IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10-04-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.34888 & 35192 of 2007 and connected miscellaneous petitions. M.P.1 and 1 of 2007 ..... C.S.Periyardasan ... Petitioner in W.P.No.34888 of 2007 J.Kokilavani ... Petitioner in W.P.No.35192 of 2007 vs. 1.The State of Tamil Nadu Secretary to Government Water Supply and Municipal Administration Department Fort St. George Chennai. 2.The Regional Director of Municipal Administration Vellore 12. 3.The Jolarpettai 3rd Grade Municipality rep. By its Commissioner Jolarpettai, Vellore District. 4.Nandhiammal ... Respondents in W.P.No.34888 of 2007. 1.The State of Tamil Nadu Secretary to Government Water Supply and Municipal Administration Department Fort St. George Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2.The Regional Director of Municipal Administration Chingleput Kancheepuram District. 3. The District Collector Kancheepuram District Kancheepuram. ... Respondents in WP.No.35192 of 2007. Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Declaration as stated therein. For petitioners : Mr. K.Rajendran Mr. G.Jeremiah For respondents : Mr. S. Ramasamy,Addl.Advocate General in WP.35192/07 assisted by Mr.LSM.Hasan Fizal & R.1&R.2 in Government Advocate WP.34888/07 Mr.D.Srinivasan for R.3 in WP.34888/07 .. COMMON ORDER 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. https://hcservices.ecourts.gov.in/hcservices/ 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. The respondents have filed counter affidavit. It is the case of the respondents that the Government noticed that large number of no-confidence motions received against the Chairman and Vice-Chairman of the Municipalities and Town Panchayats are unprecedented in the history of administration of local bodies in https://hcservices.ecourts.gov.in/hcservices/ the State, which may be due to growing intolerance among the elected representatives or out of political or personal reasons, which according to the Government is unethical practice, which diverts the focus and attention of the Council and administration from the real issues concerning the welfare of the people, and therefore, it decided to curb the undesirable trend and to bring the amendment laws relating to the moving of no-confidence motion. 3(a). The Tamil Nadu Municipal Laws (Amendment) Ordinance, 2007 (Tamil Nadu Ordinance 5 of 2007) was promulgated on 04.10.2007, which was replaced by the Tamil Nadu Municipal Laws (Amendment) Act,2007 (Tamil Nadu Act 37 of 2007), which came into force from 04.10.2007 and the Act was gazetted on 13.11.2007. 3(b). It is the case of the respondents that by amendment, the rights of Councillors to move the no-confidence motion against a Chairman or Vice-Chairman has not been taken away and the procedure has been made strict by increasing the notice of intention from 50% to 60% and in respect of passing of the no- confidence motion, it has been made from 60% to 80%. It is the further case of the respondents in the counter affidavit that Section 9 of the Amendment Act does not give retrospective effect to the amendments made to the provisions of Sub-section (2), (12), (13) and (14) of Section 40-A of the Act. Section 9 of the Amendment Act only abates the pending motions without affecting the motions already notified by the Government. Therefore, the petitioners cannot have any grievance by the amendment. 4. Mr.K.Rajendran, learned counsel appearing for the petitioner in W.P.No.35192 of 2007 would submit that imposition of requirement of 4/5th members for the purpose of moving the motion is undemocratic and according to him, the 'will of majority' means simple majority and not 80%. He would also submit that there is no intelligible differentia between the election and removal. For the purpose of election what is required is 50% while for the purpose of removal 80% is required, which according to him, is without jurisdiction. He would rely upon the judgement in Aashirwad Films vs. Union of India and Others [2007 (5) MLJ 170 (SC)] and the Division Bench order of this Court in P.Sankara Narayanan, Proprietor, Shri Bhuvaneswari Films, Chennai vs. State of Tamil Nadu [2007 (5) MLJ 1178]. By virtue of the amendment, the very right of the members of the Council to move no-confidence motion is taken away and that would amount to making inroad into the democratic principles, which are the basic structures of the Constitution. https://hcservices.ecourts.gov.in/hcservices/ 5. 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 judgement 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 judgement 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]. 