J.Kokilavani v. The State of Tamil Nadu Secretary to Government Water Supply and Municipal

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 ofIndia praying for issuance of a Writ of Declaration as statedtherein.For petitioners : Mr. K.Rajendran Mr. G.JeremiahFor respondents : Mr. S. Ramasamy,Addl.Advocate Generalin 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 ORDERThese writ petitions are filed for direction that theprovisions of the Tamil Nadu Municipal Laws (Amendment) Act 35 of2007 are unconstitutional and ultra vires.2. The petitioners are the elected Vice-Chairman ofJolarpettai Municipality, which is a 3rd Grade Municipality andCouncillor of 23rd Ward in Kancheepuram Municipal Councilrespectively. In respect of Jolarpettai Municipality, out of 17Members inclusive of Chairman and Vice-Chairman, 14 Members havesubmitted their requisition under Section 40A of the Tamil NaduDistrict Municipalities Act,1920 (in short, "the Act") to move ano-confidence motion against the 4th respondent, Chairman and itwas presented to the Regional Director of MunicipalAdministration, Vellore and it contains the various commissionsand 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 09.08.2007at 10.30 a.m. The notice was dated 20.07.2007, served on all theMembers. On the appointed day, the no-confidence motion was putto vote, 12 members voted in favour of the resolution while 4voted against it and the motion was carried by the required 3/5thmajority of sanctioned strength of the Council. The RegionalDirector also forwarded the minutes of the meeting to theSecretary to Government, however, the Government has not passedany order. 2(b). Likewise, in respect of Kancheepuram Municipal Council,out of 45 Members, 28 have signed the requisition and the same wasgiven to the second respondent. In fact, all the 28 Councillorswere physically present before the second respondent while signingthe notice of no-confidence motion. The second respondent hasissued a notice dated 20.09.2007, mentioning the date of meetingof the Council as 10.10.2007 at 3.00 p.m. In the meantime, theTamil Nadu Government has brought the Tamil Nadu Municipal Laws(Amendment) Ordinance, 2007 (Ordinance No.5 of 2007) on04.10.2007, incorporating the laws governing no-confidence motionand in respect of the amendment to Section 40A of the Act, insteadof 3/5th majority to carry the motion, it has made it as 4/5th ofthe sanctioned strength to pass no-confidence motion. By way ofamendment, for giving notice of intention, instead of 50%, it is60% and for passing the no-confidence motion, instead of 60%,it is 80%.The Ordinance has been statutorily made asAmendment 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 onvarious grounds including that the amendment is a colourableexercise of legislative power and made beyond the legislativecompetency; that it erodes the democratic rights of the electedmembers of local bodies to function in a democratic manner; thatthe objects and reasons which impose stringent conditions for thepurpose of moving no-confidence motion is wholly unconstitutionaland undemocratic; that Section 9 of the Amendment Act is beyondthe legislative competency; that the amendment givingretrospective effect is unconstitutional, apart from othergrounds.3. The respondents have filed counter affidavit. It is thecase of the respondents that the Government noticed that largenumber of no-confidence motions received against the Chairman andVice-Chairman of the Municipalities and Town Panchayats areunprecedented 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 theelected representatives or out of political or personal reasons,which according to the Government is unethical practice, whichdiverts the focus and attention of the Council and administrationfrom the real issues concerning the welfare of the people, andtherefore, it decided to curb the undesirable trend and to bringthe amendment laws relating to the moving of no-confidencemotion.3(a). The Tamil Nadu Municipal Laws (Amendment) Ordinance,2007 (Tamil Nadu Ordinance 5 of 2007) was promulgated on04.10.2007, which was replaced by the Tamil Nadu Municipal Laws(Amendment) Act,2007 (Tamil Nadu Act 37 of 2007), which came intoforce 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 againsta Chairman or Vice-Chairman has not been taken away and theprocedure has been made strict by increasing the notice ofintention from 50% to 60% and in respect of passing of the no-confidence motion, it has been made from 60% to 80%. It is thefurther case of the respondents in the counter affidavit thatSection 9 of the Amendment Act does not give retrospective effectto the amendments made to the provisions of Sub-section (2), (12),(13) and (14) of Section 40-A of the Act. Section 9 of theAmendment Act only abates the pending motions without affectingthe motions already notified by the Government. Therefore, thepetitioners cannot have any grievance by the amendment.4. Mr.K.Rajendran, learned counsel appearing for thepetitioner in W.P.No.35192 of 2007 would submit that imposition ofrequirement of 4/5th members for the purpose of moving the motionis undemocratic and according to him, the 'will of majority' meanssimple majority and not 80%. He would also submit that there isno intelligible differentia between the election and removal. Forthe purpose of election what is required is 50% while for thepurpose of removal 80% is required, which according to him, iswithout jurisdiction. He would rely upon the judgement inAashirwad Films vs. Union of India and Others [2007 (5) MLJ 170(SC)] and the Division Bench order of this Court in P.SankaraNarayanan, Proprietor, Shri Bhuvaneswari Films, Chennai vs. Stateof Tamil Nadu [2007 (5) MLJ 1178]. By virtue of the amendment,the very right of the members of the Council to move no-confidencemotion is taken away and that would amount to making inroad intothe democratic principles, which are the basic structures of theConstitution. https://hcservices.ecourts.gov.in/hcservices/

