Madras High Court
K.Sivakumar vs The State Of Tamil Nadu on 20 September, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
2024:MHC:3422
W.P.No.19864 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.08.2024
PRONOUNCED ON : 20.09.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.19864 of 2021
and W.M.P.Nos.21122, 21124 & 21209 of 2021
1. K.Sivakumar
2. R.Selvaraji ...Petitioners
-Vs-
1. The State of Tamil Nadu,
Rep. by its Principal Secretary,
Rural Development and
Panchayat Raj Department,
Fort St. George,
Chennai – 600 009.
2. The Tamil Nadu State Election Commission,
Rep. by its Commissioner,
No.280/2, Jawaharlal Nehru Road,
Arumbakkam,
Chennai – 600 106.
3. The District Collector,
Tirupthur District,
Tirupathur.
4. Madhanur Panchayat Union,
Rep. by its Executive Officer/
The Block Development Officer,
Madhanur, Ambur Taluk,
Tirupathur District.
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W.P.No.19864 of 2021
5. P.Indumathi,
No.416/A, Periyan Street,
Periankuppam Panchayat,
Ambur Taluk,
Tirupathur District.
(R5 impleaded vide order
dated 11.11.2021 made in
W.M.P.No.24104 of 2021
in W.P.No.19864 of 2021) ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records relating to the
order of the first respondent dated 03.09.2021 in G.O.(Ms.)No.108, Rural
Development and Panchayat Raj (PR-1) Department, published in the
Tamil Nadu Government Gazettee Extraordinary, Part-II, Section 2,
dated 03.09.2021, and quash the same only insofar as it relates to the
reservation for the post of President of the Nayakkaneri village
panchayat, Madhanur panchayat union, Tirupathur district, for Scheduled
Castes women.
For Petitioners : Mr.K.Selvaraj
For Respondents
For R1 & R3 : Mr.P.S.Raman, Advocate General
Assisted by Mr.V.Ravi,
Special Government Pleader
For R2 : Mr.S.Siva Shanmugam
For R4 : Mr.V.Manoharan
Additional Government Pleader
For R5 : Mr.N.G.R.Prasad
For Mr.K.C.Karlmarx
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W.P.No.19864 of 2021
ORDER
This writ petition has been filed challenging the order
passed by the first respondent dated 03.09.2021, in G.O.(Ms.) No.108
Rural Development and Panchayat Raj (PR-1) Department, which relates
to the reservation for the post of President of the Nayakkaneri Village
Panchayat, Madhanur Panchayat Union, Thirpathur District, for
Scheduled Castes women.
Facts of the case :-
2. The first petitioner is a former panchayat President. He was
elected and functioned as President of Nayakkaneri village panchayat in
the year 2011 to 2016. The second petitioner belongs to Scheduled
Tribes community and his father was elected as President of Nayakkaneri
village panchayat from 1986 to 1991. The second petitioner was also
elected as Ward Member in the year 2006, of ward No.12 of Madhanur
panchayat union, which reserved for Scheduled Tribes.
3. The Nayakkaneri village is situated in a mountain, 864
meters above the sea level. It consists nine wards and total population is
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W.P.No.19864 of 2021about 7000 in which, voters are 3440. Majority of population viz., 66%
belong to Scheduled Tribes and the remaining 34% of the population to
other communities. In the said panchayat, no one belongs to Scheduled
Castes community in the entire village. Therefore, the government of
Tamil Nadu has reserved the post of Ward Members viz., Ward Nos. 1 to
8 for Scheduled Tribes candidate from the year 1986 and the post of
President was also reserved for Scheduled Tribes candidate from 1986 to
2011. In the year 2011, it has changed from the reservation for Scheduled
Tribes to general by rotation. Only one ward viz., Ward No.9 alone was
allotted for general and other wards were reserved only for Scheduled
Tribes. It was continued for more than 25 years. Though the said
panchayat was allotted for general woman in the year 2016, for the post
of village panchayat President, no election was conducted from 2016 to
2021.
4. While being so, the first respondent issued the impugned
order thereby reserved the post of President of Nayakkaneri village
panchayat for Scheduled Castes women under Section 57 of the Tamil
Nadu Panchayat Act, 1994 r/w. Rule 6 of the Tamil Nadu Panchayat
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W.P.No.19864 of 2021(Reservation of Seats and Rotation of Reserved Seats) Rules 1995.
(hereinafter referred to as “the Rules”). Aggrieved by the same, the
petitioners filed the present writ petition.
Petitioners’ counsel submissions:-
5. Mr.K.Selvaraj, learned counsel appearing for the petitioners
submitted that the fifth respondent submitted nomination for the post of
President and she is elected and declared as unopposed candidate for the
post of Presidentm moreover, her name is not even found in the Ward
No.9 of the Nayakkaneri village. Therefore, she is not qualified to
contest in the election for the post of President as per Section 33 of the
Tamil Nadu Panchayat Act, 1994. In fact, her application for inclusion of
her name in ward No.9 of Nayakkaneri village panchayat has been
rejected by the Assistant Returning Officer, after conducting field
inspection on 21.09.2021.
