High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.11.2007CORAMTHE HONOURABLE MR. JUSTICE A.KULASEKARANW.P. No. 12368 of 2007andM.P. No. 1 of 2007-o-V. Subramani.. Petitioner Versus1. The Secretary to the Government Rural Development and Panchayatraj Department Secretariat Chennai – 600 0092. The Director Rural Development and Panchayatraj Department Panagal Buildings Saidapet, Chennai – 600 0153. The District Collector Vellore District Vellore – 632 0094. The Assistant Director (Panchayats) Vellore District Vellore – 95. Officer conducting Election and Commissioner Aalangayam Panchayat Union/ Block Development Officer Panchayat Union Aalangayam Vellore District6. G. Devendiran7. R. Sujatha8. Sundara9. T. Anandan .. RespondentsPetition filed under Article 226 of The Constitution ofIndia praying for a Writ of Mandamus as stated therein. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :Dr. A.E. Chelliah, Sr. Advocate for Mr. K. RamanujamFor Respondents : Mr. I. ParanthamanAddl. Govt. Pleader for RR1 to 4Mr. J. Raja KalifullahGovernment Pleader for RR5, 8 & 9Mr. S. Annamalai for RR6 and 7ORDERThe petitioner has come forward with this writ petitionpraying for a Writ of Mandamus directing the respondents to actin accordance with law and procedure to enable the President ofthe said Panchayat, the petitioner herein, to discharge thePanchayatraj responsibilities as envisaged under Article 243 (g)of the Constitution of India.2.Dr. Chelliah, learned Senior counsel appearing for thepetitioner reiterated the contents of the affidavit filed insupport of the writ petition and submitted as follows:-The petitioner was elected as President of VallipattuPanchayat in the Aalangayam Panchayat Union, Vellore District.There are three members to be elected in the said ward, in which,one is meant for women. Altogether 11 candidates contested inthe said ward in the election held on 15.10.2006. Counting washeld on 18.10.2006. The fifth respondent was the electionofficer. Out of the three elected persons, there is no disputewith respect to one of the elected members namely Bhaskaran. Thefifth respondent, by his proceedings dated 18.10.2006 cancelledthe declaration made originally to respondents 8 and 9 and gavedeclaration in favour of the respondents 6 and 7. Therespondents 6 and 7 have produced the declaration only on03.11.2006 and oath was administered to them on the same day.Soon after the election, the petitioner also conducted twopanchayat meetings in which the respondents 6 and 7 participated.However, the respondents 8 and 9 were permitted to participate inthe election of vice-president at the instance of the fifthrespondent, hence, the petitioner sought for clarification fromthe fourth respondent. The fifth respondent, in his proceedingsdated 02.02.2007 informed the petitioner that the respondents 6and 7 cannot be allowed to participate in the meetings andproceedings and only respondents 8 and 9 are entitled toparticipate, though he originally declared the respondents 6 and7 as elected. As against the requirement of 9 members, 11members were sworn-in and the said scenario has affected thesmooth functioning of the panchayat, besides, the same isviolative of mandatory provisions of the Tamil Nadu Panchayat https://hcservices.ecourts.gov.in/hcservices/ Act, the present writ petition has been filed and prayed forallowing of the writ petition.3.Mr. I. Paranthaman, learned Additional GovernmentPleader appearing for the respondents 1 to 4, reiterated thecontents of the counter affidavit of the third respondent/District Collector in his arguments and submitted as follows:-The election to the Vallipattu Panchayat was held on15.10.2006. On 18.10.2006, counting was held. The fifthrespondent has originally issued declaration in Form No.24 and 26declaring the respondents 8 and 9 as elected. Due to wronginformation given by a Panchayat clerk/Office Assistant namelySuresh, the fifth respondent cancelled the declaration issued torespondents 8 and 9 and issued a declaration declaringrespondents 6 and 7 as elected. Finally, after verifying all therecords and after satisfying himself, the fifth respondent by hisletter Rc.A3/2366/06 dated 23.10.2006 revoked the cancellation ofdeclaration of respondents 8 and 9 since they secured more votesthan the respondents 6 and 7 and communicated the same to thepetitioner. The petitioner, in his own self-interestadministered oath to the respondents 6 and 7 on 03.11.2006without informing the panchayat union officials in advance, thattoo, in the absence of the panchayat union representatives. Thepetitioner was fully aware that in the election conducted on13.11.2006 for the post of Vice-president, the respondents 8 and9 have exercised their franchise and signed in the minute book ofthe panchayat. On the representation dated 08.02.2007 of thepetitioner, the third respondent, after verifying all therecords, including Form No.24 and 26, passed an order inRc.PC2/2393/ 07 dated 05.03.2007 confirmed the list of finallyelected members from ward No.2 published by the fifth respondent.The fifth respondent in his letter dated 