S.R.Velusamy v. The District Collector Coimbatore & District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.08.2009CORAMTHE HONOURABLE MR. JUSTICE M.M.SUNDRESHW.P. No.14325 of 2008andM.P.No.1 of 2008S.R.Velusamy ..PetitionerVs.1. The District Collector Coimbatore & District.2. The State Election Commission 6, Revathy Street Jawaharlal Nehru Road Vadapalani Chennai – 600 026.3. The Managing Director The Coimbatore District Co-operative Milk Producers' Union Limited New Dairy Complex, Pachapalayam Kalampalayam Post Perur (Via), Coimbatore – 641 010.4.R.Saminathan ..Respondents Writ petition has been filed under Article 226 of TheConstitution of India to issue a Writ of Quo Warranto, to call uponthe 4th respondent herein to show under what authority of law he isholding the public office of the President of Gubbepalayam VillagePanchayat in Annur Taluk of Coimbatore District and consequentlydeclare the post of President of Gubbepalayam Village Panchayat inAnnur Taluk of Coimbatore District as vacant.For Petitioner: M/s.S.Sathia ChandranFor R-1 & 2: Mr.V.R.Thangavelu Government AdvocateFor R-4: Mr.V.Suthakar https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner herein is the unsuccessful candidate who waslost in the election to the fourth respondent. The election wasconducted in the year 2006 for the Gubbepalayam Village Panchayat. Inpursuant to the said election, the fourth respondent has been electedas a member and thereafter, he has been elected as a President.2.The petitioner has made a representation to the secondrespondent herein on 08.08.2007 stating that the fourth respondenthas suppressed certain material facts in the nomination papers filedby him to the effect that the fourth respondent was a contractor withthe Coimbatore District Co-operative Milk Producers' Union Limitedproviding the supply of transport vehicles for the period between01.03.2006 to 31.12.2007. Therefore, the petitioner has requested thesecond respondent to take action by dismissing the fourth respondent. 3.Thereafter, the second respondent has sent a letter to thefirst respondent in-turn directed the Commissioner of Annur PanchayatUnion to initiate an enquiry. The said Commissioner in and byproceedings dated 24.09.2007 has given a finding that the fourthrespondent was a contractor with the third respondent at the time ofcontesting the election. The said letter was followed by anotherletter dated 10.10.2007 sent by the Commissioner of Annur PanchayatUnion that for the period between 01.03.2006 to 31.12.2007 the fourthrespondent was having a contract to supply transport vehicles infavour of the third respondent Co-operative Society. The thirdrespondent has also given a letter to the Commissioner of AnnurPanchayat Union to the said effect. In pursuant to the same, thefirst respondent has sent a letter to the second respondent in themonth of December 2007 that the only option open to the petitioner isto file appropriate petition before the Court of law. 4.The learned Government Advocate also gave a opinion to theCommissioner of Annur Panchayat Union stating that no proceedings canbe taken and it is always open to the petitioner to take actionthrough the Court of law. Consequent to the same, the Commissioner ofAnnur Panchayat Union wrote a letter to the petitioner to haverecourse by a Court of law on the ground that the existing provisionscontained in the Tamil Nadu Panchayat Act, 1994 do not confer such anaction against the fourth respondent. In view of the above saidfacts, the petitioner has preferred the present writ petition seekingthe relief of Quo Warranto to show-cause under what authority thefourth respondent is holding his post as the president.5.The learned counsel for the petitioner submitted that areading of Section 37 and 38 of the Tamil Nadu Panchayat Act, 1994would clearly show that the fourth respondent is disqualified to holdthe post of President as well as the Member. According to the learnedcounsel in view of the undisputed fact that the fourth respondent was https://hcservices.ecourts.gov.in/hcservices/ having interest with the third respondent before the election andeven thereafter the fourth respondent should be removed from the postof the President as well as from the Membership of the Panchayat. Thelearned counsel for the petitioner further submitted that Section 41of the Tamil Nadu Panchayat Act, 1994 would not be applicable sincethe petitioner is not a member of the Panchayat and therefore, a writof Quo Wwarranto is maintainable. 6.The learned counsel for the petitioner has relied upon thejudgment reported in (1999) 4 SCC 526 [K.VENKATACHALAM vs.A.SWAMICKAN AND ANOTHER] in support of his contentions and submittedthat when the facts are not in dispute, the power under Article 226of the Constitution of India will have to be exercised by the Hon'bleHigh Court, not withstanding the fact that the petitioner has notavailed the alternative remedy of filing an election petition and thesame having because time barred. 