P.Subbulakshmi v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 5.12.2008C O R A M :THE HON'BLE MR.A.K.GANGULI, THE CHIEF JUSTICEANDTHE HON'BLE MR.JUSTICE K.CHANDRUW.A.No.654 of 2008andM.P.No.1 of 2008P.Subbulakshmi... Appellant/Petitionervs. 1. State of Tamil Nadu rep.by The Secretary to Government, Law Department, Fort St.George, Chennai-600 009.2. State of Tamil Nadu, rep.by Secretary to Government, Municipal Administration & Water Supply Department(Election), Fort St.George, Chennai-600 009.3. Tamil Nadu State Election Commission, rep.by its Secretary, 6, Revathy Street, Jawaharlal Street, Vadapalani, Chennai.4. The Chief Election Officer, (Panchayat), Chennai.5. The Executive Officer, Courtallam Town Panchayat, Courtallam, Tirunelveli District.6. P.Ramaiah7. R.Revathi8. Kalyani Ammal 9. J.Mary Stella 10. Suseela11. K.Madasamy ... Respondents/Respondents https://hcservices.ecourts.gov.in/hcservices/ PRAYER :Appeal filed under Clause 15 of the Letters Patent against theorder of the learned Single Judge dated 30.7.2007 made in W.P.No.35921 of 2006 on the file of this Court. For Appellant ::Mrs.Hema Sampath, SC for Mr.R.SubramanianFor Respondents ::Mr.Raja Kalifulla, GP for R1 to R5For Respondents :: 8 to 10 are given upFor other respondents :: No appearanceJ U D G M E N TK. CHANDRU, J. Heard Mrs.Hema Sampath, learned Senior Counsel leadingMr.R.Subramanian, learned counsel for the appellant and Mr.RajaKalifulla, learned Government Pleader taking notice for the respondentsand perused the records.2. This writ appeal is directed against the order of the learnedSingle Judge made in W.P.No.35921 of 2006 dated 30.7.2007 in dismissingthe writ petition filed by the appellant. The petitioner in the originalwrit petition, sought for a prayer to declare Section 3-CC in Chapter I-B of the Tamil Nadu District Municipalities Act, 1920 as introduced bythe Tamil Nadu Municipal Laws (Amendment) Act, 2006 (Tamil Nadu Act 18of 2006), as ultra vires and unconstitutional.3. The petitioner was an elected member of Ward No.8 of theCourtallam Special Town Panchayat in the elections held during June2003. As per the Tamil Nadu District Municipalities Act, 1920, the termof office of an elected person is for a period of five years. 4. The Government of Tamil Nadu by G.O.(Ms) No.270, MunicipalAdministration and Water Supply (Election) Department, dated 11.6.2004,took a decision to re-classify 568 Town Panchayats as VillagePanchayats. Consequent upon the decision, a notification was issued inthe Tamil Nadu Government Gazette declaring various Town Panchayats, asper the list found in Notification No.II, as 'Village Panchayats' witheffect from 14.6.2004. This notification was issued under Section 3-B(3)(c)(ii) of the Tamil Nadu District Municipalities Act, 1920. In the sameGazette, by a Notification No.III, Courtallam Town Panchayat was made asa Village Panchayat under the Tamil Nadu Panchayats Act, 1994.5. By virtue of Section 4-A(1)(a) of the Tamil Nadu Panchayats Act,1994, the elected Chairman and Members of the Town Panchayat, who wereholding office immediately before constitution of such Town Panchayat,shall be deemed to be the elected President and Members of the Village https://hcservices.ecourts.gov.in/hcservices/ Panchayat and will continue to hold office up to the date notified bythe Government and if no date is notified, then up to the next generalelections. By virtue of this provision, the petitioner's term as a WardMember in Courtallam Village Panchayat continued. 6. Subsequently, the respondent State passed another statutorynotification vide G.O.(Ms) No.55, Municipal Administration and WaterSupply (Election) Department, dated 14.7.2006, wherein and by which, 561Special Village Panchayats were to be reconstituted as Town Panchayats.For this purpose, necessary amendments to the Tamil Nadu Panchayats Actand the Tamil Nadu District Municipalities Act were also made. 7. The Tamil Nadu District Municipalities Act, 1920, as amended bythe Tamil Nadu Municipal Laws (Amendment) Ordinance, 2006 introducedSection 3-CC (1)(a) under Chapter 1-B in the Tamil Nadu DistrictMunicipalities Act. Section 3-CC(1)(a) of the Tamil Nadu DistrictMunicipalities Act, 1920 may be usefully extracted below:-''3-CC. Special provisions relating to village panchayatconstituted as town panchayat.- (1) Notwithstanding anythingcontained in this Act.