6. On the other hand, it is the contention of the learned Additional Advocate General Mr.S.Ramasamy that what is contemplated under Section 9 of the Amendment Act is to abate the pending proceedings in respect of resolutions regarding the removal of Chairman and Vice-Chairman and the proceedings are deemed to be pending till the State Government notifies the removal of Chairman or Vice-Chairman under Section 40A(12) of the Act and till such notification is effected, the removal of Chairman and Vice-Chairman will not come to effect and therefore, the purport of Section 9 of the Amendment Act is not to give effect to the provisions of Section 40A of the Act, but to only abating the pending proceedings. He would also submit that when the Government has taken a policy decision in respect of elections, there is no vested right on the part of the Councillors, who have voted against the Chairman or Vice-Chairman till the Government passes the order notifying the removal. His further contention is that the word "shall" under Section 40A(12) means that the State must apply its mind whether all the sub- sections of Section 40A have been followed. https://hcservices.ecourts.gov.in/hcservices/ 7. I have heard learned counsel for the petitioners and learned Additional Advocate General for the respondents and perused the entire records. 8. It is not in dispute that before 1978, the Chairman and Vice-Chairman of the Municipalities were elected by the elected representatives, but by Act 23 of 1978, the method of electing Chairman and Vice-Chairman directly by the people was given effect to. Consequent to that, Section 40B, which was a specific provision in existence at that time for removal of Chairman was removed from the statute book. Thereafter, by the Tamil Nadu Municipal Laws (Amendment) Act, 18 of 2006, the original method of election of Chairman and Vice-Chairman through elected members was resorted to. It is true that Section 40B was existing in the statute book forming part of the Tamil Nadu District Municipalities Act,1920 and after 1978, as per the said provision which related to the removal of Chairman alone, when a resolution for removal of the Chairman was passed under Section 40B(g), the State Government should consider the motion before notifying the same, the reason being that at that time the Chairman was elected directly by the public and therefore a rider has been imposed by way of direction to the Government to consider. However, after the Amendment Act 18 of 2006, Section 40B was omitted and as per Section 40A(12), the word "shall' continued to be in the statute book. The said sub-section reads as under: " Section 40A(12): If the motion is carried with the support of not less than three-fifths of the sanctioned strength of the council, the State Government shall, by notification, remove the chairman or vice-chairman." 9. The contention of the learned counsel for the petitioners is that the term "shall" under Section 40A(12) is significant when it is read along with sub-section (9), which is as follows: " Section 40A(9): Such debate shall automatically terminate on the expiry of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. Upon the conclusion of the debate or upon the expiry of the said period of two hours, a the case may be, the motion shall be put to the vote of the council." Under sub-section (9), upon the conclusion of the debate, the motion shall be put to vote. In this regard, the contention of the petitioners is that when the motion is put to vote and the same is https://hcservices.ecourts.gov.in/hcservices/ moved with the required majority at the time of voting, the notification by the Government for removal of Chairman and Vice- Chairman is only consequential, since there is no option available to the Government to reject the motion, which has been moved. According to the learned counsel for the petitioners, in the case of Jolarpettai Municipality, at the time when the motion was moved, the amendment imposing 80% of the members to pass the motion was not in existence, and it was only 60% and therefore, when the motion was moved, 60% was the required majority and even though in the meantime the amendment imposing 80% majority came into existence, that stringent requirement shall not affect the motion which has already been moved in the Municipal Council and therefore, it cannot be said to be a pending proceeding. 10. The argument is attractive but without substance. A reading of the entire Section 40A of the Act makes it clear about the procedure to be followed for the purpose of moving the motion. In fact the provision makes it clear that the Regional Director of Municipal Administration has no role at all to speak anything about the motion and his only duty is to record the minutes of the meeting together with copy of the motion and the result of the voting and forward the same forthwith to the State Government. That is contemplated under sub-section (11), which states as follows: " Section 40A(11): A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon shall forthwith on the termination of the meeting be forwarded by the Regional Director of Municipal Administration to the State Government." 