Kamala Priya vs The District Collector Cum ...
2023 Latest Caselaw 10588 Mad

    2023:MHC:3813


                                                                              W.P.No.12857 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 17.08.2023

                                                       CORAM

                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                               W.P.No.12857 of 2023
                                            and W.M.P.No.12663 of 2023

                     Kamala Priya                                           ... Petitioner

                                                         vs.

                     1.The District Collector cum Inspector of Panchayat,
                       Namakkal District,
                       Collectorate Office, Namakkal.

                     2.The Assistant Director,
                       Rural Development & Village Panchayats,
                       Namakkal District,
                       Collectorate Office, Namakkal.

                     3.Block Development Officer,
                       Erumapatti Village Panchayat,
                       Sendhamangalam Taluk,
                       Namakkal District.

                     4.Zonal Deputy Block Development Officer,
                       Erumapatti Village Panchayat,
                       Sendhamangalam Taluk,
                       Namakkal District.                                   ... Respondents
                     PRAYER: Writ Petition is filed under Article 226 of the Constitution of
                     India, to issue a Writ of Certiorari, calling for the records of the 1st


                     1/14
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                                                                                    W.P.No.12857 of 2023

                     Respondent Collector dated 30.11.2022 in Na.Ka.No.LA3/2342/2020 and to
                     QUASH the same.

                                        For Petitioner    : Ms.J.Amritha Sarayoo

                                        For Respondents : Mr.P.Anandakumar
                                                          Government Advocate

                                                          ORDER

The writ petition is filed challenging the order passed by the

1st respondent divesting the petitioner, President of the Panchayat and the

Vice President of their power to sign the cheque and authorising the 3rd and

4th respondents to sign the cheque in the place of petitioner and Vice

President.

2. The learned counsel appearing for the petitioner by taking this

Court to the order passed by the 1st respondent, submitted that even

according to the 1st respondent, the allegations made against the petitioner

needs to be enquired into. In such circumstances, the 1st respondent ought

not to have issued the impugned order divesting the cheque signing power

available to the petitioner. The learned counsel further submitted that the

https://www.mhc.tn.gov.in/judis W.P.No.12857 of 2023

cheque signing power is a Statutory Power available to the petitioner and

the same cannot be taken away by the 1st respondent by resorting to

emergency power under Section 203 of the Tamil Nadu Panchayats Act,

1994. The learned counsel also relied on the judgment of this Court in

Logeshwari vs. The District Collector, Tiruchirappalli reported in 2013 (2)

CTC 846 and also the order passed by this Court in G.Geetha vs. The

District Collector in W.P.No.19841 of 2023 dated 01.08.2023.

3. The learned Government Advocate appearing for the respondents

submits that the 1st respondent received various complaints against the

petitioner/President and Vice President of the Panchayat. The 3rd

respondent, who conducted an enquiry in this regard recommended to the

1st respondent to take action under Section 203 of the Tamil Nadu

Panchayats Act, 1994 and therefore, the 1st respondent has passed the

impugned order authorising the 3rd and 4th respondents to sign the cheque in

the place of the petitioner and Vice President of the Panchayat. The learned

Government Advocate also referred to the order passed by this Court in

W.P.No.5851 of 2023 filed by the Vice President of the Panchayat

challenging the very same impugned order wherein this Court by order

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dated 28.02.2023 set aside the impugned order as regards the Vice President

of the Panchayat alone.

4. The learned counsel appearing for the petitioner in her reply

submitted that the order referred to by the learned Government Advocate in

W.P.No.5851 of 2023 was passed without ordering notice to the petitioner,

who was arrayed as 5th respondent in that writ petition. Therefore, the same

is not binding on her.

5. A reading of the impugned order passed by the 1st respondent

would suggest that there were allegations and counter allegations against

the President and Vice President of the Panchayat and 1st respondent is

satisfied that the developmental activities of the Panchayat is affected due to

non-cooperation among the Members of the Panchayat. In such

circumstances, the 1st respondent ought to have invoked Section 204 (3) of

the Tamil Nadu Panchayats Act, 1994 and authorised the President of the

Panchayat to exercise the powers of the Panchayat for the time being

pending any enquiry.

