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1984 Supreme(Mad) 355
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE NAINAR SUNDARAM
Lily Thomas - Appellant
Versus
State of T.N - Respondent
Case No : W. P. No. 105 of 1984
Decided On : 23 August 1984
The State Legislatures are endowed with plenary powers of legislation and the limits imposed on such plenary powers are to be found in the Constitution itself and not importing any extraneous legal principle and the ultimate touchstone of constitutionality is the Constitution itself and not any general legal principle outside it.
Headnote:
TAMIL NADU PAYMENT OF SALARIES ACT - S.12-B - CONSTITUTIONALITY - PENSION TO MEMBERS OF LEGISLATIVE ASSEMBLY AND LEGISLATIVE COUNCIL - POWER OF STATE LEGISLATURE - ENTRY 42 OF LIST II OF SEVENTH SCHEDULE - CONSTRUCTION OF LEGISLATIVE ENTRIES - DOCTRINE OF COLOURABLE LEGISLATION - ARTICLE 14 OF THE CONSTITUTION - DISCRIMINATION - BURDEN OF PROOF.
Fact of the Case:
The petitioner, an advocate practicing in the Supreme Court of India, filed a writ petition challenging the constitutionality of Section 12-B of the Tamil Nadu Payment of Salaries Act (XX of 1951), which provides for the payment of pension to members of the Legislative Assembly and Legislative Council.
Finding of the Court:
The court held that the State Legislature had the power to enact Section 12-B of the Act under Entry 42 of List II of the Seventh Schedule of the Constitution, which empowers the State Legislature to make laws with respect to "State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State."
Issues: 1. Whether the State Legislature had the power to enact Section 12-B of the Act. 2. Whether Section 12-B violated Article 14 of the Constitution by creating a class within a class and bringing in discrimination.
Ratio Decidendi: 1. The court held that the State Legislature had the power to enact Section 12-B of the Act under Entry 42 of List II of the Seventh Schedule of the Constitution, which empowers the State Legislature to make laws with respect to "State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State." The court noted that the Entries in the Legislative Lists should be construed most liberally and in their widest amplitude, and not in a narrow or restricted sense. 2. The court held that the petitioner had not provided any specific particulars or evidence to support her claim that Section 12-B violated Article 14 of the Constitution by creating a class within a class and bringing in discrimination. The court noted that the burden of proving unconstitutionality of a statute lies upon the person challenging it and that the matter cannot be adjudicated on unambiguous and unspecified grounds.
Final Decision: The court dismissed the writ petition, holding that Section 12-B of the Act was constitutional and did not violate Article 14 of the Constitution.
The prayer in the writ petition is for the issue of a writ of declaration, declaring that S.12-B of the Tamil Nadu Payment of Salaries Act (XX of 1951), hereinafter referred to as the Act, is illegal and unconstitutional being ultra vires the State Legislature and on these grounds the petitioner further wants this court to strike down the same.
2. The petitioner, who appeared in person, is an advocate practising in the Supreme Court of India, Delhi. The question raised in this writ petition was argued on merits without adverting to the competency of the petitioner to maintain the writ petition. The Act is apparently a post-Constitutional statute. Mrs. Lily Thomas, the petitioner has no grievance with reference to the enacting of the Act and she would concede that the Act is perfectly valid having the sanction of Arts.186 and 195 of the Constitution of India, read with Entry 38 of List II of the Seventh Schedule. The above constitutional provisions stand extracted as follows :-
"186. There shall be paid to the Speaker and the Deputy Speaker of the Legislative Assembly, and to the Chairman and the Deputy Chairman of the Legislative Council, such salaries and allowances as may be respectively fixed by the Legislature of the State by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the Second Schedule." *
195. Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time, be determined by the Legislature of the State by law and, until provision in that respect is so made, salaries and allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Legislative Assembly of the corresponding Province.
"S.12-B was not there originally in the Act. It was introduced by the Tamil Nadu Payment of Salaries (Second Amendment) Act (Tamil Nadu Act 52 of 1975). There was a substitution of this provision by the Tamil Nadu Payment of Salaries (Amendment) Act (10 of 1980). The provision underwent a further change by the Tamil Nadu Payment of Salaries (Amendment) Act (10 of 1982). No further amendment has been brought to my notice. S.12-B, with the amendments referred to above, reads as follows:" *
12 B. Pension (i) There shall be paid a pension of two hundred and fifty rupees per mensem to every person who after the 15th day of August 1947, had been or is a member of the Legislative Assembly or of the Legislative Council, or of both, for one term:
Explanation. For the purpose of this sub-section -
(a) a Member of the Legislative Assembly shall include a Member of the Legislative Assembly of the former State of Travancore Cochin, representing any territory which after the 1st day of Nov. 1956, forms part of the State of Tamil Nadu
(b) a Member of the Legislative Assembly or of the Legislative Council, shall include a Member of the Legislative Assembly or of the Legislative Council of the State of Andhra Pradesh, representing any territory which after the 1st day of April 1960, forms part of the State of Tamil Nadu-
"Provided that where any person has served either as a Member of the Legislative Assembly or as a Member of the Legislative Council or as both for a period exceeding five years, there shall be paid to him an additional pension of fifty rupees per mensem for every further period of one year as member, so however that in no case the pension payable to such person shall exceed five hundred rupees per mensem:
Provided further that no pension under this sub-section shall be paid to any person
(a) who is in receipt of pension from any other State for having been a Member of the Legislative Assembly or of the Legislative Council of such State-
(b) who was a Member of the Legislative Assembly or of the Legislative Council, of the former State of Madras, representing any territory which ceased to form part
