IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06/09/2002 CORAM THE HON'BLE MR.B.SUBHASHAN REDDY, CHIEF JUSTICE and THE HON'BLE MR.JUSTICE D.MURUGESAN W.P.No.21056 of 2002 and W.P.No. 19214 of 2001 and W.P.No.22365 of 2001 and W.M.P.Nos.29105 of 2002 & 32924 of 2001 W.P.No.21056 of 2002 S.Udhayakumar, Advocate, No.9A, Azhagiri Nagar East Street, Vadapalani, Chennai - 600 026. ..... Petitioner -Vs- 1.The State of Tamil Nadu, rep. by its Secretary to Government, Law Department, Fort St.George, Chennai - 9. 2.Union of India, rep. by its Secretary to Ministry of Law, Justice and Company Affairs, New Delhi. 3.The Mayor, Corporation of Chennai, Chennai ..... Respondents. W.P.Nos. 19214 & 22365 of 2001 K.Sridhar Kumar, S/o.K.H.Shastri, Sankara Nilayam, 60, Park Street, Alwar Thiru Nagar, Chennai - 87. ..Petitioner in both the W.Ps. Vs. 1. The Chief Election Commissioner, State Election Commission, Government of Tamil Nadu, 100 Feet Road, Vadapalani, Chennai - 600 026. 2. The Commissioner, Corporation of Chennai, Chennai - 600 003. 3. The Returning Officer (Elections), Corporation of Chennai, Chennai - 600 003. ..Respondents 1 to 3 in W.P.19214/01 & Respondents 2 to 4 in W.P.22365/01. 4. Mr.M.K.Stalin, Worshipful Mayor of Chennai, Rippon Buildings, Chennai - 600 003. ..Respondent-4 in W.P.19214/01 & Respondent-1 in W.P.22365/01. PRAYERS: W.P.No.21056 of 2001 is filed under Article 226 of the Constitution of India for the issuance of writ of Declaration, for the reasons as stated therein. W.P.No.19214 of 2001 is filed under Article 226 of the Constitution of India for the issuance of writ of Declaration, for the reasons as stated therein. W.P.No.22365 of 2001 is filed under Article 226 of the Constitution of India for the issuance of writ of Quo Warranto, for the reasons stated therein. Mr.K.M.Vijayan, Senior Counsel : For Petitioner in W.P.21056/02 For M/s. La Law. Mr.V.Balasubramanian : For Petitioner in W.Ps.19214 & 22365 of 2001 ^Mr.N.R.Chandran, Advocate Genenral : For R1 in W.P.21056/02 Assisted by Mr.V.Raghupathy, Government Pleader. Mr.V.T.Gopalan, Addl.Solicitor General:For R2 in W.P.21056/02 Assisted by Mr.J.Madanagopal Rao, S.C.G.S.C. Mr.S.Ramaswamy : For R3 in W.P.21056/02 Mr.C.Ravichandran : For R2 in W.P.19214/01 & For R3 in W.P.22365/01. Mr.R.Viduthalai : For R4 in W.P.19214/01 & For R1 in W.P.22365/01. Mr.V.Raghupathy, Govt.Pleader:For R1 & R3 in W.P.19214/01 For R2 & R4 in W.P.22365/01 :O R D E R THE HON'BLE THE CHIEF JUSTICE Though these three writ petitions relate to the mayoral post of Chennai City Municipal Corporation, in W.P.No.21056 of 2002 the constitutionality of the Tamil Nadu Municipal Laws (Amendment) Act, 2002 (T.N. Act 29 of 2002) is challenged, while at issue, in other two writ petitions viz., 19214 and 22365 of 2001, is the eligibility of the present Mayor Mr.M.K.Stalin to contest the Mayoral post elections, which was held during October, 2001. 2. First of all, we deal with W.P.No.21056 of 2002. This is a pro bono publico filed by one Mr.S.Udhayakumar, advocate making the State of Tamil Nadu, Union of India and the Mayor of Chennai City Municipal Corporation as party respondents. Mr.M.K.Stalin was elected as the Mayor of the 3rd respondent-Corporation in the elections held during the month of October, 2001. The Chennai City Municipal Corporation is governed by the Chennai City Municipal Corporation Act, 1919, which is hereinafter referred to as the Act. Section 28 of the Act provides for the election of Mayor. Once before, Mr.M.K.Stalin was elected as Mayor in the year 1996 and had been functioning as such till 2001, and after the expiry of the 5 years term he again contested and won. He had not only been the Mayor but had also been the legislator too. He had been representing the Thousand Lights constituency of Chennai city ever since 1996, as he was again elected during May 2001 and had been holding dual posts of both Legislator and Mayor. Hitherto, there was no hindrance for holding dual posts. By Amending Act titled Tamil Nadu Municipal Laws (Amendment) Act, 2002 (T.N. Act 29 of 2002), herein after referred to as the Municipal Amendment, holding of dual posts is dispensed with by introducing Section 52-A, to the effect that if one is a legislator, he cannot be simultaneously be a Mayor or Deputy Mayor, and has to choose either of the same, and for that purpose 15 days time from the date of publication of the Municipal Amendment has been provided, and if there is no option exercised, then automatically such a legislator ceases to be a Mayor or Deputy Mayor, as the case may be. It is needless to mention that if the person resigns his post of Legislator, then he is entitled to his elected post of Mayor or Deputy Mayor. The Municipal Amendment was notified on 04.06.2002 and a notification was issued in Tamil Nadu Government Gazette in exercise of the power under Section 6 of the Municipal Amendment. 