11. Sub-section (12) which stood before the Amendment Act 35 of 2007, was as follows: " Section 40A(12): If the motion is carried with the support of not less than three-fifths of the sanctioned strength of the council, the State Government shall, by notification, remove the chairman or vice-chairman." An over all reading of the provision makes it clear that it is not as if the Government should notify removal of Chairman or Vice- chairman immediately after the minutes of the meeting have been received from the Regional Director of Municipal Administration. The wordings make it very clear that it is for the Government to verify as to whether the required number of members have in fact https://hcservices.ecourts.gov.in/hcservices/ passed the motion and therefore, the term "shall" under sub- section (12) cannot be taken as if the act of the Government in notifying the removal of Chairman or Vice-chairman should be automatic or simply consequential. 12. The State must apply its mind before notifying the removal of Chairman or Vice-chairman as to whether the provisions of the Act have been followed even though the State has no option to deny notification of such decision even after it is satisfied that the provisions have been followed. Therefore, in my considered view, the notification of the Government to remove the Chairman or Vice-chairman based on the copy of the minutes and motion, result of voting received from the Regional Director is not merely an empty formality and there must necessarily be an application of mind. A Full Bench of this Court in Rukmani College of Education vs. State of Tamil Nadu (W.P.No.28304 of 2007 dated 06.10.2007) considered the provisions of the NCTE Act, which empowers the National Council for Teacher Education to grant approval to the institutions for starting degree course. The question arose as to whether the grant of affiliation by the concerned University is a consequential or University has to independently apply its mind before granting affiliation as per its Statute. The Full Bench has held that even though the concerned University cannot impose any conditions which are more stringent than the one imposed by the NCTE, the University is bound by its statute and it has to consider independently before granting affiliation and therefore, it cannot be said to be a necessary consequence and that the University should grant affiliation by closing its eyes. Applying the ratio laid down by the Full Bench, I have no hesitation to come the conclusion that as per Section 40A(12) of the Act, the word "shall" cannot mean that the Government should notify without applying its mind. Therefore, the necessary consequence is that as long as the Government has not notified the removal of the Chairman or Vice- Chairman of the Municipality, it has to be treated as a pending proceeding and therefore, there is no difficulty to come to the conclusion that as per the Amendment Act, such pending proceedings get abated. It cannot also be said that notifying the same by the Government is only a ministerial act and the reliance placed on by the learned counsel for the petitioner on the Full Bench judgement under the City Tenants Protection Act in CRP.No.2758 of 1996 reported in Arulmigu Kasi Viswanathaswamy Devasthanam by Fit Person, Madras vs. Kasthuriammal [2006 (2) MLJ 281 (F.B.)] is not tenable for more than one reason that under the provisions of the Chennai City Tenants Protection Act,1921, when the Court fixes the price of property and the amount is deposited by the tenant, https://hcservices.ecourts.gov.in/hcservices/ the proceedings are held to be concluded since the subsequent orders directing the landlord to execute sale deed or on failure of the landlord, Court executing the sale deed are only consequential. In fact, the said judgement of the Full Bench has been reversed by the Supreme Court in S.Bagirathi Ammal vs. Palani Roman Catholic Mission [2007 (5) CTC 881] holding that unless and until the final order or direction of the Court for execution of sale deed by the landlord or by the Court itself is passed, the proceedings cannot be said to be concluded and it is deemed to be a pending proceedings. 13. As far as the other contention regarding the validity of the Amendment Act, on fact it is admitted that the amendment was brought to the Tamil Nadu District Municipalities Act,1920 under the Tamil Nadu Municipal Laws (Amendment) Ordinance,2007 (Tamil Nadu Ordinance 5 of 2007) with effect from 04.10.2007 due to the reason that the legislative assembly was not in session at that time. Subsequently, by way of passing of Tamil Nadu Municipal Laws (Amendment) Act,2007 (Tamil Nadu Act 35 of 2007) by the Legislature, it has come into force from 04.10.2007 and the same was gazetted by the Government on 13.11.2007. 