Madras High Court
Mariya Hans vs The Secretary on 20 December, 2021
W.P.(MD)No.22460 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.12.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA
W.P.(MD) No.22460 of 2021
and
WMP(MD)No.18993 of 2021
Mariya Hans .. Petitioner
Vs.
1.The Secretary,
Municipal Administration and
Water Supplies Department,
St.George Fort,
Chennai-600 009.
2.The Commissioner,
Delimitation Commission,
O/o. the Delimitation Commission,
Chennai.
3.The State Election Commissioner,
O/o. the State Election Commission,
CMBT, Chennai.
4.The Corporation Delimitation Authority cum
District Collector,
Thoothukudi Municipal Corporation,
Thoothukudi District. .. Respondents
Page 1 of 9
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.22460 of 2021
PRAYER: Petition under Article 226 of the Constitution of India seeking
issuance of a Writ of Mandamus, directing the respondents to conduct
the election to the Thoothukudi Municipal Corporation as per 2011
Census by keeping the 13 fisherman original wards as existed in 2011
Thoothukudi Municipal Corporation Elections.
For Petitioner : Ms.A.Rajini
For R1 & R4 : Mr.P.Thilakkumar, Government Pleader
For R3 : Mr.B.Saravanan
Additional Government Pleader
ORDER
[Order of the Court was made by
The Hon'ble ACTING CHIEF JUSTICE]
The writ petition has been filed seeking a direction to the
respondents to conduct the election of the Thoothukudi Municipal
Corporation as per 2011 Census by keeping the 13 fishermen original
wards as existed then, instead of reducing it to 8 wards.
2. The learned counsel for the petitioner submits that taking into
consideration the spirit of Article 243C of the Constitution of India, the
respondents are under obligation to maintain the wards in reference to
the population. The representations of poor fishermen have been
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W.P.(MD)No.22460 of 2021
taken away by reducing the wards from 13 to 8 and accordingly, the
writ petition has been filed seeking appropriate direction and that too,
to maintain the wards in reference to the Census of 2011.
3. The learned counsel for the petitioner has made a reference of
the judgment of the Hon'ble Apex Court in the case of Dravida
Munnetra Kazhagam (DMK) vs. Secretary Governors Secretariat
reported in [2020] 6 SCC 548, to say that the writ petition for the
prayer made is maintainable and it is not hit by Article 243-O of the
Constitution of India. The Apex Court has not accepted the objection
regarding the maintainability of the writ petition with reference to
Article 243-O of the Constitution of India. The issue propounded
therein applies to the facts of this case and accordingly, the writ
petition for the prayer made by the petitioner is maintainable and it is
not otherwise hit by Article 243-O of the Constitution of India.
Enumerating the arguments, reference to certain paragraphs of the
affidavit has been given to indicate that the Municipal Corporation was
having 60 wards pursuant to the Census of 2011 and it was for the
fishing community. As per the New Tamil Nadu Local Bodies
Delimitation Regulations, 2017, delimitation was to be undertaken
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W.P.(MD)No.22460 of 2021
keeping in mind the mandate of Article 243C of the Constitution of
India. It is on account of the intervention of some politicians that the
representation of the fishermen has been reduced by amalgamating 13
wards into 8, ignoring the population of the fishermen in each ward.
The details of the population, as also the reference of Rule 6(d) of the
Delimitation Rules, 1970, have also been given to strengthen the
argument. The prayer is accordingly to direct the respondents to
maintain 13 fishermen original wards as existed in 2011 for the
Municipal Corporation concerned and accordingly election to be held.
4. We have considered the submissions made by the learned
counsel for the petitioner and perused the records.
5. Before addressing the arguments of the learned counsel for
the petitioner, we would like to quote the prayer made in the writ
petition, which was quoted hereinabove for ready reference:-
''To issue a Writ of Mandamus, directing the
respondents to conduct the election to the Thoothukudi
Municipal Corporation as per 2011 Census by keeping the 13
fishermen original wards as existed in 2011 Thoothukudi
Municipal Corporation Elections.''
