High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.07.2007CORAM:THE HONOURABLE MR.JUSTICE A. KULASEKARANWP.No.3147/2007MP.Nos.1 and 2/2007K. MUNUSAMY Petitioner Vs1 THE STATE ELECTION COMMISSIONER TAMILNADU STATE ELECTION COMMISSION NO.6 REVATHY STREET 100 FEET ROAD VADAPALANI CHENNAI 262 THE DISTRICT ELECTION OFFICER/ DISTRICT COLLECTOR KRISHNAGIRI DIST3 THE RETURNING OFFICER / COMMISSIONER PANCHAYAT UNION OFFICE VEPPANAPALLI KRISHNAGIRI TALK AND DIST4 MANJUNATHAN THADATHADA VILLAGE N.THASIRAPALLI POST KRISHNAGIRI TALUK KRISHNAGIRI DISTRespondents Prayer:- This Writ Petition is filed under Art.226 of theConstitution of India to issue a Writ of CertiorarifiedMandamus to call for the records of the 3rd respondent inproceedings in Na.ka.1527/06/A4 dated 18.10.06 and quash thesame and consequently direct the respondents 1 to 3 to giveeffect to the declaration certificate issued to the petitionerdated 18.10.06 and administer oath of office to the petitionerfor the post of President of the Naduvanaalli Village PanchayatKrishnagiri District.For Petitioner:Mr.P.H.Manoj PandianFor Respondents:Mr.I.Paranthaman, AGP -RR1&2Mr.K.Ilango, SGP-R3Mr.J.Ravindran -R4 https://hcservices.ecourts.gov.in/hcservices/ ORDER 1.The Petitioner and the 4th Respondent had contested for theelection of President of Naaduvapalli Village Panchayat heldon 13.10.2007 and the counting was held on 18.10.2006 in theVeppanapalli High Secondary School. It is the case of thePetitioner that after the completion of counting of votes andrecording the total number of votes secured by each candidatein Form No.22, the 3rd Respondent had announced that thePetitioner had secured 1056 votes and the 4th Respondent hadsecured 1055 votes and that thereafter, the 4th Respondenthad demanded for recounting, which was accepted andrecounting was done, in which also it was declared that thePetitioner had secured 1056 votes and the 4th Respondent hadsecured 1055 votes; that once again one more recounting forthe second time was sought for by the 4th Respondent, whichwas also acceded by the 3rd Respondent; that even in thesecond recounting, it was confirmed that the Petitioner hadsecured 1056 votes and the 4th Respondent had secured only1055 votes and thereafter, the 3rd Respondent had issueddeclaration certificate as contemplated under Rule 69 of theTamil Nadu Panchayat (Election) Rules 1995, which was alsostated to be communicated to the State Election Commission aswell as to the District Election Officer and that on23.10.2006 at about 6.00 p.m, i.e. the date on which takingoath of office was scheduled by the State ElectionCommission, the Petitioner came to know that the 3rdRespondent had issued same declaration certificate in favourof the 4th Respondent and hence, this Writ Petition has beenfiled.2.The case of the 3rd Respondent is that after completion ofcounting, it was confirmed that the Petitioner had secured1056 votes and the 4th Respondent had secured 1055 votes andhence, declaration certificate was issued by the 3rdRespondent in favour of the Petitioner and that thereafter,the 4th Respondent had demanded for recounting, for which thePetitioner also had agreed to and that in the recounting, the4th Respondent had secured highest number of votes and hence,the 3rd Respondent had declared that the 4th Respondent hadwon the election and necessary declaration certificate inForm No.25 was also issued to the 4th Respondent aftercancelling declaration certificate issued to the Petitioner.3.The case of the 4th Respondent is that on 18.10.2006 at about3.00 p.m, the 3rd Respondent had announced that thePetitioner had secured 1056 votes and the 4th Respondent hadsecured 1055 votes and immediately after counting of voteswas over, even before the 4th Respondent filing a petitionfor recounting, the 3rd Respondent had announced that thePetitioner had won the election and issued a declarationcertificate and that on seeing the 4th Respondent filing apetition for recounting, the Petitioner also gave a petitionfor recounting by paying necessary amount of Rs.2,000/- and https://hcservices.ecourts.gov.in/hcservices/ that in the recounting, the 4th Respondent had secured twoadditional votes, in all 1057 votes, whereas the Petitionerhad secured 1056 votes and hence, the declaration certificateissued to the Petitioner was cancelled by the 3rd Respondenton the same day itself and a declaration certificate wasissued in favour of 4th Respondent. 4.The learned counsel for the respective parties reiterated thesaid contents following their pleadings.5.It is submitted by the learned counsel for the Petitionerthat recounting was ordered twice prior to the declarationcertificate was issued to the Petitioner, in both recounting,it was confirmed that the Petitioner had secured 1056 votesand the 4th Respondent had secured 1055 votes and thereafteronly declaration certificate was issued. 