In Pondycherry local body elections matter the Division Bench comprising of Hon’ble Mr Justice R Mahadevan and justice Anandhi granted order of statusquo against State Election commission from in any way proceeding with notifying local body elections after hearing arguments of P. Wilson for Mr Siva MLA

< In Pondycherry local body elections matter the Division Bench comprising of Hon’ble Mr Justice R Mahadevan and justice Anandhi granted order of statusquo against State Election commission from in any way proceeding with notifying local body elections after hearing arguments of P. Wilson for Mr Siva MLA !--more-->IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

WRIT PETITION No. Of 2022

R. Siva,
S/o. Late Raghavan,
Leader of Opposition in Puducherry Legislative Assembly – cum –
Puducherry State Organising Secretary (South),
DRAVIDA MUNNETRA KAZHAGAM,
No.9, Kulakarai Street,
Calve Bungalow,
Govindasalai,
Puducherry-605 011. …Petitioner

Vs

1. Union Territory of Puducherry,
Represented by its Chief Secretary,
Secretariat,
Goubert Avenue,
Beach Road,
White Town,
Puducherry – 605001.

2. Government of Puducherry,
Represented by its Secretary to the Government,
Local Administration Department,
Secretariat,
Goubert Avenue
Puducherry – 605 001.

3. State Election Commission,
Rep by State Election Commissioner,
3rd Floor, Election Building,
Villianur Main Road,
Reddiarpalayam,
Puducherry – 605 010.

4. The Director,
Head of the Department,
Local Administration Department,
No.16, Suffren Street,
White Town,
Puducherry- 605 001.

5. The Under Secretary to Government,
Local Administration Department,
Government of Puducherry,
No.16, Suffren Street,
Puducherry- 605 001.

6. Council of Ministers,
Represented by its Secretary,
Government of Puducherry,
Puducherry. …Respondents

AFFIDAVIT FILED BY THE PETITIONER

I, R. Siva, S/o Late Raghavan, Hindu, aged about 51 years, Leader of Opposition in Puducherry Legislative Assembly and Puducherry State Organising Secretary (South), DRAVIDA MUNNETRA KAZHAGAM, residing at No.9, Kulakarai Street, Calve Bungalow, Puducherry – 605 011 do hereby solemnly affirm and sincerely state as follows :-

1. I am the Petitioner herein and I am filing the present Writ Petition in the public interest and as such I am well acquainted with the facts and circumstances of the case from personal knowledge and based on records.

2. I state that I am member of “Dravida Munnetra Kazhagam” Political Party strictly adhering to principles of Social Justice with its Ex-President Dr.Kalaignar M.Karunanidhi emerged and portrayed as doyen of Social Justice and the said legacy is being carried by its incumbent President and Chief Minister of State of TamilNadu Thiru. Muthuvel Karunanidhi Stalin. I am appointed as state organising secretary (south) of Dravida Munnetra Kazhagam, which is front runner of social justice movement in state of Tamil Nadu as well as in Union Territory of Puducherry. I contested the 2021 General Elections for Puducherry Legislative Assembly from Villianur Constituency as officially declared party candidate of “Dravida Munnetra Kazhagam” and emerged victorious in the said Elections. With victory in the said elections, I have sworn in as Member of Puducherry Legislative Assembly for the fifth time and also elected as Leader of Opposition in the Legislative Assembly of Puducherry. I have always undertaken activities towards fulfilment of Social justice, a cardinal principle of Dravida Munnetra Kazhagam. In an earlier occasion, I have instituted litigation in WP.No.8630 of 2020 before this Hon’ble Court seeking implementation of OBC reservation in All India Quota UG/ PG Medical/ Dental seats surrendered by Medical Educational institutions within Union Territory of Puducherry to the Central Government; and following decision of this Hon’ble court, the Central Government partly implemented OBC reservation in All India Quota Medical/ Dental Seats surrendered by Medical Institutions within Union territory of Puducherry. I am filing this present Public Interest Litigation in my capacity as member of Public Spirited Political Party and as Leader of Opposition of Puducherry Legislative Assembly and I have no vested interest in the present lis. I submit that my Permanent Assessment Number (PAN) is BBHPS6017C and Aadhar Number is 786605232935. The costs for filing the present Petition which includes professional fees and expenses are borne out of my personal funds. I undertake to pay such costs as may be imposed by this Hon’ble court in the event of holding that the present petition is bereft of merits, vexatious or frivolous. I state that this is the only public interest litigation pertaining to the present subject matter and relief filed by me and no other petition of similar nature is pending elsewhere at my instance.