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6. Further, the cheque signing power available to the President and

Vice President of the Panchayat is a statutory power conferred on them

under Section 188 (3) of the Tamil Nadu Panchayats Act, 1994. The power

conferred by a statute can be taken away only as per the procedure

contemplated under the statute. Section 188 (3) of the Tamil Nadu

Panchayats Act, 1994, reads as follows:-

“188 (3). Subject to such general control as the Village Panchayat may exercise from time to time, all cheques for payment from Village Panchayat Fund 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 Vice-

President or the President and another member authorised by the Village Panchayat at a meeting in this behalf.”

7. A reading of the above provision would make it clear that the

cheques signing power of the President or the Vice President as the case

may be, can be taken away only in their absence. Even in that case, a

resolution shall be passed by the Village Panchayat authorising any other

Member of the Panchayat to sign the cheques on behalf of the President or

Vice President as the case may be. As per the instruction issued in

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G.O.Ms.No.92, Rural Development (C2) Department, dated 26.03.1997

such resolution can be introduced only with approval of the 1st respondent.

Even in such cases, the cheque signing power of the President cannot be

taken away by the 1st respondent without following the natural justice

principles by issuing notice to her and giving her an opportunity to explain

her case.

8. There is no enabling provision in the Tamil Nadu Panchayats Act,

1994 empowering the 1st respondent to take away the cheques signing

power of the President and Vice President and confer the same on the Block

Development Officer.

9. In the absence of specific enabling provision, it is not open to the

1st respondent to resort to emergency power under Section 203 of the Tamil

Nadu Panchayats Act, 1994 and take away the power available to the

elected President and Vice President. The above said proposition was laid

down by this Court in Logeshwari vs. The District Collector,

Tiruchirappalli reported in 2013 (2) CTC 846. The relevant observation of

this Court reads as follows:-

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“21. The Collectors are very often exercising this power to take away the cheque signing powers of the President and Vice-President. The power to sign cheque is a statutory power conferred on the President and Vice-President under sub- section (3) of Section 188 of the Act. The President and the Vice-President are under the general control of the Village Panchayat. The statutory power given to the President of the Panchayat or Vice-President cannot be taken away by the Inspector of Panchayat, by exercising the emergency powers. Since the cheque signing facility is given by the statute, there should be a specific power conferred upon the Inspector of Panchayats to take away such power. So long as there are no specific provisions to take away the cheque signing power of the President or Vice-President, the Collector cannot invoke incidental or emergent powers to divest the elected representatives of their statutory right.”

10. The ratio laid down in Logeshwari case cited supra was followed

by this Court in G.Geetha vs. The District Collector in W.P.No.19841 of

2023 dated 01.08.2023.

11. In N.Pachaiyammal vs. District Collector reported in 2023 SCC

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Online Mad 5016 (W.P.No.20046 of 2023 dated 14.07.2023), while

considering scope of Section 203 of the Tamil Nadu Panchayats Act, 1994,

after referring to Logeswari case cited supra, this Court observed as

follows:-

“9. A perusal of the above judgment would suggest that the power to sign the cheques has been conferred on the President and Vice President specifically under Section 188 of the Tamil Nadu Panchayats Act, 1994. Therefore, the cheques signing power is a Statutory Power available to the President and Vice President of Panchayat. There is no provision under the Tamil Nadu Panchayats Act, 1994, enabling the 1st respondent to withdraw the Statutory Power which is expressly conferred on the President of Panchayat.

10. The submission made by the learned Additional Government Pleader for the 5th respondent and learned Government Advocate for respondents 1 to 4 that the impugned order has been passed by the 1st respondent by exercising the power under Section 203 of Panchayat Act, cannot be accepted for the following reasons.

(a) Under Section 203 of Panchayat Act, the Inspector of

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Panchayat is empowered to direct performance of any Act, which a Panchayat or Executive Authority or Commissioner or Secretary is empowered to do. None of the above authority are enjoying the cheques signing power.

b) Under Section 188 (3) of the Tamil Nadu Panchayats Act, 1994, the cheques signing power is jointly given to the President and Vice President. In other words, the cheques signing power is not exclusively given to the Executive Authority of the Panchayat namely the President.

c) Under Section 203 of the Tamil Nadu Panchayats Act, 1994, the Inspector of Panchayat is not entitled to direct performance of any Act which the President and Vice President is entitled to do jointly. Therefore, the 1st respondent is not entitled to withdraw the cheques signing power available to the President and Vice President by exercising power under Section 203 of the Act.

d) Further, withdrawal of the cheques signing power to the President and Vice President of the Panchayat would virtually cripple them from functioning as President or Vice President as the case may be. Such order would virtually amount to removal of the elected persons from their post.