5.1. Further, the Returning Officer/Block Development Officer
of Madhanur panchayat union by its proceedings dated 23.09.2021,
submitted a table before this Court consisting of eligible voters in each
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W.P.No.19864 of 2021ward of the Nayakkaneri village panchayat. As per the said table, there is
no voters and zero elector/voter of Scheduled Castes candidate in the
ninth ward of Nayakkaneri village panchayat. As on 23.09.2021, the
name of the fifth respondent does not find place in the electoral roll of
the ninth ward. The last date for the nomination was 22.09.2021. The
election notification was issued on 15.09.2021 and the last date for the
nomination was on 22.09.2021. As per the provision of Section 30(3) of
the Tamil Nadu Panchayat Act, no amendment, transposition or deletion
of any entry in the electoral roll made after the last date for making the
nomination for the election in any district panchayat. Therefore, the fifth
respondent is a disqualified person to contest for the post of President.
5.2. He further submitted that as per the provision of Rule 21 of
the Tamil Nadu Panchayat (Elections) Rules, 1995, without any written
orders from the Electoral Registration Officer of the Assembly
Constituency for inclusion of any voters, the Panchayat Electoral
Registration Officer viz., the Block Development Officer shall not amend
the electoral roll of the panchayat. Therefore, the Block Development
Officer ought not to have resorted to Suo motu revision of the rolls by
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W.P.No.19864 of 2021deletion or addition or modification. However, the Block Development
Officer had Suo motu added the name of the fifth respondent in the
electoral roll of the ninth ward of the Nayakaneri village panchayat on
05.10.2021 as Sl.No.553. In fact, in the said ward only 551 voters are
there, as per the electoral roll dated 22.09.2021. Only in the year 2016,
the post of President of Nayakanneri village panchayat was reserved for
general women. As per the provision of Rule 7 proviso of the Rules, the
seats reserved for women shall be allotted by rotation at the expiry of
every ten years. Therefore, only after ten years viz., in the year 2026, the
seat of President of Nayakkaneri village can be reserved to Scheduled
Castes.
5.3. He further submitted that as per Rule 7 of the Rules, the
reservation of seats or the office of President shall be made on the ward
or in the panchayat, where the population of Scheduled Castes or
Schedule Tribes for women, as the case may be, is comparatively large to
the total population of the ward or territorial ward or panchayat.
Therefore, the population of Scheduled Castes in the entire Nayakkaneri
Village should be comparatively large than the other panchayat. Whereas
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W.P.No.19864 of 2021
not even a single Scheduled Castes person available in the Nayakkaneri
village panchayat, as per the proceedings of the Returning Officer and as
per the voters list dated 31.08.2021. Therefore, the reservation for the
post of President of Nayakkaneri village panchayat for Scheduled Castes
women is against the provisions of Rule 7 of the Rules. As per the report
submitted by the first respondent the total population in the Nayakkaneri
village panchayat is 4270, in which total population of Scheduled Castes
is 7 and the percentage of the Scheduled Castes population to the total
population is 0.164% that is less than 0.50%. Therefore, reservation for
Scheduled Castes women is against the judgment rendered by this Court.
5.4. Except the fifth respondent, no other Scheduled Castes
candidate is available in the Nayakkaneri panchayat to contest for the
post of President. Therefore, the entire population have been prevented
from exercising their freedom of casting their vote in favour of one or
other candidate, which is held to be an fundamental freedom under
Article 19(1)(a) of the Constitution of India. In support of his contention
he relied upon several judgments.
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W.P.No.19864 of 2021
Respondents’ contentions:-
6. The first respondent filed counter and Mr.P.S.Raman,
learned Advocate General submitted that the writ petition itself is not
maintainable, since it is challenging the very reservation for the post of
President of the Nayakkaneri village panchayat, Madhanur panchayat
union, Tirupathur district, for Scheduled Castes women in
G.O.Ms.No.108 Rural Development and Panchayat Raj (PR-1)
Department, published in the Tamil Nadu Government Gazettee
Extraordinary, Part-II, Section 2 dated 03.09.2021. In fact, the petitioners
did not even satisfy this court regarding maintainability of this writ
petition questioning delimitation. Therefore, there is a bar under Article
243-O of the Constitution of India to challenge the delimitation of
constituencies or the allotment of seats to such constituencies.
6.1. In support of his contention, he relied upon the judgment
reported in 2019 SCC OnLine Mad 8588 in the case of A.Karuppanan
Vs. State of Tamil Nadu and ors., in which the Hon’ble Division Bench
of this Court dealt with the similar issue in the present writ petition
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W.P.No.19864 of 2021
challenging the notification with regard to reservation of seats in village
panchayat as contrary to Rule 7 of the Rules. In the said writ petition
mainly contended that the impugned notification curtails the right of the
Scheduled Castes people belonging to other village panchayats, which
are in general category and the petitioners are not able to contest in the
election due to reservation. However, it is held that there is no scope of
interference by the Court in the writ proceeding with the delimitation
exercise.