FACTS OF THE CASE:-

3. I State that present Writ Petition is filed challenging the Impugned Notifications issued by the Second Respondent herein in G.O.Ms.No.51/LAS/2021 Puducherry dated 06.10.2021 and G.O.Ms.No.52/LAS/2021 Puducherry dated 06.10.2021, wherein the earlier Government Notifications, providing for Reservation of Seats for Backward Class- 33.5% and Scheduled Tribes – 0.5% in Municipal Councils and Panchayats at all Levels vide Notifications in the G.O.Ms.No.47/LAS/2019 Puducherry dated 07.03.2019 and G.O.Ms.No.48/LAS/2019 Puducherry dated 07.03.2019 respectively, were rescinded respectively, as Ultra vires to the Constitution and other Statutes governing Local Body Elections in the Union Territory of Puducherry.

4. I State that the Statutes governing the Local Bodies in Union Territory of Puducherry are Puducherry Municipalities Act, 1973 and the Puducherry Village and Commune Panchayats Act, 1973. The said Statutes provide for Constitution of Local Bodies at Municipal and Village levels; conduct of Elections to the said Local Bodies; Powers and Functions of the said Local Bodies; and other allied and connected matters. As on date within the Union Territory of Puducherry, there are 5 Municipalities and 10 Village Commune Panchayats comprising of 108 Village Panchayats in total.

5. I State that pursuant to Articles 243D (1) & (6) and 243T (1) & (6) of the Constitution of India, which provides for Reservation of Seats for various officers and chair persons in the above mentioned Local Bodies namely Municipalities and Panchayats at all levels; and pursuant to Section 9(8) and 11(8) of The Puducherry Municipalities Act,1973 and The Puducherry Village and Commune Panchayats Act,1973 respectively; and Pursuant to a Presidential Order viz., “The Constitution (Puducherry) Scheduled Tribes Order,2016” [G.S.R.1167 (E)] on 22.10.2016, recognizing ‘Irular’ (including Villi and Vettaikaran) Communities as Scheduled Tribes in relation to the Union Territory of Puducherry, the Government of Puducherry vide above mentioned notifications in G.O.Ms.No.47 & 48 provides for Reservation for Backward Class – 33.5% and Schedule Tribes – 0.5% in elections to various posts in Municipalities and Panchayats at all Levels respectively. It is relevant to mention at this juncture that the provision of Reservation favoring Backward Class and Scheduled Tribes and the quantum of such reservation provided under said Government Notifications were never subjected to any challenge by judicial Review.

6. I State that the Local Body Elections in the Union Territory of Puducherry is long overdue since 2012 and the same was kept in abeyance due to pendency of litigation concerning delimitation exercise based on 2011 census. Pursuant to the intervention by the Hon’ble Apex Court which mandated the completion of delimitation exercise expeditiously providing for conduct of Elections to the Local Bodies, the delimitation exercise got completed only by June 2021. Following the same, Election Notification for the Local Bodies came to be issued on 22.09.2021. The said Election Notification was put to challenge before this Hon’ble High Court in batch of Writ Petitions in W.P.No.21067 of 2021 and batch cases, wherein challenge to the said Election notification was maintained only on the ground of anomalies that have crept in while implementing the rotation procedure in allotting/ notifying the Wards as reserved ones for scheduled Caste. During the hearing of the said Writ Petition, when the anomalies in the process was pointed out, the Learned Counsel for Government of Puducherry admitted the same and advised the Government and State Election Commission to withdraw the notification. In view of the same, the State Election Commission had sought leave for withdrawal of the said election Notification impugned therein followed by the issuance of the fresh Notification. Recording the same, this Hon’ble Court was pleased to dispose the said batch of Writ Petitions vide Order dated 05.10.2021, wherein this Hon’ble Court had accorded such permission for withdrawal of Election Notification with further direction to issue fresh notification within 5 days from withdrawal of earlier notification after removal of anomalies pointed out in the said Writ Petition. The timeline for the issuance of fresh notification was directed by this Hon’ble Court in consideration of the mandate of the Hon’ble Apex Court in directing conduct of Local Body Elections expeditiously.