5. Mr.G.Jeremiah, learned counsel appearing for thepetitioner in W.P.No.34888 of 2007 would submit that if really theintention of the Government is to prevent the unhealthy trend ofmoving no-confidence motions, moved indiscriminately theGovernment has power under Section 41 of the Act to dissolve orsupersede the Council. He would submit that democracy being thebasic structure of the Constitution, election of a Chairman as perSection 12 (2) of the Act only requires simple majority, but, byvirtue of the Amendment made to Section 40A(12) of the Act, 4/5thmajority is required for the purpose of removal. Again, accordingto him, there is no intelligible differentia between the electionand removal. His further submission is that Section 9 of theAmendment Act by which pending proceedings abated cannot apply incases where the resolution has been passed before the amendmentcame into effect as in W.P.No.34888 of 2007, the subsequentnotification by the State Government is only consequential, sincethe term used in Section 40A(12) is "shall" which means theGovernment has no option other than but to notify the removal ofthe Chairman. To substantiate his contention that retrospectiveeffect to the Act is not valid, he would rely upon the judgementin Mylapore Club vs. State of Tamil Nadu [2006 (1) MLJ 27 (SC)].In respect of effect of passing resolution, the learned counselrelied upon the judgement of Bombay High Court in Jaisingh VithobaGirase 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 ofAndhra Pradesh [AIR 1998 AP 205].6. On the other hand, it is the contention of the learnedAdditional Advocate General Mr.S.Ramasamy that what iscontemplated under Section 9 of the Amendment Act is to abate thepending proceedings in respect of resolutions regarding theremoval of Chairman and Vice-Chairman and the proceedings aredeemed to be pending till the State Government notifies theremoval of Chairman or Vice-Chairman under Section 40A(12) of theAct and till such notification is effected, the removal ofChairman and Vice-Chairman will not come to effect and therefore,the purport of Section 9 of the Amendment Act is not to giveeffect to the provisions of Section 40A of the Act, but to onlyabating the pending proceedings. He would also submit that whenthe Government has taken a policy decision in respect ofelections, there is no vested right on the part of theCouncillors, who have voted against the Chairman or Vice-Chairmantill the Government passes the order notifying the removal. Hisfurther 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 andlearned Additional Advocate General for the respondents andperused the entire records.8. It is not in dispute that before 1978, the Chairman andVice-Chairman of the Municipalities were elected by the electedrepresentatives, but by Act 23 of 1978, the method of electingChairman and Vice-Chairman directly by the people was given effectto. Consequent to that, Section 40B, which was a specificprovision in existence at that time for removal of Chairman wasremoved from the statute book. Thereafter, by the Tamil NaduMunicipal Laws (Amendment) Act, 18 of 2006, the original method ofelection of Chairman and Vice-Chairman through elected members wasresorted to. It is true that Section 40B was existing in thestatute book forming part of the Tamil Nadu DistrictMunicipalities Act,1920 and after 1978, as per the said provisionwhich related to the removal of Chairman alone, when a resolutionfor removal of the Chairman was passed under Section 40B(g), theState Government should consider the motion before notifying thesame, the reason being that at that time the Chairman was electeddirectly by the public and therefore a rider has been imposed byway of direction to the Government to consider. However, afterthe Amendment Act 18 of 2006, Section 40B was omitted and as perSection 40A(12), the word "shall' continued to be in the statutebook. The said sub-section reads as under:"Section 40A(12): If the motion is carried with thesupport of not less than three-fifths of the sanctionedstrength of the council, the State Government shall, bynotification, remove the chairman or vice-chairman."9. The contention of the learned counsel for the petitionersis that the term "shall" under Section 40A(12) is significant whenit is read along with sub-section (9), which is as follows:"Section 40A(9): Such debate shall automaticallyterminate on the expiry of two hours from the timeappointed