6.2. He also relied upon the another judgment of the Hon’ble
Madurai Division Bench of this Court, reported in
MANU/TN/8702/2019 in the case of N.Pannerselvam Vs. The Secretary
to Government and ors., in W.P.(MD)No.25900 of 2019 dated
05.12.2019, which held that delimitation commission is vested with the
power to rearrange the constituencies and the exercise of such power
must be assumed that it was for good reasons. The reasons assigned by
the commission for rearranging the constituencies after the public
hearings does not smack of any arbitrariness for this Court to interfere in
the matter nor would this Court interfere in the light of the Constitutional
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W.P.No.19864 of 2021
bar. Further held that as per Rule 7 of the Rules, the State government
should follow the rotation basis and declare a constituency as a general
constituency.
6.3. Subsequently, the said Rule was amended and sub-rule (2)
has been added vide government order in G.O.Ms.No.105, Rural
Development (C4) Department, dated 01.09.2006. As per Rule 7(1)(a) of
the Rules, the seats reserved for persons belonging to the Scheduled
Castes and Scheduled Tribes in the wards or territorial wards, as the case
may be, of the village panchayats, panchayat unions and district
panchayats under sub-rule (1) shall subject to the change if any in the
number of seats to be reserved in such wards for the persons belonging to
the Scheduled Castes and Scheduled Tribes due to adoption of the
population as ascertained at the last preceding census of which relevant
figures have been published, continue to be reserved as such, until the
government direct otherwise.
6.4. He further submitted that under Section 57 (1)(D) of the
Tamil Nadu Panchayats Act, the government is empowered to ensure that
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W.P.No.19864 of 2021
reservation of seats in the rural local bodies proportionately to the total
population of Scheduled Castes and Scheduled Tribes. Out of total
number of seats reserved for Scheduled Castes and Scheduled Tribes in
whole, not less than 50% of seats shall be reserved for women belonging
to Scheduled Castes and Scheduled Tribes. The government in exercise
of power under sub-section (1) of Section 242 r/w. Sections 11, 20, 32
and 57 of the Tamil Nadu Panchayats Act, enacted the rules for
reservation of seats and rotation of reserved seats under the Tamil Nadu
Panchayats Rules.
6.5. After enactment of the said Rules, the reservation of seats
and rotation of reserved seats were made based on the 1991 census
population and first local body elections were conducted during the year
1996. The post of President in Nayakkaneri village panchayat was
reserved for Scheduled Tribes (General) category. It was followed for the
next election ie., in the year 2001. As per Rule 7 of the Rules, at the
expiry of every ten years, reservation of offices shall be reallotted to
other panchayats where the percentage of population of women or
Scheduled Castes or Schedule Tribes, as the case may be, is the next
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W.P.No.19864 of 2021
larger to the total population of panchayat by adopting a list of
panchayats arranged in the descending order of the percentage of
population of Scheduled Castes, Scheduled Tribes and women as per
2011 census. However, after completion of ten years, the election was
not held during the year 2016-2019.
6.6. While being so, the Vellore district was trifurcated into
Vellore, Ranipet and Tirupathur on 12.11.2019. The demarcation of the
local bodies for the newly formed district were brought into force only
during the local body elections, 2021. Insofar as the Thirupathur District
is concerned, it has four municipalities, three town panchayats, six
blocks, 208 village panchayats. The Madhanur block is one among the
six blocks. It consists of 44 village panchayats in which Nayakkaneri
village panchayat is also one among them. As per 2011 census
population reservation was implemented under the Rule 7 of the Rules.
6.7. The total number of offices of the Presidents of village
panchayat of Nayakkaneri is 12,525. As per the population, the number
of panchayats to be reserved for Scheduled Tribes is 207 and for
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W.P.No.19864 of 2021
Scheduled Castes is 3,084. As per the reservation of panchayat offices in
Tirupathur district is concerned, the total population of 8,11,546 in
which Schedule Tribes population is 35,298 and the Scheduled Castes
population is 1,69,114. The total number of offices of the Presidents of
the village panchayat is 208 in reservation for Schedule Tribes is zero
and reservation for Scheduled Castes is 42. Insofar as the Madhanur
block is concerned, the total population is 1,53,122 in which Scheduled
Tribes population is 4,104 and the Scheduled Castes population is
54,702. The number of offices for village panchayat to be reserved for
Scheduled Tribes is zero and for Scheduled Castes is 16. It has been
reserved as per the population of the village panchayat and as per the
report as contemplated under Rule 7 of the Rules.