-(a)the president and members of a village panchayat, who areelected or deemed to have been elected and holding officeas such immediately before the date of constitution of suchvillage panchayat as town panchayat under this Act, shallbe deemed to be the chairman and members of such townpanchayat elected under this Act and such chairman andmembers shall continue to hold office up to such date asthe State Government may, by notification, fix in thisbehalf or, in case no such date is fixed, up to the date onwhich their term of office would expire under the TamilNadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994) andsuch chairman and members shall exercise all powers andperform all duties conferred on the chairman and members byor under this Act;(b)all the employees, other than the provincialised employeesof the village panchayat immediately before itsconstitution as town panchayat shall be the employees ofsuch town panchayat under this Act. The provincialisedemployees shall continue to serve under the town panchayat.(2) Subject to the provisions of sub-section (1), theprovisions of this Act and the rules made thereunder shallapply to the town panchayat referred to in sub-section (1)."8. By virtue of this amendment, a Gazette notification was issuedunder Section 3-P (1) of the Tamil Nadu District Municipalities Act,1920, as amended by the Tamil Nadu Municipal Laws (Amendment) Ordinance,2006, establishing Town Panchayat for each of the panchayat townsmentioned in the Schedule. In Serial No.451 coming under TirunelveliDistrict, the name of Courtallam Town Panchayat is notified. The Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Municipal Laws (Amendment) Ordinance, 2006, which was replaced byTamil Nadu Municipal Laws (Amendment) Act, 2006 (Tamil Nadu Act 18 of2006) incorporating the amended provisions was also repealed by Section37 of the Amendment Act.9. Thereafter, G.O.(Ms)No.91, Municipal Administration and WaterSupply (Election) Department, dated 11.9.2006 was issued by virtue ofthe power conferred under Section 3-CC in the Tamil Nadu GovernmentGazette. The notification reads as follows:-''In exercise of the powers conferred by section 3-CC of theTamil Nadu District Municipalities Act,1920 (Tamil Nadu Act Vof 1920), the Governor of Tamil Nadu hereby fixes the 24thOctober 2006 as the date upto which the Chairmen and membersof the Sholingur town panchayat in Vellore District,Courtallam town panchayat in Tirunelveli District andBhavanisagar town panchayat in Erode District shall continueto hold office as such Chairmen and members." (Emphasis Added)10. By the aforesaid statutory notification, the term of office ofthe members of the Courtallam Town Panchayat was brought to an end witheffect from 24.10.2006. It is at this stage, the petitioner filed a writpetition being W.P.No.34698 of 2006 challenging the validity of G.O.(Ms)No.91, dated 11.9.2006. The said writ petition was dismissed aswithdrawn on 21.9.2006 since it was pointed out that the notificationhas the backing of a legislative enactment and the notification cannotbe challenged without the amendment being held to be unconstitutional.It was, thereafter, the present writ petition came to be filedchallenging the vires of Section 3-CC.11. On behalf of the respondent State, a detailed counter affidavitdated 'nil' (December 2006) was filed supporting the amendment. It wasbrought to the notice of this Court that subsequent to the notification,an election was notified to the Courtallam Town Panchayat on 15.10.2006and 8 ward members have been elected. On 05.11.2006, 7 out of 8 wardmembers have assumed office. In the first meeting held on 23.11.2006,election to the post of Chairman was conducted and one Tmt.R.Revathi waselected as the Chairman. 12. In the order under challenge in this writ appeal, the learnedJudge held that Section 3-CC of the Tamil Nadu District MunicipalitiesAct, 1920 is a valid piece of legislation and it was within thecompetence of the State Legislature to pass such a law. It is also heldthat the appellant had not placed any material to show that there wasany illegality in passing the said law. The learned Judge also agreedwith the fact that there was no pick and choose policy adopted by theState. The cut-off date was fixed with a view to conduct elections toall Town Panchayats in one mainstream. It was only with a view to https://hcservices.ecourts.gov.in/hcservices/ facilitate the conduct of elections, the three Town Panchayat Councilswere dissolved. 