E.Palani v. The Tamil Nadu State Election Commission, Rep. by its Commissioner & Ors.

In the High Court of Judicature at MadrasDated : 10.12.2011Coram :The Hon'ble Mr.Justice D.MURUGESANandThe Hon'ble Mr.Justice N.KIRUBAKARANW.P.No.24970 of 2011and M.P.No.1 of 2011E.Palani.. Petitioner -vs-1. The Tamil Nadu State Election Commission, Rep. by its Commissioner, No.208/2, Jawaharlal Nehru Road, Opposite CMBT, Arumbakkam, Chennai.2. The District Election Officer/ The District Collector, Salem.3. The Panchayat Electoral Registration Officer/The Commissioner of Salem Panchayat Union, Steel Plant Road, Salem.4. The Returning Officer/ The Block Development Officer, Salem.5. N.A.Sekar.. Respondents Petition filed under Article 226 of the Constitution of Indiapraying for issue of writ of certiorari to call for the entirerecords relating to the impugned proceedings in Na.Ka.No.1561/2011/T4dated 24.10.2011 from the file of the 4th respondent, quash the same.For Petitioner:Mr.D.ShivakumaranFor respondents:Mr.A.NavaneethakrishnanAdv. General for R-1:Mr.R.Vijayakumar, Addl.G.P. For RR2 to 4:Ms.A.Sujatha for R-5 https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by D.MURUGESAN, J.)The writ petition raises an important question as to whether theReturning Officer of an election to the Ward Member of a Panchayat isentitled to conduct re-election after announcing the result anddeclaring the contesting candidate, to whom largest number of voteswere polled, as elected and also certifying the Return in thenecessary form as per the first election.2.The petitioner contested to the post of Ward Member in WardNo.6 of Vattamuthampatti Panchayat of Salem Panchayat Union in theelection held on 17.10.2011. The fifth respondent was also acontestant. The counting of votes was held on 21.10.2011 and in thecounting, the petitioner and the fifth respondent had secured 68votes each out of total 225 votes. As per Rule 67 (3) (c) of theTamil Nadu Panchayats (Elections) Rules, 1995, which is applicable tothe election in question, if there is an equality of votes betweentwo or more contesting candidates, and the addition of one vote willentitle any of the candidates to be declared elected, the returningOfficer shall decide between the candidates by lot and the candidateon whom the lot falls shall be deemed to have received an additionalvote and the Returning Officer shall then declare the resultaccordingly.3.In terms of the above rule, the Returning Officer hadconducted the lot between the petitioner and the fifth respondent.It is not in dispute that after the said lot, the petitioner wasdeclared elected and the Return in Form 26 signed by the ReturningOfficer was also furnished to the petitioner, as could be seen fromthe copy of Form-26 annexed in the typed set of papers at Page 1.But, after sometime, the Returning Officer had announced that the lotwould be again held on 24.10.2011 at 12 noon and on that day, thefifth respondent was declared elected and he was issued with acertificate dated 24.10.2011 in Form 26.4.The contention of Mr.Shivakumaran, learned counsel appearingfor the petitioner, is that the Returning Officer, after completingthe formulaties in terms of Rule 67, particularly Rule 67 (3) (c) byconducting a lot, declaring the election and certifying the Return inForm 26 and also furnishing the same to the petitioner, he/she willbecome functus officio and has no jurisdiction to order a re-election. In that sense, the declaration of the fifth respondent on24.10.2011 is without jurisdiction. https://hcservices.ecourts.gov.in/hcservices/

5.Mr.R.Vijayakumar, learned Additional Government Pleaderappearing for respondents 2 to 4 would, on the other hand, submitthat as the petitioner and the fifth respondent had secured equalnumber of votes, in terms of the Panchayats (Elections) Rules, lotwas conducted and the petitioner was declared elected and thenecessary form was also issued. However, having noticed that at thetime of lot, the fifth respondent was not present, the ReturningOfficer again directed the election to be held on 24.10.2011. Theprocedure adopted by the Returning Officer, therefore, cannot befound fault with.6.Ms.A.Sujatha, learned counsel appearing for the fifthrespondent would submit that after announcing the equal number ofvotes polled for both the petitioner and the fifth respondent, theReturning Officer has informed the candidates that the election wouldbe held on 24.10.2011. In view of the said intimation, the fifthrespondent left the counting place and after he left the place, thepetitioner had forced the Returning Officer to certify the Return asif the election was conducted by lot, in which the petitioner hadbeen declared elected. Therefore only an objection was made to theReturning Officer, which had resulted in the Returning Officer toconduct the poll on 24.10.2011, on which date the petitioner hadfailed to appear and during the lot, the fifth respondent had beendeclared elected. In support of the above submission, the learnedcounsel would rely upon the counter-affidavit of the ReturningOfficer, the fourth respondent, wherein he has stated that