6.8. Insofar as the Nayakanneri panchayat is concerned, so far
the said panchayat was not reserved for Scheduled Castes. Therefore, as
per the 2011 census population, the unreserved ten village panchayats
were given reservation for Scheduled Castes, in which Nayakkaneri
panchayat is one among them. Out of 16 village panchayat which were
reserved for Scheduled Castes, the horizontal reservation of Scheduled
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W.P.No.19864 of 2021
Castes women quota of 9 seats were allotted to Scheduled Castes women
as per sub Section 1(D) of Section 57 of the Tamil Nadu Panchayats Act,
1994.
6.9. Insofar as the Nayakkaneri village panchayat is concerned,
as per 2011 census population, there are 7 Scheduled Castes voters. It
was reserved in the descending order based on the Scheduled Castes
population, since the said panchayat was not earlier reserved for
Scheduled Castes, it is mandatory to reserve the Nayakkaneri village
panchayat for Scheduled Castes candidate as per Rules in vogue.
Therefore, there is no violation of Rules. The reservation of seats and
rotation of reserved seats for the election of 2021 was published
accordingly. That apart, the petitioners did not even raise any malafide
ground in order to bring the fifth respondent to contest for the post of
President in the Nayakkaneri Village panchayat. Therefore, the writ
petition itself is not maintainable and liable to be dismissed.
7. The second respondent filed counter and Mr.S.Siva
Shamnugam, learned counsel appearing for the second respondent
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W.P.No.19864 of 2021
submitted that the second respondent is nothing to do with the
reservation of seats in the office of President of village panchayats,
chairmen of panchayat union councils and district panchayats etc. It shall
be made only by the government order or by any officer authorised by
the government in this behalf as per Section 57(2) of the Tamil Nadu
Panchayat Act, 1994. He further submitted that the last date for
nomination for the post of President of Nayakkaneri Panchayat was
22.09.2021 and even before that, the fifth respondent was made as voter
in the ward No.9 of Nayakkaneri panchayat.
8. The fifth respondent filed counter and Mr.N.G.R.Prasad,
learned counsel appearing for the fifth respondent submitted that the writ
petition itself is not maintainable and there is a bar under Article 243-O
of the Constitution of India. The fifth respondent was elected as
President of Nayakkaneri village panchayat. She got married on
14.04.2014 and she is residing in her matrimonial house situated at
No.152/1, K.K. Nagar, Kamanoorthattu, Periyankuppam, Ambur Taluk,
Tirupathur District. According to her, after her marriage, the fifth
respondent is living within the Nayakkaneri panchayat and she is taking
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W.P.No.19864 of 2021
steps to remove her name from her parents’ family ration card. The fifth
respondent has also tried to include her name in the voters list. However,
it was delayed and as such she could not able to vote in the Assembly
election which was held in the year 2021.
8.1. He further submitted that as per rotation, Nayakkaneri
village panchayat reserved for Scheduled Castes category for the election
2021. Before that from the year 1996 to 2006, it was reserved for
Scheduled Tribes category and from 2006 to 2016, it was reserved for
general category. As per the rotation, the Nayakkaneri village panchayat
was reserved for Scheduled Castes category. Therefore, there is no
violation of Act and Rules.
9. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
10. Considering the above submissions and on perusal of the
records, the following points are arose for consideration:-
(i) Whether the writ petition is maintainable, when there is a bar
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W.P.No.19864 of 2021under Article 243-O of the Constitution of India?
(ii) The petitioners can challenge the notification of the reservation
for office of village panchayat?
(iii) If the writ petition is maintainable, the reservation notification
dated 03.09.2021 in G.O.Ms.No.108 Rural Development and Panchayat
Raj (PR-1) Department, insofar as it relates to reservation for the post of
President of Nayakkaneri village panchayat can be sustainable?
11. This writ petition was filed on 14.09.2021 and it was taken
up for admission on 20.09.2021. This Court directs the respondents to
reply on 22.09.2021. However, this Court did not grant any interim
order. Therefore, the petitioners filed writ appeal as against the order of
notice in W.A.No.2580 of 2021 and the Hon’ble Division Bench of this
Court by an order dated 07.10.2021 in C.M.P.No.16840 of 2021 in
W.A.No.2580 of 2021 passed an interim order that the fifth respondent
shall not take charge. In that writ appeal, final order was passed by the
Hon’ble Division Bench of this Court on 18.01.2024 that the interim
order shall continue till disposal the main writ petition and accordingly
disposed the writ appeal. Though the fifth respondent has been declared
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W.P.No.19864 of 2021
and elected unopposed for the post of President of Nayakkaneri village
panchayat, in view of the interim order, she did not take charge of the
President post of in Nayakkaneri Village Panchayat.
12. Insofar as the maintainability of this writ petition, it is
relevant to extract the Article 243-O of the Constitution of India as
follows :-
“243-O. Bar to interference by Courts in electoral
maters – Notwithstanding anything in this Constitution –
(a) the validity of any law relating to the
delimitation of constituencies or the allotment of seats to
such constituencies made or purporting to be made under
Article 243-K, shall not be called in question in any
Court;
(b) no election to any panchayats shall be called in
question except by an election petition presented to such
authority and in such manner as is provided for by or
under any law made by the Legislature of a State.”Accordingly, the Article 226 of the Constitution of India cannot be
invoked when delimitation is questioned and the only remedy available is
election petition.