13. Mrs.Hema Sampath, learned Senior Counsel appearing for theappellant submitted that the amendment brought by the State was inviolation of Part IX of the Constitution as introduced by theConstitution (Seventy-third Amendment) Act, 1992. In terms of Article243-E of the Constitution, the duration of a Town Panchayat is for aperiod of five years and, hence, the appellant's term cannot becurtailed by the State amendment. She also submitted that under Section41 of the Tamil Nadu Panchayats Act, the State Government can dissolve apanchayat only on specified grounds and that the Constitution willprevail over the Legislation.14. She also placed reliance upon the judgment of the Supreme Courtin State of West Bengal -vs- Anwar Ali Sarkar and another reported inAIR 1952 SC 75. Drawing inspiration from that judgment, she submittedthat the power granted by the amendment was likely to be abused, as wasdone in the present case. Under the amendment, the State has reservedits power to dissolve one set of Town Panchayat Councils and in othercases, at their whim, they can continue the office of the TownPanchayat. Therefore, she submitted that either all the Town PanchayatCouncils must be dissolved or all of them must be allowed to continueand the power of pick and choose should not be allowed. It was for thispurpose, she had relied upon the Anwar Ali Sarkar's case (cited supra)to show that the legislation is discriminatory and it discriminates oneperson or class of persons against others.15. The appellant had also filed M.P.No.1 of 2008 to raiseadditional grounds. In that, it was stated that apart from violation ofArticle 14 of the Constitution, the amended section do not provide forguidelines and has given a blanket power to suspend any Town Panchayaton their own whims and fancies.16. Per contra, the learned Government Pleader submitted that apower was likely to be abused, cannot be a ground to invalidate anotherwise constitutionally valid piece of legislation. At the maximum, aperson can challenge an order passed under the impugned legislation. Insuch circumstances, the Court can go into the question whether there wasan arbitrary exercise of power by the State. 17. He also placed reliance upon the judgment of the Supreme Courtin State of U.P. And others -vs- Pradhan Sangh Kshettra Samiti andothers reported in 1995 Supp (2) SCC 305. The learned Government Pleaderreferred to the following passage found in para 40 of the said judgment:-''40. We also find no merit in the contention that the firstpart of Section 2(t) which defines village to mean any localarea recorded as a village in the revenue records of thedistrict in which it is situate, goes counter to the https://hcservices.ecourts.gov.in/hcservices/ provisions of Article 243(g) in that it forecloses theauthority of the Governor to specify the village for thepurposes of establishing a gram panchayat as envisaged by PartIX of the Constitution. The argument ignores that whereas theConstitution permits the Governor to specify village by anotification, it does not prevent the State from enacting alaw for the purpose. As pointed out earlier, the notificationissued by the Governor is in fact a notification issued by theState Government. An enactment of the legislature is certainlya higher form of legal instrument than a notification. What isfurther, the Act has received the assent of the Governor on22-4-1994. Hence, there is not only no conflict between theprovisions of Sections 2(t) of the Act and those of Article243(g) but there is an overcompliance with the provisions ofthe Constitution. (Emphasis Added) 18. In the light of the rival contentions, it has to be seenwhether the order of the learned Judge is liable to be interfered withby this Court. Since reliance was placed upon Article 243-E of theConstitution, it may be usefully extracted below:-''243-E. Duration of Panchayats, etc. - (1) Every Panchayat,unless sooner dissolved under any law for the time being inforce, shall continue for five years from the date appointedfor its first meeting and no longer.(2) No amendment of any law for the time being in forceshall have the effect of causing dissolution of a Panchayat atany level, which is functioning immediately before suchamendment, till the expiration of its duration specified inclause (1).(3) An election to constitute a Panchayat shall becompleted-(a)before the expiry of its duration specified in clause(1);(b)before the expiration of a period of six months from thedate of its dissolution:Provided that where the remainder of the period for which thedissolved Panchayat would have continued is less than sixmonths, it shall not be necessary to hold any election underthis clause for constituting the Panchayat for such period.