thepetitioner had forced him to declare the results by lot on 21.10.2011itself.7.We have considered the above submissions. The issue to beconsidered is only with reference to the rules relating to theconduct of election to the ward member of a village panchayat. Rule67 (3) (a) empowers the Election Officer to count the votes and afterscrutiny, to declare the election of the contesting candidate, towhom the largest number of valid votes have been given and completeand certify the return in form 24 and send the signed copy to theDistrict Election Officer and the State Election Commission. In theevent, two or more candidates secured equal number of votes, theReturning Officer should follow Rule 67 (3) (c) wherein the ReturningOfficer is empowered to decide between the candidates by lot and thecandidate on whom the lot falls, shall be deemed to have received anadditional vote and thereafter, the Returning Officer should declarethe result accordingly.8.Rule 67 (3) (c) contemplates a deeming provision whereby acandidate in whose favour the lot falls shall be deemed to havereceived an additional vote. The facts of the case are that as thepetitioner and the fifth respondent had received equal number ofvotes, the Returning Officer had followed Rule 67 (3) (c) and lot was https://hcservices.ecourts.gov.in/hcservices/ conducted, in which the petitioner had been declared elected and hadalso been issued with the Return Form certified by the ReturningOfficer. The conduct of lot at the first instance is disputed by thefifth respondent. This takes us to two questions, viz., 1) in theevent if the first lot conducted is disputed, the same could be aground for this Court to go into that question or leave the candidateraising that contention to work out the remedy by filing an electionpetition; and 2) whether after the declaration was made, theReturning Officer would have jurisdiction to conduct another election.9.As far as the second question, which we would prefer toconsider first, is concerned, a reading of the rule would show thatafter declaration of results and the Returning Officer certifying thereturn in the necessary form, such Returning Officer will becomefunctus officio and thereafter, he cannot order for re-election. Inthe event, the Returning Officer is of the view that the electioncould not be conducted in a free and fair manner in view of theinterventions, the course open to the Returning Officer is to stopthe election and report to the District Election Officer or the ChiefElection Commissioner and after instructions from the State ElectionCommission, a re- election could be conducted on a notified date.There is no provision under the Tamil Nadu Panchayats (Elections)Rules for the Returning Officer to direct re-election. In view ofthe same, the Returning Officer, after conducting election on21.10.2011 followed by a lot on the same day and having issued Form26, has no power to order re-election.10.Even assuming for the sake of argument that the ReturningOfficer would have such power and for considering the first issue, wemay point out that issuance of declaration form in favour of thepetitioner on 21.10.2011 is disputed by the fifth respondent. Whenonce the said dispute is raised by the fifth respondent, then it isfor the fifth respondent to approach the Election Tribunal andestablish the same by way of producing evidence and consequently,seeking for declaration of the election as null and void. As we haveheld that the Returning Officer has no power to order re-electionafter declaring the results and after issuing the necessary form, theelection held on 24.10.2011 is not valid in the eye of law and forthat reason, the declaration of the fifth respondent as having beenelected as a ward member of the panchayat in question cannot also besustained.11.In view of the above reasoning, we find force in the writpetition. Accordingly, the writ petition is allowed. The electionof the fifth respondent as declared on 24.10.2011 is set aside andthe declaration of the petitioner as having been elected as theMember of the Ward in question as declared by the Returning Officeron 21.10.2011 by issuance of certificate in prescribed form issustained. We have not expressed any opinion on the disputedquestion relating to the election conducted by the Returning Officer https://hcservices.ecourts.gov.in/hcservices/ by way of lot on 21.10.2011 and it is for the fifth respondent towork out his remedy by filing appropriate petition before theElection Tribunal in accordance with law. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarsraTo1. The Commissioner, The Tamil Nadu State Election Commission, No.208/2, Jawaharlal Nehru Road, Opposite CMBT, Arumbakkam, Chennai.2. The District Election Officer/ The District Collector, Salem.3. The Panchayat Electoral Registration Officer/The Commissioner of Salem Panchayat Union, Steel Plant Road, Salem.4. The Returning Officer/ The Block Development Officer, Salem.1 cc to Mr.D.Shivakumaran , Advocate, Sr.No.757731 cc to M/s.A.Sujatha, Advocate, Sr.No.757681 cc To Government Pleader, SR.No.75642W.P.No.24970 of 2011nm(co)pmk.21.12.2011