R.Moorthy v. Tamil Nadu State Election Commission & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.10.2009CORAMTHE HONOURABLE MR.JUSTICE P.JYOTHIMANIWrit Petition No.20124 of 2009& M.P.Nos.1 and 2 of 2009R.Moorthy ..PetitionerVs.1. Tamil Nadu State Election Commission, No.208/2, Jawaharlal Nehru High Road, Arumbakkam, Chennai rep. By its Secretary.2. The District Collector, Kancheepuram District, Tamil Nadu.3. Municipal Commissioner cum Returning Officer, Alandur Municipality, Chennai – 600 061.4. Director General of Police (Law & Order), Kamarajar Salai, Chennai, Tamil Nadu.5. Commissioner of Police, Sub Urban Commissionarate, St. Thomas Mount, Chennai. ..RespondentsPETITION under Article 226 of The Constitution of India prayingfor the issuance of writ of mandamus directing the first respondentto ensure free and fair election to Ward No.18 of AlandurMunicipality by providing comprehensive police protection with videocoverage using Photo Electoral Rolls for the Municipality ByeElection to be conducted on 07.10.2009.For Petitioner : Mr.G.Rajagopalan, S.C. For Mr.S.VanchinathanFor Respondents : Mr.I.Paranthaman – R1 and R3 Mr.T.Seenivasan – R2, R4 and R5 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThis writ petition is for a direction against the firstrespondent to ensure free and fair election in Ward No.18 of AlandurMunicipality by providing comprehensive police protection with videocoverage using Photo Electoral Rolls for the Municipality ByeElection to be conducted on 07.10.2009.2. It is seen that the petitioner, who is contesting in theMunicipality Bye Election in Ward No.18 of Alandur Municipality to beheld on 07.10.2009 has made a representation to the first respondenton 25.9.2009 by which, he has requested the first respondent toprovide police protection for the purpose of conducting of theelection apart from providing video coverage. He has also requestedto use photo electoral roll as it was done in the ParliamentaryElections as well as Legislative Assembly Elections previously. Thefirst respondent has passed an order dated 01.10.2009 stating thatusing of photo electoral roll is followed only in theParliamentary/Legislative Assembly Elections and not in the MunicipalElections. It is also stated in the said order that electoralidentity card number is provided in the electoral roll. Therefore,the first respondent has made clear as it is seen in the said orderdated 01.10.2009, for the Municipal Elections, the electoral roll asused in the Assembly and Parliamentary elections will not be used. 3. The case of the petitioner is that it is to ensure a fairelection and to avoid any impersonation at the time of polling, usingof photo electoral roll is a must. That apart, it is the case of thepetitioner that following of the electoral roll as per the AssemblyElections and Parliamentary Elections is a mandatory duty on the partof the first respondent as per the District Municipalities Act andalso as per the relevant rules relating to the Tamil Nadu PanchayatElections etc. 4. Mr.G.Rajagopalan, learned senior counsel appearing for thepetitioner by relying upon Section 44 of the District MunicipalitiesAct would submit that the first respondent is bound to use the photoelectoral roll as it was used in the Tamil Nadu Legislative Assemblyand revised in accordance with the provisions of law and inasmuch asfor the Tamil Nadu Legislative Assembly Election, the electoral rollwas in the form of photo electoral roll, it is the duty on the partof the first respondent to use the same for the Municipality Bye-Election also. He would also refer to the rules framed in 2006called as Tamil Nadu Town Panchayats, Third Grade Municipalities,Municipalities and Corporations (Elections) Rules, 2006, in whichRule 15 contemplates similar provisions as that of Section 44 of theDistrict Municipalities Act and therefore, a combined reading of theprovisions shows that it is the mandatory duty on the part of theState Election Commission to use the Electoral List as it was used inthe Assembly Elections for the Municipality Election also. The https://hcservices.ecourts.gov.in/hcservices/ letter of the first respondent dated 01.10.2009 makes it clear thatthe first respondent has made up its mind not to use the electoralroll with photo identity as it was used in the Assmebly Elections bytaking a stand that the same is not used for the MunicipalityElections, which according to the learned senior counsel is inviolation of the provisions of the Act as well as the provisions ofthe Constitution of India especially Article 243-k (3) of theConstitution of India. 