6.The learned counsel for the Petitioner has relied on thejudgements reported in N.Vellaichamy Vs. The ReturningOfficer cum Commissioner, Gandharvakottai, PudukottaiDistrict and others (2003-WLR-634) and Vadivelu Vs. Sundaramand others (2000-8-SCC-355).7.The learned Special Government Pleader for the 3rdRespondent, relying on the counter, has submitted that aftercompletion of counting, it was found that the Petitioner hadsecured 1056 votes and the 4th Respondent had secured 1055votes and hence, the Petitioner was issued with declarationcertificate and in the mean time, the 4th Respondent haddemanded for recounting, which was agreed to by all andhence, recounting was ordered. It is the categorical case ofthe third Respondent that "It is incorrect to state thatdeclaration certificate was issued after recounting and itwas issued prior to recounting."8.The learned counsel for the 4th Respondent has also submittedthat the 3rd Respondent had announced on 18.10.06 at about3.00 p.m that the Petitioner had secured 1056 votes and the4th Respondent had secured 1055 votes and immediately,declaration certificate was issued to the Petitioner and thatthe 4th Respondent had lost the election by one vote, hencehe sought for recounting, which was also agreed upon by thePetitioner, as a result of which, recounting was ordered bythe 3rd Respondent and that in the recounting, the 4thRespondent had secured 1057 votes and the Petitioner hadsecured 1056 votes and hence, the declaration certificateissued to the Petitioner was cancelled by the 3rd Respondenton the same day itself. 9.It is necessary to extract the paragraph 2 of the counterfiled by the 3rd Respondent, which is as follows:-"2. The Respondent submitted that the statement ofthe Petitioner is hereby denied. After thecompletion of counting, the Petitioner secured 1056votes and the 4th Respondent secured 1055 votes so,the Petitioner was issued a declaration certificate.In the mean time the 4th Respondent demanded me, toconduct the recount of votes. After carefulconsideration the recounting was ordered. ThePetitioner also agreed for recounting and remitted https://hcservices.ecourts.gov.in/hcservices/ the necessary amount for recounting. The certificatewas issued for the Petitioner before recounting, notafter the recounting as stated by the Petitioner. The said contents of the said paragraph 2 of the counter ofthe 3rd Respondent are not disputed by the 4th Respondent.The case of the Petitioner is that after recounting only,declaration certificate was issued. With the availablerecords, this court finds it difficult to give a finding tothe said issue. 10.The relevant rules of the Tamil Nadu Panchayat (Elections)Rules 1995 are extracted as under:-Rule 64(2) of the said Rules contemplates as under:"After the counting of the votes recorded in allballot papers contained in all ballot boxes has beencompleted, the Returning Officer shall have theresult of such counting entered in Part II of Form 20and it shall be signed by the counting supervisor andthe Returning Officer. The Returning Officer shall,then, make the entries relating thereto in a resultsheet in Form 22."Rule 66(1) of the said Rules contemplates as under:"After the completion Plaintiff the counting andrecording in Form 22 the total number of votes polledby each candidate under sub rule (2) of the Rule 64,the Returning Officer shall announce the same. Aftersuch announcement, and before the declaration of theresult of the election, a contesting candidate or inhis absence his election agent, may apply in writingto the Returning Officer for a recount of all or anyof the votes already counted stating the grounds onwhich the demands such recount ."Rule 67(2)(a) of the said Rules contemplates as under:"In the case of election of President of VillagePanchayat, after the Returning Officer has completedthe scrutiny and counting of votes, he shall declarethe contesting candidate to whom the largest numberof valid votes have been given and complete andcertify the return in Form 23 and send the signedcopy thereof to the District Election Officer and theState Election Commission."Rule 69(3) of the said Rules contemplates as under:"In the case of election of President of VillagePanchayat, the name of the candidate duly electedshall be forwarded in Form 25 by the ReturningOfficer to the District Election Officer and StateElection Commission and the District Election Officershall cause the same to be published in the DistrictGazette and shall also be published on the noticeboards of the offices of the concerned VillagePanchayat and the Panchayat Union."Rule 68(1) of the said Rules contemplates as under:"The Returning Officer, shall after declaring theresults, retain in his custody or cause to bedeposited in the custody of the officer as may be https://hcservices.ecourts.gov.in/hcservices/ specified by the State Election Commission, thepackets of ballot papers, whether counted, rejected,cancelled or unused, the sealed packets containingthe declarations under sub rule (2) of rule 52 andthe marked copy of the electoral roll. These packetsshall not be opened and their contents shall not beinspected or produced expect under the orders of anelection or other competent court."11.This court is of the considered view that Rule 66(1) and 68of the said Rules are relevant and sufficient to decide thevalidity or otherwise of the impugned order.12.In the Rule 66(1), it is clearly mentioned that after suchannouncement and before the declaration of the result of theelection, a contesting candidate or in his absence hiselection agent, may apply in writing to the Returning Officerfor a recount of all or any of the votes already countedstating the grounds on which the demands such recount andhence, recounting, if any, can be ordered only beforedeclaration certificate is issued, whereas, it is alleged bythe 3rd Respondent in paragraph 2 of his counter that he hadissued declaration certificate in Form No.25 afterverification that the Petitioner had secured 1056 votes andthe 4th Respondent had secured 1055 votes and thereafter, heordered for recounting