1. The petitioner who is a practising Advocate of this Court and one of the active Members of All India Anna Dravida Munnetra Kazhagam has come up to this Court to direct the first respondent or any of his Cabinet Members forbearing them from inaugurating or opening the 'Ninaivalayam' of Puratchi Thalaivar Bharath Ratna Dr. M.G. Ramachandran without adding the words "Puratchi Thalaivar Bharath Rathna" prefix to the name of Dr. M.G. Ramachandran either on 15-11-1989 or any other earlier or subsequent date before the end of November, 1989.
2. In the affidavit filed by the petitioner, the petitioner narrates the events up to the date on which the first respondent herein took office as Chief Minister of Tamil Nadu. It is alleged in the affidavit that the Governor of Tamil Nadu, during the President's Rule, invited from various technically qualified persons by public notice who are having technical knowledge on the design of the 'Ninaivalayam' to be constructed, for Dr. M.G. Ramachandran, the late Chief Minister of Tamil Nadu. It is also alleged that after the first respondent has become the Chief Minister of Tamil Nadu he has changed the design which was approved by the Governor of Tamil Nadu and also given a different type of design which is not liked by the followers of late Dr. M.G. Ramachandran. The petitioner also alleges that the change of design itself is done with a mala fide intention and that the very look of the design of construction of the Ninaivalayam for the late Chief Minister Dr. M.G. Ramachandran constructing a small cement umbrella will show that the name and reputation of the late Chief Minister is being degraded by the first respondent with a political animosity.
3. It is further alleged in the affidavit filed in support of the petition that the date of inauguration is advanced just now with an idea to catch the votes of the followers of the late Chief Minster. It is also alleged La the affidavit that the first respondent in order to utilise the fame and also the support of the followers of the late Chief Minister for the ensuing General Election has very hastily and hurriedly announced the inauguration of the Ninaivalayam of the late Chief Minister on 15-11-1989 and that too naming simply as "M.G.R. Ninaividam". The petitioner further states that the late Chief Minster is known as 'Puratchi Thalaivar Bharath Ratna Dr. M.G. Ramachandran' and not as Dr. M.G. Ramachandran and that the idea of deleting the word Puratchi Thalaivar prefix to the name of Dr. M.G. Ramachandran by the first respondent herein is only to degrade the lamented leader as there is political enmity between the late Chief Minister and the first respondent herein. The petitioner also states that the hasty announcement of the first respondent with regard to the inauguration of the Ninaivalayam is only to gather support for his political party in the ensuing election for canvassing votes which is prohibited by the Code of Conduct of the Political Parties and the candidates during the time of Election period. The petitioner refers to para 5 Chapter 1 and para 4 Chapter II in Annexure XX of the Code of Conduct of the Election Rules. Referring to Sub-Clause (vi) of Clause VII, the learned Counsel contends that laying of foundation stones etc. of projects or schemes of any kind is prevented under the said Code and the action taken by the first respondent to inaugurate the memorial is against the Code of Conduct for the guidance of Political Parties and candidates. He further alleges that the action of the first respondent is against the code of conduct of election since it is an indirect way of misusing the party in power in the State in making use of official machinery which is attracted in favour of the party in power. With these allegations, the petitioner herein has come up to this Court with the prayer as stated supra.
4. Mr. C.P. Pattabiraman, the learned Counsel appearing for the petitioner strenuously contends that the late Chief Minister is known as 'Puratchi Thalaivar Bharatha Rathna Dr. M.G Ramachan-dran' and not as Dr. M.G. Ramachandran and as such the word Turatchi Thalaivar (sic) Rathna' has to be prefixed to his name. The learned Counsel further contends, relying upon Clause VII (vi) (b) of code of conduct of election that laying foundation stones etc of projects or schemes of any kind is prohibited. The learned Counsel further states that there is no necessity for announcing the inauguration date in such a haste and this is being done to gather support for his political party in the ensuing election for canvassing votes which is prohibited under the Code of Conduct of the political parties. The learned Counsel further contends that even the change of design done by the first respondent which was approved by the Governor is only to degrade the late Chief Minister.
5. I have given very careful consideration of the arguments of the learned Counsel for the petitioner. First of all, I am not able to agree with the learned Counsel for petitioner that there is any violation of Rules of the Code of Conduct for the Guidance of Political Parties and Candidates. Sub-Clause (vi) of Rule 7 of the Code of Conduct reads as follows:
(vi)from the time me elections are announced by the Commission, Ministers and other authorities shall not--
(a) announce any financial grants in any form or promises thereof; or
(b) lay foundation stones, etc. of projects or schemes of any kind; or
(c) make any promise of construction of roads, provision of drinking water facilities, etc;
(d) make any ad-hoc appointments in Government, public undertakings, etc.
which may have the effect of influencing the voters in favour of the party in power.
