Madras High Court
Government Of Tamil Nadu vs P.Baskar on 24 September, 2021
W.A.No.2457 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.No.2457 of 2021
and
C.M.P.Nos.15777 and 15778 of 2021
1. Government of Tamil Nadu,
Rep. by its Secretary,
Rural Development and Panchayat Raj,
Fort St.George, Chennai-9.
2. Government of Tamil Nadu,
Rep. by its Directorate of Rural Development and
Panchayat Raj Department,
Panagal Building, Chennai-15.
3. The District Collector,
Kancheepuram District. .... Appellants/Respondents
-vs-
P.Baskar
Kolathur Panchayat
Sriperumbudhur Taluk
Kanchipuram District. ... Respondent/Writ Petitioner
Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside the
impugned order dated 15.09.2021 made in W.M.P.No.20619 of 2021 in
W.P.No.19308 of 2021.
1/12
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W.A.No.2457 of 2021
For Appellants: Mr.R.Shanmugasundaram
Advocate General
Asst. by Mr.K.V.Sajeev Kumar
Government Counsel
For Respondent: Mr.J.Srinivasa Mohan
For M/s.TVJ Associates
*****
JUDGMENT
(Order of the Court was made by S.Vaidyanathan,J.,)
This Writ Appeal has been filed, challenging the interim order dated
15.09.2021, passed by the learned Single Judge in W.M.P.No.20619 of 2021
in W.P.No.19308 of 2021, in and by which, the operation of G.O.Ms.No.106,
Rural Development and Panchayat Raj (PR-1) Department dated 03.09.2021,
relating to allotment of Kolathur Panchayat President post to ST General,
has been stayed.
2. For the sake of brevity, the parties are referred to by their
nomenclature in the Writ Petition as “Writ Petitioner and the
Government” in this order.
Brief Facts in nutshell:
3. It was averred by the Writ Petitioner that there were wrong
particulars provided in respect of Census of Schedule Caste (SC) / Schedule
Tribe (ST) and voters, residing in Kolathur Panchayat, with the sole
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W.A.No.2457 of 2021
intention to allot the post of President to Schedule Tribe. The population of
ST has been wrongly shown as 270 with 175 voters, whereas the population
of SC was indicated as 1027 with 1041 voters, by suppressing the actual
population of SC.
3.1. According to the Writ Petitioner, the Committee Report of the
Respondents 2 and 3 as well as the earlier orders of this Court dated
08.11.2019 were at all considered, while issuing the impugned Government
Order dated 03.09.2021, earmarking the Kolathur Village Panchayat for ST
General, on the basis of the Census of the year 2011. Aggrieved by the
same, the Writ Petitioner approached this Court, in which, stay has been
granted by the learned Single Judge.
4. Learned Advocate General appearing for the Government
submitted that in the Sriperumbudur Constituency, there are 58 Panchayats
and one such Panchayat is Kolathur Panchayat. After commencement of
election process, no petition filed before Courts in the interregnum period
can be entertained and it can be done only after the election is over. He
further submitted that Articles 243-O and 243(ZG) of the Constitution of
India are a bar for the interference by the Court in respect of electoral
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W.A.No.2457 of 2021
matters, pertaining to Municipalities and Panchayats and it cannot be
challenged in this Court. The total population of the Panchayat Union as per
2011 Census was 115515 with the ST residents of 1195 and therefore, the
Panchayat post has been reserved for ST. He also submitted that there is no
malice or malafide established against the Government, warranting
interference by this Court.
4.1. Learned Advocate General has referred to a judgment of this
Court in the case of A.Karuppanan and others vs. The State, reported in
MANU/TN/6556/2019, to point out that in the absence of any malafide,
Courts cannot interfere with the notification. He also drew the attention of
this Court to the judgment of the Apex Court in the case of Meghraj
Kothari vs. Delimitation Commission and others, reported in (1967) 1
SCR 400, to strengthen his case against the interim order granted by the
learned Single Judge.
