High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30-07-2007CORAM :THE HONOURABLE MR.JUSTICE A. KULASEKARANW.P. No. 35921 of 2006-o-P. Subbulakshmi.. Petitioner Versus1. State of Tamil Nadu rep. By Secretary to Government Law Department Fort St. George Chennai – 600 0092. State of Tamil Nadu rep. By Secretary Municipal Administration & Water Supply Department (Election) Fort St. George Chennai – 600 0093. Tamil Nadu State Election Commission rep. By Secretary 6, Revathy Street Jawaharlal Street Vadapalani, Chennai4. The Chief Election Officer (Panchayat) Chennai5. The Executive Officer Courtlam Town Panchayat Courtlam Tirunelveli District6. P. Ramaiah7. R. Revathi8. Kalyani Ammal9. J. Mary Stella(RR6 to 9 were impleaded as per Order dated 17.11.2006 made in MP No.2 of 2006 in WP No.35921 of 2006)10. Suseela11. K. Madasamy https://hcservices.ecourts.gov.in/hcservices/ (RR10 and 11 were impleaded asper Order dated 21.11.2006 madein MP No. 3 of 2006 in WP No.35921 of 2006).. Respondents Petition filed under Article 226 of The Constitution of India prayingfor a Writ of Declaration as stated therein.For Petitioner :Mrs. Hema SampathSenior Advocate for Mr. SubramanianFor Respondent:Mr. R. ViduthalaiAdvocate General assisted by Mr. K. IlangoSpecial Govt Pleader for RR1 & 2Mr. I. ParanthamanAdditional Govt.Pleader for R3 & R4Mr. J. Ravindran for R5Mr. Subramanian, Senior Advocate for Mr. Abdul Wahab for R6 to R11ORDERThe petitioner has come forward with this writ petition praying for aWrit of Declaration to declare that Section 3CC in Chapter IB of the TamilNadu District Municipalities Act, 1920 introduced by the Tamil NaduMunicipal Laws (Amendment) Act, 2006 (Act 18 of 2006) published in TamilNadu Government Gazzette Extraordinary No.223 dated 01.09.2006 by thefirst respondent is ultravires and unconstitutional.2.The case of the petitioner is that she was the elected member ofWard No.8 of the then Courtlam Special Village Panchayat and assumedoffice on 30.06.2003, which should continue for five years unless soonerdissolved under law. While so, under the pretext of upgradation of thevillage panchayat into town panchayat in exercise of power under Section 3CC of the Tamil Nadu District Municipalities Act, 1920, hereinafterreferred to as the Act, the tenure of the petitioner was reduced endingwith 24.10.2006, which is against law, if at all that can be done only byinvoking the powers conferred under Section 41 of the Act, that too forthe reasons mentioned therein, hence, the present writ petition has beenfiled seeking for a declaration to declare that Section 3 CC of the Act inChapter I A of the Act as ultra vires and unconstitutional.3.The case of the respondents is that the first respondent issuedG.O. Ms No.55 dated 14.07.2006 in exercise of power under Section 3 CC ofthe Act for re-constituting 566 Special Village Panchayat, includingCourtlam Special Village Panchayat as Town Panchayat, hence, the same isnothing but an upgradation of the body from Special Village Panchayat toTown Panchayat therefore, the petitioner is not entitled to hold the fullterm of office beyond the period fixed by the Government and the said https://hcservices.ecourts.gov.in/hcservices/ upgradation cannot be equated with dissolution. The said date namely24.10.2006 was fixed by the Government to hold election to the CourtlamTown Panchayats along with other Panchayats in the State.4.Mrs. Hema Sampath, learned Senior Counsel appearing for thepetitioner submitted that the petitioner was elected as Member of WardNo.8 of Courtlam Special Village Panchayat in the election held in June2003; that the first respondent issued G.O. Ms. No.55 dated 14.07.2006 inexercise of the powers conferred under Section 3 CC (1) (a) of the Actunder the pretext of upgrading Courtlam Village Panchayat into TownPanchayat, with the result, the tenure of five years of the council wasreduced; that Section 3 CC permits the State Government to shorten thetenure of the elected representatives of Panchayat, which is violative ofArticle 243 E of the Constitution of India, besides that denuded the powerof legislature of the State; that the executive power of the Governmentcontemplated under Article 154 of the Constitution of India however cannotgo against the provisions of the Constitution or any law, in this case,G.O. Ms. No.55 