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W.P.No.19864 of 2021
13. The learned counsel appearing for the petitioners relied
upon the judgment reported in (2000) 8 SCC 216 in the case of Election
Commission of India Vs. Ashok Kumar & ors., in which the Hon’ble
Supreme Court of India referred the judgment reported in (1978) 1 SCC
405 in the case of Mohinder Singh Gill Vs. Chief Election
Commissioner and held as follows :-
“20. Vide para 29 in Mohinder Singh Gills case,
the Constitution Bench noticed two types of decisions
and two types of challenges : The first relating to
proceedings which interfere with the progress of the
election and the second which accelerate the completion
of the election and acts in furtherance of an election. A
reading of Mohinder Singh Gills case points out that
there may be a few controversies which may not attract
the wrath of Article 329(b). To wit :
(i) power vested in a functionary like the Election
Commission is a trust and in view of the same having
been vested in high functionary can be expected to be
discharged reasonably, with objectivity and
independence and in accordance with law. The
possibility however cannot be ruled out where the
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W.P.No.19864 of 2021arbitrarily or malafide.
(ii) A dispute raised may not amount to calling in
question an election if it subserves the progress of the
election and facilitates the completion of the election.
The Election Commission may pass an order which far
from accomplishing and completing the process of
election may thwart the course of the election and such a
step may be wholly unwarranted by the Constitution and
wholly unsustainable under the law.
In Mohinder Singh Gills case, this Court gives an
example (vide para 34). Say after the President notifies
the nation on the holding of elections under Section
15 and the Commissioner publishes the calendar for the
poll under Section 30 if the latter orders returning
officers to accept only one nomination or only those
which come from one party as distinguished from other
parties or independents, which order would have the
effect of preventing an election and not promoting it, the
Courts intervention in such a case will facilitate the flow
and not stop the election stream.”
In the case on hand also except the fifth respondent, no one was there to
file nomination for the post of President of Nayakkaneri village
panchayat which is reserved for Scheduled Castes women. Therefore, she
was declared and elected as unopposed for the post of President of
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W.P.No.19864 of 2021
Nayakkaneri village panchayat.
14. In another judgment reported in (2018) 12 SCC 61 in the
case of Bharati Reddy Vs. State of Karnataka & ors., the Hon’ble
Supreme Court of India dealt with the issue of maintainability of writ
petition challenging the community of the President candidate for the
reserved office for the panchayat president, which held that basic
structure of the Constitution could not be altered by any constitutional
amendment and unambiguous terms that one of the basic features is the
existence of constitutional system in judicial review. Article 368 of the
Constitution does not enable Parliament to alter the basic structure or
frame work of the Constitution. Therefore, the power of judicial review
under Articles 226 & 227 of the Constitution of India, is an essential
feature which can neither be tinkered with nor eroded. Even the
Constitution cannot be amended to erode the basic structure of the
Constitution. Therefore, it cannot be said that the writ petition is not
maintainable.
15. In the case of Dravida Munnetra Kazhagam Vs. Secretary,
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W.P.No.19864 of 2021
Governor’s Secretariat and ors., reported in (2020) 6 SCC 548, the
Hon’ble Supreme Court of India held as follows :-
“14. The contention of the respondents that the
present proceedings amount to “calling in question an
election” and hence not being maintainable in view of the
express constitutional embargos of Articles 243-O and
243-ZG does not impress us for the present proceedings
are only to further the expeditious completion of pre-
requisites of a fair election. Hence, the following ratio of a
coordinate Bench in Election Commission of India v.
Ashok Kumar and Others [2000 (8) SCC 216] squarely
applies to the present case:
“(2) Any decision sought and rendered will not
amount to “calling in question an election” if it subserves
the progress of the election and facilitates the completion
of the election. Anything done towards completing or in
furtherance of the election proceedings cannot be
described as questioning the election.
(3) Subject to the above, the action taken or orders
issued by Election Commission are open to judicial review
on the well-settled parameters which enable judicial
review of decisions of statutory bodies such as on a case of
mala fide or arbitrary exercise of power being made out or
the statutory body been shown to have acted in breach of
law.
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(4) Without interrupting, obstructing or delaying the
progress of the election proceedings, judicial intervention
is available if assistance of the court has been sought for
merely to correct or smoothen the progress of the election
proceedings, to remove the obstacles therein, or to
preserve a vital piece of evidence if the same would be lost
or destroyed or rendered irretrievable by the time the
results are declared and stage is set for invoking the
jurisdiction of the court.”
15. For the reasons aforestated, these applications
are allowed in part and disposed of with the following
directions:
a. The Respondent authorities shall hold elections to
all Panchayats at village, intermediate and district levels,
except those in the following nine reconstituted districts:
i. Kancheepuram ii. Chengalpattu iii. Vellore iv.
