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
W.M.P.No.29105/2002
in
W.P.No.21056 /2002
18.06.2002.