3. We feel it apt to extract both Section 2 and also Section 6 of the Municipal Amendment. Section-2 runs as follows:- "In the Chennai City Municipal Corporation Act, 1919 (hereinafter referred to as the 1919 Act), after Section 52, the following Section shall be inserted, namely:- 52-A. Disqualification for Mayor and Deputy Mayor:- Notwithstanding anything contained in this Act, no person shall be qualified for being elected as, and for being a Mayor or Deputy Mayor if he is a member of the Legislative Assembly of the State or a member of either House of Parliament." "Section - 6: 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 a Legislative Assembly of the State or a member of either House of Parliament holds the office of Mayor or Deputy mayor of a Municipal Corporation or Chairman or ViceChairman 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". 4. The matter came up for admission on 17.6.2002 on which date, the writ petition was admitted and as the learned Advocate General took notice and offered to file his counter next day, the miscellaneous petition was posted next day. After hearing all the learned counsel, an interim order was been passed on 18.6.2002 granting stay to the extent of treating the post of Mayor as not vacant so that no elections could be held to fill the said post pending the disposal of the writ petition. This order was carried in appeal to the Supreme Court but the Supreme Court has affirmed the said order. Now, the Deputy Mayor is discharging the functions attached to the post of Mayor, by virtue of Section 38-A of the Act. 5. Mr. K.M. Vijayan, learned senior counsel appearing for the petitioner, submits that the member of a Legislative Assembly cannot be disqualified to contest to a Mayoral post and that in fact, Constitution Amendment and the Act themselves provide for the inclusion of the respective Legislators as being the Municipal Authorities along with the Councillors. He further submits that when an elected Legislator is also a Mayor and there was no embargo to hold dual posts, he cannot be divested of his right and the provision under Section 2 of the Amended Act incorporating Section 52-A of the Act, cannot be held to be retrospective in operation. He submits that Sections 2 and 6 of the Municipal Amendment, if construed as retrospective in operation, directly infract the Constitutional prohibition contained in SubArticles (1) and (2) of Article 243 U of the Constitution. He further submits that the Municipal Amendment should be in consonance with the Constitutional provisions enumerated in Part IX-A by the Constitution (73 rd) Amendment Act and not the general legislative power in Entry 5 of List II to Schedule 7 of the Constitution. 6. Mr. V.T. Gopalan, learned Additional Solicitor General of India, appearing for the second respondent - Union of India, supports the argument of Mr. K.M. Vijayan, learned senior counsel, and submits that the validity of the provisions of the Act including the Municipal Amendment has to be decided on the touchstone of Part IX-A of Constitution and only on the aspects not covered by the same, resort can be had to the legislative power contained in Entry 5 of List II of Schedule 7 of the Constitution. Mr.V.T. Gopalan submits that the Municipal Amendment is not retrospective in operation as Section 2 thereof is a substantive provision dealing with disqualification and the said substantive portion does not expressly state that the disqualification under the Amending Section is retrospective and that by necessary implication also it cannot be deduced that Section 2 of the Municipal Amendment is retrospective and as Section 6 of the Municipal Amendment is only procedural in nature and is consequential to the substantive provision contained in Section 2, the latter cannot be construed as retrospective. He further submits that the disqualification is decided at the time of entry into the post when the elections are fought and there cannot be any retrospective disqualification. He submits that a person duly elected has a vested right and cannot be removed by providing retrospective effect. He also submits that if the amendment is treated as retrospective, then it violates Article 243 U as also 243 U (2) of the Constitution. 