and hence, such recounting isuntenable in law. 13.Rule 68 very specifically speaks that once the ReturningOfficer issued declaration certificate, the package of ballotpapers, whether counted or rejected, cancelled or unused, thesealed package containing the declaration and the marked copyof the electoral roll shall retain in his custody or depositin the custody of the officer. Those packets shall not beinspected or produced except under the orders of election orother competent court. In this case, it is admitted by the3rd Respondent in paragraph 2 of his counter that he hadissued declaration certificate in Form No.25 and thereafterentertained recounting application of the fourth respondentwhich is patently illegal. Even the consent of thecandidates for recounting after declaration cannot cure it.14.In the case of Vadivelu Vs. Sundaram and others (2000-8-SCC-355) relied on by the learned counsel for the Petitioner, inparagraph 20, it was held as under:-"20. The appellant election Petitioner in this casehas not stated as to when did he file the applicationfor recount. He has stated that he had given anapplication to the Returning Officer for recountingof votes and the request for recounting was notaccepted. At the time of the evidence also, theappellant has not stated as to when did he file theapplication. In cros examination, he stated that atabout 10.00 p.m on 14.10.1996, it was announcedthrough loudspeaker that the 1st Respondent waselected and he denied the allegation that theapplication for recount was made at 11.45 p.m. The1st Respondent was examined as RW.1. He deposed that https://hcservices.ecourts.gov.in/hcservices/ the result of the election was declared at 10.30 p.mand in all probability, the appellant filed anapplication for recount after the result of theelection was declared. Therefore, the applicationfor recount was not filed in accordance with Rule 66of the Tamil Nadu Panchayats (Elections) Rules,1995."The said judgement of the Honourable Supreme Court issquarely applicable to the facts of the case on hand.15.The other argument of the Respondents 3 and 4 is that thisWrit Petition is not maintainable and that if at all, thePetitioner can approach the competent court by way ofelection petition. In this regard, the learned counsel forthe Petitioner has relied on the judgement of the Apex Courtrendered in the case of Jayarajbhai Jayantibha Patel Vs.Anilbha Jayantibhai Patel and others in SLP.No.4663/2006dated 11.9.2006, wherein in paragraph 18 it was held asunder:-"18. Having regard to it all, it is manifest that thepower of judicial review may not be exercised unlessthe administrative decision is illogical or suffersfrom procedural impropriety or it shocks theconscience of the court in the sense that it is indefiance of logic or moral standards but nostandardised formula, universally applicable to allcases, can be evolved. Each has to be considered onits own facts, depending upon the authority thatexercises the power, the source, the nature or scopeof power and the indelible effects it generates inthe operation of law or affects the individual orsociety. Though judicial restraint, albeit self-recognised, is the order of the day, yet anadministrative decision or action which is based onwholly irrelevant considerations or material; orexcludes from consideration the relevant material; orit is so absurd that no reasonable person could havearrived at it on the given material, may be struckdown. In other words, when a Court is satisfied thatthere is an abuse or misuse of power, and itsjurisdiction is invoked, it is incumbent on the Courtto intervene. It is nevertheless, trite that thescope of judicial review is limited to the deficiencyin the decision making process and not the decision."It is clear from above said principle laid down by the ApexCourt in the said judgement dated 11.9.2006 that the power ofjudicial review can be exercised, when administrativedecision is illogical or suffers from procedural improprietyor abuse or misuse of power or it shocks the conscience ofthe court. When applying the above said principle to thefacts and circumstances of this case, this court is of theconsidered view that the act of the 3rd Respondent iscontrary to said provisions of law and hence, this WritPetition is maintainable. https://hcservices.ecourts.gov.in/hcservices/

16.In view of the above said discussions, the impugned order isliable to be quashed and accordingly, it is quashed.17.In the result, this Writ Petition is allowed, as prayedfor. No costs. Consequently, the connected MPs are closed. 18.After dictating this order, the learned counsel for the 4thRespondent has requested that this order may be suspended fora period of two weeks from today to enable the 4th respondentto seek further remedy available. Considering the saidrequest, this order is suspended for a period two weeks fromtoday.SrcmSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1 THE STATE ELECTION COMMISSIONER TAMILNADU STATE ELECTION COMMISSION NO.6 REVATHY STREET 100 FEET ROAD VADAPALANI CHENNAI 262 THE DISTRICT ELECTION OFFICER/ DISTRICT COLLECTOR KRISHNAGIRI DIST3 THE RETURNING OFFICER / COMMISSIONER PANCHAYAT UNION OFFICE VEPPANAPALLI KRISHNAGIRI TALUK AND DIST4 MANJUNATHAN THADATHADA VILLAGE N.THASIRAPALLI POST KRISHNAGIRI TALUK KRISHNAGIRI DIST+ one cc to M/s P.H. Manoj Pandian, Advocate sr no. 46332+ one cc to M/s. K. Elango, Advocate sr no. 46571+ one cc to the Government Pleader sr no. 46191gk(Co)nm(27.07.07)WP.No.3147/2007