(4) A Panchayat constituted upon the dissolution of aPanchayat before the expiration of its duration shall continueonly for the remainder of the period for which the dissolvedPanchayat would have continued under clause (1) had it notbeen so dissolved."(Emphasis Added) https://hcservices.ecourts.gov.in/hcservices/ A reading of the said provision will clearly show that while the law ismade by the State Legislature constituting Panchayats, it can fix theterm of office of its members and can also provide for its dissolution. 19. The constitution of a Town Panchayat is provided under Article243-Q, which reads as follows:-''243-Q. Constitution of Municipalities. - (1) There shall beconstituted in every State,-(a)a Nagar Panchayat (by whatever name called) for atransitional area, that is to say, an area in transitionfrom a rural area to an urban area;(b)a Municipal Council for a smaller urban area; and(c)a Municipal Corporation for a larger urban area,in accordance with the provisions of this Part:Provided that a Municipality under this clause may not beconstituted in such urban area or part thereof as the Governormay, having regard to the size of the area and the municipalservices being provided or proposed to be provided by anindustrial establishment in that area and such other factorsas he may deem fit, by public notification, specify to be anindustrial township.(2) In this article, ''a transitional area", ''a smallerurban area" or ''a larger urban area" means such area as theGovernor may, having regard to the population of the area, thedensity of the population therein, the revenue generated forlocal administration, the percentage of employment in non-agricultural activities, the economic importance or such otherfactors as he may deem fit, specify by public notification forthe purposes of this Part." This would clearly show that the State has power to provide for a TownPanchayat (Nagar Panchayat) as provided therein. In terms of Article243-Q (2), the Governor of a State can constitute a transitional areahaving regard to the population of the area, density of the populationand revenue and other considerations.20. In the present case, for either constituting a Town Panchayator a Village Panchayat or for converting a Town Panchayat into a VillagePanchayat, adequate provisions have been made under the Tamil NaduPanchayats Act, 1994 as well as under the Tamil Nadu DistrictMunicipalities Act, 1920. Section 3-B(1)(a) of the Tamil Nadu DistrictMunicipalities Act, 1920 provides for formation of a Town Panchayat,which reads as follows:-3-B. Formation of town panchayats. - (1) The Governor, -(a) may having regard to the revenue generated for localadministration, the percentage of employment in non-agricultural activities, the economic importance or such otherfactors as he deems fit, by notification, classify and declare https://hcservices.ecourts.gov.in/hcservices/ every local area comprising a revenue village or villages orany portion of a revenue village or contiguous portions of twoor more revenue villages and having a population estimated atnot less than five thousand and an annual income of not lessthan one lakh of rupees as panchayat town for the purposes ofthis Act;" (Emphasis Added)21. The appellant is not challenging the power of the State toconstitute a Town Panchayat or converting a Town Panchayat into one ofVillage Panchayat. It is not as if that only in the case of the TownPanchayat in which the appellant was a Ward Member, the earlier StateGovernment had converted it into Village Panchayat. Subsequently afterthe present Government assumed office, the very same Village Panchayatshave been made into Town Panchayats. There is no challenge to any ofthose conversion process. All that the appellant in the present casechallenges is only the likelihood of abuse of power by the introductionof Section 3-CC introduced by the Amendment Act. 22. The contention of the learned Senior Counsel for the appellantcan be tested in the light of the pronouncement of the Supreme Court inM/s.Pannalal Binjraj and others -vs- Union of India and others reportedin AIR 1957 SC 397. It is relevant to refer to the following passagefound in para 34 of the said order:''34. There is a broad distinction between discretion whichhas to be exercised