Thirupathur v. Ranipet vi. Villupuram vii. Kallakurichi viii.
Tirunelveli ix. Tenkasi;
b. The Respondents (including the Delimitation
Commission) are directed to delimit the nine newly
constituted districts in accordance with law and thereafter
hold elections for their panchayats at the village,
intermediate and district levels within a period of four
months;
c. There shall be no legal impediment against
holding elections for Panchayats at the village,https://www.mhc.tn.gov.in/judis
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W.P.No.19864 of 2021intermediate and district levels for rest of the districts; d.
State Election Commission shall notify elections for the
panchayats at village, intermediate and district levels in
respect of all districts except the nine reconstituted
districts as per the details given in direction ‘a’ above.;
e. While conducting elections, the respondents shall
provide proportionate reservation at all levels, in
accordance with the Rule 6 of Tamil Nadu Panchayats
(Reservation of Seats and Rotation of Reserved Seats)
Rules, 1995.
16. Accordingly, the local body elections were not conducted
for nine districts in the year 2019, including the district of Tirupathur, on
the ground that the legal formalities were not completed. Therefore, the
said writ petition was filed for expeditious completion of prerequisite of
a fair election. Thus, it is clear that action taken or orders issued by the
Election Commission are open to judicial review on the well-settled
parameters which enable judicial review of decisions of statutory bodies
such as on a case of malafide or arbitrary exercise of power being made
out or the statutory body been shown to have acted in breach of law.
17. The learned counsel appearing for the petitioners also relied
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W.P.No.19864 of 2021
upon the judgment of the Hon’ble Supreme Court of India reported in
(1999) 4 SCC 526 in the case of K.Venkatachalam Vs. A.Swamickan &
anr., which held as follows :-
“25. In the present case the appellant was not an
elector in the electoral roll of Lalgudi Assembly
Constituency. He, therefore, could not be elected as a
member from that constituency. How could a person who is
not an elector, from that constituency could represent the
constituency? He lacked the basic qualification under
Clause (c) of Article 173 of the Constitution read
with Section 5 of the Act which mandated that a person to
be elected from an Assembly constituency has to be elector
of that constituency. The appellant in the present case is
certainly disqualified for being a member of the Legislative
Assembly of Tamil Nadu. His election, however, was not
challenged by filing an election petition under Section 81 of
the Act, Appellant knows he is disqualified. Yet he sits and
votes as a member of the Legislative Assembly. He is liable
to penalty of five hundred rupees in respect of each day on
which he so sits or votes and that penalty is recoverable as
debt due to the State. There has not been any adjudication
under the Act and there is no other provision of the
Constitution as to how penalty so incurred by the appellant
has to be recovered as a debt due to the State. Appellant is
liable to penalty nevertheless as he knows he is not
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W.P.No.19864 of 2021qualified for membership of the Legislative Assembly and
yet he acts contrary to law.
26. The question that arises for consideration is if in
such circumstances High Court cannot exercise its
jurisdiction under Article 226 of the constitution declaring
that the appellant is hot qualified to be member of the
Tamil Nadu Legislative Assembly from Lalgudi Assembly
Constituency. On the finding recorded by the High Court it
is clear that the appellant jn his nomination form
impersonated a person known as `Venkatachalam s/o
Pethu’, taking advantage of the fact that such person bears
his first name. Appellant would be even criminally liable as
he filed his nomination on affidavit impersonating himself.
If in such circumstances he is allowed to continue to sit and
vote in the Assembly his action would be fraud to the
constitution.”
18. In the case on hand, the fifth respondent is not a resident in
ward No.9 of Nayakkaneri panchayat. She is residing outside the
panchayat and her request for inclusion of her name in the ward No.9 of
Nayakkaneri panchayat was also rejected by the revenue authority.
However, her name was included after submission of nomination. Even
before inclusion of her name in the ward No.9 of Nayakkaneri panchayat,
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W.P.No.19864 of 2021
she had submitted her nomination and the same was accepted. Therefore
in such circumstances, action of the fifth respondent would be a fraud on
the constitution. Article 173(c) of the Constitution of India r/w Section
33 of the Tamil Nadu Panchayat Act, 1994, says that no person shall be
qualified for election as a member or President of a panchayat unless the
candidate name appears on the electoral roll of the concerned panchayat.
Therefore, the fifth respondent was not even qualified to contest in the
election for the post of President.
19. Admittedly, the fifth respondent got married and living in
her matrimonial home situated at No.152/1, K.K.Nagar, Kamanoorthattu,
Periyankuppam, Ambur Taluk, Tirupathur District. Even according to the
fifth respondent, she had taken steps to include her name in the voters list
and it got delayed and as such she was denied the right to vote in the
assembly election held in the year 2021.