7. Countering the above arguments, Mr. N.R. Chandran, learned Advocate General, submits that there is no locus standi for the petitioner to maintain the writ petition and that the Constitution Amendment incorporating Part IX-A has got no bearing on the Municipal Amendment and that the Municipal Amendment is not retrospective in operation but it is retro-active, that the post of Mayor is a right created by statute and it can be taken away by a statute and the Municipal Amendment is constitutionally valid. 8. In reply arguments, Mr. K.M. Vijayan, learned senior counsel, appearing for the petitioner submits that there is a locus for the petitioner as he is an elector within the Chennai City Municipal Corporation limits and that when an elector can file an Election Petition, the argument of locus is quite unsustainable regarding maintaining the writ petition. 9.Mr. V.T. Gopalan, learned Additional Solicitor General of India, submits that retro-activity applies only to declaratory legislations where there is a doubt as to what the common law on the subject is and that such a situation does not arise in the instant case. 10.In view of the respective contentions raised on either side, the following are the contentious issues arise for adjudication.: (i) whether there is locus standi for the petitioner to main this writ petition? (ii) whether the Muncipalities/Mayors/Deputy Mayors/Councillors are creatures of a statute or the Constitution of India? (iii) whether the Members of the Legislative Assembly or of Parliament can be disabled from being a Mayor or Deputy Mayor of a Municipality? (iv) whether Municipal Amendment is prospective or retrospective or retroactive? (v) if retrosprospective, is it in breach of Constitutional mandate? Issue No.1 11. The objection raised by Mr.N.R.Chandran, learned Advocate General is that when the person in occupant of the 3rd respondent i.e., Mr.M.K.Stalin himself is not interested in filing the writ petition, as he is only the aggrieved party, the petitioner who is a practising advocate cannot have any locus standi to maintain the writ petition. In support of his contention he cited the Judgments rendered by the Supreme Court in K.ASHOK REDDY V. GOVERNMENT OF INDIA (1994) 2 SCC 303), MALIK BROTHERS V.NARENDRA DADHICH (AIR 1999 S.C. 3211) AND BALCO EMPLOYEES' UNION V. UNION OF INDIA (2002) 2 SCC 333). In K.Ashok Reddy's case, supra, the issue arose for consideration was the transfer of Judges under Article 222 of the Constitution of India. Dealing the matter comprehensively, the Supreme Court held that the same was not justiciable at the instance of any other person excepting the aggrieved party, as the transfer relates to that particular Judge. In Malik Brothers' Case, two supra, the matter arose under Arbitration Act, 1940 and the High court of Madhya Pradesh had entertained a petition at the instance of a person not having any interest and set aside the reference and the Award made under the Act. On appeal, the Supreme Court held that appeal cannot be entertained in a matter arising out of arbitration at the instance of a person not having any interest. In Balco's Case, third supra, the Supreme Court was adjudicating a matter relating to dis-investment of a Government Factory, and when the same was challenged by the Balco Employees' Union, it was held that the matter related to the economic policy of the Government and that the employees were no way concerned with regard to dis-investment policy and that in such economic policies court had no role to play and that the Employees' Union could not have any grievance for such disinvestment and held that PIL at the instance of such employees was not maintainable. But dealing with election matters, the consideration regarding the maintainability of a case at the instance of third party are entirely different, as the election is not simply a matter between parties but is of public concern. That is why not only the Representation of the Peoples Act, 1951, but also the Chennai City Municipal Corporation Act, 1919 and the rules made thereunder permit election petitions can be maintained even by an Elector and indisputably the petitioner who is a practising advocate is also an Elector of the municipal area, and as such, the petitioner has got locus standi to maintain this writ petition. Issue No.2 12. M/s. K.M. Vijayan and V.T. Gopalan, learned senior counsel for the petitioner and learned Additional Solicitor General of India, appearing for the petitioner and the second respondent respectively, submit that on the advent of the Constitution (73rd Amendment) Act, 1992, the matters relating to Municipalities have to be viewed in the perspective of the Constitutional provisions contained in Part IX-A and they rely upon the