WP/38599/2004 of Vs on 28 December 2004

ORDER

Mr. P.S. Jayakumar, learned Government Advocate takesnotice on behalf of the respondents.

2. The petitioner has filed the above writ petitionpraying for a Writ of Certiorari to call for the recordsrelating to the proceedings of the first respondent inhttps://hcservices.ecourts.gov.in/hcservices/No.Na.Ka.3795/2004/A1 dated 09-12-2004 and quash the same.

3. The facts leading to the filing of the writ petitionis that the petitioner is an elected President ofPappireddypatti Village Panchayat; that a special audit of thesaid Panchayat was conducted by the second respondent for theyear 2003-2004 and based on the audit report, the firstrespondent issued a notice under Section 205 of the Tamil NaduPanchayats Act, 1994 (hereinafter called as the Act) callingupon the petitioner to submit his explanation by notice dated01-09-2004 and copies of the audit report also served on thepetitioner; that the petitioner has sent his explanation dated14-09-2004 to the first respondent. Not satisfied with theexplanation, the first respondent issued the impugnedcommunication dated 09-12-2004 under Sec. 205 (3) of the Actdirecting the Tahsildar to convene a meeting for considerationof the notice and explanation, if any and the proposal for theremoval of the petitioner, at the office of the VillagePanchayat at a time appointed by the Tahsildar.

4. The learned counsel appearing for the petitionersubmits that the audit was conducted invoking Rule 2 of TheTamil Nadu Panchayats (Surcharge, Disallowance and Charge)Rules, 2000 which contemplates that the auditor, who isempowered to issue surcharge certificate after giving show causenotice to the person concerned and then the Collector takesexecution proceedings on behalf of a village panchayat andrecover, but it was not done. The other argument of the learnedcounsel is if any loss or waste or misapplication by thepresident, a suit can be filed against him under Section 234 ofthe Act. Without proceeding with the above said two specificprovisions of Law, the first respondent has initiated actionunder Section 205 of the Act, which according to the counsel isinvalid. In support of his contention, the learned counselrelied on the Judgment reported in Maharashtra State Board ofSecondary and Higher Secondary Education and another Vs.Paritosh Bhupeshkumar Sheth and others – (1984) 4 Supreme CourtCases 27.

5. No argument was advanced by the learned counsel forthe petitioner with respect to non-compliance or violation ofthe provisions of Section 205 of the Act by the respondents.

6. Rule 2 of The Tamil Nadu Panchayats (Surcharge,Disallowance and Charge) Rules, 2000 runs as follows:-Surcharge and disallowance – (1) Any

auditor, empowered by the Government, shallcarefully and personally examine every caseof loss or waste of misapplication of moneyor property of the Village Panchayat orPanchayat Union or district Panchayat andmay disallow every item contrary to law andsurcharge the same on the person making orhttps://hcservices.ecourts.gov.in/hcservices/authorising the making of illegal paymentsand may charge against any person reasonabletherefor, the amount of any deficiency, losscarefully and personally examine every caseof loss or waste of misapplication of moneyor property of the Village Panchayat orPanchayat Union or district Panchayat andmay disallow every item contrary to law andsurcharge the same on the person making orhttps://hcservices.ecourts.gov.in/hcservices/authorising the making of illegal paymentsand may charge against any person reasonabletherefor, the amount of any deficiency, loss or unprofitable outlay incurred by thenegligence or misconduct of that person orof any sum, which ought to have been, but isnot, brought to account by that person andshall, in every such cases, certify theamount due from such person.

7. Rule 2 of The Tamil Nadu Panchayats (Surcharge,Disallowance and Charge) Rules, 2000 contemplates that anyauditor, empowered by the Government, shall carefully andpersonally examine every case of loss or waste of misapplicationof money or property of the Village Panchayat or Panchayat Unionor district Panchayat and may disallow every item contrary tolaw and surcharge the same on the person making or authorisingthe making of illegal payments and may charge against any personreasonable therefor, the amount of any deficiency, loss orunprofitable outlay incurred by the negligence or misconduct ofthat person or of any sum, which ought to have been, but is not,brought to account by that person and shall, in every suchcases, certify the amount due from such person respective village panchayat, panchayatunion or district panchayat.

9. The auditor, who is empowered to issue surchargecertificate and follow up execution proceedings is contemplatedunder Rule 4 of The Tamil Nadu Panchayats (Surcharge,Disallowance and Charge) Rules, 2000.