20. Further, the second petitioner obtained information under
the Right to Information Act about the inclusion of the fifth respondent
name in the ward No.9 of Nayakkaneri panchayat for the President
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W.P.No.19864 of 2021
election. As per the information, the fifth respondent name was included
in the voters list of ward No.9 as if she is residing in Door No.152/1,
Ward No.9, Nayakkaneri village panchayat. On perusal of voters list of
Nayakkaneri village, there was no Scheduled Castes women in the entire
Nayakkaneri village. Further on 05.10.2021, the fifth respondent’s name
was included in the voters list in ward No.9. On perusal of the voters list
dated 31.08.2021 of ward No.9 of Nayakkaneri village panchayat
revealed that there are 551 voters in which the fifth respondent name was
not included in that voters list. However on perusal of the nomination
submitted by the fifth respondent dated 18.09.2021, she mentioned her
voter electoral serial number as 552 in ward No.9 of Nayakkaneri village
panchayat. She mentioned her address as Kamanoorthattu,
Periyankuppam, Ambur Taluk, Tirupathur District. Therefore, on the
date of her nomination, her name was not found in the electoral voters
list. Only in the additional voters list for ward No.9 dated 05.10.2021, the
fifth respondent name was included as a voter.
21. That apart, the Thasildar, Ambur Taluk, Tirupathur District
by its proceeding dated 21.09.2021, rejected the request made by the fifth
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W.P.No.19864 of 2021
respondent to include her name in ward No.9 of Nayakkaneri village
panchayat for the reason that she is not residing within the jurisdiction of
ward No.9 and as per her residential certificate, she is residing at Periyar
Street, Periyankuppam village. That apart, from her community
certificate also, it is evident that the fifth respondent is residing at Door
No.416/A, Periyar Street, Periyankuppam village. Therefore, her request
for inclusion of her name in the voters list was rejected by an order dated
21.09.2021. However, the fourth respondent Suo muto included the fifth
respondent name in the voters list of ward No.9 of Nayakkaneri village
panchayat.
22. In fact, the fifth respondent played fraud on the election. She
submitted her nomination as if she resides at Kamanurthattu, Panagatteri,
Periyankuppam post, Ambur, Nayakkaneri. She did not even disclose the
door number of her house. Whereas, as per the voters list dated
05.10.2021, her residence was mentioned as Door No.152/1. On perusal
of the voters list of entire Nayakkaneri village panchayat, there are only
three Scheduled Castes women that too in ward No.1 and no Scheduled
Castes woman in other eight wards including the ninth ward of
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W.P.No.19864 of 2021
Nayakkaneri village. After receipt of the nomination from the fifth
respondent, the fourth respondent included the fifth respondent’s name in
the voters list of 9th ward of Nayakkaneri village panchayat. It shows the
malafie intention to bring the fifth respondent as President of
Nayakkaneri village panchayat as per the reservation of office of
panchayat President that too by rejecting the nomination of other
candidate viz., Beula on the flimsy ground and elected the fifth
respondent as unopposed candidate in the post of President. Therefore,
the above judgments are squarely applicable to the case on hand and the
writ petition is very much maintainable.
23. In fact, the petitioners immediately after the notification
dated 03.09.2021, submitted detailed representation on 08.09.2021
alleging that the rotation in reservation as Scheduled Castes women in
respect of Nayakkaneri village panchayat is completely wrong, since
there are only 0.164% of Scheduled Castes population in the
Nayakkaneri village panchayat. It is below 0.50% and as such even as
per Rule 7 of the Rules, it has to be reserved on general category.
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W.P.No.19864 of 2021
24. On perusal of records also revealed that the fourth
respondent rejected the nomination of one Beula on flimsy ground in
order to elect the fifth respondent as unopposed to the post of President.
It is clear violation of freedom of speech and expression as envisaged
under Article 19(1)(a) of the Constitution of India. In this regard, the
learned counsel appearing for the petitioners relied upon the judgment of
the Hon’ble Supreme Court of India reported in (2002) 5 SCC 294 in the
case of Union of India Vs. Association for Democratic Reforms and
anr., which held as follows :-
“…. Under our constitution, Article 19(1)(a) provides
for freedom of speech and expression. Voter’s speech or
expression in case of election would include casting of votes,
that is to say, voter speaks out or expresses by casting vote.
For this purpose, information about the candidate to be
selected is a must. Voter’s (little man – citizen’s) right to
know antecedents including criminal past of his candidate
contesting election for MP or MLA is much more
fundamental and basic for survival of democracy. The little
man may think over before making his choice of electing law-
breakers as law-makers.”https://www.mhc.tn.gov.in/judis
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W.P.No.19864 of 2021
25. The voters speak or express by way of casting of vote. By
rejecting the nomination of other woman candidate that too for flimsy
reasons, the voters of the Nayakkaneri village panchayat were prevented
from casting their votes. It is clear violation of Article 19(1)(a) of the
Constitution of India. The casting of vote in favour of one or other
candidate tantamounts to expression of opinion and preference and that
final stage in the exercise of voting right marks the accomplishment of
freedom of expression of the voter.