judgments in STATE OF A.P. v. NATIONAL THERMAL POWER CORPN. LTD (2002) 5 S.C.C. 203) and B.K.CHANDRASHEKAR v. STATE OF KARNATAKA (AIR 1999 Karnataka 461) and submit that the constitution of Municipality including the Mayor's post and tenure thereof are governed by Part IX-A of the Constitution and not by the Act. Mr. N.R. Chandran, learned Advocate General, submits that the Municipalities are the creatures of the Statute and the Mayor's post, which is a creation under the Act, can always be taken away by amendment and the power to legislate includes power to amend and that this power still flows unfettered from Entry 5 of List II to Schedule 7 of Indian Constitution and cites the judgments rendered in VARADARAJA PILLAI v. SALEM MUNICIPAL COUNCIL (85 Law Weekly 760), AHAMED JALALUDIN v. STATE OF TAMIL NADU (1986 Writ Law Reporter Supplement 1) and JYOTI BASU v. DEBI GHOSAL (AIR 1982 S.C.C 983). In STATE OF A.P. v. N.T.P.C. (referred supra), a Constitution Bench of the Supreme Court held that several Entries in the Lists of 7th Schedule are fields of legislation and not the source of legislative empowerment and competence to legislate has to be traced to the Constitution and that the dimension given to the field of legislation by the language of an Entry in List II of the 7 th Schedule shall always subject to the limits of Constitutional empowerment to legislate and can never afford to spill over the barriers created by the Constitution. In the light of the dicta laid down by the Supreme Court, which is a law of the land under Article 141 of the Indian Constitution, we now proceed to consider as to whether the Municipalities and the Authorities manning the same are the creatures under the Constitution or by the Act. 13. For self-governance, the then British Government, which ruled this place, had enacted the Madras City Municipal (Corporation) Act, 19 19, which was recently renamed as the Chennai City Municipal ( Corporation) Act, 1919, hereinafter referred to as the Act. As is not unusual, the said Act underwent several amendments. 14. The Scheme of the Act is to have self-governance over the city limits of Chennai for providing various civic amenities like roads, water, drainage, regulation of buildings and other related matters by the elected Councillors headed by the Mayor and assisted by the Commissioner. The General Body of the Corporation comprises of its Councillors, for whose elections, Wards are earmarked and Councillors from their respective Wards form a Council and ultimate power vests in the said Council. Of course, Ward Committees are elected from among the Councillors and Standing Committees are constituted by nomination and there is a Commissioner and functions of each of them are earmarked by the Act. Here, we are concerned with the post of Mayor. Under the Act, there shall be a Mayor and a Deputy Mayor. 15. Before the advent of Constitution (73rd Amendment) Act, 1992, hereinafter referred to as the Constitution Amendment, both the Mayor and the Deputy Mayor had to get elected as Councillors and then, they would be elected from among the Councillors. The Act has now been amended making the election of Mayor by direct franchise while still the election of Deputy Mayor is indirect as he is elected by Councillors. Before the Constitution Amendment, the term of the Councillors was six years, while the term of Mayor and Deputy Mayor was two years. Within the outer limit of 6 years for the Councillors, the out-going Mayor and Deputy Mayor were not entitled for re-election. Hitherto, legislative power to enact the laws relating to the local authorities like the Chennai City Municipal Corporation was vested in the State Government by virtue of Entry 5 of List II to Schedule 7 of the Indian Constitution. Instances galore where the democratic process and the self governance by the local authorities were scuttled because of in-action, deliberate or otherwise by the respective State Governments in not conducting the elections to the local authorities for years to come and also in not providing adequate powers and funds for sustenance of self-governance. Madras/Chennai City is no exception. For the period from 1973 to the year 1996, there had been no elections to the governing authorities, be it Mayor or Deputy Mayor or Councillors. 16. The entire legal scenario has changed since the enactment of the Constitution Amendment incorporating Parts IX and IX-A in the Constitution. Part IX deals with Panchayats while Part IX-A deals with Municipalities. 