for the commencement of the meeting, if it isnot concluded earlier. Upon the conclusion of thedebate or upon the expiry of the said period of twohours, a the case may be, the motion shall be put to thevote of the council."Under sub-section (9), upon the conclusion of the debate, themotion shall be put to vote. In this regard, the contention of thepetitioners 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, thenotification by the Government for removal of Chairman and Vice-Chairman is only consequential, since there is no option availableto the Government to reject the motion, which has been moved.According to the learned counsel for the petitioners, in the caseof Jolarpettai Municipality, at the time when the motion wasmoved, the amendment imposing 80% of the members to pass themotion was not in existence, and it was only 60% and therefore,when the motion was moved, 60% was the required majority and eventhough in the meantime the amendment imposing 80% majority cameinto existence, that stringent requirement shall not affect themotion which has already been moved in the Municipal Council andtherefore, it cannot be said to be a pending proceeding.10. The argument is attractive but without substance. Areading of the entire Section 40A of the Act makes it clear aboutthe procedure to be followed for the purpose of moving the motion.In fact the provision makes it clear that the Regional Director ofMunicipal Administration has no role at all to speak anythingabout the motion and his only duty is to record the minutes of themeeting together with copy of the motion and the result of thevoting and forward the same forthwith to the State Government.That is contemplated under sub-section (11), which states asfollows:" Section 40A(11): A copy of the minutes of themeeting together with a copy of the motion and theresult of the voting thereon shall forthwith on thetermination of the meeting be forwarded by the RegionalDirector of Municipal Administration to the StateGovernment."11. Sub-section (12) which stood before the Amendment Act 35of 2007, was as follows:"Section 40A(12): If the motion is carried with thesupport of not less than three-fifths of the sanctionedstrength of the council, the State Government shall, bynotification, remove the chairman or vice-chairman."An over all reading of the provision makes it clear that it is notas if the Government should notify removal of Chairman or Vice-chairman immediately after the minutes of the meeting have beenreceived from the Regional Director of Municipal Administration.The wordings make it very clear that it is for the Government toverify 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 innotifying the removal of Chairman or Vice-chairman should beautomatic or simply consequential.12. The State must apply its mind before notifying theremoval of Chairman or Vice-chairman as to whether the provisionsof the Act have been followed even though the State has no optionto deny notification of such decision even after it is satisfiedthat the provisions have been followed. Therefore, in myconsidered view, the notification of the Government to remove theChairman or Vice-chairman based on the copy of the minutes andmotion, result of voting received from the Regional Director isnot merely an empty formality and there must necessarily be anapplication of mind. A Full Bench of this Court in Rukmani Collegeof Education vs. State of Tamil Nadu (W.P.No.28304 of 2007 dated06.10.2007) considered the provisions of the NCTE Act, whichempowers the National Council for Teacher Education to grantapproval to the institutions for starting degree course. Thequestion arose as to whether the grant of affiliation by theconcerned University is a consequential or University has toindependently apply its mind before granting affiliation as perits Statute. The Full Bench has held that even though theconcerned University cannot impose any conditions which are morestringent than the one imposed by the NCTE, the University isbound by its statute and it has to consider independently beforegranting affiliation and therefore, it cannot be said to be anecessary consequence and that the University should grantaffiliation by closing its eyes. Applying the ratio laid down bythe Full Bench, I have no hesitation to come the conclusion thatas per Section 40A(12) of the Act, the word "shall" cannot meanthat the Government should notify without applying its mind.Therefore, the necessary consequence is that as long as theGovernment has not notified the removal of the Chairman or Vice-Chairman of the Municipality, it has to be treated as a pendingproceeding and therefore, there is no difficulty to come to theconclusion that as per the Amendment Act, such pending proceedingsget abated. It cannot also be said that notifying the same by theGovernment is only a ministerial act and the reliance placed on bythe learned counsel for the petitioner on the Full Bench judgementunder the City Tenants Protection Act in CRP.No.2758 of 1996reported in Arulmigu Kasi Viswanathaswamy Devasthanam by FitPerson, Madras vs. Kasthuriammal [2006 (2) MLJ 281 (F.B.)] is nottenable for more than one reason that under the provisions of theChennai City Tenants Protection