5. Learned counsel for the Writ Petitioner contended that as per the
Committee Report dated 29.07.2016 constituted by the 3rd Respondent, the
total number of ST people was only 59, out of whom, some of the members
referred to have not been residing in the place, apart from the fact that
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W.A.No.2457 of 2021
they do not belong to ST community. For the sake of convenience, the
relevant portion of the report is extracted hereunder:
“tprhuizfs; nghJ _bguk;g[Jhh; tl;lhuk;
bfhsj;Jhh; Cuhl;rpf;fhd bjhlh;gi [ la rl;lkd;w bjhFjp
thf;fhsh; gl;oay; ghfk; vz;/ 250 kw;Wk; 251y; fz;l
thf;fhsh;fspd; rhjp tpguk; ey;byhd;whf rhpghh;ff ; gl;lJ/
,jd;go. rl;l kd;w bjhFjp thf;fhsh; gl;oay; ghfk;
vz;/251d; go jahhpf;fg;gl;l Cuhl;rp kd;w njh;jy;
tpiut[ thf;fhsh; rhpghh;f;gl;ljpy; fPHf;fz;l thpir
vz;fspy; Fwpg;gpl;Ls;s 59 egh;fs; kl;Lk;. gH';Foapdh;
,dj;jth;fisr; rhh;e;jth;fs; vd Mtz';fs;
mog;gilapYk; tprhuizapd; mog;gilapYk;
jPh;khdpf;fg;gl;lJ
gH';Foapdh; ,dj;jth;fs; gl;oay; vz;fs;; ?
1) 75. 2) 76. 3) 78. 4) 79. 5) 81. 6) 84. 7) 85. 8) 86.
9) 87. 10) 88. 11) 89. 12) 90. 13) 95. 14) 96. 15) 210.
16) 322. 17) 323. 18) 324. 19) 325. 20) 326. 21) 335. 22)
679. 23) 680. 24) 681. 25) 682. 26) 684. 27) 685. 28)
686. 29) 691. 30) 207. 31) 708. 32) 710. 33) 711. 34)
712. 35) 713. 36) 714. 37) 719. 38) 720. 39) 721. 40)
722. 41) 723. 42) 724. 43) 725. 44) 729. 45) 730. 46)
731. 47) 732. 48) 733. 49) 735. 50) 737. 51) 738. 52)
739. 53) 744. 54) 745. 56) 758. 57) 759. 58) 762. 59)
bkhj;jk; 59 Ik;gj;jJ xk;gJ kl;Lk;
nkYk; ,e;j tprhuizapd; nghJ fPHf ; f
; z;l 42
egh;fs; cs;Shpy; Foapy;yhj fhuzj;jpdhYk; nkYk; 3
egh;fs; ,we;Jtpl;l fhuzj;jpdhYk; bkhj;jk; 45 egh;fs;
rhjp tpguk; bjhlh;ghd tpgu';fs; rhpghh;f;f ,aytpy;iy/
1) 66. 2) 67. 3) 69. 4) 70. 5) 77. 6) 80. 7) 82. 8) 83.
9) 98. 10) 99. 11) 100. 12) 101. 13) 102. 14) 327. 15)
333. 16) 392. 17) 393. 18) 394. 19) 687. 20) 688. 21)
689. 22) 690. 23) 709. 24) 715. 25) 716. 26) 726. 27)
727. 28) 742. 29) 747. 30) 748. 31) 753. 32) 754. 33)
755. 34) 756. 35) 757. 36) 760. 37) 761. 38) 765. 39)
771. 40) 809. 41) 810. 42) 843. 43) 854. 44) 855. 45)
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W.A.No.2457 of 2021
bkhj;jk; 45 (ehw;gj;jp Ie;J) egh;fs;
fPHf;fz;l 35 egh;fs; gH';Foapdh; ,y;yhj kw;w
,dj;ij rhh;e;jth;fs;
1) 4. 2) 91. 3) 92. 4) 93. 5) 94. 6) 97. 7) 147. 8) 328.