16.02.2007 sought forexplanation from the petitioner regarding the irregularitiescommitted by the petitioner between 25.10.2006 and 05.12.2006namely in not allowing the actually declared elected persons toattend the panchayat meeting, creating law and order problem bynot administering oath to the actually elected declared persons,administering oath to the non-elected persons and passingresolutions by signing himself alone etc., but the petitioner hasnot given any explanation deliberately. Necessary action hasalready been initiated against the fifth respondent under Rule 17(b) for the lapses committed by him and an enquiry officer wasalso appointed. If really, the respondents 6 and 7 have anygrievance, they would have made some complaint, but they have notdone so. It is not explained how the petitioner is an aggrievedparty. The petitioner is wantonly creating confusion and law andorder problem by not obeying the election Rules the instructionsgiven by the respondents 3 and 5 and prayed for dismissal of thewrit petition.4.Mr. Raja Kalifullah, learned Government Pleaderappearing for the respondents 5, 8 and 9, reiterated the contentsof the counter affidavit as well as the additional counter filedby the fifth respondent and argued as follows:- https://hcservices.ecourts.gov.in/hcservices/ The writ petition is not maintainable either in law or onfacts and the same is liable to be dismissed in limini. Thepetitioner has filed the present writ petition suppressing thematerial facts with an ulterior motive. Initially, there was aconfusion and the same was set right and the elected candidateswere announced on 18.10.2006, which is not challenged till date.The petitioner has administered oath to respondents 6 and 7contrary to the declared results. The petitioner has also fileda representation to the third respondent/District Collector, onthat, an enquiry was ordered by him and thereafter, an order waspassed confirming the declaration of the respondents 8 and 9 asduly elected. The petitioner was fully aware of all thoseproceedings, for the reasons best known to him, he convenientlysuppressed the same. The fifth respondent first declaredrespondents 8 and 9 as elected. Then, it was found that somereport was wrongly given to him by the Office Assistant/PanchayatClerk namely Suresh, hence, the said declaration in favour of therespondents 8 and 9 was cancelled and the respondents 6 and 7were declared as elected, but the copy was not served on them.Then, after careful and detailed scrutiny of the records, it wasfound that the respondents 8 and 9 have secured more votes thanthe respondents 6 and 7 and they were declared as elected bycancelling the declaration made in favour of the respondents 6and 7. The elected members were sworn in on 25.10.2006 andparticipated in the meeting held on the same day. On 03.11.2006,the petitioner has convened an urgent meeting and administeredoath to the respondents 6 and 7, who were not elected. Later, itwas found that one Suresh, Office Assistant of VallipattuPanchayat Union colluded and conspired with the respondents 6 and7, served the copy which was prepared at the second instance.Thereafter, an enquiry was conducted and the said Suresh wasfound guilty and ultimately, he was suspended. The fifthrespondent requested the petitioner to permit the respondents 8and 9 to participate in the meeting and not respondents 6 and 7as they were not elected. On 05.12.2006, 22.12.2006 and09.02.2007, the petitioner has conducted meeting and allowed therespondents 6 and 7 to participate in the same. The petitioneralso sent a representation dated 08.02.2007 to the thirdrespondent and on 17.02.2007, the third respondent ordered toconduct an enquiry by the ADRO and on consideration of the same,the third respondent has passed an order dated 05.03.2007confirming the order of the fifth respondent that the respondents8 and 9 as elected, copy of the same was also served on thepetitioner. The petitioner ought to have followed the said orderof the District Collector, but he failed to do so and chosen tofile the present writ petition on 02.04.2007. Relying on theadditional counter, it is submitted by the learned GovernmentPleader that the fifth respondent denies the averments of thepetitioner that the order dated 18.10.2006 in proceedingsNa.Ka.A3/2366/06 was signed on 14.06.2007 and explained that thecopies of the proceedings were attested on 14.06.2007 for thepurpose of preparing typed set in this writ petition; that Form26 declaration was issued on 18.10.2006 itself, declaring https://hcservices.ecourts.gov.in/hcservices/ respondents 8 and 9 as elected alone with one Bhaskaran, anothermember of ward No.2 and the same was published in the noticeboard as per Rule 69 (4). The subsequent order dated 23.10.2006referred to in page No.11 of the petitioner's typed set is of noconsequences and it cannot be a ground to dispute the declarationearlier issued and prayed for dismissal of the writ petition. 