was issued by the Governor in exercise of power underArticle 154 of the Constitution of India taking away the powers of thelegislature, hence, it is ultravires; that even under Section 41 of theAct, the State Government could dissolve the council, that too, only undercertain circumstances stated therein; that the petitioner has filed WP No.34698 of 2006, which was withdrawn with liberty to challenge the Section3 CC of the Act, hence, this writ petition is maintainable and prayed forallowing of the same. In support of her contention, the learned Seniorcounsel for the petitioner relied on the below mentioned decisions:-i)(A.B.R. Jnardhanan, Dalit Tiger C. Ponnusamy and 3 others vs.State of Tamil Nadu, rep. By its Secretary, Municipal Admn. & Water Supply(Election) Department and others) 2001 (3) Law Weekly 399 wherein aDivision Bench of this Court held in Para-8 as follows:-"8.Now, the question arises as to whether in theabove circumstances, this Court can annul the electionprocess or postpone the commencement of the electionprocess. Even though there is an extraordinary powerfor this Court to exercise under Article 226 of theConstitution of India, there are some inherentlimitations and more so, in Election Law. Election Lawis clear on this aspect. The analogy of Articles 324and 329 of the Indian Constitution relating toelections to parliament and State Legislatures isequally applicable to the local bodies. Even thoughlocal bodies have been constituted, yet it had been theexperience that self-governance by the electedrepresentatives of the local bodies was not fullyfollowed and instances galore where elections to thelocal bodies for self governance by the electedrepresentatives were not held for years to come. Thereare also instances where the bureaucracy ran the localbodies for even more than a decade by postponing theelections by successive amendments because of majorityof the respective ruling parties in the respectivebodies. That has prompted the enactment ofConstitution (73rd Amendment) Act 1992, incorporating https://hcservices.ecourts.gov.in/hcservices/ Parts IX and IX-A in the Constitution comprising ofArticle 243 with several Sub-Articles 243A to 243ZG.While Part IX deals with Panchayats, Part IX-A dealswith Municipalities. Part IX starts with Article 243and ends with Article 2430 whereas part IX-A commenceswith Article 243P and ends with Article 243ZG.... ii)(S. Udayakumar vs. The State of Tamil Nadu, rep. By its Secretaryto Government, Law Department, Fort St. George, Chennai – 9 and fiveothers) 2002 (3) CTC 705 wherein a Division Bench of this Court held inPara-29 thus:-"29.....We have scanned through all theprovisions and find nowhere that any action can betaken against any of the authorities of theMunicipality, be it councillor, Deputy Mayor or Mayorindividually, in the context of the discharge of theirfunctions as the Municipal Authorities. If that be thecase, the word 'Municipality' employed in Article 243 U(2) includes Mayor, Deputy Mayor and every Councillorand divestment of the right of the said authoritieseither jointly or severally to continue in theirrespective offices for the assured term of 5 years byany law like the Amending Act otherwise than by Section44-A incurs the wrath of Sub-Article (2) of Article 243U of the Constitution and thus becomesunconstitutional, void and inoperative...."The said judgments were relied on by the learned senior counsel forthe petitioner to say that the analogy of Articles 324 and 329 of theIndian Constitution relating to election to parliament and statelegislature is equally applicable to local bodies and other panchayatsunless sooner dissolved under any law for the time being in force, shallcontinue for five years from the date appointed for first meeting and nolonger. 