Full order of. THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN 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 ***** J U D G M E N T (Order of the Court was made by S.Vaidyanathan,J.,) This Writ Appeal has been filed. —– S.VAIDYANATHAN,J. 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.

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.

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
*****
J U D G M E N T

(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 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 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 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;g[ila 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;f;fgl;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) 766

bkhj;jk; 59 Ik;gj;jJ xk;gJ kl;Lk;

nkYk; ,e;j tprhuizapd; nghJ fPH;f;fz;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) 860.
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 fPH;f;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;f;f ,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 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 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 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 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.”

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.
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