The Commissioner City Municipal Corporation Coimbatore v. N.Chinnathurai & Ors.

the same before the Honourable Court pending disposal of the WP45416/2006.W.P.No.45416 of 2006:N.Chinnathurai.. Petitionervs.1. Tamil Nadu State Election Commission, Vadapalani Chennai rep. By its Secretary.2. The Commissioner City Municipal Corporation Coimbatore.3. V.P.Selvaraj4. V. Raju City Engineer Coimbatore City Municipal Corporation Coimbatore.5. Pongalur Na.Palanisamy Minister for Rural Development Fort St.George Chennai 600 009... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of Declaration as stated therein.WP 45416/2006: to declare the election of the 3rd respondent asZone Chairman West as invalid and consequently direct the respondents1 and 2 to recount the votes polled in the election held on15.11.2006 for the post of Chairman, West Zone, Coimbatore CityMunicipal Corporation.For appellant: Mr.P.S.Ramanin Writ Appeal Addl.Advocate General& R.2 in Writ for Mr.K.IlangoPetition. Asst.Solicitor General For respondents: Mr.G.Rajagopalan, Sr.Counsel for M/s.G.R.Assocaites for R.2 & R.1 respectively in Writ appeal and Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ Mr.Vijay Narayan, Sr.Counsel for Mr.J.Ravindran for R.3 in both Writ Appeal and Writ Petition. Ms.P.Selvi for R.4 in both Writ Appeal and Writ Petition. Mr.V.Srikanth for R.5 in in both Writ Appeal and Writ Petition.COMMON JUDGEMENTP.JYOTHIMANI,J.The writ appeal arises from the order passed in M.P.No.1 of 2006in W.P.No.45416 of 2006 filed by the writ petitioner for appointmentof Advocate Commissioner to take possession of the votes polled on15.11.2006 for the West Zone Chairmanship of Coimbatore CityMunicipal Corporation and deposit the same before this Court pendingdisposal of the writ petition.2. In the miscellaneous petition itself, the issue ofmaintainability of the writ petition was raised, especially by thethird respondent in the writ petition and the learned Judge, whileholding that the writ petition is maintainable insofar as it relatesto the challenge of election to the Chairman of a Wards Committee(Zone), directed the second respondent, the Commissioner of CityMunicipal Corporation, Coimbatore, who is the Returning Officer toproduce the ballot papers in the Court, since there are only 18ballot papers and the dispute relates to one ballot paper on which azigzag mark was alleged to have been made. It is, as against thesaid interim order, the Commissioner, City Municipal Corporation,Coimbatore has filed the above appeal.3. On the basis of a direction from the Division Bench, theappellant in the writ appeal, the Returning Officer produced theballot papers and other connected papers in a sealed cover before theRegistrar (Judicial) of this Court. The Division Bench, by orderdated 10.12.2008, after hearing the submissions made by both thecounsel that the matter need not be sent back to the learned Judgefor decision on the writ petition and the Division Bench itself maydecide the issue, directed the Registry to list the writ petitionalong with the writ appeal. The sealed cover in which the ballotpapers and other papers were sent by the appellant, was opened in theOpen Court on 3.4.2009 and the counsel for the appellant as well asthe respondents including the Assistant Solicitor General perused thesame, and the said cover was also placed before the Court during thetime of argument in the appeal as well as the writ petition. https://hcservices.ecourts.gov.in/hcservices/

4. For the purpose of brevity, the parties are referred to asper the ranking in the Writ Petition. The facts relevant for thepurpose of this case are that the writ petitioner, who is the firstrespondent in the appeal contested in the election to the CoimbatoreCity Municipal Corporation from Ward No.56 and was declared elected.The third respondent belonging to the ruling party, contested fromWard No.49 and he also got elected as Ward Member. The West Zone ofthe Coimbatore City Municipal Corporation consists 18 wards and theelection to the post of Chairman of West Zone was held on 15.11.2006,among the 18 elected councillors. 