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S.UDHAYAKUMAR versus STATE OF TAMIL NADU

High Court of Madras

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S.Udhayakumar v. State of Tamil Nadu - W.P.M.P.No.29105 of 2002 in W.P.No.21056 of 2002 [2002] RD-TN 371 (18 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18/06/2002

CORAM

THE HON'BLE MR.B.SUBHASHAN REDDY, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D.MURUGESAN W.P.M.P.No.29105 of 2002 in W.P.No.21056 of 2002 -------

S.Udhayakumar ..Petitioner. Vs.

1. State of Tamil Nadu,

rep. by its Secy. to Govt.,

Law Department,

Fort St.George,

Chennai - 600 009.

2. The Union of India,

rep. by its Secretary,

Ministry of Law, Justice &

Company Affairs,

New Delhi.

3. The Mayor,

Corporation of Chennai. .. Respondents. FOR Petitioner : Mr.K.M.Vijayan, Senior Counsel

for M/s.La Law

For Respondent -1 : Mr.N.R.Chandran, Senior Counsel For Respondent -2 : Mr.V.T.Gopalan, Addl. Solicitor General For Respondent - 3: Mr.S.Ramaswamy.

:ORDER



(The Order of the Court was made by the Hon'ble The Chief Justice) The cause espoused in this pro bono publico writ petition is the constitutionality of the Tamil Nadu Municipal Laws (Amendment) Act, 2002 (T.N.Act 29 of 2002). There are totally 6 Sections in the said amending Act. By Section-2 of the Amending Act Section 52(A) has been inserted in Chennai City Municipal Corporation Act, 1919 disabling the members of Legislative Assembly or Parliament from either contesting or continuing either the post of Mayor or Deputy Mayor or Councillor of the Municipality, which includes Municipal Corporation.

2. We need not refer to other provisions as Section 2 specifically refers to Chennai Municipal Corporation Act. The other Section which needs reference is Section -6 which reads thus; "Notwithstanding anything contained in the 1919 Act, the 1971 Act, the 1981 - Act or the 1920 Act, as amended by this Act, or in any other law for the time being in force or in any judgment, decree or order of a court, if a member of the Legislative Assembly of the State or a member of either House of parliament holds the office of Mayor, Deputy Mayor or Councillor of a municipal corporation or chairman, vice chairman or councilor of a municipality or of a town Panchayat immediately before the date of publication of this Act in the Tamil Nadu government Gazette, he shall cease to hold such office at the expiration of fifteen days from the date of such publication and such office shall become vacant, unless he ceases to be a member of the Legislative Assembly of the State or a member of either House of Parliament before the expiry of the said period of fifteen days, by resignation or otherwise".

3. We need to mention some facts concisely, relevant for the adjudication of this writ miscellaneous petition, as the writ petition has already been admitted. Counters have been filed by the respondents 2 and 3, who are the State Government and the Mayor of Chennai Corporation respectively. The Union Government, the second respondent, is represented by Mr.V.T.Gopalan, learned Additional Solicitor-General. Mr. N.R.Chandran, learned Advocate General represented the 1st respondent - State Government. While Mr.S.Ramaswamy, the learned counsel appeared for the 3rd respondent - Mayor.

4. Mr.M.K.Stalin has been elected as Member of Thousand Lights Assembly Constituency within the limits of Chennai Municipal Corporation. That was in the elections conducted during the month of May 2001. Elections to local bodies were conducted including that of Mayor of Chennai Municipal Corporation. He had contested for the Mayoral post during October 2001 and won the election. The tenure of the said post is for 5 years, but he was served with a notice, pursuant to the gazette notification dated 4.6.2002, calling upon him to opt either to remain as legislator or Mayor and not both, and should he not opt of not being a legislator, then he will lose the Mayoral post on the expiry of 15 days, from the date of such notification i.e., on the expiry of 18th of June 2002. This notification has been issued pursuant to Section 6 of the amending Act, which has been extracted above.

5. Mr.M.K.Stalin himself did not challenge the validity of either amending Act or the notification or the notice issued pursuant thereto. An Advocate of this Court has filed this writ petition. The matter was heard at the admission stage yesterday and has been admitted, prima-facie taking the view that there is a public interest and that there is locus for the petitioner to challenge the provisions of the amending Act. Interlocutory Application seeking interim stay of operation of Sections 2 and 6 of the Amending Act has been posted today and we have heard the arguments of Mr.K.M.Vijayan, learned Senior Counsel appearing for the petitioner, Mr.V.T.Gopalan, learned Additional Solicitor General, appearing for the second respondent - Union of India, Mr.N.R.Chandran, learned Advocate General appearing for the 1st respondent - State Government and Mr.S.Ramaswamy, learned counsel appearing for the 3rd respondent - Mayor.

6. Mr.K.M.Vijayan, learned Senior Counsel for the petitioner submits that the amending Act lacks in legislative competence as it is violative of Part IX A of the Constitution, which was introduced by the Constitution by 73rd Amendment Act of 1992. It is his submission that constitutional provisions contained in the above Chapter do not place any embargo for holding 2 posts i.e., Legislator and Mayor and his alternative argument is even if such an embargo is to be read and that the State is empowered to legislate prohibiting the holding of two posts, in no event, the amending Act can be read as retrospective in operation.