7. I state that it is relevant to mention at this juncture that this Hon’ble Court neither permitted nor directed for withdrawal of above mentioned Government Notifications providing for the reservations to various officers in the Local Bodies for backward class and Scheduled Tribes. On the other hand, permission for withdrawing the earlier Election Notification was only granted for the purpose of removing anomalies arising out of implementation of the rotation procedure.

8. I State that, while things remain so, the Government of Puducherry had issued the Impugned Notifications rescinding the earlier notifications providing reservation for Backward Classes and Scheduled Tribes and the same, besides being contrary to Constitutional mandate, stands as infraction of statutory provisions and authoritative judicial pronouncements and the same is found to be against the interests of weaker sections of society, which constrained this Petitioner to approach this Hon’ble court vide earlier Writ petition in WP.No.22288 Of 2021.

9. I state that I filed the Writ Petition in WP No.22288/2021, wherein the above mentioned Impugned Notifications in G.O.MS.No.51/LAS/2021 Puducherry dated 06.10.2021 and in G.O.MS.No.52/LAS/2021 Puducherry dated 06.10.2021 were put into challenge. The Elections to Local Bodies were notified by State Election Commission and was intended to be completed with the stipulated timeframe, pursuant to the Orders of the Hon’ble Apex Court in contempt proceedings. Further, the law concerning the modality of providing reservation of seats for OBC category in the Local Body Election has been settled in the case of Mr.K.Krishnamurthy Vs Union of India reported in 2010 (7) SCC 202. Similar Writ Petitions were also filed in WP.No.22289 & 25655 Of 2021. I and other Petitioners thought it is appropriate that the instant issue viz. provision of reservation of seats for OBC class category in Local Body Elections, shall be adjudicated upon and resolved by the Hon’ble Apex Court itself, in view of the above mentioned Constitutional Bench Judgment and contempt proceedings, and accordingly we sought to withdraw the Writ Petitions with the liberty to approach Hon’ble Apex Court to have the issue resolved and also sought for extension of Interim Order in the interregnum. Acceding to our request of withdrawal, this Hon’ble Court was pleased to permit us to withdraw the Writ Petitions and had granted us the liberty to approach the Hon’ble Apex Court for redressal of our grievances concerning the present issue and accordingly dismissed the Writ Petitions as withdrawn vide Common Order dated 01.12.2021 with granting us liberty to approach the Hon’ble Apex Court and extending the Interim Order granted earlier in the said Writ Petition for further period of two weeks.

10. I state that after dismissal of the said Writ Petitions, I had approached the Hon’ble Apex Court by filing a Writ Petition under Article32 of Constitution of India in WP (Civil) No.54/2022. The Hon’ble Apex Court, vide its Order dated 28.03.2022, holding that the issue raised in the said Writ Petition is not categorically connected with any matter pending before the Hon’ble Apex Court, had permitted me to approach this Hon’ble Apex Court by filing a Writ Petition under Article No.226 of Constitution of India for the present issue and accordingly dismissed the Writ Petition as withdrawn with the aforesaid liberty vide order dated 28.03.2022.

11. I state that in continuation of the liberty granted in the aforementioned Order dated 28.03.2022 made in WP (Civil) No.54/2022, this instant Writ Petition is filed. I state that the Government of Puducherry with an intention to continue the provision of reservation of seats for OBC category in the Local Body Elections has constituted a commission under the Chairmanship of Hon’ble Mr. Justice K.K.Sashidharan, Retired High Court Judge, to identify the political backwardness of communities and to recommend for provision of reservation of seats for such identified category. The identification of Politically backward class which are politically backward and provision of reservation of seats for such identified communities in the Local Body Elections is within a realm of the concerned Provincial Government as may be recommended by the Commission contemplated under the Constitution bench Krishnamurthy judgement. The constitution of Local Bodies including the facet of reservation of seats for OBC category falls within the domain of Entry 5 of List II vesting the powers concerning the said subjects upon the respective State Government. When the State Government intends for continuation of reservation of seats for Politically backward communities and in furtherance of such intention has constituted Commission in line with the Constitution Bench Krishnamurthy Judgment, the act of the State Election Commission in contemplating to conduct Local Body Elections for Municipalities and Commune Panchayats within the Union Territory of Puducherry without providing reservation for OBC category and ST Category offends Democracy by infracting the will of the people, Principle of inclusivity; constitutes upsetting of constitutional and statutory framework; and will eventually lead to breakdown of constitutional machinery warranting interference by this Hon’ble Court under Article 226 of Constitution of India to uphold Constitution and functioning of its machineries; Will of the people and Democracy.

