the competent authority in terms of Section
40-B of The District Municipalities Act.
Further, it is contended on behalf of respondents 1 to 3 that the 2nd respondent is the competent authority in terms of Notification G.O. D
No.93 Municipal Administration and Water Supply (ELEC.) Dept., dated 14.3.1999. Placing reliance on the said G.O., it is contended by the
said respondents that the Assistant Director of Town Panchayat, the Regional Director of Municipal Administration under The District
Municipalities act, 1920, insofar as the Town Panchayats are concerned and he shall exercise the powers and functions vested with the Regional
Director of Municipal Administration. This G.O. is being pressed into service to get over the situation. It is rightly pointed out and it is also admitted
that there is no specific/separate notification conferring power on the 2nd respondent to exercise the powers of Regional Director of Municipal
Administration under The District Municipalities Act even with respect to Town Panchayat, which body is governed by the provisions of The
District Municipalities Act.
However, it is contended that the Government has authorised the Assistant Director of Town Panchayat to be the Regional Director in exercise
of powers conferred u/s 3-M of The District Municipalities Act. In this respect, to get a clarification, this Court issued notice to the learned
Advocate General, who appeared before the Court and made his submissions.
Though the learned Advocate General placed reliance upon the very same notification, G.O. D 93, this Court pointed out that the scope and
purport of Section 3-M is totally different and that apart in the absence of conferment of power by the State, the 2nd respondent cannot act as the
Regional Director.
Section 3-M of The District Municipalities Act, 1920, reads thus :-
The State Government may, by notification direct that any of the provisions of this Act and the rules made thereunder or of any other enactment
for the time being in force elsewhere in the State of Tamil Nadu but not in the Panchayat town shall apply to that town panchayat to such extent
and subject to such modifications, additions and restrictions as may be specified in the notification.
In terms of the said provision, the State Government by a notification could direct that any provisions of the Act and Rules made therein or any
other enactments for the time being in force shall apply to the Town Panchayat to such extent and subject to such modifications, additions and
restrictions. This would mean that the State Government is the delegated authority either to extend the provisions of The District Municipalities Act
or the Rules or any other enactments for the time being in force to such extent and subject to such modifications, additions and restrictions. Section
3-M could be relied upon, if at all, only in respect of the prevailing enactments as well as enactments and rules which are in force and Section 3-M
cannot be relied upon nor it is a source of power to confer an authority or delegate the powers on the Assistant Director of Town Panchayat to
exercise the powers as if he is the Regional Director.
G.O. (D) 93 Municipal Administration and Water Supply (ELEC.) Department, dated 4.3.99 refers to Notification G.O. (Ms) No.75,
Municipal Administration and Water Supply Department, dated 31.3.95.
By G.O. (Ms) No.75, Municipal Administration and Water Supply Department, dated 31.3.95, the State Government in exercise of powers
conferred by Section 3-M of The Tamil Nadu District Municipalities Act, extended the provisions of The District Municipalities Act, 1920, and
Tamil Nadu Panchayats Act, 1994 to all the Town Panchayats excepting Sections 5, 7, 12 (c), 13 (b), 43, 68, 77 (AA) and 77 (B) of The District
Municipalities Act, all rules, regulations and by-laws framed under The District Municipalities Act. The State Government also extended Sections
19, 120, 132, 133, 134, 159, 160, 161, 167, 169, 172, 180, 182 and 183 of The Tamil Nadu Panchayats Act, 1994, to the very Town
Panchayats. The notification has been issued u/s 3-M in terms of the said Section 3-M. Section 3-M does not contemplate conferment of any
power or direction under The District Municipalities Act or any other statutory provision on any other authority other than the authorities
constituted under The Tamil Nadu District Municipalities Act. Therefore, this Court is unable to countenance the submissions made by the learned
Advocate General that the 2nd respondent is the competent authority insofar as the Town Panchayat is concerned.
G.O. (D) 93 Municipal Administration and Water Supply Department, dated 4.3.99 is not a notification of conferment of power, but it is in the
nature of clarification. In my considered view, by the said G.O., the State Government has not amended or altered Section 40-B of The District
Municipalities Act and it is also not the case of the respondent that a notification has been issued conferring power on the 2nd respondent to
exercise all the powers of the Regional Director, assuming there is a power to delegate. Therefore, this Court finds that the 2nd respondent, who is
not the Regional Director, is not competent to issue the impugned notice.
The learned Advocate General however pointed out that this Court may confine the orders in respect of the first point and before proceeding
further, the State Government may issue appropriate notification conferring power on the appropriate authority, as to who is the appropriate
authority u/s 40-B. This representation of the learned Advocate General is recorded.
On the sole ground that Section 40-B, which mandatorily provides for forwarding a copy of the written notice by the councillors who moved
the Regional Director, the impugned proceedings are quashed, while making it clear that it is open to the Government to issue fresh notification
appointing or conferring or delegating powers, if provided for under The District Municipalities Act on such authority as it deems fit to be the
authority u/s 40-B of The District Municipalities Act.
In the result, this writ petition is allowed. The impugned proceedings are quashed. It is made clear that the councillors may submit a fresh
written notice before the competent authority, while forwarding a copy of the same to the writ petitioner and, thereafter, the competent authority
shall proceed in terms of Section 40-B of the Act. Consequently, connected miscellaneous petitions are closed. The parties shall bear their
respective costs.