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W.P.(MD)No.22460 of 2021
6. The prayer is to maintain 13 fishermen original wards as per
the Census of 2011. There is nothing on record to show that the
original 13 fishermen wards have been reduced to 8, as alleged. No
document in this behalf has been supplied to the Court, though a
reference of the objection made by the petitioner on 25.11.2021 has
been given. It is pursuant to the Gazette Notification issued in the
year 2017, inviting objections, followed by publication on 14.12.2018.
The respondents had invited objections before publication dated
14.12.2018. There is nothing on record to show any objection having
been raised to the notification issued earlier in 2017 inviting
objections. The document enclosed along with the writ petition
showing the objection dated 25.11.2021 must be subsequent to the
period of submission of the objection. A publication thereupon was
made on 14.12.2018. The aforesaid publication has not even been
produced by the learned counsel for the respondents.
7. It may be that the publication aforesaid has not been enclosed
to avoid explanation for the delay in filing of the writ petition. In the
absence of challenge to the publication, the prayer made in the writ
petition cannot be granted. It is more so, as the publication is old by
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W.P.(MD)No.22460 of 2021
more than 3 years. The aforesaid is one part of the arguments.
Otherwise, the factual issue in regard to the population issue and
delimitation cannot be gone into while exercising the jurisdiction under
Article 226 of the Constitution of India, even if for the time being
ignoring Article 243-O of the Constitution of India, though it has a role
in maintainability of the writ petition under Article 226 of the
Constitution of India. The reference to the judgment of the Apex Court
in the case of Dravida Munnetra Kazhagam (DMK) vs. Secretary
Governors Secretariat reported in [2020] 6 SCC 548(supra) has
been given, but perusal of the said judgment shows that the facts
therein are different than what exist in the representation of the writ
petitioner. There the allegation against the ruling party was of
postponing the election unconstitutionally and altering the constituency
for that purpose. It was also refusing to effect rotation, to take undue
political advantage. Serious allegations were made against the
political party then in power in reference to Article 243D and 243T of
the Constitution of India. Under those extraordinary circumstances,
the writ petition was held maintainable.
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W.P.(MD)No.22460 of 2021
8. The facts of the similar nature do not exist in the present
petition. Thus, the judgment of the Hon'ble Apex Court in the case of
Dravida Munnetra Kazhagam (DMK) vs. Secretary Governors
Secretariat reported in [2020] 6 SCC 548, may not even apply, but
at this stage, on facts, a case is not made out for grant of the prayer.
It cannot be granted without challenge to the publication made on
14.12.2018.
9. For all the reasons given above, writ petition fails and
accordingly dismissed. No costs. Consequently connected
miscellaneous petition is closed.
(M.N.B., CJ.) (P.S.N., J.)
20.12.2021
Index : Yes/No
Internet : Yes/No
Note : In view of the present lock
down owing to COVID-19 pandemic,
a web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct copy,
shall be the responsibility of the
advocate/litigant concerned.
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W.P.(MD)No.22460 of 2021
To
1.The Secretary,
Municipal Administration and
Water Supplies Department,
St.George Fort,
Chennai-600 009.
2.The Commissioner,
Delimitation Commission,
O/o. the Delimitation Commission,
Chennai.
3.The State Election Commissioner,
O/o. the State Election Commission,
CMBT, Chennai.
4.The Corporation Delimitation Authority cum
District Collector,
Thoothukudi Municipal Corporation,
Thoothukudi District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.22460 of 2021
THE HON'BLE ACTING CHIEF JUSTICE
and
PUSHPA SATHYANARAYANA, J.
bala/ssl
W.P.(MD) No.22460 of 2021
20.12.2021
https://www.mhc.tn.gov.in/judis