5. Per contra, Mr.I.Paranthaman, learned counsel appearing forthe first and third respondents by producing various documents tosubstantiate his contention would submit that even though under theletter dated 01.10.2009 the first respondent has taken a stand thatthe photo electoral roll will be used only for the purpose of theAssembly Elections and Parliamentary Elections, what was intended tobe informed by the said letter was that the first respondent hasclearly stated that there was no possibility for impersonationinasmuch as the electoral roll which is to be used for the purpose ofMunicipal Election, which may not contain the photo identity, but itcontain the identity card numbers and therefore, there is nopossibility for impersonation during the time of election.Therefore, according to him, only the photo will not be there and bythe identity card number, it is always possible for the electoralofficers to avoid any impersonation, which may be attempted to. Itis his further submission that in fact the first respondent is usingthe Tamil Nadu Legislative Assembly Electoral Roll except when itrelates to the Photo Electoral identity. Therefore, there is acompliance of Section 44 of the District Municipalities Act as wellas Rule 15 of the 2006 Rules as stated above. 6. It is his further submission that the electoral list eitherfor parliamentary election or for State Assembly elections areprepared by the Election Commission of India and the list is notprepared ward wise and it is very difficult for the Electoralofficials for conducting election in the Municipal Council tosegregate the voters. According to the learned counsel when thelarge number of voters are available for the Legislative Assembly, itis only a few among them are the voters for the Municipal Electionsand therefore, from among the combined list prepared by the ElectionCommission of India during Assembly Election, it is difficult tosegregate since there is lack of officials. Hence, it is notpossible at the time of election to have the electoral roll withphoto identity card to be compared. It is also his furthercontention that the State Election Commission is not having asoftware facility for the purpose of preparing a separate list ofvoters for the Municipal Elections.7. Heard the learned senior counsel appearing for thepetitioner and the learned standing counsel appearing for respondents https://hcservices.ecourts.gov.in/hcservices/ 1 and 3 and the learned Additional Government Pleader appearing forrespondents 2, 4 and 5 and perused all the relevant records.8. As far as the providing of police protection for conductingelection to be held on 07.10.2009 apart from video coverage, learnedcounsel for respondents 1 and 3 would submit that steps have beentaken for the purpose of providing adequate police protection forconducting elections on 07.10.2009 and steps are also taken for videocoverage in respect of those Municipalities which are treated assensitive in nature. 9. The other question to be decided is as to whether the standtaken by the first respondent that for the present Municipal electionto be held on 07.10.2009, the electoral roll which has been publishedfor the Assembly Elections to be used without photo identity iscorrect. 10. In this regard, it is relevant to refer Section 44 of theDistrict Municipalites Act. Before adverting to the provisions ofthe District Municipalites Act, it is relevant to refer to Article243-k of the Constitution of India, which provides elections toPanchayat. Article 243-k reads as follows:"243 – k Elections to the Panchayats – (1) Thesuperintendence, direction and control of the preparationof electoral rolls for, and the conduct of, all electionsto the Panchayats shall be vested in a State ElectionCommission consisting of a State Election Commissioner tobe appointed by the Governor.(2) Subject to the provisions of any law made by theLegislature of a State, the conditions of service andtenure of office of the State Election Commissioner shallbe such as the Governor may be rule determine:Provided that the State Election Commissioner shallnot be removed from his office except in like manner and onthe like grounds as a Judge of a High court and theconditions of service of the State Election Commissionershall not be varied to his disadvantage after hisappointment.(3) The Governor of a State shall, when so requestedby the State Election Commission, make available to theState Election Commission such staff as may be necessaryfor the discharge of the functions conferred on the StateElection Commission by clause (1).