5.Mr. Viduthalai, learned Advocate General appearing for therespondents 1 and 2 submitted that the writ petition is barred by resjudicata as the petitioner has withdrawn the earlier writ petitionNo.34698 of 2006, which was filed challenging the validity of G.O. Ms.No.91 dated 11.09.2006 fixing 24th October 2006 as the date up to which theChairman and Members of Courtlam and other two Panchayats continue to holdoffice as Chairman and Members; that in and by G.O. Ms. No.55 dated14.07.2006, orders were issued for re-constitution of 561 Special GradeVillage Panchayat as town Panchayats; that in the Tamil Nadu MunicipalLaws (Amendment) Ordinance (Tamil Nadu Ordinance 4/2000) promulgated on14.07.2006, later repealed by Tamil nadu Municipal Laws (Amendment Act2006) – Tamil Nadu Act 18 of 2006, special provisions relating to VillagePanchayats constituted as Town panchayat (Section 3CC) have been insertedin the Act; that by virtue of the said amendment, the petitioner isentitled to hold office upto such date as the State Government fix in thisbehalf under the Tamil Nadu Panchayats Act, 1994, hence, the contention ofthe petitioner that she is entitled to hold office for the full term offive years upto 29th June 2008 is untenable; that G.O. Ms. No.91 dated https://hcservices.ecourts.gov.in/hcservices/

11.09.2006 was issued fixing 24th October 2006 as the date upto which theChairman and Members of certain Town Panchayats, including Courtlam TownPanchayats shall continue to hold office, thereafter, election wasconducted in which the respondents 6 to 11 were elected. The learnedAdvocate General brought to the notice of this Court Articles 243 (E), 243(C), 243 (Q), 243 (U) and 243 ZA (2) of the Constitution of India insupport of his contention that when a Village Panchayat is upgraded astown Panchayat, the duration of the Village Panchayat comes to an end andthe same type of successor of Town Panchayat takes over as a consequenceof the term of the previous village panchayat coming to an end; thatArticle 243 (E) cannot be applied to a case where entry of one descriptionis converted into area of another description and one description ofpanchayat is ceased by constituting another Town panchayat of a betterdescription; that Section 41 of the Act gives power to the StateGovernment to dissolve the local body, which is not competent to hold orpersistently make default in performing duties imposed on it by law orexceed or abuse its powers, whereas in the case on hand, the specialvillage panchayat comes to an end pursuant to the upgradation, hence, thesaid Section 41 of the Act cannot be equated with the case of upgradationand prayed for dismissal of the writ petition.6.The learned Additional Government Pleader appearing for therespondents 3 and 4 and the learned counsel for the fifth respondentadopted the arguments advanced by the learned Advocate General for therespondents 1 and 2 and prayed for dismissal of the writ petition. 7Mr. Subramaniam, learned Senior counsel appearing for therespondents 6 to 11 submitted that though the petitioner has challengedthe entire Section 3 (CC) of the Act, except clause (a) of sub-Section (1)of Section 3 (CC) no averment relating to rest of the provisions of thesaid section, hence, the writ petition, on that score itself liable to bedismissed to that extent; that the writ petition is also liable to bedismissed on the ground of constructive res judicata since the earlierwrit petition filed by the petitioner in WP No. 34698 of 2006 challengingthe G.O. Ms. No.91 of dated 11.09.2006 was dismissed by this Court; thatthe contention of the petitioner that Section 3 CC of the Act gives powerto the State Government to fix the tenure of the chairman and members ofthe town panchayat is unconstitutional is misconceived; that when theSpecial Village Panchayat was upgraded as Town Panchayat Article 243 E ofthe Constitution of India cannot be pressed into service; that theelection to the Courtlam Town Panchayat was over and office bearers namelyrespondents 6 to 11 were sworn in. In support of this contention, thelearned Senior counsel for the respondents 6 to 11 relied on the decisionreported in (State of Maharashtra v. Jalgaon Municipal Council) AIR 2003SCW 1061 wherein in Para No.21, the Honourable Supreme Court held thus:- "21. Having heard the learned counsel for theparties at length on this aspect, we are of the opinionthat the said hiatus is an unavoidable event which musttake place in the process of conversion of a MunicipalCouncil into a Municipal Corporation. Reliance onArticle 243-U by the learned counsel for therespondents in this context is misconceived. The use of https://hcservices.ecourts.gov.in/hcservices/ the expression “a Municipality” in sub-article (3) ofArticle 243-U in the context and in the setting inwhich it is employed suggests and means the duration ofthe