5. It is also stated that in respect of other zones, Chairmenwere elected unopposed. In the election of West Zone Chairman,which took place in the presence of the 2nd respondent, ReturningOfficer, the petitioner as well as the third respondent contested.The petitioner and the third respondent secured 9 votes eachresulting in a tie and ultimately there was a draw of lot, afterwhich the second respondent has declared the third respondent electedas Chairman of Coimbatore City Municipal Corporation - West Zone.Challenging the said election of the third respondent, the appellantfiled the writ petition for declaration that the election of thethird respondent as the West Zone Chairman is invalid and to directthe respondents 1 and 2 to recount the votes and pass orders.6. After going through the ballot papers as stated above,Mr.G.Rajagopalan, learned senior counsel appearing for the writpetitioner while referring to Article 243S(i) and 243 ZG(b) of theConstitution of India, has contended that it is true that theelection to Wards Committees is provided in the Constitution and suchelection shall not be questioned except by filing an electionpetition, however, as per sections 10-B and 62-A of the CoimbatoreCity Municipal Corporation Act,1981 and the Tamil Nadu TownPanchayats, Third Grade Municipalities, Municipalities andCorporation (Elections) Rules, 2006, particularly Rule 118, theremedy of filing an election petition is available only in respectof election to Wards Committee members and there is no provision forfiling an election petition regarding the election of Chairman andtherefore, it is his submission that in the absence of an effectiveremedy of filing an election petition, the petitioner had to resortto this Court by filing the writ petition under Article 226 of theConstitution of India.7. It is also his submission that when it is the admitted caseof the respondents that out of 18 votes, 9 votes have been polled infavour of the petitioner and in the remaining 9 votes, 8 votes werecast in favour of the third respondent about which there is nodispute, that in one vote, on the name of third respondent there isa zigzag mark put by the voter and the question that has to be https://hcservices.ecourts.gov.in/hcservices/ decided is as to whether such mark would indicate the intention ofthe voter to vote for/against the third respondent and if such zigzagmark is taken to be the indicative intention of the voter against thethird respondent, the further question is whether the petitionershould be declared as elected and even if it is taken in favour ofthe third respondent, there would be a tie and in such case thequestion would be as to whether the second respondent has properlyfollowed the Rules in this regard in declaring the third respondentas elected person. 8. His further contention is that the second respondent whileresolving the question of tie, had written the names of petitionerand third respondent in separate slips in the presence of theExecutive Engineer of the Corporation, the 4th respondent, and afterfolding the slips, the second respondent placed the slips in a trayand directed the Executive Engineer to pick up one and the ExecutiveEngineer who was aware of the nature of folding of paper slips, haspicked up a slip which was that of the 3rd respondent and the saidmethod is improper and therefore, there must be a fresh draw.9. On the other hand, Mr.P.S.Raman,learned Additional AdvocateGeneral appearing for the second respondent in the writ petition,viz., the Commissioner, City Municipal Corporation, Coimbatore, whois the Returning Officer and the appellant in the writ appeal hassubmitted that with reference to the disputed vote, there is nostriking of the name of third respondent and simply because a linehas been put on the name of a person, it does not mean that the voterwho is an elected councillor wanted not to elect the thirdrespondent. The intention, according to the learned AdditionalAdvocate General, has to be drawn from the overall situation. Hewould rely upon the judgment of the Supreme Court in Era Sezhiyanvs. T.R.Balu [AIR 1990 SC 838] and contend that it is the intentionof the voter which has to be taken into consideration. 10. In respect of the procedure followed by the secondrespondent, for the purpose of drawing a lot, it is his submissionthat the second respondent in his counter affidavit has stated thathe has written the names on two papers and the 4threspondent/Executive Engineer has never written the names and hence,it is not correct to state as if the allegation of the writpetitioner that the 4th respondent has seen the second respondentwriting the names on the papers has not been denied in the counteraffidavit.11. It is his further submission that irrespective of whetherthe remedy of filing an election petition is available in respect ofthe election of Chairman of West Zone, the factual allegations raisedby the writ petitioner that the 4th respondent saw the 2nd respondentwriting the names on the papers and that one State Cabinet Minister https://hcservices.ecourts.gov.in/hcservices/ sitting in the first floor was giving some direction to the 4threspondent are all matters of evidence, especially in thecircumstance that the concerned Minister has filed an affidavitdenying the same and hence, such factual assertions which requireevidence cannot be decided in the writ petition under Article 226 ofthe Constitution of India and the same can be decided only in aproper forum.12. It is also