S. Udhyakumar Vs. State of Tamil Nadu and ors. - Court Judgment

Excerpt:

.....revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking..........petition has been filed alleging violation of the orders passed by this court on 18.6.2002 in w.p.m.p. no. 29105 of 2002 in w.p. no. 21056. the writ petition was filed questioning the validity of tamil nadu act 29 of 2002, and particularly section 6 thereof.2. mr. m.k. stalin, who is the 3rd respondent in the writ petition is holding the post of mayor, having been elected in the direct election held during the month of october, 2001. he is also m.l.a. of the thousand lights assembly constituency. by the impugned amending act 'one man one post' rule has been imposed and time of 15 days from the date of notification was stipulated to opt either the post of m.l.a. or mayor, and if the above is not intimated within the afore-said period, then mayor would cease to hold his office. such a notice has been issued against mr. m.k. stalin pursuant to the notification dated 4th june, 2002. 15 days time expired with the expiration of 18th of june, 2002.3. on 17th of june, 2002, writ petition was filed and miscellaneous petition was taken up next day for hearing. after hearing both the parties the following was the order passed.'para. 13' in view of what is discussed above, while there.....

Judgment:

ORDER

B. Subhashan Reddy, C.J.

1. This Contempt Petition has been filed alleging violation of the orders passed by this Court on 18.6.2002 in W.P.M.P. No. 29105 of 2002 in W.P. No. 21056. The writ petition was filed questioning the validity of Tamil Nadu Act 29 of 2002, and particularly Section 6 thereof.

2. Mr. M.K. Stalin, who is the 3rd respondent in the writ petition is holding the post of Mayor, having been elected in the direct election held during the month of October, 2001. He is also M.L.A. of the Thousand Lights Assembly Constituency. By the impugned amending Act 'One Man One Post' rule has been imposed and time of 15 days from the date of notification was stipulated to opt either the post of M.L.A. or Mayor, and if the above is not intimated within the afore-said period, then Mayor would cease to hold his office. Such a notice has been issued against Mr. M.K. Stalin pursuant to the notification dated 4th June, 2002. 15 days time expired with the expiration of 18th of June, 2002.

3. On 17th of June, 2002, writ petition was filed and miscellaneous petition was taken up next day for hearing. After hearing both the parties the following was the order passed.

'Para. 13' In view of what is discussed above, while there is a prima facie case for the grant of an interim order, having regard to the facts and circumstances of the case and the balance of convenience, we deem it appropriate that there should be a limited stay of operation of the impugned Act only to the extent of not notifying the election of the Mayor's Post, pending disposal of the writ petition. In the circumstances, while declining to stay the operation of Section 6 of the amending Act (T.N. Act No. 29 of 2002) in entirety, we stay the operation of the above provision only regarding treating the post of Mayor of Chennai Municipal Corporation as Vacant and consequently, no election to the said post can be held pending disposal of the writ petition. Registry is directed to post the Writ Petition No. 21056 of 2002 along with W.P. Nos. 19214 and 22365 of 2002 for final hearing, subject to part heard cases on the 5th of August, 2002. Accordingly, the W.M.P. No. 29105 of 2002 in W.P. No. 21056 of 2002 is disposed of.

4. Contempt Petition is now filed alleging deliberate violation of the above order on the premise that since the Mayor's post did not become vacant, the question of the 2nd respondent assuming office of the Mayor does not arise, but as the 2nd respondent has assumed the office as Acting Mayor and virtually declaring and describing himself as a Mayor and discharging his functions, there is deliberate violation of the orders passed above.

5. Allegation was made that respondent 1 and 3 have also committed contempt. Insofar as respondent 1 is concerned, in the counter he made it clear that he is no way concerned with the functions of the 2nd respondent and we accept his plea that he is no way concerned with the office or discharge of function of 2nd respondent.

6. Third respondent is the Commissioner of Chennai City Corporation. He submits that in the absence of Mayor, his functions have to be discharged by the Deputy Mayor and that his role originally was to comply with the provisions contained in Section 38-A of the Madras City Municipal Corporation Act, 1919 and nothing more.

7. The 2nd respondent takes a stand that since he was not a party to the writ petition or to the interim order passed, he cannot be impleaded in the contempt application. He further submits that since the Mayor is not able to function, because of there being no stay granted and as per Section 38-A of the Madras City Municipal Corporation Act, Mayoral functions devolved upon him and as such he had been discharging the functions of the Mayor, and that he did not commit any contempt of the orders passed by this Court, which are referred to above.

8. Public representatives including that of Mayor are elected to serve the cause of the people. A Mayor is elected for self-governance of the City Municipal Corporation. There are some privileges attached to the office of the mayor, as also there are some duties liable to be performed. A Mayor is directly elected by the people, as provided under the Act, while Deputy Mayor is elected by the Councillors. We are not here making any distinction regarding the mode of election, but what we emphasize is that the Deputy Mayor can never become a Mayor, and even if the Mayor's post is vacant, the Deputy Mayor has to discharge the functions attached to the post of mayor, only, till the regular Mayor is elected. That is more so, in a case like this where the mayor is temporarily incapacitated because of non-grant of complete stay, as sought for. Third respondent's interpretation of the orders passed by us, to the effect that the Mayor is incapacitated for the present is correct. The Mayor's post in the instant case did not fall vacant. It is needless to mention that if the writ petition is allowed, the elected Mayor i.e., Mr. M.K. Stalin is entitled to continue and discharge his functions, as such. The temporary incapacity suffered by the existing mayor cannot empower the 2nd respondent to describe himself either as 'Acting Mayor or Mayor-in-charge'. He shall continue as Deputy Mayor and shall be entitled to convene and attend all the meetings and sign the papers, as Deputy Mayor, by using the words 'For Mayor'. Insofar as other aspects like using the Flag, Car, Robes, Room meant for Mayor are concerned, the 2nd respondent has submitted a memo today stating that he is using the Mayor's Car, Mayor's Robes, Mayor's Room and Mayor's Flag, and he has no intention of using the same, and that he is using his own Room, Deputy Mayor's Flag and Deputy Mayor's Emblem on his Car, and this is recorded. We re not acceding to the contention of Mr. K.M. Vijayan, learned senior counsel for the petitioner that Section 38-A of the Madras City Municipal Corporation Act is impliedly overruled because of the constitutional provisions contained in Article 243-ZF of the Constitution of India. Section 38-A of the Madras City Municipal Corporation Act is not repugnant to Article 243-ZF of the Constitution, and still survives and as such the 2nd respondent shall be entitled to discharge the functions attached to the post of Mayor by convening and attending all meetings and by signing all papers mentioning the words 'For Mayor'. This contempt petition is disposed of accordingly. Consequently, connected sub application is closed.