17. Part IX-A is relevant for the subject. It houses Articles 243P to 243ZG. Article 243P (e) defines 'Municipality' as an institution of self-Government constituted under Article 243Q. Clause (c) of Article 243Q mandates State Legislatures to constitute Municipal Corporation for a larger urban area. Chennai City Municipal Corporation is one of such Municipal Corporations. The composition of Municipalities is provided in Article 243 R. Sub-Article (2) thereof stipulates that the State may, by law, provide for the representation in a Municipality of - (i) persons having special knowledge or experience in Municipal Administrations; (ii) the members of the House of the people and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of Article 243 S provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality. The manner of election of the Chairperson of a Municipality is left for the State legislature. Under Article 243 S, there shall be constituted Wards Committee, consisting of one or more Wards, within the territorial area of a Municipality having a population of three lakhs or more and the State Legislatures are obligated to make law for the constitution of Wards Committees and the manner of filling of the seats in a Wards Committee, including details of election of Chairman of such Committees, leaving the option to the States to make provision for the constitution of other Committees in addition to the Wards Committee. Article 243 T provides for reservation of seats. Article 24 3 U (1) mandates that every municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. The said Constitutional provision also mandates that Municipalities shall be given a reasonable opportunity of being heard in the event of the proposal to dissolve it before the tenure of 5 years. Sub-Article (2) thereof prohibits amendment of any law for the time being in force resulting in dissolution of a Municipality till the expiration of tenure of 5 years mentioned above. Sub-Article (3) mandates that before the expiry of the duration of the out-going Municipality, election to constitute a new Municipality shall be completed. Under subArticle (4) thereof, it is provided that in the case of dissolution, it shall be treated as bye-election surviving only for the remainder of the term of the original election. Disqualification for membership of a Municipality is spelt out in Article 243V. Under sub-Article (1) (a), such disqualifications applicable to the elections to legislatures of the State, as on the date, are adopted excepting the age factor and 21 years is made sufficient for contesting the election to a Municipality instead of 25 years prescribed for legislators. In addition to the above, disqualifications, as imposed under any law made by the Legislature of the State, are made applicable under clause (b) of sub-Article (1). Article 243W provides for authority and responsibilities of Municipalities. Article 243 X enables a Municipality to impose taxes, duties, tolls, fees etc. Article 243 Y provides for constitution of a finance commission to review the financial position of the Municipalities. Article 243 Z provides for auditing of accounts of municipalities. Article 243ZA provides for constitution of State Election Commission for the purpose of superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections to the Municipalities. Article 243 ZB speaks of applicability of Part IX-A to Union Territories while Article 243 ZC makes this Part inapplicable to Schedule Areas and Tribal Areas referred to in clauses (a) and (2) of Article 244. Article 243 ZD provides for constitution of committees for District Planning and 243 ZE for Metropolitan Planning. In Article 243 ZF, the laws enacted by the State Legislatures relating to Municipalities and were in force as on the date of the commencement of Constitution Amendment, i.e. 1.6.1993, were to be amended in so far as the repugnant provisions were concerned, within one year thereof. The last Article 243 ZG bars the interference of Courts in electoral matters. 18. Under Section 4 of the Act, as it stood before the Constitutional Amendment, (a) a councillor; (b) standing committees of the councillor; and (c) a Commissioner constituted the Municipal authorities. Under Section 55, the term of the Councillors was six years. While the councillors were to be elected by direct franchise by the voters in the respective wards, the Mayor and Deputy Mayor were to be elected from among the councillors. So, it was necessary that both Mayor and Deputy Mayor should have first been elected as Councillors. The term of both the Mayor and the Deputy Mayor was two years. Section 44-A enables the Government to dissolve the Corporation if, in its opinion, the Corporation is not competent to perform or