Act,1921, when the Court fixesthe 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 subsequentorders directing the landlord to execute sale deed or on failureof the landlord, Court executing the sale deed are onlyconsequential. In fact, the said judgement of the Full Bench hasbeen reversed by the Supreme Court in S.Bagirathi Ammal vs. PalaniRoman Catholic Mission [2007 (5) CTC 881] holding that unless anduntil the final order or direction of the Court for execution ofsale deed by the landlord or by the Court itself is passed, theproceedings cannot be said to be concluded and it is deemed to bea pending proceedings.13. As far as the other contention regarding the validity ofthe Amendment Act, on fact it is admitted that the amendment wasbrought to the Tamil Nadu District Municipalities Act,1920 underthe Tamil Nadu Municipal Laws (Amendment) Ordinance,2007 (TamilNadu Ordinance 5 of 2007) with effect from 04.10.2007 due to thereason that the legislative assembly was not in session at thattime. Subsequently, by way of passing of Tamil Nadu Municipal Laws(Amendment) Act,2007 (Tamil Nadu Act 35 of 2007) by theLegislature, it has come into force from 04.10.2007 and the samewas gazetted by the Government on 13.11.2007.14. Under the Amendment Act, two significant changes havebeen effected to the Tamil Nadu District Municipalities Act,1920in relation to Section 40A. Section 40A(2) as it stood before theAmendment Act contemplated the written notice of intention to makethe motion which should be signed by not less than one half of thesanctioned strength of the Council and to be presented by twoCouncillors in person to the Regional Director of MunicipalAdministration, and the said section as it stood then is asfollows:"Section 40A(2) Written notice of intention to makethe motion, in such form as may be fixed by the [StateGovernment], signed by such number of councillors asshall constitute not less than one-half of thesanctioned strength of the council, together with a copyof the motion which is proposed to be made, shall bedelivered by any two of the councillor, signing thenotice in person together, to the [Regional Director ofMunicipal Administration]."By the amendment, in Section 40A(2), instead of "not less thanone-half of the sanctioned strength", the expression "not lessthan 3/5th of the sanctioned strength" has been substituted.Therefore, after the amendment, for moving the notice of intentionto make a motion, 3/5th of the sanctioned strength must sign thenotice of intention. https://hcservices.ecourts.gov.in/hcservices/

15. Likewise, in Section 40A(12), which stood before theamendment contemplated the moving of motion by 3/5th of thesanctioned strength of the Council, which runs as follows:"Section 40A(12): If the motion is carried with thesupport of not less than three-fifths of the sanctionedstrength 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 3/5thof the sanctioned strength", the expression "not less than 4/5thof the sanctioned strength" has been substituted.16. In addition to that, Section 9 of the Amendment Act hasstated that any motion expressing want of confidence against theChairman or Vice-Chairman pending before officer, authority orGovernment as per Section 40A, immediately before the commencementof the Amendment Act, stood abated. Section 9 is as follows:"Section 9. Any motion expressing want of confidencein the Chairman or vice-Chairman made under Section 40Aand pending before any officer, authority or theGovernment, as the case may be, as provided in Section40A, immediately before the commencement of thisOrdinance, shall abate."17. For the reasons which I have enumerated above, Section 9of the Amendment Act has not affected any proceedings which arecompleted under Section 40A of the Tamil Nadu DistrictMunicipalities Act, 1920 and only pending proceedings are statedto have abated. The motion can be deemed to be pending till theState Government notifies the removal of Chairman or Vice-Chairmanas per Section 40A(12) of the Act as enumerated above and thepurport of the said Section 9 of the Amendment Act is not to giveretrospective effect in the sense to invalidate whatever motionswhich have been notified by the Government and therefore, there isabsolutely no substance in the contention that Section 9 of theAmendment Act is invalid.18. As far as the contention of the petitioners regarding theimposition of stringent percentage for presenting the notice ofintention of motion and passing of the motion, as it is seen inthe statement of objects and reasons for passing such amendment,the Government has taken a policy decision in order to avoid theunethical practice of removal of Chairman and Vice-Chairmanfrequently for the reason that such conduct diverts theMunicipalities and Panchayats from working for the benefit of https://hcservices.ecourts.gov.in/hcservices/ people at large. The Statement of objects and reasons for theamendment given in the notification is as follows:"Of late, large number of no confidence motions arereceived against the chairmen and vice-chairmen ofmunicipalities and town panchayats. Such large numberof no-confidence motions are unprecedented in the longhistory of the local bodies administration of