7.According to the learned counsel, when it is very obviousthat the fourth respondent is not competent to hold the post then theHon'ble High Court has exercise the power under Article 226 of theConstitution of India since the same would amount to committing afraud on the Constitution. The learned counsel for the petitioneralso relied upon the judgment reported in (1999) 8 SCC 532 [LACHHMANDAS ARORA vs. GANESHI LAL AND OTHERS] to submit that the provisionsof the limitation act cannot be extended to the petitioner supersederepresentation of People's Act and therefore the petitioner cannot bemade to seek his remedy under the said act. The learned counsel forthe petitioner further relied upon the judgment reported in 2000-3-L.W.553 [SANNIYASI vs. SRINIVASAN AND ANOTHER] in support of his caseto submit that when there is a subsisting contract between a memberof the Panchayat then the same would amount to disqualificationwanting the removal of the member.8.Per contra, the learned counsel for the fourth respondentsubmitted that the relief sought for in the writ petition is notmaintainable in law and facts. The writ petitioner after havingfailed to avail the alternative remedy cannot invoke thediscretionary jurisdiction of the Hon'ble High Court. It is furthersubmitted that even assuming the writ petitioner has a grievance thenthere is a remedy open to the petitioner under Section 41 of theTamil Nadu Panchayat Act, 1994.9.According to the learned counsel, the said exercise isautomatic since admittedly there is no disqualification even assumingthe documents relied upon by the petitioner are true. The mere factthat the fourth respondent is having a subsisting contract with thethird respondent cannot be a ground to disqualify the fourthrespondent since the same is not been mentioned as a disqualificationunder Section 37 and 38 of the said Act. It is further submitted thatin the judgment reported in 2003-1-L.W.740 [K.V.MUTHURAMALINGAM vs. https://hcservices.ecourts.gov.in/hcservices/ SOLOMAN AND ANOTHER] the Hon'ble High Court has held that if a memberis having subsisting contract with the Public Works Department aswell as Highways Department, the same would not attract thedisqualification under Section 37 of the Act.10.It is further submitted that the disqualification for acandidate as mentioned in Section 37 is parametric with the provisioncontained for disqualification for a member as envisaged underSection 38 of the Act. Therefore, the entire writ petition ismisconceived since the same has been filed by a person who has lostthe election and hence the writ petition will have to be dismissed asthe one which lacks bonafides.11.The learned Government Advocate submitted that the firstrespondent has rightly rejected the request of the petitioner sinceno action can be taken under the District Municipalities Act. Thepetitioner cannot invoke the jurisdiction of the Hon'ble High Courtunder Article 226 of the Constitution of India.12.I have heard the arguments of the learned counselsappearing for the parties.13.In the present case on hand ,there is no dispute of thefact that the fourth respondent was having a contract at the time offiling his nomination and the said contract continued after theelection of the fourth respondent. Further, the said contract hasbeen entered into between the fourth respondent and the thirdrespondent. Section 37 of the Tamil Nadu Panchayat Act, 1994disqualifies a candidate provided the said candidate is havinginterest in a subsisting contract made with or any work done for anyPanchayat. Similarly, Section 38 of the said Act provides that amember to be disqualified if he acquires any interest in anysubsisting contract made with or work being done for any Panchayat.Therefore, a reading of the above said Sections would clearly showthat there is no bar for the fourth respondent for having enteredinto contract with the third respondent.14.The third respondent is an independent body owning itscreation to the Co-operative Societies Act, 1983. It cannot be saidthat the third respondent forms part and parcel of the Panchayat. Theprovisions for disqualification will have to be construed strictly bythis Hon'ble High Court. As already observed a reading of the saidprovisions contained in Section 37 and 38 of the Tamil Nadu PanchayatAct, 1994 would not include the contract between the Co-operativeSociety and the fourth respondent. Further, the judgment relied uponby the learned counsel for the fourth respondent reported in 2003-1-L.W.740 [K.V.MUTHURAMALINGAM vs. SOLOMAN AND ANOTHER] is squarelyapplicable to the present case on hand. In the said judgment, theHon'ble High Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.The Court below based upon a decision of thisCourt in Sanniyasi ..vs.. Srinivasan And TheReturning Officer, Sankarapuram Panchayat Union,Villupuram Taluk (2000 (3) L. W. 553) came to theconclusion that although the revision petitioneris a contractor in Public Works Department andHighways Department, he is disqualified fromcontesting the election in the Panchayat also.The learned counsel for the revision petitionercontended that the order passed by the ElectionTribunal is not correct. Under Section 37(3)(c)of the Panchayat Act, only candidates havingsubsisting contract with the Panchayat aredisqualified from contesting the election. He didnot have any contract with any Panchayat. Henever suppressed that he was a GovernmentContractor. The decision relied on by the courtbelow, will not apply to the facts of the case.The Tribunal also committed an error ofjurisdiction in declaring elected the 1strespondent as President in the place of therevision petitioner. The matter was also notreferred to the competent authorities forconsideration of disqualification as providedunder Article 243(f)(2) of the Constitution ofIndia."15.Therefore, taking into consideration of the above saidjudgment and on a consideration of the factual position is not indispute, this Court is of the opinion that the writ petition filed istotally misconceived. Accordingly, the writ petition is dismissed. Nocosts. Consequently, connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsriTo1. The District Collector, Coimbatore & District. https://hcservices.ecourts.gov.in/hcservices/

2. The State Election Commission, 6, Revathy Street, Jawaharlal Nehru Road, Vadapalani, Chennai – 600 026.+ 1 c.c. to Mr. S. Sathia Chandran, Advocate. S.R.No.42079.+ 1 c.c. to Mr. V. Suthakar, Advocate. S.R.No.42204.+ 1 c.c. to The Government Pleader. S.R.No.41883.W.P.No.14325 OF 2008VSN (CO)GSK 09.09.2009.