with regard to a fundamental rightguaranteed by the Constitution and some other right which isgiven by the statute. If the statute deals with a right whichis not fundamental in character the statute can take it awaybut a fundamental right the statute cannot take away. Where,for example, a discretion is given in the matter of issuinglicences for carrying on trade, profession or business orwhere restrictions are imposed on freedom of speech etc. bythe imposition of censorship, the discretion must becontrolled by clear rules so as to come within the category ofreasonable restrictions. Discretion of that nature must bedifferentiated from discretion in respect of matters notinvolving fundamental rights such as transfers of cases. Aninconvenience resulting from a change of place or venue occurswhen any case is transferred from one place to another but itis not open to a party to say that a fundamental right hasbeen infringed by such transfer. In other words, thediscretion vested has to be looked at from two points of viewviz. (1) does it admit of the possibility of any real andsubstantial discrimination, and (2) does it impinge on afundamental right guaranteed by the Constitution? Article 14can be invoked only when both these conditions aresatisfied. ......." (Emphasis Added) https://hcservices.ecourts.gov.in/hcservices/

23. The appellant having got elected as a Ward Member, only enjoysa statutory right. There is no claim of any Fundamental Right, eitherpleaded or available to the appellant. In this context, it is relevantto refer to the judgment of the Supreme Court in Javed and others -vs-State of Haryana and others reported in (2003) 8 SCC 369, wherein theSupreme Court while dealing with an amendment made to the HaryanaPanchayat Act, has upheld the amendment, by which, any person who hasmore than two children was prohibited for contesting the PanchayatElections. The following observations found in paras 22, 23, 24, 28 and60, may be extracted below:- ''22. Right to contest an election is neither afundamental right nor a common law right. It is a rightconferred by a statute. At the most, in view of Part IX havingbeen added in the Constitution, a right to contest electionfor an office in Panchayat may be said to be a constitutionalright — a right originating in the Constitution and givenshape by a statute. But even so, it cannot be equated with afundamental right. There is nothing wrong in the same statutewhich confers the right to contest an election also to providefor the necessary qualifications without which a person cannotoffer his candidature for an elective office and also toprovide for disqualifications which would disable a personfrom contesting for, or holding, an elective statutory office.23. Reiterating the law laid down in N.P. Ponnuswami v.Returning Officer, Namakkal Constituency (AIR 1952 SC 64) andJagan Nath v. Jaswant Singh (AIR 1954 SC 210) this Court heldin Jyoti Basu v. Debi Ghosal (1982) 1 SCC 691 : (SCC p.696,para 8):-“8. A right to elect, fundamental though it is todemocracy, is, anomalously enough, neither afundamental right nor a common law right. It is pureand simple, a statutory right. So is the right to beelected. So is the right to dispute an election.Outside of statute, there is no right to elect, noright to be elected and no right to dispute anelection. Statutory creations they are, andtherefore, subject to statutory limitation.”24. In Jamuna Prasad Mukhariya v. Lachhi Ram (AIR 1954 SC686) a candidate at the election made a systematic appeal tovoters of a particular caste to vote for him on the basis ofhis caste through publishing and circulating leaflets.Sections 123(5) and 124(5) of the Representation of the PeopleAct, 1951, were challenged as ultra vires Article 19(1)(a) of https://hcservices.ecourts.gov.in/hcservices/ the Constitution, submitting that the provisions of theRepresentation of the People Act interfered with a citizen’sfundamental right to freedom of speech. Repelling thecontention, the Constitution Bench held that these laws do notstop a man from speaking. They merely provide conditions whichmust be observed if he wants to enter Parliament. The right tostand as a candidate and contest an election is not a commonlaw right; it is a special right created by a statute and canonly be exercised on the conditions laid down by the statute.The Fundamental Rights Chapter has no bearing on a right likethis created by a statute. The appellants have no fundamentalright to