5.Mr. Annamalai, learned counsel appearing for therespondents 6 and 7, relying on the identical counter affidavitfiled by the respondents 6 and 7 has submitted that the fifthrespondent declared the respondents 6 and 7 as duly elected,pursuant to that, the petitioner administered oath to them andthe said declaration was never cancelled. The averment that oneSuresh, Panchayat Clerk/ Office Assistant colluded with therespondents 6 and 7 is false. At the time of election of Vice-president, the Deputy Block Development Officer one R. Sukumaranrequested the respondents 6 to 9 not to participate in theelection, hence, they left, but the respondents 8 and 9 haveattended, however, the respondents 6 and 7 have participated inall the subsequent meetings. 6.This Court carefully considered the argument of thecounsel on both sides and perused the records placed. Theelection for the post of three members of Ward II of VallipattuVillage was held on 15.10.2006. Out of the three, one Bhaskaranin general category was elected as one of the members, which isnot in dispute. For the remaining two members namely general andwomen category, the respondents 6 and 7 and respondents 8 and 9claim that they were elected and necessary declaration was alsoissued to them by the fifth respondent. It is stated by thefifth respondent that the respondents 8 and 9 were originallydeclared elected, thereafter, some report was wrongly given tohim, based on that their declaration were cancelled andsimultaneously, declaration was made in favour of respondents 6and 7, but the declaration copies were not served on therespondents 6 and 7. It is stated that after careful re-scrutinyof the records by the fifth respondent, it was again declaredthat respondents 8 and 9 were elected on 18.10.2006 itself sincethey have secured more votes. Consequently, the declaration madein favour of the respondents 6 and 7 were cancelled. It isfurther stated by the fifth respondent that the document createdin collusion with the respondents 6 and 7 was produced by thePanchayat Clerk/Office Assistant namely Suresh, which misled him,eventually made him to cancel the declaration made in favour ofthe respondents 8 and 9 and necessary action was also initiatedagainst the said Suresh and he was placed under suspension. Itis further stated that necessary instructions were given by thefifth respondent to the petitioner not to permit the respondents6 and 7 in any of the panchayat meetings as they were notelected, but the petitioner ignored it and permitted them in themeetings held on 05.12.2006, 22.12.2006 and 09.02.2007. Based onthe representation dated 08.02.2007 made by the petitioner to thethird respondent, an enquiry officer namely the fourth respondentwas appointed, which was considered along with other records and https://hcservices.ecourts.gov.in/hcservices/ necessary order dated 05.03.2007 was passed by the DistrictCollector/third respondent, confirming the declaration made infavour of the respondents 8 and 9 along with the said Bhaskaranand the copy of the same was also served on the petitioner. 7.The District Collector/third respondent has stated thaton 18.10.2006, the day on which votes were secured, the fifthrespondent in his declaration Form 24 and 26 has declared therespondents 8 and 9 as elected, later, on the same day, due toheavy rush of elected persons from various wards of Panchayats,who were to be declared, the fifth respondent, without verifyingthe report furnished by the Panchayat Clerk/Office Assistantnamely Suresh has wrongly declared the respondents 6 and 7 aselected by cancelling the declaration originally made in favourof the respodnents 8 and 9, however, on 18.12.2006 itself, afterverifying and scrutinising the entire records, the fifthrespondent has cancelled the declaration made in favour of therespondents 6 and 7 and simultaneously declared the respondents 8and 9 as elected. It is also submitted that ignoring the saidorders, the petitioner has administered oath to the respondents 6and 7 on 03.11.2006 without even informing the panchayat unionofficials in advance and in the absence of panchayat unionrepresentatives. The petitioner was also aware that in theelection of Vice-president held on 13.11.2006, the respondents 8and 9 have exercised their franchise and signed in the minutebook of Vallipattu Panchayat. It is also further stated by thethird respondent that on the representation dated 08.02.2007 ofthe petitioner, he after verifying all the records, includingForm Nos. 24 and 26 and the report sent to the Tamil Nadu StateElection Commission and the details available on the file of thefifth respondent, has sent a letter Rc.PC/2393/07 dated05.03.2007 informed the petitioner that the list of finallyelected members from ward No.2, prepared and published on18.10.2006 by the fifth respondent was correct and valid. It isseen from the records that the third respondent has framednecessary charges against the fifth respondent under Rule 17 (b)for the lapses committed by the fifth respondent and appointed anenquiry officer. 