Having left with no other alternate and speedy and efficacious remedy, I am invoking the jurisdiction of this Hon’ble court under Article 226 of Constitution of India for the following among other
GROUNDS
A. VIOLATION OF CONSTITUTIONAL PROVISIONS:-
(I) The withdrawal of reservation for Scheduled tribes, despite identification of existence of such scheduled Tribes within Union territory of Puducherry followed by notification under above mentioned 2016 precedential order, stands as infraction of Constitutional mandate under Section 243D (1) and 243T(1) which provides for Reservation of Seats in Municipalities and Panchayats for Scheduled Tribes proportional to the population as a matter of rule rather than as choice. Therefore, the withdrawal of the reservation for Scheduled tribe in the instant case breaches the constitutional mandate leaving those provisions as a dead letter with no force.
B. VIOLATION OF STATUTORY PROVISIONS:-

(ii) The withdrawal of reservation for the Backward Class stands in the violation of Constitutional mandates 243D(6) and 243T(6) and Statutory mandates enshrined under The Puducherry Municipalities Act,1973 and The Puducherry Village and Commune Panchayats Act,1973 respectively. Pursuant to the above mentioned provisions, the decision to implement reservation for Backward Class for various officers in Local Bodies emanated from the Council of Ministers, representing the will of the people, which later got culminated into a Policy of Government through executive decision implementing the will of the people vide G.O.Ms.No. 47 and 48 both dated 07.03.2019. Now under the guise of exercising powers, the Government of Puducherry cannot unilaterally upset the will of the people and the policy of the Government by way of an executive action through Impugned Notifications.

C. IMPUGNED NOTIFICATIONS ANTITHESIS TO ARTICLE 14

(iii) The withdrawal of reservation is antithesis to social justice which in turn is antithesis to equality as enshrined under Article 14 of the Constitution of India. The said Fundamental right of Article 14 read in conjunction with Article 47 of the Constitution of India imposes an inescapable and extensive duty upon the State to secure the interests of the weaker sections of the society. Having identified the Backward Class people in the last preceding census, the State cannot abandon its duty of providing reservation securing interests of those weaker sections of the society and such dereliction constitutes breach of Fundamental Rights of those people.

D. INFRACTION OF ADMINSTRATIVE SETUP PROVIDED UNDER CONSTITUTION & OTHER ALLIED LAWS:-

(iv) The Administration of Union territories is provided under Part VIII of Constitution, which provides that Union territory shall be administrated by President acting through administrator. Pursuant to Article 239A, Government of Union Territories Act,1963 came to be enacted. Section 44 of the said Act mandates the Council of Ministers to aid and advice the Administrator in exercise of his functions in relation to matters with respect to which Legislative assembly has power to make laws. The subject of provision of reservation in elections to various offices in local body falls within the domain of Entry 5 of List II viz Local Government, that is to say, the Constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self- government or village administration. As mentioned earlier, the reservation was provided earlier pursuant to the decision of the Council of Ministers favoring such reservation and the same had become policy decision of the Government. However, now the impugned Notifications, withdrawing the reservation and thereby changing the policy decision, were issued without any intervention by Council of Ministers and therefore the element of aid and advice by Council of Ministers remained completely absent while issuing the impugned Notifications and such exercise stands infracting administrative set up as provided under Article 239, 239A of Constitution, Section 44 of Government of Union Territories Act, Rules 4 (1), 9, 10, 11 of Rules of Business of Government of Puducherry, 1963 read with item 9 &19 of Schedule appended thereto and therefore, the impugned notification are liable to be interfered with on this score.