his submission that inasmuch as the election toWards Committee is provided in the Constitution, mere absence ofprocedure to file election petition in respect of Chairman electiondoes not mean that no election petition would lie. 13. Mr.Vijay Narayan, learned senior counsel appearing for thethird respondent who has been declared elected, by referring tovarious provisions of Article 243 of the Constitution of India,especially in the light of the fact that there is a non obstanticclause under Article 243ZG of the Constitution, would submit that thefiling of election petition alone is a remedy. He would also referto various provisions of the Coimbatore City Municipal CorporationAct, 1981 to substantiate his contention that the Wards Committee,being one of the authorities of the Municipality, the term 'Chairman'would also come within its fold. That apart, he would contend thatby seeing the ballot papers the intent of the voter has to beassessed on the overall situation.14. Before adverting to various provisions of the Constitutionof India as well as the Coimbatore City Municipal CorporationAct,1981, it is relevant to mention that the perusal of the ballotpapers produced before the Court by the second respondent, whichwere also perused by the counsel for all the parties, would show thatout of 18 ballot papers, nine were voted in favour of the writpetitioner while the remaining 9 votes were cast in favour of thethird respondent who was declared elected and out of 9 votes cast infavour of the third respondent, in one ballot paper it is seen thaton the name of third respondent, 'V.P.Selvaraj', a tick mark [ ] hasbeen put. The stand of the writ petitioner in the affidavit is thatit is a zigzag mark amounting to scoring out the name of the thirdrespondent. 15. On seeing the disputed ballot paper, we are sure that it isonly a tick mark which has been put after the 4th letter in the name'Selvaraj' in Tamil and we are fully satisfied that the intention ofthe voter is not to vote against the third respondent by putting across mark on his name. On the other hand, it is only a tick markafter the 4th letter in the name 'Selvaraj' and therefore, thecontention of the learned senior counsel for the petitioner that fromthe disputed ballot paper the mind of the voter cannot be ascertainedand it is doubtful and therefore, the benefit should be given to the https://hcservices.ecourts.gov.in/hcservices/ petitioner, has no meaning. 16. In this context, the further contention of the learnedsenior counsel for the petitioner that when all other voters have puttheir tick mark next to the name of the candidate, the disputed voterhas put the tick mark on the name of the third respondent andtherefore, that should be declared as an invalid vote is also liableto be rejected. Apart from seeing the said ballot paper, theintention of the disputed voter to vote in favour of the thirdrespondent can be deduced from the mark that has been put on the nameof third respondent, as the marking on the name of contestant cannotbe said to be against the voting procedure. 17. Rule 107 of the Tamil Nadu Town Panchayats, Third GradeMunicipalities, Municipalities and Corporation (Election) Rules,2006, (in short, "the Rules") framed by the Government in exercise ofits powers under Section 303 of the District Municipalities Act,1920and the other relevant provisions of the Chennai City MunicipalCorporation Act,1919, Madurai City Municipal Corporation Act,1971,etc., make it clear that a voter has to put a mark on the ballotpaper against the name or names of the candidate or candidates forwhom he wishes to vote. The Rule 107 is as follows:"Rule 107: Voting procedure.- Every Member shall, onreceiving the ballot paper, proceed to the votingcompartment for the purpose of recording his vote or votesand put a mark on it with the help of the instrumentprovided for this purpose by the Returning Officer, on theballot paper against the name or names of the candidate orcandidates for whom he wishes to vote. He shall, beforequitting the voting compartment fold up the ballot paper soas to conceal the mark and put the ballot paper so folded,into the ballot box in the presence of the ReturningOfficer."18. The Rule nowhere contemplates that the mark should be put ata particular place alone. The words, 'against the name or names ofthe candidate or candidates', should be construed that anywhere nearthe name of the candidate including on the name of the candidate themark can be put. In the absence of any specific provisioninvalidating the vote if the mark is put on the name of candidate, itis not possible to accept the contention of the learned seniorcounsel for the petitioner that the mark put on the name of thirdrespondent would make the vote invalid, especially when it is not indispute that the marking