8.In view of the above said explanation offered by therespondents 3 and 5, in the back drop of the cancellation ofdeclaration made against the respondents 6 and 7 on 18.10.2006was not challenged by them and also the fact that necessaryorders were passed under Rule 67 (3) (a) in Form No.24 by thefifth respondent announcing the votes secured by the respondents6 to 9, which is also not disputed either by the petitioner orthe respondents 6 and 7 and the other factors that respondents 8and 9 were allowed to vote in the election of vice-president heldon 13.11.2006 but the respondents 6 and 7 were not admittedlypermitted, which was also not challenged by the respondents 6 and7 and even before filing this writ petition, the DistrictCollector/third respondent has clarified in his communication inletter NO. Rc.PC2/2393/2007 dated 05.03.2007 that the declarationmade in favour of the respondents 8 and 9 was valid, this Court https://hcservices.ecourts.gov.in/hcservices/ is of the view that the petitioner has not made out any case tosubstantiate the averment that he was not allowed to carry on thefunction of the Panchayat smoothly.9.In this context, it is necessary to peruse the relevantRules of Tamil Nadu Panchayat (Elections) Rules 1955, which areextracted as under:-"67.Declaration of result of election.-1.....2.....(3) (a) In the case of election of member ofVillage Panchayats, after the ReturningOfficer has completed the scrutiny andcounting of votes, he shall declare elected,the contesting candidate or candidates as thecase may be, to whom the largest number ofvalid votes have been given and complete andcertify the return in Form 24 and send thesigned copy thereof to the District ElectionOfficer and the State Election Commission.Provided that if one or more seats arereserved for members of the Scheduled Castesor Scheduled Tribes (xxx) the ReturningOfficer shall first declare elected thecandidate/candidates who are eligible to bevoted to such seats and to whom the largestnumber of valid votes have been given to theseats so reserved and then declare electedthe contesting candidate or candidates whoamong the remaining contesting candidateshave obtained the largest number of votes tothe non-served seats in such ward.68.Disposal of Ballot Papers – (1) TheReturning Officer, shall after declaring theresults, retain in his custody or cause to bedeposited in the custody of the officer asmay be specified by the State ElectionCommission, the packets of ballot papers,whether counted, rejected, cancelled orunused, the sealed packets containing thedeclarations under sub-rule (2) of rule 52and the marked copy of the electoral roll.These packets shall not be opened and theircontents shall not be inspected or producedexcept under the orders of an election orother competent Court. https://hcservices.ecourts.gov.in/hcservices/

10.Rule 67 (3) (a) clearly sets out that in the case ofelection of member of Village Panchayats, the Returning Officer,after completion of scrutiny and counting of votes shall declareelected the candidate to whom the largest number of valid voteshave been given and complete and certify the return in Form 24and send the signed copy thereof to the District Election Officerand the State Election Commission. Rule 68 (1) very specificallyspeaks that once the Returning Officer issued declarationcertificate, the packets of ballot papers, whether counted orrejected, cancelled or unused, the sealed packets containing thedeclarations and the marked copy of the electoral roll shallretain in his custody or deposited in the custody of a competentofficer. Those packets shall not be opened or inspected exceptunder the orders of an election or other competent Court. Inthis case, the fifth respondent, after making the declaration infavour of the respondents 8 and 9 stated to have cancelled itbased on the documents produced by a Panchayat Clerk/OfficeAssistant Suresh and gave declaration in favour of therespondents 6 and 7 simultaneously. The said act is prohibitedunder Rule 68 (1), hence, all other acts or orders made by thefifth respondent after issuing declaration certificate in favourof respondents 8 and 9 are unsustainable. In other words, theoriginal declaration made in favour of the respondents 8 and 9alone is valid. 11.The petitioner is not a person prejudically affected bythe act or omission of the official respondents. Besides thatthe averments made by the petitioner are not having any bone ofcontention.12.For the said reasons, the writ petition is dismissed.No costs. Consequently, connected miscellaneous petition isclosed.rshSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to the Government Rural Development and Panchayatraj Department Secretariat Chennai – 600 009 https://hcservices.ecourts.gov.in/hcservices/

2. The Director Rural Development and Panchayatraj Department Panagal Buildings Saidapet, Chennai – 600 0153. The District Collector Vellore District Vellore – 632 0094. The Assistant Director (Panchayats) Vellore District Vellore – 95. Officer conducting Election and Commissioner Aalangayam Panchayat Union/ Block Development Officer Panchayat Union Aalangayam Vellore District+ 1 cc to Mr. J. Rajakalifulla, Advocate, SR No.66817+ 1 cc to M/s. K. Ramanujan, Advocate, SR No.66654 Order inWP No. 12368 of 2007AKR(CO)SR/14.11.2007