We are concerned with Sub-Clause (b) mentioned above which prohibits laying of foundation stones etc. of projects or schemes of any kind. I am not inclined to accept the contention of the learned Counsel for the petitioner that the action of the first respondent attracts Clause VII (vi) (b) of the Code mentioned supra. What all he has done is to take steps to open the memorial of the late Chief Minister which is being completed now. There is no action of laying foundation stones etc, of projects or schemes of any kind. In my view the projects and schemes which are referred to in the Code of Conduct have no applicability to a memorial of the present kind. This memorial has been constructed and as rightly stated by the learned Counsel for the petitioner is started from the President's Rule in the year 1988. As such, I do not see any point in the argument of the learned Counsel for the petitioner that this is prohibited as per the Rules of the Code of Conduct for the guidance of political parties and candidates or the opening of the memorial will influence the voters in favour of the Party in Power. It is not disputed that A.I.A.D.M.K. Party is contesting elections in the State and the Present Chief Minister of Tamil Nadu, who belongs to D.M.K. Party, is opening the memorial of the late Chief Minster of Tamil Nadu. Leave alone the Party to which he belongs, still he is the Chief Minister of Tamil Nadu. As such, I do not see any infirmity in the action of the Chief Minister in taking steps to open the memorial of a former Chief Minister. Also I am not able to agree with the argument of the learned Counsel for petitioner that the action of the first respondent is tainted with mala fides. Except the vague allegations made in the affidavit there is nothing to prove the mala fides.
6. I do not think the contention with regard to the time in which it is fixed also deserves any consideration. Once the construction is over, it is always open to the State Government to take steps to open the memorial. So on merits, I do not see any reason to issue a writ as prayed for.
7. In law, I do not see how a mandamus can be issued on the facts and circumstances of this case. In Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Ors. the Supreme Court has held as follows:
It is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226. The legal right that can be enforced under Article 226 like Article 32, must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief...
In Sundar Singh v. State of Punjab the Supreme Court had an occasion to consider about the issue of a writ of mandamus and held as follows (at P.121)
...In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance.
A Division Bench of this Court had an occasion to consider the issue of a writ of mandamus in Reserve Bank of India, v. Vasanthi Raman (1966) 1 M.L.J. 130 and held as follows: -
...A writ of mandamus will not issue unless a person, corporation, or an inferior tribunal has to perform a public duty which that agency neglects or fails to perform....
In S.I. Syndicate Ltd. v. Union of India the Supreme Court while considering the powers of the High Court to issue a writ of mandamus referred to Halsburys Laws of England (3rd Edition, Vol. 13, P.106) in which it is stated as follows:-
...It must be shown Dy evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that demand was met by a refusal.
After referring to the Halsbury's Laws of England (3rd edition, Vol. 13, P.106), the Supreme Court in the above mentioned case held that the "the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in the country as well." In M.S. Jain v. State of Harayana , while considering the question who can apply for the issue of a writ of mandamus, the Supreme Court has observed as follows:-
...It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right, as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or abstain from doing something....
Applying these principles stated above, it is to be seen that there is no demand or refusal in this case, so as to enable the petitioner to seek redress from this Court praying for a writ of mandamus. Further, I do not think that there is statutory duty cast upon the State Government to name a particular memorial in a particular way. In our country the memorials are constructed as a reverence to the great leaders. For example, in the city of Madras memorials are constructed for late Rajaji, Kamaraj and Annadurai, who were all previous Chief Ministers of this State. As such this memorial is also constructed for the late Chief Minister Dr. M.G. Ramachandran. This is purely a decision to be taken by the State Government and it is not for this Court to suggest whether a memorial has to be established or how it has to be named. It is for the Executive to decide. As such, I am not able to agree with the contention of the learned Counsel for the petitioner that the first respondent and other respondents are bound to name the memorial in a particular way. Since I take the view that no duty is cast upon the respondents and there is also no right on the part of the petitioner to insist upon the respondents to act in a particular way, this writ petition shall stand dismissed. I take the view that there is no sub-stance at all in the writ petition and on this ground also the writ petition shall stand dismissed.
8. The dismissal of the writ petition does not mean that the petitioner is prevented from approaching the State Government or the first respondent herein with a request which is taken up as a point in this writ petition, especially the words "Puratchi Thalaivar Bharath Rathna" have to be prefixed in the name of late Dr. M.G. Ramachandran, former Chief Minister of Tamil Nadu and I am sure that the first respondent will consider the sentiments of the followers of late Chief Minister and take a decision with regard to naming the memorial of the former Chief Minister of Tamil Nadu, if a request is made.
9. With these observations, the writ petition is dismissed.