has been put on the ballot paper with thehelp of the instrument provided for the said purpose by the ReturningOfficer.19. While considering a similar case, referring to the https://hcservices.ecourts.gov.in/hcservices/ Representation of the People Act, 1951 and the Conduct of ElectionRules, 1961, particularly Rule 39(2)(b),wherein the expression usedis 'on or near the symbol of the candidate for whom he intends tovote', in S.Sivaswami vs. V.Malaikannan [AIR 1983 SC 1293], it washeld by the Hon'ble Apex Court that in such a situation when a ballotpaper bears the mark made with the instrument supplied for thatpurpose, the ballot paper cannot be rejected. The following is therelevant portion for the purpose of the present case:"7. ...... The essence of the principle incorporated inthe rule is that so long as the ballot paper bears a markmade with the instrument supplied for the purpose, theballot paper shall not be rejected as invalid, if it isreasonably possible to gather a definite indication fromthe marking as to the identity of the candidate in favourof whom the vote had been given. ......"20. Again, in Era Sezhiyan vs. T.R.Balu [AIR 1990 SC 839],while dealing with the Representation of the People Act, 1951 and theConduct of Election Rules, 1951, especially Rule 39A (2)(b) and Rule73(2)(b) & (e), in respect of Rajya Sabha election, it was held thatwhen the rule does not invalidate the marking made on the writtencolumn, the ballot paper cannot be treated as invalid. The SupremeCourt has held that it is the intention of the voter that must beculled out from the totality of the situation. The relevant portionof the judgment of the Supreme Court is as follows:"17. It is significant that in this sub-rule also thereis nothing to indicate that the preference must beindicated in the column reserved for that purpose, the onlyrequirement being that the figure 1 should be writtenopposite the name of the candidate. Similarly, sub-rule (2)(b) of Rule 73 only lays down that if the figure 1 is setopposite the name of more than one candidate or is soplaced as to render it doubtful to which candidate itapplied, the ballot paper would be invalid. Sub-rule (2) ofRule 73 deals with the invalidity of ballot papers and thatsub-rule nowhere states that merely by reason of thepreference being marked in the wrong column, if the markingis opposite the name of the candidate concerned, the ballotpaper shall be rendered invalid. It is true that the columnin which the preference should have been marked andintended for that purpose was the column on the right-handside of the first column where the name of the candidatewas to be put; but there is no express provision to theeffect that unless the preference is marked in the correctcolumn, the ballot paper would be invalid. In such asituation, the principle enunciated by this Court inseveral judgments and reiterated in S. Sivaswami v. V. https://hcservices.ecourts.gov.in/hcservices/ Malaikannan (AIR 1983 SC 1293), that the primary task ofthe court in a case where the question is whether theballot paper is invalid is to ascertain the intention ofthe voter, must be applied. In that case, the court heldthat the ballot paper shall not be rejected as invalid ifit is reasonably possible to gather a definite indicationfrom the marking so as to identify the candidate in favourof whom the vote had been intended to be given. This, ofcourse, is subject to the rule that before a ballot paperis accepted as valid the ballot paper must not be invalidunder any other express provision and the intention of thevoter must not be expressed in a manner which is contraryto or totally inconsistent with the manner prescribed underthe said Act or the Election Rules for expressing the same.In the case of the said three votes in question, the figure1 was clearly marked opposite the name of respondent 1,being the candidate concerned, as required by the expressprovision of the said Rule 37-A and the intention of thevoter was clearly to cast the first preference in favour ofrespondent No. 1. In these circumstances, the ballot paperswere rightly accepted by the Returning Officer as valid andthe High Court was justified in coming to the conclusion towhich it has arrived."21. In these circumstances, it is not possible to hold that thedisputed ballot paper should be construed to be invalid. Thenecessary consequence is that both the petitioner and the thirdrespondent have secured equal number of votes viz., 9 votes each.In such circumstances, when there is equal number of votes betweentwo candidates, Rule 112 of the above said Rules enables theReturning Officer to draw a lot in the presence of the members and todeclare the result. Rule 112(1)(a) is as follows:"Rule 112. Declaration of result of election.