(4) Subject to the provisions of this Constitution,the Legislature of a State may, by law, make provision with https://hcservices.ecourts.gov.in/hcservices/ respect to all matters relating to, or in connection with,elections to the Panchayats.11. Sub-clause(3) of the above said Article enables theGovernor as per the request of the State Election Commission to makeavailable sufficient number of staffs for the purpose of dischargingthe functions conferred on the State Election Commission. It is seenthat the petitioner has made a representation on 25.9.2009 asking forthe use of the Photo Electoral Roll for the Municipal Election to beheld on 07.10.2009. If really the first respondent felt certaininconvenience in respect of inadequacy of staffs, by virtue of theconstitutional provisions, he could have certainly approached theGovernor for providing adequate staff so as to see that theprovisions of law in respect of the conducting of the election isfollowed scrupulously so as to impose confidence on the publicregarding the fairness of the election to be conducted. That has notbeen done by the first respondent. 12. In such view of the matter, I am of the considered viewthat the contention of the learned counsel for the first and thirdrespondents that due to inadequacy of staffs, it is not possible tosegregate the voters along with photo identity from the electoralroll given by the Election Commission of India for the State AssemblyElection is not tenable. When it is the constitutional duty on thepart of the first respondent to conduct election, this sort ofexcuses cannot be accepted.13. Section 44 (1) of the Tamil Nadu District MunicipalitiesAct 1920 reads as follows:44. (1) The electoral roll of the municipality shallbe the same as the electoral roll of the Tamil NaduLegislative Assembly prepared and revised in accordancewith the provisions of law for the time being in force in amunicipality and shall be deemed to be the electoral rollfor such municipality for the purpose of this Act and thatno amendment, transposition or deletion of any entry in theelectoral roll of the Tamil Nadu Legislative Assembly madeafter the last date for making nominations for election inany municipality and before the notification of the resultof such election, shall form part of the electoral roll forsuch election, for the purpose of this section."14. The above section makes it clear in no uncertain terms thatthe electoral roll, which has to be used for the election ofMunicipalities, which includes Panchayats etc. shall be the electoralroll prepared and revised in accordance with the provisions of lawand used for the Tamil Nadu Legislative Assembly Elections. It isthe admitted case that the electoral roll used for the Tamil NaduLegislative Assembly Elections, which was prepared by the Election https://hcservices.ecourts.gov.in/hcservices/ Commission of India for the purpose of previous Assembly Elections inthe State of Tamil Nadu, contain photo identity. When that is thecase, it is not open to the first respondent now to contend that theElectoral Roll as it was used in Tamil Nadu Legislative Assembly isused, but without photo identity. That is not the purport of Section44 of the Act. The purport of Section 44 of the Act is to certainlyuse the list of electoral roll, which should be in the form given bythe Election Commission of India during the previous Tamil NaduLegislative Assembly Elections. When in the previous Tamil NaduLegislative Assembly Election, the Election Commission of India hasprepared and amended the electoral roll along with photo identitycard, certainly as per Section 44 of the Act, the first respondent isbound to use the said electoral roll with photo identity. The rulesframed as per the Municipal Act as well as the Corporation Act in theform of Tamil Nadu Panchayats, Third Grade Municipalities,Municipalities and Corporations (Elections) Rules 2006, in Rule 15,while explaining about the preparation of electoral rolls, againreiterated the similar wordings of Section 44 of the DistrictMunicipalities Act. Rule 15 reads as follows:"15. Preparation of electoral roll – (1) Theelectoral roll of a ward of a Town Panchayat or ThirdGrade Municipality or Municipality or Corporation, as thecase may be (hereinafter referred to as the roll) shall beprepared with reference to the qualifying date by theElectoral Registration Officer, by integrating theparticulars in the various entries available in such partor portion thereof of the current electoral roll of theTamil Nadu Legislative Assembly and the various amendmentsissued to it, from time to time, as they relate to theward of a Panchayat Town or Transitional Area orMunicipality or Corporation or portion thereof.(2) The roll shall be divided into convenient partswhich shall be numbered consecutively.(3) There shall be a separate part or parts of therolls for each ward of a Panchayat Town or TransitionalArea or Municipality or Corporation, as the case may be.