be elected and if they want to be elected they mustobserve the rules.... " 28. At the very outset we are constrained to observe thatthe law laid down by this Court in the decisions relied on iseither being misread or read divorced of the context. The testof reasonableness is not a wholly subjective test and itscontours are fairly indicated by the Constitution. Therequirement of reasonableness runs like a golden threadthrough the entire fabric of fundamental rights. The loftyideals of social and economic justice, the advancement of thenation as a whole and the philosophy of distributive justice —economic, social and political — cannot be given a go-by inthe name of undue stress on fundamental rights and individualliberty. Reasonableness and rationality, legally as well asphilosophically, provide colour to the meaning of fundamentalrights and these principles are deducible from those verydecisions which have been relied on by the learned counsel forthe petitioners.60. Looked at from any angle, the challenge to theconstitutional validity of Section 175(1)(q) and Section 177(1) must fail. The right to contest an election for any officein Panchayat is neither fundamental nor a common law right. Itis the creature of a statute and is obviously subject toqualifications and disqualifications enacted bylegislation. ..."(Emphasis Added)24. In the light of the above, it must be stated that Section 3-CCof the Tamil Nadu District Municipalities Act, 1920 is intended toprovide for all types of contingencies. The appellant was originallyelected as Ward Member of the Town Panchayat. Thereafter, she wasallowed to continue as a member of the Village Panchayat, when it wasconverted by the Government vide Order in G.O.(Ms).No.270, Municipal https://hcservices.ecourts.gov.in/hcservices/ Administration and Water Supply (Election) Department, dated 11.6.2004.Subsequently, by the order in G.O.(Ms).No.55, Municipal Administrationand Water Supply (Election) Department, dated 14.7.2006, a re-conversionwas made to make the Village Panchayat a Town Panchayat. The appellantalso continued as Ward Member of the re-converted Town Panchayat. It wasonly by G.O.(Ms).No.91, Municipal Administration and Water Supply(Election) Department, dated 11.9.2006, the appellant's tenure wasbrought to an end with effect from 24.10.2006. Therefore, it is clearthat she was a beneficiary of all these statutory notifications.25. Though the Government has power to dissolve any panchayat, onit being converted into a Town Panchayat, in the present case, therespondent State did not do it. On the contrary, it was only when theywanted to have an election to be conducted for all Town Panchayats inone mainstream, these three surviving Town Panchayats, namely, theCourtallam, Sholingur and Bhavanisagar Town Panchayats were dissolved.For the purpose of dissolving such Town Panchayat Councils or bringingin the term of office of the members, the State had reserved powersunder Section 3-CC of the Tamil Nadu District Municipalities Act and ithas been purposefully utilised. There was no pick and choose methodadopted by the State. It must also be stated that subsequent to thedissolution, elections have been held and new office bearers haveassumed office. Even if the appellant had continued on her five yearterm, it would have come to a close on 30.8.2008. Therefore, there is nosubstance in the writ petition filed by the appellant. 26. In the light of the above, the challenge made to the impugnedprovision, viz., Section 3-CC of the Tamil Nadu District MunicipalitiesAct, 1920 must necessarily fail. The order of the learned Single Judgeis perfectly valid and does not call for any interference. Hence, thewrit appeal stands dismissed. However, there will be no order as tocosts. M.P.No.1 of 2008 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjsTo1. The Secretary to Government, Law Department, Fort St.George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Secretary to Government, Municipal Administration & Water Supply Department(Election), Fort St.George, Chennai-600 009.3. The Secretary, Tamil Nadu State Election Commission, 6, Revathy Street, Jawaharlal Street, Vadapalani, Chennai.4. The Chief Election Officer, (Panchayat), Chennai.5. The Executive Officer, Courtallam Town Panchayat, Courtallam, Tirunelveli District.1 cc To Mr.R.Subramanian, Advocate, SR.68598.1 cc To The Government Pleader, SR.68432. W.A.No.654 of 2008 and W.A.M.P.No.1 of 2008RSM(CO)RVL 15.12.2008