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e) Under Section 205 of Panchayat Act, there is a specific provision with procedure for removal of President and Vice President. In such circumstances, the emergency power available to the Inspector of Panchayat under Section 203 of the Tamil Nadu Panchayats Act, 1994, cannot be resorted to by the 1st respondent for withdrawing the cheques signing power. This Court already has taken a similar view in the above mentioned case law and I agree with the view expressed in the case law cited above.”

12. Therefore, the above said case law is squarely applicable to the

facts of the present case. Even in the impugned order, the 1st respondent on

receiving report from the 3rd respondent regarding non-cooperation among

the Members of the Panchayat resorted to emergency powers under Section

203 of the Tamil Nadu Panchayats Act, 1994 and passed the impugned

order for withdrawing the cheque signing power of the President and Vice

President of the Panchayat. Therefore, the impugned order is liable to be set

aside.

13. Even otherwise, the 1st respondent by resorting to emergency

power under Section 203 of the Tamil Nadu Panchayats Act, 1994, cannot

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withdraw cheque signing power available to President of Panchayat, which

is statutory power. Section 203 of the Tamil Nadu Panchayats Act, 1994,

reads as follows:-

“203. Emergency powers of Collector and Inspector.-

Subject to such control as may be prescribed, the Inspector or the Collector may, in cases of emergency, direct or provide for the execution of any work, or the doing of any act which a Panchayat or Executive Authority or Commissioner or [Secretary] is empowered to execute or do and the immediate execution or doing of which is in his opinion necessary for the safety of the public and may direct that the expense of executing such work or doing such act shall be paid by the person having the custody of the Village Panchayat Fund or the Panchayat Union (General) Fund or the District Panchayat (General) Fund in priority to any other charges against such Fund except charges for the service of authorised loans.”

14. A perusal of Section 203 of the Tamil Nadu Panchayats Act, 1994

would indicate by invoking emergency power, the Inspector of Panchayat

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can direct performance of any act which a Panchayat or Executive Authority

or Commissioner or Secretary is empowered to do and direct the expenses

of executing such work shall be paid by the person having custody of

Village Panchayat fund. Under Section 203 of the Tamil Nadu Panchayats

Act, 1994, Inspector cannot authorise another person, who is not having

custody of funds to withdraw the same and pay. Under Section 188 (3) of

the Tamil Nadu Panchayats Act, 1994, only President and Vice President

are entitled to withdraw panchayat fund subject to overall control of

Panchayat. Hence, custody of village panchayat fund deemed to be with

President and Vice President subject to over all control of Panchayat.

Hence, at the most Inspector can only direct President and Vice President to

sign cheques jointly and pay for any of the above mentioned work directed

to be performed by order of Inspector. He cannot authorise a third party,

namely 3rd and 4th respondents herein to withdraw funds from panchayat

fund in the absence of enabling provision. The impugned order is liable to

be set aside on this ground also.

15. Accordingly, the impugned order is set aside and the writ petition

stands allowed. No costs. Consequently, the connected miscellaneous

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petition is closed.

17.08.2023 Index : Yes Speaking order:Yes Neutral Citation:Yes dm

To

1.The District Collector cum Inspector of Panchayat, Namakkal District, Collectorate Office, Namakkal.

2.The Assistant Director, Rural Development & Village Panchayats, Namakkal District, Collectorate Office, Namakkal.

3.Block Development Officer, Erumapatti Village Panchayat, Sendhamangalam Taluk, Namakkal District.

4.Zonal Deputy Block Development Officer, Erumapatti Village Panchayat, Sendhamangalam Taluk, Namakkal District.

https://www.mhc.tn.gov.in/judis W.P.No.12857 of 2023

S.SOUNTHAR, J.

dm

W.P.No.12857 of 2023

17.08.2023

https://www.mhc.tn.gov.in/judis