Chellappa Pillai v. I. Sivasubramanian

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.04.2011CoramTHE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO ANDThe HONOURABLE MR.JUSTICE K.K.SASIDHARANW.A.No.330 of 2008& M.P.No.1 of 2008 Chellappa Pillai : Appellant/3rd Respondentvs.

I. Sivasubramanian2. The Special Commissioner and Commissioner of Land Administration Disaster and Disaster Relief Department Ezhilagam Chennai-600 005.

The District Collector Kanyakumari District Nagercoil. : Respondents/Petitioner &1st and 2nd RespondentPRAYER Writ appeal against the order dated 11 February 2008 inW.P.No.34721 of 2005 on the file of this Court.W.P.No.34721 of 2005: Petition filed under Article 226 of the constitution of India for the issuance of writ of Certiorari calling for the records of the first respondent in his order dated 6.10.2005in his proceeding No.Na.Ka.Va.Ni.6(2)/20241/2004 which so far as setaside of petitioner selection a president of Thovalai Channel NeerieniPayanpuduthuvoor sangam (Thovalai Channel Organised Water UsersAssociation) and quash the same. For appellants : Mr.R. Subramanian https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.G.Vasudevan for R1 Mr.G.Desingh Special Government Pleader JUDGMENTK.K.SASIDHARAN, JThis writ appeal is directed against the order dated 11 February,2008 in W.P.No.34721 of 2005 whereby and whereunder the learnedSingle Judge was pleased to quash the order dated 6 October 2005 on the file of Special Commissioner and Commissioner of LandAdministration and restored the presidentship of the first respondent.

The second respondent by invoking Section 47 of the Actset aside the election as per order dated 6 October 2005. Feelingaggrieved by the said order, the first respondent filed writ petition https://hcservices.ecourts.gov.in/hcservices/ in W.P.No.34721 of 2005.

The learned Single Judge opined that the second respondent was not having the authority to take up the election petition. Accordingto the learned Judge the revisionary powers of the Commissioner would not enable him to take up election disputes. The learned Judge also considered the merits of the matter and arrived at a factual finding that incorrect description of particulars would not result in rejection of nomination. Accordingly, the writ petition was allowed. Dissatisfied with the said order, the unsuccessful third respondent inW.P.No.34721 of 2005 has come up with this appeal. Submissions:

The learned counsel for the appellant contended that the Commissioner was given revisional powers under Section 47 of the TamilNadu Farmers' Management of Irrigation Systems Act, 2000 and as such the authority was well within its powers to consider the election dispute. According to the learned counsel, the second respondent would not come under the definition "water user" and as such he was not eligible to hold the post of President. The learned counsel further contended that in the absence of a machinery provided under the Act to decide the election disputes, the unsuccessful candidate has no other remedy than to approach the Commissioner under Section 47of the Act.7. The learned counsel for the first respondent justified the order passed by the learned Single Judge. Discussion:

The appellant and the first respondent were the members of Thovalai Channel Neerieni Payanpuduthuvoor Sangam. The name of the first respondent was found included in the electoral roll prepared by the competent authority. It is a matter of record that the first respondent secured 594 votes and the appellant was able to secure only150 votes. It is also admitted that the appellant originally filed an Election Petition before the District Court, Kanyakumari District in Election O.P.No.58 of 2004. We are informed that the election O.P.was later dismissed as "not pressed" and immediately the revision petition was filed.

The core question is whether the Commissioner was justified in invoking the revisional powers under Section 47 of the Tamil NaduFarmers' Management of Irrigation Systems Act, 2000. The Statute:

Section 47 of the Tamil Nadu Farmers' Management of https://hcservices.ecourts.gov.in/hcservices/ Irrigation Systems Act, 2000 reads thus: "47. The Commissioner may, either on his own motion or on application made, call for and examine the records of any farmers organisation oras the case may be, the records of the ApexCommittee in respect of any decision, order, orother proceedings made under this Act, to satisfy himself as to the correctness, legality or propriety of any such decision or order, or as to the regularity of such proceedings and if, in any case, it appears to the Commissioner that such decision, order or proceedings should be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly. Provided that the Commissioner shall not pass any order prejudicial to any person unless he has been given an opportunity of making arepresentation. "

Section 47 of Act gives general power of supervision to the Commissioner in respect of any decision, order or other proceedings made under the Act. So it is essentially a supervisory jurisdiction. It is true that the Act and the Rules do not contain a machinery constituted for the purpose of resolution of election disputes. However, it is not as if there is no reference made in the Rules about the election dispute.

The election was conducted in accordance with the Tamil NaduFarmers' Management of Irrigation Systems Election Rules, 2003. Theelection Rules contain detailed provisions as to how the voters list should be prepared, manner of voting, conduct of poll, rejection of ballot papers and disposal of ballot papers.

Rule 54(1) deals specifically with the disposal of ballot papers. The said provision reads thus: "54(1) The Returning Officer shall, after declaring the results cause topreserve all the packets of ballot papers, whether counted, rejected or tendered. These packets shall not be opened and their contents shall not be inspected or produced except under the orders of an authority competent to decide election disputes. "

Rule 54(1) gives a clear indication that an authority should be constituted to decide election disputes. However no such authority https://hcservices.ecourts.gov.in/hcservices/ was constituted by the Government. In the absence of a notification constituting the Election Tribunal, it was not open to the Commissioner to exercise the revisional jurisdiction and decide the election disputes.

Election Tribunal should be constituted by the Governmentand only such a Tribunal can decide the election disputes. TheGovernment is given power under Section 50(1) of the Act to make Rulesto carry out all or any of the purposes of the Act. It was only in exercise of the said power, the Government have framed the ElectionRules. Even though detailed procedures were incorporated for the purpose of conducting the election, very strangely no provision was inserted to constitute a machinery to decide the election disputes. The controversy has arisen only because of this. However, that does not mean that the revisional authority, who was not authorised to takeup election disputes, could take up such dispute in the absence of anotification constituting the Election Tribunal.

The revisional powers given to the Commissioner was for adifferent purpose. The provision does not deal with election disputes. The election dispute cannot be taken up by an authority unless there is a proper notification appointing him as the competent authority to resolve the dispute. In the absence of any such notification, it was not proper on the part of the Commissioner to assume the jurisdiction to take up the election dispute and decide the same on merits. Therefore, the learned Single Judge was fully justified in his observation that the Commissioner has no jurisdiction to take up the election dispute. It is for the Government to constitute an authority to decide the election dispute invoking its rule making power under Section 50(1) of Tamil Nadu Farmers'Management of Irrigation Systems Act, 2000.

Since we are convinced that the Commissioner has no power under Section 47 of the Tamil Nadu Farmers' Management of IrrigationSystems Act, 2000 to decide the election disputes, there is no need to consider the other issues raised by the appellant on merits. Thelearned Single Judge has decided the issue of jurisdiction correctly and no interference is called for in the said order.18. In the upshot, we dismiss the writ appeal. Consequently the connected MP is closed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ Tr/ To1. The Special Commissioner and Commissioner of Land Administration Disaster and Disaster Relief Department Ezhilagam Chennai-600 005.2. The District Collector Kanyakumari District Nagercoil.+1cc to Govt. Pleader Sr 30711+1cc to M/s. R.Subramanian, Advocate Sr 30851+1cc to M/s.G.Vasudevan, Advocate Sr 30860KJI(CO)km/4.5.W.A.No.330 of 2008