9) 329. 10) 330. 11) 331. 12) 332. 13) 336. 14) 338. 15)
706. 16) 717. 17) 718. 18) 728. 19) 734. 20) 736. 21)
740. 22) 741. 23) 743. 24) 749 25) 750. 26) 751. 27)
752. 28) 763. 29) 764. 30) 705. 31) 772. 32) 784. 33)
787. 34) 833. 35) 836.
bkhj;jk; 35 Kg;gj;ije;J egh;fs;
ghfk; vz; 251y; Fwpg;gpl;Ls;s ,d;Dk; gpw 7 egh;fs;
gH';Foapdh; ,dj;jth;fs; my;yhJ kw;w rhjpapdh;
Mthh;fs;/
ghfk; vz; 250y; Fwpg;gpl;Ls;s 29 egh;fspy; vtUk;
gH';Foapdj;jth;fs; ,y;iy/
,jd;go Vw;fdnt ghfk; vz;/250 kw;Wk; 251y;
Vw;fdnt Fwpg;gplg;gl;ljw;F khwhf fPHf
; ;fz;lthW
gl;oayplg;gLfpwJ/
ghfk; vz;/250y; bkhj;j egh;fs; 29 vtUk;
gH';Foapdh; ,y;iy/
ghfk; vz;/251y; bkhj;j egh;fs; 146
,jpy; bkhj;jk; 59 egh;fs; gH';Foapdh; 49 egh;fs;
cs;S:hpy; Foapy;yhj fhuzj;jpdhy; rhpghh;ff
;
,aytpy;iy/ 35 egh;fs; kw;w rhjpapdh;/”
6. Learned counsel for the Writ Petitioner further contended that de
hors the Court Order, the proceedings of the District Collector,
Kancheepuram dated 07.09.2021 itself shows that the number of people
belonging to SC community is more than the ST members and therefore, the
post should be intended for SC candidates, instead of earmarking it to ST
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W.A.No.2457 of 2021
people.
7. Heard the learned Advocate General, assisted by Mr.K.V.Sajeev
Kumar, learned Government Counsel, appearing for the Government and
the learned counsel for the Writ Petitioner and perused the material
documents available on record.
8. The issue with regard to the 2011 Census was duly considered by
this Court in the earlier round of litigation in W.P.No.17959 of 2019 dated
08.11.2019, wherein it was held as follows, after considering the counter
affidavit filed by the District Collector, Kancheepuram:
“5. In the counter, the third respondent has stated that
as per 2011 census, the Kolathur Panchayat have more ST
population comparing to the other 58 panchayats in the
Kancheepuram District. In the counter, the third respondent has
also extracted the population statistics of the Districts.
Regarding the report dated 29.07.2016, the third respondent is
sceptical about the report and state that the respondents are
intending to follow the census of 2011 and not the date given in
the report.
6. The said stand of the third respondent goes contrary to
the observation of this Court in Dravida Munnetra Kazhagam
represented by its Organization Secretary, R.S.Bharathi vs. The
Secretary to Government, Rural Development and Panchayat Raj
Department, Government of Tamil Nadu, Secretariate, Fort
St.George, Chenna reported in (2016) 7 MLJ 772 confirmed by
the Division Bench of this Court in W.A.No.1268 of 2016 vide
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W.A.No.2457 of 2021
order dated 01.08.2017.
7. There is a specific direction of this Court to make
proper enquiry regarding the limitation and de-limitation of the
constituency, based on the voters. Pursuant to the order,
enquiry was conducted and the enquiry report indicates that
there are only 59 ST voters in the Kolathur Village Panchayat.
Therefore, the third respondent cannot go back to 2011 census
and so that there are 203 voters in the said constituency reserve
the said constituency for ST voters.
8. In view of the above, the third respondent is directed
to consider the Enquiry committee report dated 29.07.2016 and
if necessary, shall make a fresh assessment and then take a
decision on reserving the constituency as per the Tamil Nadu
Panchayats (Reservation of Seats and Rotation of Reserved
Seats) Rules, 1995.”