14. Under the Amendment Act, two significant changes have been effected to the Tamil Nadu District Municipalities Act,1920 in relation to Section 40A. Section 40A(2) as it stood before the Amendment Act contemplated the written notice of intention to make the motion which should be signed by not less than one half of the sanctioned strength of the Council and to be presented by two Councillors in person to the Regional Director of Municipal Administration, and the said section as it stood then is as follows: " Section 40A(2) Written notice of intention to make the motion, in such form as may be fixed by the [State Government], signed by such number of councillors as shall constitute not less than one-half of the sanctioned strength of the council, together with a copy of the motion which is proposed to be made, shall be delivered by any two of the councillor, signing the notice in person together, to the [Regional Director of Municipal Administration]." By the amendment, in Section 40A(2), instead of "not less than one-half of the sanctioned strength", the expression "not less than 3/5th of the sanctioned strength" has been substituted. Therefore, after the amendment, for moving the notice of intention to make a motion, 3/5th of the sanctioned strength must sign the notice of intention. https://hcservices.ecourts.gov.in/hcservices/ 15. Likewise, in Section 40A(12), which stood before the amendment contemplated the moving of motion by 3/5th of the sanctioned strength of the Council, which runs as follows: " Section 40A(12): If the motion is carried with the support of not less than three-fifths of the sanctioned strength of the council, the [State Government] shall, by notification,remove the chairman or [vice-chairman]." By the amendment, instead of the expression "not less than 3/5th of the sanctioned strength", the expression "not less than 4/5th of the sanctioned strength" has been substituted. 16. In addition to that, Section 9 of the Amendment Act has stated that any motion expressing want of confidence against the Chairman or Vice-Chairman pending before officer, authority or Government as per Section 40A, immediately before the commencement of the Amendment Act, stood abated. Section 9 is as follows: " Section 9. Any motion expressing want of confidence in the Chairman or vice-Chairman made under Section 40A and pending before any officer, authority or the Government, as the case may be, as provided in Section 40A, immediately before the commencement of this Ordinance, shall abate." 17. For the reasons which I have enumerated above, Section 9 of the Amendment Act has not affected any proceedings which are completed under Section 40A of the Tamil Nadu District Municipalities Act, 1920 and only pending proceedings are stated to have abated. The motion can be deemed to be pending till the State Government notifies the removal of Chairman or Vice-Chairman as per Section 40A(12) of the Act as enumerated above and the purport of the said Section 9 of the Amendment Act is not to give retrospective effect in the sense to invalidate whatever motions which have been notified by the Government and therefore, there is absolutely no substance in the contention that Section 9 of the Amendment Act is invalid. 18. As far as the contention of the petitioners regarding the imposition of stringent percentage for presenting the notice of intention of motion and passing of the motion, as it is seen in the statement of objects and reasons for passing such amendment, the Government has taken a policy decision in order to avoid the unethical practice of removal of Chairman and Vice-Chairman frequently for the reason that such conduct diverts the Municipalities and Panchayats from working for the benefit of https://hcservices.ecourts.gov.in/hcservices/ people at large. The Statement of objects and reasons for the amendment given in the notification is as follows: " Of late, large number of no confidence motions are received against the chairmen and vice-chairmen of municipalities and town panchayats. Such large number of no-confidence motions are unprecedented in the long history of the local bodies administration of this State. This may be due to better awareness of the provisions of the statutes on this issue or may be due to the growing intolerance among the elected representatives of the urban local bodies, out of political or personal reasons. However, it may also be attributed to unethical practices. This trend tends tom divert the focus and attention of the council and administration from the real issues concerning the welfare of the people such as basic civic needs, infrastructure facilities and other development oriented initiatives and activities. As a result, smooth and cordial atmosphere of the councils of the concerned urban local bodies is disturbed and also the conduct of the meetings of the said councils is affected. This also tends to affect the administration of the urban local bodies. Though moving and passing of no- confidence motions are considered to be democratic rights, frequent use and misuse of the same will affect the very same democracy. 2.... 3...." 19. Therefore, on the basis of the policy of the Government, if the State Government has enacted the Amendment Act by imposing stringent condition, it is not for this Court to interfere, especially in the circumstances that it does not affect the fundamental rights of the petitioners or it is not totally perverse. The contention of the petitioners that imposing