26. Insofar as the delimitation of constituencies and allotment of
seats to such constituencies, the bar contained in Article 243ZG(a)
operates together with the non-obstante clause contained therein to bar
all courts from interfering with State statutes dealing with delimitation
and allocation of seats, just as is the bar contained in Article 329(a) of
the Constitution. The entire supervision and conduct of elections to
municipalities is vested in a constitutional authority that is the State
Election Commission which is to supervise and conduct elections by
giving orders and directions to the State Government as well as
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authorities that are set up under State statutes for the purpose of
supervision and conduct of elections. Therefore, the State Election
Commission can also approach the writ court.
27. Under Article 243 ZG(b) of the Constitution of India, no
election to any municipality can be called in question except by an
election petition presented to a Tribunal as is provided by or under any
law made by the Legislature of a State. It would mean that from the date
of notification of the election till the date of the declaration of result, the
judicial hands-off is mandated by the non-obstante clause contained in
Article 243ZG of the Constitution of India, debarring the writ court
under Articles 226 and 227 from interfering once the election process has
begun until it is over.
28. Therefore, the constitutional bar operates only during this
period. It is therefore a matter of discretion exercisable by a writ court as
to whether an interference is called for when the electoral process is
“imminent” i.e, the notification for elections is yet to be announced. The
non-obstante clause contained in Article 243ZG of the Constitution of
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W.P.No.19864 of 2021
India, does not operate as a bar after the election tribunal decides an
election dispute before it. Thus, the jurisdiction of the High Courts under
Articles 226 and 227 of the Constitution of India is not affected as the
non-obstante clause in Article 243ZG of the Constitution of India
operates only during the process of election. Therefore, any challenge to
orders relating to delimitation or allotment of seats including preparation
of electoral rolls, not being part of the election process as delineated
above, can also be challenged in the manner provided by the statutory
provisions dealing with delimitation of constituencies and allotment of
seats to such constituencies. Therefore, the writ petition is maintainable
before this Court.
29. In fact while ordering notice, the petitioners were permitted
to take private notice to the fifth respondent. The learned counsel
appearing for the petitioners had sent private notice dated 12.11.2021 to
the fifth respondent in the address of No.416/A, Periyar Street,
Periankuppam Panchayat, Ambur Taluk, Tirupathur District and the
same was duly received by the fifth respondent on 15.11.2021. It shows
that the fifth respondent is not residing within the jurisdiction of ward
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W.P.No.19864 of 2021
No.9 of Nayakkaneri village panchayat. As per the voters list of
Nayakkaneri village panchayat, in the year 2021 population of Scheduled
Castes was less than 0.50%.
30. As per Article 243-T of the Constitution of India, the
reservation has to be provided based on the proportion of the total
number of seats vis-a-vis the population of the category in whose favour
reservation has to be given. The reservation depends on the population of
the category. Thus for the population of the Scheduled Castes in
Nayakkaneri village panchayat, did not provide reservation for
Scheduled Castes. If a panchayat has no population of a particular
category and still reservation has to be given, it would not only offend
the requirement of ratio of population, but would also raise a question as
to who would represent the said category when the required population
does not exist.
31. In view of the above discussions, the impugned notification
dated cannot be sustained and liable to be quashed. Accordingly, the
notification dated 03.09.2021, in G.O.(Ms.) No.108 Rural Development
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W.P.No.19864 of 2021
and Panchayat Raj (PR-1) Department, which relates to the reservation
for the post of President of the Nayakkaneri Village Panchayat,
Madhanur Panchayat Union, Thirpathur District, for Scheduled Castes
Women, is hereby quashed. Consequently, the declaration of the fifth
respondent elected as President of Nayakkaneri village panchayat as
unopposed is also quashed. The first respondent is directed to reserve the
office of President of Nayakkaneri village panchayat either under general
women or Scheduled Tribes women category within a period of four
weeks from the date of receipt of a copy of this Order and thereafter the
second respondent is directed to conduct election for the post of
President of Nayakkaneri village panchayat as expeditiously as possible
in accordance with law.
32. With the above directions, the Writ Petition stands allowed.
Consequently, connected miscellaneous petitions are closed. There shall
be no order as to costs.
20.09.2024
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation : Yes/No
rts
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W.P.No.19864 of 2021
G.K.ILANTHIRAIYAN. J,
rts
To
1. The Principal Secretary,
State of Tamil Nadu,
Rural Development and
Panchayat Raj Department,
Fort St. George,
Chennai – 600 009.
2. The Commissioner,
Tamil Nadu State Election Commission,
No.280/2, Jawaharlal Nehru Road,
Arumbakkam,
Chennai – 600 106.
3. The District Collector,
Tirupthur District,
Tirupathur.
4. The Executive Officer/
The Block Development Officer,
Madhanur Panchayat Union,
Madhanur, Ambur Taluk,
Tirupathur District.
ORDER IN
W.P.No.19864 of 2021 and
W.M.P.Nos.21122, 21124 & 21209 of 2021
20.09.2024
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