(4) The number of names included in any part of theroll shall not ordinarily exceed two thousand four hundredand in case where it exceeds two thousand four hundred, itshall be prepared in more than one part in a convenientmanner, in accordance with the directions issued by theState Election Commission, from time to time.(5) The rolls of all wards so prepared, published andput together shall form the electoral roll of the Town https://hcservices.ecourts.gov.in/hcservices/ Panchayat or Third Grade Municipality or Municipality orCorporation.Explanation – The electoral roll for a Town Panchayator Third Grade Municipality or Municipality or Corporationneed not be prepared or amended separately once theelectoral rolls of all the constituent wards have beenprepared or amended under rule 19.(6) The electoral roll shall be prepared beforeevery ordinary or casual election."15. It is true that under Rule 15(3) of the above said Ruleincludes publication and preparation of Electoral roll as a separatepart in respect of each of the ward of the Panchayat, Town orTransitional Area or Municipality or Corporation. The separate rollfor the Municipality and Corporation as stated in Rule 15(3) issubject to Section 44 of the District Municipalities Act. Therefore,the combined reading of Section 44 of the District Municipalities Actand Rule 15 of the 2006 Rules as stated above makes it clear thatwhile preparing and publishing the electoral roll for PanchayatElections, it is the duty on the part of the first respondent StateElection Commission to follow the electoral list prepared by theElection Commission of India for the previous Tamil Nadu AssemblyElection, which is in the form of photo electoral roll and whilepreparing the list for each of the ward, etc., certainly, it is theduty of the first respondent to follow the said photo electoral roll.Simply because due to the shortage of time and persons, it is notpossible to divide the combined electoral roll given by the ElectionCommission of India for the purpose of each wards, itself cannot be aground for the purpose of stating that the provisions of law need notbe followed. Merely the statement made by the learned counsel onbehalf of the first and third respondents that steps have been takento avoid manipulation or impersonation, since the electoral listwithout photo identity contains the voter identity number andtherefore it is possible for the electoral officer to avoidimpersonation at the time of poll is not a ground to say that theprovisions of Section 44 can be violated. 16. In such view of the matter, it is not possible to acceptthe contention of the learned counsel for the first and thirdrespondents that the Tamil Nadu Assembly Electoral Roll is beingfollowed on the factual matters of the case. Now that the electionis scheduled to be conducted on 07.10.2009. Hence, it may not bepossible for the first respondent in this last minute to prepare aseparate list by segregating the names of voters for each ward withphoto identity. The best method to be used at this time is that theelectoral officials should be provided with the electoral roll withphoto identity along with the electoral roll, which has been prepared https://hcservices.ecourts.gov.in/hcservices/ by the first respondent for the present election and compare the sameat the time of polling.17. Accordingly, the writ petition is disposed of with adirection to the first respondent to use the photo electoral rollissued by the Election Commission of India, which has been used inthe previous Tamil Nadu Legislative Assembly Election during the timeof Municipal election to be conducted on 07.10.2009 apart fromproviding adequate police protection for the purpose of smoothconducting of election and effecting video coverage, for which courselearned counsel for the first respondent submits that steps are takenfor that purpose. No costs. Consequently, M.P.Nos. 1 and 2 of 2009are closed.Sd/Asst.Registrar/true copy/slSub Asst.RegistrarTo1. The Secretary, Tamil Nadu State Election Commission, No.208/2, Jawaharlal Nehru High Road, Arumbakkam, Chennai2. The District Collector, Kancheepuram District, Tamil Nadu.3. The Municipal Commissioner cum Returning Officer, Alandur Municipality, Chennai – 600 061.4. The Director General of Police (Law & Order), Kamarajar Salai, Chennai, Tamil Nadu.5. The Commissioner of Police, Sub Urban Commissionarate, St. Thomas Mount, Chennai.+ 1 c.c. to Mr. I. Paranthamen, Advocate. S.R.No.51012.+ 1 c.c. to M/s. S. Vanchinathan, Advocate.S.R.No.50944.+ 1 c.c. to The Government Pleader. S.R.No.50997.Writ Petition No.20124 of 2009& M.P.Nos.1 and 2 of 2009RK (CO)GSK 06.10.2009.