same type of Municipality coming to an end and thesame type of successor Municipality taking over as aconsequence of the term of the previous Municipalitycoming to an end. Article 243-U cannot be applied to acase where the area of one description is convertedinto an area of another description and one descriptionof Municipality is ceased by constituting anotherMunicipality of a better description. Article 243-U(3)cannot be pressed into service to base a submission onthat an election to constitute a Municipal Corporationis required to be completed before the expiry ofduration of a Municipal Council." The learned Senior counsel for the respondents 6 to 11 furthersubmitted that the election to the Courtlam Town Panchayat was over andoffice bearers namely respondents 6 to 11 was sworn in, hence, the writpetition has become infructuous. 8At the outset, it is necessary to mention that the present writpetition has been filed after permission from this court in the earlierwrit petition, which was dismissed as withdrawn, hence, this writ petitionis maintainable and the plea of res judicata raised by the respondents isrejected.9.The petitioner has challenged the validity of Section 3 (CC) ofthe Act in toto. As rightly pointed out by the learned Senior counselappearing for the respondents 6 to 11, there is no averment or attack tosub-sections 1 (b) and (2) of Section 3 (CC) of the Act, hence, the writpetition is liable to be dismissed to the said extent.10.Now, let us look into the relevant provisions of the Tamil NaduDistrict Municipalities Act, 1920 which are as follows:-Tamil Ndu District Municipalities Act, 1920 Section 3 (CC) – Special provisions relating toVillage Panchayat constituted as Town Panchayat -(1) – Notwithstanding anything contained in this Act -(a)the President and members of a VillagePanchayat, who are elected or deemed to have beenelected and holding office as such immediately beforethe date of constitution of such village panchayat astown panchayat under this Act shall be deemed to be theChairman and Members of such town panchayat electedunder this Act and such chairman and members shallcontinue to hold office upto such date as the StateGovernment may, by notification, fix in this behalf or,in case no such date is fixed, up to the date on whichtheir term of office would expire under the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994) andsuch chairman and members shall exercise all powers andperform all duties conferred on the chairman andmembers by or under this Act;(b)all the employees, other than theprovincialised employees of the village panchayatimmediately before its constitution as town panchayatshall be the employees of such town panchayat underthis Act. The provincialised employees shall continueto serve under the town panchayat.(2) Subject to the provisions of sub-section (1)the provisions of this Act and the rules madethereunder shall apply to the town panchayat referredto in sub-section (1)." 11.The State Government, in order to reconstitute the 561 specialvillage panchayat, including Courtlam Special Village Panchayat as TownPanchayat under the Tamil Nadu Municipalities Act decided to amend theTamil Nadu Act 31 of 1994 by introducing special provisions namely Section3(CC) which is extracted above. Entry 5 of List II empowers the State tolegislate with respect to subject relating to local government, includingthe constitution of such local authorities. The provisions of Section 3(CC) of the Act inserted being covered by Entry 5 of List 2 of ScheduleVII and being in pith and substance, within the legislative competence ofthe State Legislature. The statement of object and reasons of the saidSection 3 (CC) of the Act also explain that to give effect to the decisionof the Government to re-constitute the special village panchayats coveredby the Tamil Nadu Panchayats Act, 1994 as Town Panchayat under the Act.When Law is impugned as ultra vires, what is to be ascertained is the truecharacter of the legislation. If on such examination it is found that thelegislation is in substance one, on a matter assigned to the legislature,then it must be held to be valid in its entirety. It is the function andpower of the Court to interpret an enactment and to say to which entry anenactment relates. So long as State law not in contravention of