10. Section 234 of the Act contemplates thus:- "234.Liability of the President,Executive authority and members., etc., forloss, waste or misapplication of property.-(1)The president, executive authority andevery member of a village panchayat and thechairman, commissioner and every member of apanchayat union council and the chairman(secretary) and every member of a districtpanchayat shall be liable for the loss,waste or misapplication of any money orother property owned by or vested in thevillage panchayat or panchayat union councilor the district panchayat if such loss,waste or misapplication is a directconsequence of his neglect or misconduct;and a suit for compensation may beinstituted against him in any court ofcompetent jurisdiction by the panchayat orpanchayat union council or the districtpanchayat with the previous sanction of theInspector

(2) Every such suit shall be commencedwithin three years after the date on whichthe cause of action arose.

11. Section 234 of the Act fixes up the liability ofPresident, Executive authority, every member of the VillagePanchayat, Chairman, Commissioner etc., and they are liable forthe loss, waste or misapplication of any money or other propertyowned by or vested in the village panchayat or panchayat unionor district panchayat if such loss, waste or misapplication is adirect consequence of his neglect or misconduct; and a suit forcompensation be instituted against him with the previoussanction of the inspector within a period of three years afterthe date on which the cause of action arose.

12. A reading of Section 234 of the Act and the relevantprovisions relating to The Tamil Nadu Panchayats (Surcharge,Disallowance and Charge) Rules, 2000 make it clear that thecompensation can be recovered by instituting a suit andhttps://hcservices.ecourts.gov.in/hcservices/surcharge proceedings to be instituted respectively. The saidprovisions are totally different from the provisions of sub-section (1) of Section 205 of the Act. This provision empowers the inspector namely the District Collector either on his ownmotion or on a representation in writing signed by not less thantwo-thirds of the sanctioned strength of the village panchayatcontaining a statement of charges against the president andpresented in person to the Inspector by any two of the membersof the Village Panchayat and if the Inspector is satisfied thatthe President wilfully omits or refuses to carry out or disobeysany provision of this Act, or any rule, by-law, regulation orlawful order made or issued under this Act or abuses any powervested in him, the Inspector shall, by notice in writing,require the president to offer within a specified date, hisexplanation, with respect to his acts of omission or commissionmentioned in the notice. Sub-section (2) of Section 205 of theAct empowers the inspector to drop charges, if the explanationis satisfactory otherwise he shall forward it to the Tahsildarof the Taluk copy of the notice referred to in sub-section (1)of Section 205 of the Act and the explanation of the President,within a specified date with a proposal for the removal of thePresident for ascertaining the views of the village Panchayat.Sub-section (3) of Section 205 of the Act contemplates that theTahsildar shall convene a meeting for the consideration ofnotice and explanation for the removal of the president.

13. Section 205 of the Act is an independent provisionempowers the inspector to initiate action for removal of thevillage President. Admittedly, the petitioner has not canvassednon-compliance or violation of Section 205 of the Act by thefirst respondent. As mentioned above, the learned counseladvanced argument that the Collector chosen to initiate actionunder Sec. 205 of the Act, instead of Section 234 of the Act orSection 4 of The Tamil Nadu Panchayats (Surcharge, Disallowanceand Charge) Rules, 2000, such action is not valid. The saidargument is apparently unsustainable in law when three modes ofaction is contemplated. Two modes are pertaining to surchargeand filing of suit and the remaining one is under Section 205 ofthe Act for removal of the President for wilful omission orcommission or abuse of powers. The said provision isincorporated by the legislature with the intention to preventfurther such illegal action by the Village President. The rightsand privileges of the President flows from the statutoryprovision and he cannot claim any right which was not secured byhim under the enactment. In this case, the inspector/Collectorhas rightly exercised his power under Section 205 of the Act.The Judgment relied on by the counsel for the petitionermentioned supra is not applicable to the facts and circumstanceof the case.

14. In the result, the writ petition is liable to bedismissed and accordingly dismissed. No costs. Connected WPMPis closed.

Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrshTo1. The District Collector Dharmapuri District Dharmapuri2. The Assistant Director of Rural Development (Audit) Dharmapuri3. The Tahsildar Pappireddypatti Taluk Dharmapuri District4. The Deputy Block Development Officer Pappireddypatti Panchayat Union Dharmapuri District1 cc to Govt. Pleader, SR. 579251 cc to Mr. K. Sakthivel, Advocate, SR. 58272WP. NO. 38599 of 2004GM (CO)kk 17.1.05