9. From the above, it is clear that the Government cannot go back to
2011 Census. Though the contention of Mr.K.V.Sajeev Kumar, learned
Government Counsel that there are no other Census available to consider,
may be correct, there was a specific observation made by this Court that
the Government cannot fall back on 2011 Census, which has attained
finality. The yet another point canvassed by the learned Government
Counsel that the report dated 07.09.2021 has not been challenged /
questioned by the Writ Petitioner, has no relevancy to the present context,
in view of the fact that it was issued after notification dated 03.09.2021
and that it runs contrary to the earlier decision of this Court as well as
report. The submission of the learned counsel for the Writ Petitioner, that
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W.A.No.2457 of 2021
ST population in the Panchayat is less than 70 and that there are only 59
voters in that category, which is purely based on the report submitted by
the Committee appointed by the Government of Tamil Nadu, cannot be lost
sight of. Learned Single Judge has rightly observed in the interim order that
the proceedings of the District Collector dated 07.09.2021 was nothing, but
a replica of the counter affidavit filed in the earlier Writ Petition, having no
weightage, for the present moment. It can merely be construed that
Dr.M.Aarthi, District Collector had lent her signature and mechanically
signed the proceedings, prepared by one of her Subordinates.
10. The reliance placed on the judgment of this Court by the learned
Advocate General in the case of A.Karuppanan and others vs. The State
(supra) is not applicable to the present case on hand, on the reasoning that
pursuant to the absence of mala fides attributed against the Government in
the said case, this Court refused to interfere with the notification, whereas
in this case, the Writ Petitioner has clearly established the mala fides
against the Government in issuance of the notification dated 03.09.2021.
The yet another judgment of the Apex Court in the case of Meghraj
Kothari vs. Delimitation Commission and others, reported in (1967) 1
SCR 400, cited by the learned Advocate General, also will not inure to the
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W.A.No.2457 of 2021
benefit of the Government, on the simple ground that the issue therein was
in respect of delimitation of constituencies and the present case dwells
upon entirely different issue.
11. It is to be noted that while relying on a judgment, if it is found
that the factual situation totally differs, then there is no compulsion for the
subordinate courts to blindly follow the same to arrive at a conclusion, as
held by the Hon'ble Supreme Court in the case of Padmasundara Rao (Dead)
& others vs. State of Tamil Nadu and others, reported in (2002) 3 SCC
533, as follows:
"Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of speech or judgment as
though they are words in a legislative enactment, and it is to
be remembered that judicial utterances are made in the
setting of the facts of a particular case, said Lord Morris in
Herrington vs. British Railways Board (1972) 2 WLR 537.
Circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases."
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W.A.No.2457 of 2021
12. When there is a mala fide exercise of power, then there is no
impediment for any Court to interfere to curb such exercise, so as to ensure
that the interest of justice is met and render justice. The reliance on the
provision of Article 243 (ZG) of the Constitution of India has no relevancy to
the case on hand, as the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies has not been
called in question in this case.
13. The argument put forth by the learned Advocate General that
since there is no census available after 2011, the Government has no other
option, but to arrive at a population figure and reservation of the post only
based upon the census of the year 2011, cannot be accepted, especially
when the said submission was negatived by this Court in the earlier order of
this Court. The argument appears to be that since the Government do not
have the correct list of voters of the locality, they must be permitted to act
on the incorrect one. We are in the era of tech-saavy and it is easy for any
Government to conduct survey population within a short span of time, if
they are really interested in it.
S.VAIDYANATHAN,J.
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W.A.No.2457 of 2021
and
A.A.NAKKIRAN,J.
ar
14. For the foregoing discussions and observations, we find that the
interim order of the learned Single Judge is perfectly valid in the eye of law
and does not warrant any interference by this Court. Hence, this Writ
Appeal is dismissed as devoid of merits. No costs. Consequently,
connected Miscellaneous Petition is closed.
[S.V.N,J.,] [A.A.N,J.,]
24.09.2021
Index: Yes / No
Internet: Yes / No
Speaking Order / Non Speaking Order
ar
Note: Issue order copy on 28.09.2021
W.A.No.2457 of 2021
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