thisState. This may be due to better awareness of theprovisions of the statutes on this issue or may be dueto the growing intolerance among the electedrepresentatives of the urban local bodies, out ofpolitical or personal reasons. However, it may also beattributed to unethical practices. This trend tends tomdivert the focus and attention of the council andadministration from the real issues concerning thewelfare of the people such as basic civic needs,infrastructure facilities and other development orientedinitiatives and activities. As a result, smooth andcordial atmosphere of the councils of the concernedurban local bodies is disturbed and also the conduct ofthe meetings of the said councils is affected. Thisalso tends to affect the administration of the urbanlocal bodies. Though moving and passing of no-confidence motions are considered to be democraticrights, frequent use and misuse of the same will affectthe 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 imposingstringent condition, it is not for this Court to interfere,especially in the circumstances that it does not affect thefundamental rights of the petitioners or it is not totallyperverse. The contention of the petitioners that imposing of 80%majority of the total strength for removal of chairman or vice-chairman is unreasonable cannot be accepted for the reason thateven before the amendment, for moving a no-confidence motionagainst chairman or vice-chairman, it was not by simple majorityand what was required was 3/5th majority, which means 60% and thatcannot also be termed as unreasonable. Therefore, on the face ofit, it cannot be termed as arbitrary. The judgement in AashirwardFilms vs. Union of India and Others [2007 (5) MLJ 170 (SC)], onwhich reliance was placed by the learned counsel for thepetitioners is not applicable to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ That was a case, where the Supreme Court has construed thetaxation statute in respect of Andhra Pradesh Entertainment TaxAct (10 of 1939), by which different rate of tax was imposed,viz., for Telugu film it was fixed at 10% and for non-Telugu filmthe tax was fixed at 24% and it was held that such taxation isdiscriminatory.20. Again reliance placed by the learned counsel for thepetitioner on the Division Bench judgement of this Court renderedin P.Sankara Narayanan, Proprietor, Shri Bhuvaneswari Films,Chennai vs. State of Tamil Nadu rep. By its Secretary toGovernment, Commercial Taxes Department, Chennai [2007 (5) MLJ1178] which has no application to the facts of the case. That wasalso relating to a taxation statute, viz., the Tamil NaduEntertainment Tax (3rd Amendment) Act (15 of 2003), in which thefilms dubbed in Tamil were imposed with higher rate ofentertainment tax when compared to the films originally producedin Tamil and the Division Bench has ultimately held that theburden of tax is passed on to the moviegoers and the producers anddistributors or exhibitors are merely collecting agents and fromthe purview of the moviegoers it is difficult to fathom as to whya moviegoer, who is very interested in watching a film should besubject to pay higher rate of entertainment tax merely because thefilm which he wants to view was originally produced in some otherlanguage and was subsequently dubbed in Tamil and it was on thatbasis, the Division Bench held that the provision isdiscriminatory.21. In respect of giving retrospective operation to Section 9of the Amendment Act, by stating that the pending proceedingswould get abated, apart from the narration which has been madeearlier that under Section 40A(12), the act of the Government innotifying the removal of chairman or vice-chairman is not anecessary consequential, it is not in dispute that it is open tothe legislature to bring law with retrospective operation. On thefacts of the present case, there is no retrospective action givento the provisions of the Act. What is contemplated under Section9 of the Amending Act is regarding the pending proceedings,therefore, the judgement of the Supreme Court relied upon by thelearned counsel for the petitioners in Mylapore Club vs. State ofTamil Nadu and another [2006 (1) MLJ 27 (SC)] has no application.Even in that judgement, the Supreme Court has categorically heldthat it is open to the legislature to bring in a law that hasretrospective operation unless and until it affects the vestedrights or agreed rights, and that position is not disputed. Inthat context, the Supreme Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "15. It is open to the legislature to bring in a lawthat has retrospective operation. That position is notdisputed. When it affects the vested rights or accruedrights, that question will have to be considered in thatcontext. But the right to take advantage of a statutehas been held to be not an accrued right. ..... "On the facts and circumstances of this case, there is no rightaccrued to the petitioners in respect of removal of chairman orvice-chairman till the statutory requirements under Section 40A(12) are completed.22. The judgement of the Supreme Court rendered in RameshMehta vs. Sanwal Chand Singhvi and others (2004 (5) SCC 409) onwhich reliance was placed, also has no application in the