-(1)(a) In the case of election under this part, if thenumber of candidate is two, the candidate who obtains thelargest number of votes shall be declared to have beenduly elected. In the case of there being an equality ofvotes between the two candidates and the addition of onevote to any of such candidate will entitle him to bedeclared duly elected, the Returning Officer shall draw alot in the presence of the member present and thecandidate whose name is drawn shall be deemed to have theadditional vote and shall be declared to have been dulyelected." 22. It is not in dispute that the Returning Officer, the second https://hcservices.ecourts.gov.in/hcservices/ respondent, has followed the said Rule 112. The allegation of thepetitioner as it is seen in the affidavit filed in support of thewrit petition is that the second respondent, the Returning Officer,while deciding to go for a lot, wrote on the lot papers in thepresence of 4th respondent, the Executive Engineer of theCorporation. It is his further allegation that at that time, theState cabinet Minister Mr.Pongalur Na.Palanisami, who was sitting inthe first floor of the building gave certain directions by signs fromtime to time. It is the allegation of the petitioner that he hadsuggested that one of the 18 Ward Members or an outsider could bepermitted to pick up the lot, in spite of which the secondrespondent, directed the fourth respondent, the Executive Engineer ofthe Corporation to pick up the lot. It is the petitioner's casethat he protested the same since, according to him, the 4threspondent knew what was written on the folded papers and therefore,he should not be permitted to pick up the lot and in spite of it, thefourth respondent was allowed to pick up the lot and consequently,the name of third respondent was picked up and he was declared aselected Chairman of the West Zone. 23. The second respondent in the counter affidavit dated27.11.2006 filed in the writ petition has clearly stated that he hasprepared the lot in the presence of both the writ petitioner and thethird respondent and placed it in a tray and since he happened to bethe Returning Officer, he requested the 4th respondent Mr.S.Raju,Executive Engineer, Coimbatore City Municipal Corporation to pick upthe lot. It is also stated by him that all the Ward Membersincluding the writ petitioner and the third respondent haveunanimously agreed for the 4th respondent to pick up the lot andaccordingly, he picked up the lot. Following is the relevant portionof the counter affidavit:"6. The allegations and averments made in paragraph 5are denied as incorrect, baseless and unsustainable. Asboth the candidates have got equal votes, I have no optionexcept to proceed with the election under rule 112 of theabove referred Election Rules and draw a lot in thepresence of both the contestants and other ward members. Ihave accordingly prepared the lots in presence of both theWrit petitioner and the 3rd respondent and placed it in atray. Since I am the Returning Officer for the saidelection, I did not want to directly participate in pickingup the lot. Therefore, Mr.V.Raju, City Engineer of theCoimbatore City Municipal Corporation was asked to pick thelot. All the ward members including the writ petitioner aswell as the 3rd respondent have unanimously agreed toMr.V.Raju, the City Engineer of the Coimbatore CityMunicipal Corporation to pick the lot. Accordingly he haspicked up a lot in which the 3rd respondent name was found. https://hcservices.ecourts.gov.in/hcservices/ Therefore as Returning Officer, I have declared the 3rdrespondent as an elected chairman of ward committee, WestZone of this Corporation. At no point of time, thepetitioner has made the allegation that the State CabinetMinister, Mr.Pongalur Na.Palanisamy was sitting in thefirst floor of the building giving directions from time totime is denied as false and baseless. From the beginningto the end of the election process no one was permitted toenter into the premises where the election was conducted. "24. The third respondent also raised similar averments in hiscounter affidavit dated 14.12.2006. Mr.Pongalur Na.Palanisami,against whom certain allegations have been made by the petitioner asstated above, has also filed an affidavit dated 20.12.2006 stating,"I was not in the Municipality when the election to the ZonalChairman post was conducted. I submit that I did not give directionsto the 4th respondent about the conduct of election held on15.11.2006." He has also stated that he was not aware as to whathappened to the election of Zonal Chairman post which was held on15.11.2006. It is true that in the reply affidavit filed by thepetitioner dated 2.2.2007, he has elaborated that the 4th respondent,the Executive Engineer was aware of what was written in the slips.In fact, in the reply affidavit the petitioner has