The words 'present and voting' in Art.169(1) of the Constitution should be construed to mean only those who were 'physically present and voting'.

The petitioner by challenging the constitutional legality and validity of the resolution of the Tamil Nadu Legislative Assembly. dt. 14-5-1986 abolishing the Tamil Nadu Legislative Council, seeks a declaration declaring the resolution for the abolition of the Tamil Nadu Legislative Council passed by the Tamil Nadu Legislative Assembly under Art.169(1) of the Constitution on 14-5-1986 as unconstitutional and ultra vires the Constitution.

2. In the affidavit filed in support of the writ petition, it is averred as follows. The impugned resolution was passed in utter disregard of all principles of democracy. The Legislative Council of Tamil Nadu had become an institution of great importance due to its hoary past service of several decades to the cause of Parliamentary system of Government and invaluable contribution to the growth of laws. Its performance has always en such that it brought much respectability the Legislature. Fearing that the Opposition party (D.M.K. party) is likely to capture majority of the vacancies in the Council to be filled up by members elected from the local authorities constituencies, the unreasonable decision to abolish the Legislative Council was taken in haste and in an undemocratic manner. In the election manifesto of the ruling party, the proposal to abolish Legislative Council did not find a place, nor was the proposal put before the people during the general election for approval. A four line Government resolution which stood in the name of Chief Minister was circulated on 13-5-1986 to the members of the Legislative Assembly and the resolution itself was taken up for discussion on the very next day and it was also passed by 136 votes to 25, while the entire Congress (I) block (60 members) and the lone G.K.N.C. member withdrew from the House before voting. The impugned resolution was brought in total defiance of the one of the basic features of the Constitution, namely, democracy, and was passed without strictly complying with the procedural norms laid down by Art.169(1) of the Constitution and, therefore, the resolution is ultra vires the Constitution and void.

3. It is also contended in the affidavit that a few weeks before the moving of the impugned resolution, election was held to elect members from the Graduates and Teachers Constituencies and barely a few days earlier, three persons were nominated by the Governor to the Council. The Government had, therefore, no idea of abolishing the Council at that time. The decision to abolish the Council was the result of an exercise of the arbitrary, despotic discretion governed wholly by political necessity and expediency. The power to abolish legislative Council as provided under Art.169(1) of the Constitution cannot be exercised arbitrarily or capriciously to destroy a legislative Council without the broad consent of the people. Inasmuch as the Government introduced the impugned resolution abruptly on 13-5-1986 after keeping it as a closely guarded secret, and hastily got it passed the very next day in the House, the given power has been exercised so unreasonably and in a so absolute manner that it stultified the opposition in the House and stunned the public.

4. It is further contended in the affidavit that the impugned resolution failed to get the 'majority of not less than two thirds of the members of the Assembly present and voting' as required under Art.169(1) of the Constitution. According to the petitioner the total number of members present on that day was 221, and the resolution was passed only by 136 votes in its favour, 26 votes against and 61 members withdrawing themselves at the time of voting. Therefore, there was no required 2/3rd majority. According to the petitioner, Art.169(1) of the Constitution clearly contemplates 2/3rd positive votes of the members 'present' in favour of the resolution and the word 'present' excludes only those who are 'absent' and not others. In this view of the petitioner, for the purpose of finding out