7. Mr.V.T.Gopalan, learned Additional Solicitor General has also contended on similar lines and further submitted that the post of Mayor cannot be segregated from the rest of the Council and that the Municipality or the Municipal Corporation, as the case may be, should be construed as a whole, of which the mayor or another Chair Person is an essential component and that there cannot be any dissection separating the mayor or Chair Person from the rest of the Council and cutting short of the term of Mayor or Chair Person amounts to dissolution of the Council itself and the Constitutional mandate in the above Chapter being that the tenure shall last 5 years and as the statutory provision in Section 6 of the Amending Act does not expressely state that the Amending Act is retrospective in operation, it can only be construed that it will act prospectively and for future legislators debarring them from contesting and cannot be applied presently to dislodge the person holding the 3rd respondent's post.

8. Mr.N.R.Chandran, learned Advocate General submits that there is legislative competence for enacting the Amendment Act, and that the power to legislate is drawn from sub-Article (3) of Article 246, and as the legislative item falls in List - II, the Parliament has got no say in the matter and that the State Legislature has got competence to legislate and the Amending Act is not retrospective in operation, but it acts only retroactively, so far as the person holding the post is concerned and that right to contest in election or hold political post is not a fundamental right and being the creature of Statute can always be withdrawn by the statute and that there is absolutely no unconstitutionality or illegality in the amending Act.

9. Mr.S.Ramaswamy, learned counsel appearing for the 3rd respondent did not address arguments in detail, and he only submitted that the amending Act is made only to dislodge his client, and is arbitrary.

10. At the outset, we are unable to accede to the contention of the learned Advocate General that the State has got unfettered right to legislate on any subject in List II of the Schedule VII of the Constitution. No legislation can be unfettered as it has to stand scrutiny of Part III of the Indian Constitution. We need not elaborate on other aspects such as basic structure, etc., but in the instant case, in addition to satisfying the test of fundamental rights enshrined in Part III of the Indian Constitution, amending Act has to stand to the scrutiny of Chapter IX A thereof. Article 243Q contemplates constitution of municipalities be it Panchayat, municipalities or municipal corporation basing upon the population. Article 243R deals with the composition of municipalities. Article 243S deals with constitution and composition of wards Committees etc., Article 243T deals with the Reservation of Seats. Article 243U deals with Duration of Municipalities. Article 243V deals with the Disqualification for membership. Article 243W deals with the powers, Authority and Responsibilities of Municipalities, etc., Article 243X deals with the Power to Impose Taxes by, and Funds, of the Municipalities. There are other related provisions but important and relevant in this adjudication are the Constitutional provisions contained in Articles 243Q and 243R, 243U and 243V.

11. In this regard, we concur with the contentions addressed by Mr.K.M.Vijayan, learned Senior Counsel and Mr.V.T.Gopalan, learned Additional Solicitor General, that the legislation by the State with regard to local authorities should be in consonance with the constitutional provisions contained in Part IX and Part IXA, introduced in the Constitution. In the context of this case, provisions dealing with the municipalities including the municipal corporation, the basic factors for legislation are provided by the above constitutional provisions and the State Government has got no power to deviate from the said constitutional provisions and can legislate only in accordance with and in tune with the said constitutional provisions, and not otherwise. The above constitutional provisions circumscribes the power of the State Government to enact laws relating to local authorities to be within the limits enumerated by the above constitutional provisions.

12. Several questions arise for consideration and more particularly, whether the disablement of Mayor during the tenure of the term of 5 years affects the composition of the Municipal Corporation, and if that be so, whether it results in violation of Article 243R. The question also arises as to whether a Mayor's term can be curtailed because of the duration of 5 years as provided under Article 243U. A further question also arises, in fact, important in the present context as to whether sub-Article (2) of Article 243V is attracted so as to annul the amending Act, and lastly even if the impugned amendment is intravires the constitution, can it be construed as retrospective in operation, and further whether an election to Mayoral post is an accrued right, which cannot be divested during the middle of the tenure. These are very vital and comprehensive aspects, which can only be gone into in the writ petition. Further more, two writ petitions viz., W.P.Nos.19214 and 22365 of 2001, which have been filed in this Court and which have been admitted and are pending, regarding the right of Mr.M.K. Stalin to contest the post of Mayor for the second time. In our considered view, this writ petition needs to be heard along with the above two writ petitions, as they have got bearing on the adjudication of this writ petition.

13. In view of what is discussed above, while there is a prima facie case for the grant of an interim order, having regard to the facts and circumstances of the case, and the balance of convenience, we deem it appropriate that there should be a limited stay of operation of the impugned Act only to the extent of not notifying the election to the Mayor's post, pending disposal of the writ petition. In the circumstances, while declining to stay the operation of Section 6 of the Amending Act (T.N. Act 29 of 2002) in entirety, we stay the operation of the above provision only regarding treating the post of Mayor of Chennai Municipal Corporation as vacant and consequently, no election to the said post can be held pending disposal of the writ petition. Registry is directed to post the Writ Petition No.21056 of 2002 along with W.P.Nos.19214 and 22365 of 2001 for final hearing, subject to part heard cases on the 5th of August 2002. Accordingly, the W.P.M.P.No.2 9105 of 2002 in W.P.No.21056 of 2002 is disposed of. (B.S.R., C.J.) (D.M.,J.) 18.06.2002. sm


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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