C S PERIYARDASAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THESE writ petitions are filed for direction that the provisions of the Tamil Nadu Municipal Laws (Amendment) Act 35 of 2007 are unconstitutional and ultra vires.

(2.) THE petitioners are the elected Vice-Chairman of Jolarpettai Municipality, which is a 3rd Grade Municipality and Councillor of 23rd Ward in Kancheepuram Municipal Council respectively. In respect of Jolarpettai Municipality, out of 17 Members inclusive of Chairman and Vice-Chairman, 14 Members have submitted their requisition under Section 40A of the Tamil Nadu District Municipalities Act, 1920 (in short, "the Act") to move a no-confidence motion against the 4th respondent, Chairman and it was presented to the Regional Director of Municipal Administration, Vellore and it contains the various commissions and omissions by the Chairman. 2(a). THE Regional Director of Municipal Administration, Vellore has issued notice of meeting to be convened on 09.08.2007 at 10.30 a.m. THE notice was dated 20.07.2007, served on all the Members. On the appointed day, the no-confidence motion was put to vote, 12 members voted in favour of the resolution while 4 voted against it and the motion was carried by the required 3/5th majority of sanctioned strength of the Council. THE Regional Director also forwarded the minutes of the meeting to the Secretary to Government, however, the Government has not passed any order. 2(b). Likewise, in respect of Kancheepuram Municipal Council, out of 45 Members, 28 have signed the requisition and the same was given to the second respondent. In fact, all the 28 Councillors were physically present before the second respondent while signing the notice of no-confidence motion. THE second respondent has issued a notice dated 20.09.2007, mentioning the date of meeting of the Council as 10.10.2007 at 3.00 p.m. In the meantime, the Tamil Nadu Government has brought the Tamil Nadu Municipal Laws (Amendment) Ordinance, 2007 (Ordinance No.5 of 2007) on 04.10.2007, incorporating the laws governing no-confidence motion and in respect of the amendment to Section 40A of the Act, instead of 3/5th majority to carry the motion, it has made it as 4/5th of the sanctioned strength to pass no-confidence motion. By way of amendment, for giving notice of intention, instead of 50%, it is 60% and for passing the no-confidence motion, instead of 60%, it is 80%. THE Ordinance has been statutorily made as Amendment by passing the Tamil Nadu Municipal Laws (Amendment) Act,2007 (Act 35 of 2007) with effect from 18.10.2007. 2(c). THE petitioners have challenged the said amendment on various grounds including that the amendment is a colourable exercise of legislative power and made beyond the legislative competency; that it erodes the democratic rights of the elected members of local bodies to function in a democratic manner; that the objects and reasons which impose stringent conditions for the purpose of moving no-confidence motion is wholly unconstitutional and undemocratic; that Section 9 of the Amendment Act is beyond the legislative competency; that the amendment giving retrospective effect is unconstitutional, apart from other grounds.

(3.) MR.G.Jeremiah, learned counsel appearing for the petitioner in W.P.No.34888 of 2007 would submit that if really the intention of the Government is to prevent the unhealthy trend of moving no-confidence motions, moved indiscriminately the Government has power under Section 41 of the Act to dissolve or supersede the Council. He would submit that democracy being the basic structure of the Constitution, election of a Chairman as per Section 12 (2) of the Act only requires simple majority, but, by virtue of the Amendment made to Section 40A(12) of the Act, 4/5th majority is required for the purpose of removal. Again, according to him, there is no intelligible differentia between the election and removal. His further submission is that Section 9 of the Amendment Act by which pending proceedings abated cannot apply in cases where the resolution has been passed before the amendment came into effect as in W.P.No.34888 of 2007, the subsequent notification by the State Government is only consequential, since the term used in Section 40A(12) is 'shall" which means the Government has no option other than but to notify the removal of the Chairman. To substantiate his contention that retrospective effect to the Act is not valid, he would rely upon the judgment in Mylapore Club vs. State of Tamil Nadu [2006 (1) MLJ 27 (SC)]. In respect of effect of passing resolution, the learned counsel relied upon the judgment of Bombay High Court in Jaisingh Vithoba Girase vs. State of Maharashtra and others [AIR 2000 Bombay 317] and also in Ramesh Mehta vs. Sanwal Chand Singhvi and others [2004 (5) SCC 409], apart from Samala Jayaramaiah vs. Government of Andhra Pradesh [AIR 1998 AP 205].