stated that thesecond respondent, the Returning Officer, while preparing the lot,rolled one paper and folded the other in the presence of the 4threspondent and therefore, he knew what was written in the paperslips. The said two papers written by the 2nd respondent, alsoformed part of the original records sent to the Court in the sealedcover and the counsel for the respective parties have also perusedthe same. A perusal of the paper slips makes it clear that both thepapers, in one the name of Selvaraj has been written and in another,the name of Chinnadurai is written, were rolled and there is nothingto show that out of two, one was folded and another was rolled.25. In any event, the allegations of the petitioner that onepaper slip was folded and another was rolled and in both the slipsnames were written in the presence of 4th respondent, the ExecutiveEngineer and the said 4th respondent was instructed by a StateCabinet Minister, cannot be gone into with the affidavits filed inwrit petition as the same depends upon appreciation of evidencewhich cannot certainly be possible under Article 226 of theConstitution of India, especially when the specific case of thesecond respondent in the counter affidavit is that when it wasdecided to ask the 4th respondent to pick the lot, it was unanimouslyaccepted by the Ward Members who were present there, including thepetitioner and the third respondent. 26. In this regard, the contention of the learned senior counselfor the petitioner that the case of the petitioner in the affidavit https://hcservices.ecourts.gov.in/hcservices/ is that the 4th respondent was present at the time when the 2ndrespondent was writing the names of petitioner and third respondentin two paper slips and that is not denied by the second respondent inthe counter affidavit and therefore, it should be taken that theallegation of the petitioner is accepted, cannot be countenanced,especially when it is the case of the second respondent that thechoice of 4th respondent was unanimously accepted by all andtherefore, it is not possible to reject the method of lot followed bythe second respondent. 27. The Municipal Corporation of Coimbatore has been constitutedas per the provisions of Article 243Q (1)(c) of the Constitution ofIndia. Article 243S of the Constitution provides for theconstitution of Wards Committee and enables the State legislature tomake provision for the manner in which the seats in the WardsCommittee are to be filled up and also provides for the election ofChairperson of Wards Committee consisting of two or more Wards.Article 243S of the Constitution of India is as follows:"243S. Constitution and composition of WardsCommittees, etc.-(1) There shall be constituted Wards Committees,consisting of one or more Wards, within the territorialarea of a Municipality having a population of three lakhsor more.(2) The Legislature of a State may, by law, makeprovision with respect to-(a) the composition and the territorial area of aWards Committee;(b) the manner in which the seats in a WardsCommittee shall be filled.(3) A member of a Municipality representing a wardwithin the territorial area of the Wards Committee shallbe a member of that Committee.(4) Where a Wards Committee consists of-(a) one ward, the member representing that wardin the Municipality; or(b) two or more wards, one of the membersrepresenting such wards in the Municipality elected by themembers of the Wards Committee, shall be the Chairpersonof that Committee.(5) Nothing in this article shall be deemed to preventthe Legislature of a State from making any provision forthe Constitution of Committees in addition to the WardsCommittees."28. Article 243ZG with a non obstante clause makes it clearthat no election should be questioned except by filing an electionpetition. The said Article is as follows: https://hcservices.ecourts.gov.in/hcservices/ " 243 ZG. Bar to interference by courts in electoralmatters.- Notwithstanding anything in this Constitution,-(a) the validity of any law relating to thedelimitation of constituencies or the allotment of seats tosuch constituencies, made or purporting to be made underarticle 243ZF shall not be called in question in any Court;(b) no election to any Municipality shall be called inquestion except by an election petition presented to suchauthority and in such manner as is provided for by or underany law made by the Legislature of a State."29. Therefore, it is clear that as per the constitutionalmandate, when the Wards Committee consists two or more Wards, thereshall be a Chairperson of that Committee and such Chairperson iselected by the Members of the Wards Committee from among them. It isalso clear that the term, 'Wards Committee' includes its Chairperson,in case where there are more than one Ward and Chairperson is electedby the Members of the Wards Committee and there is no difficulty toconclude that the election to municipality includes not only theelection of members of the council, but also the election of theChairperson among the council members.30. By virtue of the constitutional provision stated above, theCoimbatore City Municipal Corporation Act, 1981 has been enacted.Under section 3 of the said Act, sub-section (1) provides for aMunicipal Corporation, Coimbatore, as follows:"3. The municipal authorities and their incorporation.