anyfundamental right, specified in Part III of the Constitution, which wasenacted by the State legislature by the distribution of powers made by theVII Schedule read with connected articles not contravening on anymandatory provisions of the Constitution which impose limitation upon thepowers of legislature, it is valid. In this context, it is necessary tolook into the decision of the Honourable Supreme Court reported in (P.N.Krishna Lal and others vs. Government of Kerala and another) (1995)Supplementary (2) SCC 187 wherein in Para-9, it was held thus:-9.In determining whether the impugned Act is alaw with respect to a given power, the court has toconsider whether the Act, in its pith and substance isa Law on the subject in question. If the statuterelates in pith and substance, a topic assigned to aparticular legislature, the Act will not be invalidatedeven if it incidentally trenches on topics comingwithin another legislative list. The fact ofincidental encroachment does not affect the vires ofthe law even as regards the area of encroachment. The https://hcservices.ecourts.gov.in/hcservices/ Court has to ascertain the true nature and character ofthe subject of the Act or its pith and substance tofind whether the impugned Act falls within thecompetence of the particular legislature. Blindadherence to strict interpretation which would lead toinvalidation of the Statute, as being legislated in theforbidden sphere should be avoided, lest, allbeneficial legislation would be striffled at birth andmany subject entrusted to the state legislaturerendered ineffectual divesting the State legislature ofits powers to deal with particular subject of entry ortopic."Hence, this Court is of the view that Section 3 (CC) of the Act iswithin the competence of the State Legislature.12.An argument was advanced by the learned senior counsel for thepetitioner that Section 3 (CC) of the Act is repugnant to Article 243 (E)of the Constitution of India. Now, we look into the relevant provisionsof the Constitution, which runs as follows:-Constitution of India243-E (1)Every Panchayat, unless sooner dissolvedunder any law for the time being in force, shallcontinue for five years from the date appointed for itsfirst meeting and no longer. (2)No amendment of any law for the time being inforce shall have the effect of causing dissolution of aPanchayat at any level, which is functioningimmediately before such amendment, till the expirationof its duration specified in clause (7). (3)An election to constitute a Panchayat shallbe completed-(a)before the expiry of its duration specifiedin clause (1);(b)before the expiration of a period of sixmonths from the date of its dissolutionProvided that where the remainder of the periodfor which the dissolved panchayat would have continuedis less than six months, it shall not be necesszary tohold any election under this clause for constitutingthe Panchayat for such period.(4)A panchayat constituted upon the dissolution of aPanchayat before the expiration of its duration shallcontinue only for the remainder of the period for whichthe dissolved Panchayat would have continued underclause (1) had it not been so dissolved.13.Section 3 (29-A) of the Act defines Town Panchayat, which meansan institution of self-government constituted for a transitional area asdefined in clause (2) of Article 243 Q of the Constitution. Article 243 Qsays that a Nagar Panchayat (by whatever name called) for a transitionalarea i.e., to say an area in transition from a rural area to an urbanarea; a municipal council for a smaller urban area; a municipalcorporation for a larger urban area constituted in accordance with the https://hcservices.ecourts.gov.in/hcservices/ provisions of this Act. Transitional area, a smaller urban area or largerurban area means such area as the Governor may having regard to thepopulation of the area, the density of the population therein, the revenuegenerated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors ashe may deem fit specified by a public notification for the purpose of thispart. When population, the revenue, the percentage of non-agriculturalactivities, employment, the economic importance or such other facts arerelevant factors for constitution of Municipality. The Government ofTamil Nadu, taking into consideration of the said factors decided