sensethat it was in respect of statutory rights conferred under theRajasthan Municipalities (Motion of No-confidence against Chairmanor Vice-Chairman)Rules,1974 and considering the voting powers ofthe elected members and nominated members in the terms of wholenumber of members present, it was held as follows:"10. There is no dispute with the proposition that theright to elect and the right to be elected is astatutory right and that the mode and manner of electionto any post could be different from the scheme ofremoval of a person from that post. However, in eachcase, we have to examine the Act in question, which wehave done hereinabove. In the circumstances, we do notwish to discuss the judgements cited on behalf of theappellant in support of the above proposition. However,reliance was placed on the judgement of this Court inthe case of Raees Ahmad vs. State of U.P. (2000 (1) SCC432). In the said case this Court was concerned withthe provisions of the U.P.Municipalities Act under whichthe Chairman is elected by direct election. UnderSection 43 of the U.P. Act the Chairman is electeddirectly by the electorate on the basis of adultfranchise exercised by the voters of the area. It isthe case of the direct election. On the other hand, inthe present case under Section 65 of the RajasthanMunicipalities Act with which we are concerned, theChairman is elected from amongst the elected members ofthe Board. This distinction , in our view, is veryimportant. As stated above, prior to 1994 the co.optedand the elected members were put on a par. Both thecategories had the right to vote. The Chairman waselected from amongst the members of the Board.Consequently, the Chairman/Vice-Chairman had to vacate https://hcservices.ecourts.gov.in/hcservices/ the office when such members voted in support of themotion. In the circumstances, the judgement of thisCourt in the case of Raees Ahmad has no application tothe facts of the present case."However, on the facts and circumstances of the present case, thereis no dispute about manner of voting and inasmuch as the statutoryprocedure enunciated under Section 40A has been followed, there isno question of removal till the Government notifies as per thesaid provision.23. The other decision relied on is the judgement of theDivision Bench of Bombay High Court (Bench at Aurangabad) inJaisingh Vithoba Girase vs. State of Maharashtra and others (AIR2000 Bombay 317), which relates to the Maharashtra AgriculturalProduce Marketing (Regulation) Act (Act 20 of 1964). In that Act,Section 23A contemplated no-confidence motion against the chairmanor vice-chairman which states that by passing of the resolution ofno-confidence by 2/3rd members majority, the seat of chairman orvice-chairman becomes vacant and making of requisition once againby half of the members to the Collector on the basis of the saidresolution is not permissible. But, the facts of the said case isnot applicable to the present case, as here the statute requiresthe notification by the Government.24. Further, the reference of the Division Bench of thisCourt rendered in S.R.Balasubramaniyan vs. State of Tamil Nadu(2006 (3) CTC 129), has no application to the facts of the presentcase. That was a case where the amendment rendering no age limitfor the post of State Election Commissioner elected under Section239(2)(b) of the Tamil Nadu Panchayats Act,1994 was struck down bythe by the Supreme Court (effected by Amendment Act 15 of 2005) onthe basis that when the constitutional post has age limit orspecific number of term, the impugned provision prescribing no agelimit is arbitrary. The relevant portion of the judgement is asfollows:"10.When all Constitutional posts like Supreme CourtJudges, High Court Judges, Chief Election Commissioner,Members of the Election Commission, Chairman and Membersof the Union Public Service Commission and that of theState Public Service Commissions, Comptroller andAuditor General of India, all Civil Servants, GovernmentServants, Public Servants, including the experiencedmilitary personnel right from chief of Army Staff toSepoy, etc. have age limit and or specific number ofterms, the impugned provision of Section 239(2)(b)providing the post of State Election Commissionerwithout age limit is wholly arbitrary, and cannot be https://hcservices.ecourts.gov.in/hcservices/ countenanced as it is in violation of basic structure ofthe Constitution viz., free and fair elections which isthe foundation of the Constitution.In view of the above said legal position, I find there isabsolutely no merit in both the writ petitions. Accordingly, thewrit petitions fail and the same are dismissed. No costs.Connected miscellaneous petitions are closed.khSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1.The Secretary to Government State of Tamil Nadu Water Supply and Municipal Administration Department Fort St. George Chennai.2.The Regional Director of Municipal Administration Vellore 12.3.The Commissioner, Jolarpettai 3rd Grade Municipality Jolarpettai, Vellore District.4.The Regional Director of Municipal Administration Chingleput Kancheepuram District.5.The District Collector Kancheepuram District Kancheepuram.Tm (co)dv/16.4. Order inW.P.Nos.34888 & 35192 of 2007