-(1) There shall be a corporation charged with themunicipal government of the City of Coimbatore to be knownas the Municipal Corporation of Coimbatore."while sub-section (3) provides for 'Wards Committee' apart fromcouncil, standing committees, commissioner, etc., which is asfollows:"(3) For the efficient performance of the functions ofthe corporation there shall be the following municipalauthorities of the corporation, namely:-(a) a council,(b) standing committees,(bb) the wards committee, and(c) a commissioner"Out of the four categories, except the Commissioner, the council,standing committees and ward committees are elected bodies. 31. Section 5A speaks about the constitution of Ward Committees. https://hcservices.ecourts.gov.in/hcservices/ Sub-section (2) of Section 5A is as follows:"5-A. Constitution of ward committees:- (1) ....(2) Each wards committee shall consists of-(a) all the councillors of the corporationrepresenting the wards within the territorial area of thewards committee; "It also contemplates that all councillors of the Corporationrepresenting Wards within the territorial area are the WardsCommittee members. The Chairman of Wards Committee is elected amongthe councillors of the Wards Committee which is provided undersection 10B of the Act, which is as follows:"10B. Election and term of office of chairman of wardscommittee.-(1) The chairman of the wards committee shall beelected by the councillors of the wards committee fromamong themselves after each ordinary election to thecouncil in such manner as may be prescribed.(2) The chairman of the wards committee shall holdoffice till the duration of the wards committee.(3) Any casual vacancy in the office of the chairmanof the wards committee shall be filled up in such manneras may be prescribed and the chairman elected in any suchcasual vacancy shall hold office only so long as theperson in whose place he is elected would have beenentitled to hold office if the vacancy had not occurred."32. The election petitions are contemplated under section 62A ofthe Act which is as follows:"62-A. Election petitions.-(1) No [election of Mayor orCouncillor] shall be called in question except by anelection petition presented to the District Judge, havingjurisdiction within [forty five days] from the date ofpublication of the result of the election under section 67.(2) An election petition calling in question any suchelection may be presented on one or more of the groundsspecified in section 62-B by any candidate at suchelection, by any elector of the wards concerned or by anycouncillors.(3) A petitioner shall join as respondents to hispetition all the candidates at the election.(4) An election petition-(a) shall contain a concise statement of the https://hcservices.ecourts.gov.in/hcservices/ material facts on which the petitioner relies;(b) shall, with sufficient particulars set forththe ground or grounds on which the election is called inquestion; and(c) shall be signed by the petitioner andverified in the manner laid down in the Code of CivilProcedure,1908 (Central Act V of 1908) for the verificationof pleadings.[(5) The trial of an election petition shall, so faras is practicable consistently with the interest of justicein respect of the trial, be continued from day to day untilthe conclusion, unless the District Judge finds theadjournment of the trial beyond the following day to benecessary for reasons to be recorded.(6) Every election petition shall be tried asexpeditiously as possible and endeavour shall be made toconclude the trial within six months from the date on whichthe election petition is presented to the District Judgefor trial.]"33. The contention of the learned senior counsel for thepetitioner in the writ petition is that the said section provides forelection petition only in respect of Mayor or councillor and there isno provision for election petition in respect of Chairperson of WardsCommittee.34. By virtue of the rule making powers contemplated undersection 430 of the Act, the Tamil Nadu Town Panchayats, Third GradeMunicipalities, Municipalities and Corporations (Election) Rules,2006 were framed by the Government. Rule 96 provides for election ofChairman of Wards Committee, which is as follows:"Rule 96. Election of Chairman of Wards Committee.