to re-constitute 561 Special Village Panchayat as Town Panchayat, includingCourtlam Special Village Panchayat into Town Panchayat. The petitionerherein has not placed any evidence to say that the said factors, which arenecessary to satisfy 243-Q not available or not considered in this case. 14.An argument was advanced by the learned Senior counsel for thepetitioner that the term of five years contemplated under Article 243 E ofthe Constitution shall continue for five years unless sooner dissolvedunder Section 41 of the Act. Section 41 of the Act says that if in theopinion of the State Government the Municipality is not competent toperform or persistently make default in performing duties imposed on it bylaw or exceed or abuse its powers, by notification dissolve themunicipality from a specified date. Exercise of power under Section 41 ofthe Act depends on subjective satisfaction of the Government. As rightlypointed out by the learned Advocate General, Section 41 of the Act cannotbe equated with the upgradation of Village Panchayat into Town Panchayat. 15.In and by the upgradation, the old body coming to an end and sametype of successor municipality takes over. Article 243 E cannot be appliedto a case where an area of one description is converted into anotherdescription. Section 3 (CC)(1) of the Act contemplates thatnotwithstanding anything contained in this Act, the President and Membersof the Village Panchayat, who are elected or deemed to have been electedand holding office as such immediately before the date of constitution ofsuch village panchayat as town panchayat under this Act, shall be deemedto be the Chairman and Members of the Town Panchayat elected under thisAct and such Chairman and Members shall continue to hold the office uptosuch date as the Government may by notification fix in this behalf or ifno such date is fixed upto the date on which their term of office wouldexpire under the Tamil Nadu Panchayat Act, 1994 and such Chairman andMembers shall exercise all powers and perform all duties conferred on theChairman and Members by or under this Act. Thus, the person like thePetitioner, holding the office immediately before the date of constitutionof such village panchayat as town panchayat under this Act deemed toexercise all power and performed all duties until by notification theState Government fixed the tenure. In this case, the State Government ofthe view that instead of appointing Government officers or Administratordeemed it fit that the elected representative of the Panchayat cancontinue till the new body is constituted. The State Government inexercise of power under Section 3 CC (1) (a) of the Act issued G.O. Ms.No.91 dated 11.09.2006 thereby fixed the tenure of the Chairman andMembers of the Special Village Panchayat upto 24.10.2006 and permittedthem to hold the office till that period, hence, this Court is of the viewthat the said decision is perfectly valid. https://hcservices.ecourts.gov.in/hcservices/

16.The reason for fixing the date of tenure of the office of theelected representatives like the petitioner is the Government have decidedto hold election by issuing G.O. Ms. No.55 dated 14.07.2006 to re-constitute 561 Special Village Panchayat as Town Panchayat and holdelection to all the Town Panchayats, including the Courtlam Town Panchayatin one main stream. Thus, the reasons for fixing the said date is alsovalidly explained.17.In view of the discussions made above, this Court is of the viewthat the writ petition is devoid of merits, liable to be dismissed andaccordingly it is dismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rshTo1. State of Tamil Nadu rep. By Secretary to Government Law Department Fort St. George Chennai – 600 0092. State of Tamil Nadu rep. By Secretary Municipal Administration & Water Supply Department (Election) Fort St. George Chennai – 600 0093. Tamil Nadu State Election Commission rep. By Secretary 6, Revathy Street Jawaharlal Street Vadapalani, Chennai https://hcservices.ecourts.gov.in/hcservices/

4. The Chief Election Officer (Panchayat) Chennai5. The Executive Officer Courtlam Town Panchayat Courtlam Tirunelveli District.+ 1 CC To Mr. M.A.Abdul Wahab, Advocate SR NO.47441+ 1 CC To Mr. R.Subramanian, Advocate SR NO.42219+ 1 CC to the Government Pleader SR NO 47041WP No. 35921 of 2006rsn[co]gp/17.8.