(v) The Government of Puducherry with an intention to continue the provision of reservation of seats for OBC category in the Local Body Elections has constituted a commission under the Chairmanship of Hon’ble Mr. Justice K.K.Sashidharan, Retired High Court Judge, to identify the political backwardness of communities and to recommend for provision of reservation of seats for such identified category. The identification of Politically backward class which are politically backward and provision of reservation of seats for such identified communities in the Local Body Elections is within a realm of the concerned Provincial Government as may be recommended by the Commission contemplated under the Constitution bench Krishnamurthy judgement. The constitution of Local Bodies including the facet of reservation of seats for OBC category falls within the domain of Entry 5 of List II vesting the powers concerning the said subjects upon the respective State Government. When the State Government intends for continuation of reservation of seats for Politically backward communities and in furtherance of such intention has constituted Commission in line with the Constitution Bench Krishnamurthy Judgment, the act of the State Election Commission in contemplating to conduct Local Body Elections for Municipalities and Commune Panchayats within the Union Territory of Puducherry without providing reservation for OBC category and ST Category warrants interference by this Hon’ble court.

E. IMPUGNED NOTIFICATIONS SUFFERS FROM MALAFIDES:
(vi) The withdrawal of reservation stands in violation of interim order dated 13.12.2012 made in WP.No.30477 Of 2012, pursuant to which the above mentioned reservations was originally provided.

(vii) As mentioned earlier, withdrawal of reservation has never been the subject matter of consideration before this Hon’ble court in WP.No.21067 Of 2021 and batch cases. The order was made in the said Writ Petition directing permission to withdraw earlier Election notification and to issue fresh notification rectifying anomalies in allotment of reserved seats for Scheduled castes. After obtaining the said order and under the guise of implementing the same, the Respondents had clandestinely withdrawn reservation for Backward class and Scheduled Tribes and the said exercise is nothing but fraud being played upon this Hon’ble court.

9. I State that the State Election Commission is contemplating to proceed with the Local Body Elections without providing reservation of Backward class and Scheduled Tribes and the same is constitutionally and statutorily impermissible. I state that Backward Class and Scheduled Tribes People of Union Territory of Puducherry is put to serious prejudice on account of denial of social justice, if the Elections to Local Body is allowed to proceed based on the Impugned Notifications. In the said circumstances, ends of justice therefore requires that this Hon’ble Court may be pleased to grant an order for injunction restraining the State Election Commission from notifying election to the Municipal Local Bodies (Union Territory of Puducherry), pending disposal the above mentioned Writ Petition, as otherwise the people of Puducherry will be put to serious prejudice and untold hardships. As the impugned notifications were not personally served upon the Petitioner and the same were available in the official website of State Election Commission of Puducherry, the printed copies of the same are filed herewith and in the said circumstances, the Petitioner prays this Hon’ble court to dispense with the original of the impugned notifications.

INTERIM PRAYERS

(I) It is therefore prayed that this Honble Court may be pleased to stay the operation of Impugned Notifications in G. O. Ms. No. 51/ LAS/ 2021 Puducherry dated 06.10.2021 and in G.O.Ms.No.52/LAS/2021 Puducherry dated 06.10.2021 issued by the 2nd Respondent and signed by the 5th Respondent herein, pending the disposal of the above Writ Petition and thus render justice.

(II) It is therefore prayed that this Hon’ble Court may be pleased to grant an order of interim injunction restraining the 3rd Respondent herein from notifying any Election for the Local bodies within Union Territory of Puducherry, pending the disposal of the above Writ Petition and thus render justice.

(III) It is therefore prayed that this Honble Court may be pleased to dispense with the production of original of Impugned Notifications in G. O. Ms. No. 51/ LAS/ 2021 Puducherry dated 06.10.2021 and in G.O.Ms.No.52/LAS/2021 Puducherry dated 06.10.2021 issued by the 2nd Respondent and signed by the 5th Respondent herein; and thus render justice.

MAIN PRAYER

It is therefore prayed that this Hon’ble Court may be pleased to issue the order or direction or Writ or any other Writ in the nature of WRIT OF CERTIORARI, calling for the records of Impugned Notifications in G.O.Ms.No.51/LAS/2021 Puducherry dated 06.10.2021 and in G.O.Ms.No.52/LAS/2021 Puducherry dated 06.10.2021 issued by the 2nd Respondent and signed by the 5th Respondent herein; and quash the same and pass such further other orders as this Hon’ble Court may be fit and necessary under the facts and circumstances of the case and thus render justice.

Solemnly affirmed at Chennai ] BEFORE ME
Dated at day of May 2022 ]
And signed his name ]
in my presence ]

ADVOCATE : CHENNAI