- TheChairman of the Wards Committee shall be elected by andfrom among the elected councillors of the wards comingunder the jurisdiction of the wards committee in the mannerprescribed in the rules at an election meeting speciallyconvened for this purpose."35. The procedure for election of Chairman by secret ballot iscontemplated under rule 102 which is as follows:"Rule 102. Procedure of election when there iscontest.- (a) In the case of an election under this part, wherethe number of candidates is more than one, the votes of themembers present at the meeting shall be taken by secretballot in the manner laid down in the following rules:- https://hcservices.ecourts.gov.in/hcservices/ (b) In the case of election of members of theStatutory Committee, if the number of candidates referredto in sub-rule (3) of Rule 100 is more than the number ofmembers to be elected, the votes of the members present atthe meeting shall be taken by secret ballot in the mannerlaid down in the following rules."36. The procedure for continuing the election has been explainedin various rules viz., Rules 103, 104, 105, 106 and 107. As statedsupra, Rule 112 contemplates for drawing a lot in case the voters aredivided equally. Rule 118 which speaks about election petition is asfollows:"Rule 118. Election Petitions.- Save as otherwiseprovided, no election held under the Act, shall be calledin question except by an election petition presented inaccordance with the relevant section of the Act and theserules, to the Principal Judge, City Civil Court, Chennai orthe District Judge of the District concerned, as the casemay be (hereinafter referred to as the Election court)under whose jurisdiction the Panchayat Town or theTransitional Area or Municipality or Corporation issituated, by any candidate or elector against the candidatewho has been declared to have been duly elected. Explanation.- In this rule 'elector' means a personwho was entitled to vote at the election to which theelection petition relates, whether he has voted at suchelection or not."37. By reading the rules in consonance with Part VIII of theabove said Rules relating to the election of Chairman, the office ofchairman, etc., there is no difficulty to conclude that the electionof Chairperson is covered under Rule 118, which provides forelection petition. In the overall context of the term 'council'which includes the term 'Chairperson' which is also constitutionallymandated as contemplated in Article 243S(4) of the Constitution ofIndia, it cannot be said that election of the Chairperson of WardsCommittee is not covered under section 62A of the Coimbatore CityMunicipal Corporation Act, 1981, simply because it refers to theelection of Mayor or Councillors only. 38. A harmonious construction of the provisions of theConstitution of India, as well as section 62A of the Coimbatore CityMunicipal Corporation Act and Rule 118, as elicited above, makes itclear that the term, 'election petition' includes the election ofChairman of Wards Committee, which can be said to be the necessaryand proper construction on the overall position as stated above,especially when the Chairman of the Wards Committee himself is one ofthe members of the Wards Committee who are the councillors elected, https://hcservices.ecourts.gov.in/hcservices/ following the election process as provided in the Coimbatore CityMunicipal Corporation Act. In such view of the matter, it cannot besaid as if the petitioner has no effective alternative remedy. 39. In any event, considering the factual assertions asexplained above, the dispute which falls within the narrow compass oflot method followed by the second respondent and the manner in whichthe lot was conducted resulting in the declaration of 3rd respondentas the Chairman of the Wards Committee, are all matters which can bedecided only on appreciation of evidence and not by reference toaffidavits filed in the writ petition. Even if such remedy of filingelection petition is not available to the petitioner, it is not as ifthe petitioner is left in lurch as he is entitled to approach theCivil Court under the common law available to every citizen of thecountry. In such view of the matter, the writ petition as such isnot maintainable and the same is dismissed, however, with liberty tothe petitioner to work out his remedy available in law. No costs. In view of the judgment in the writ petition, no further orderis necessary in the writ appeal and accordingly, it is dismissed. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhTo1. The Secretary Tamil Nadu State Election Commission, Vadapalani Chennai.2. The Commissioner City Municipal Corporation Coimbatore.+1cc to Mr.K.Elangoo, Advocate Sr 16503+1cc to Mr.G.R.Associates Sr 16509SSN(CO)km/28.4. WRIT APPEAL NO.594 of 2007AND WRIT PETITION NO.45416 OF 2006