K. VEERAMUTHU v. YAT UNION, DINDIGUL DIST.4. TMT. MEENAL NOW WORKING AS ASSISTANT RETURNING OFFICER

29.09.2011-Last date for filing nominations30.09.2011-Scrutiny of nominations30.09.2011-Publication of list of valid nominations03.10.2011-Last date for withdrawal of nominations and thepublication of the final list of contestingcandidates.4. The petitioners in all these writ petitions filed nominations forcontesting the elections either to the post of Ward Members of differentPanchayat Unions or to the post of President of various Panchayats. Afterthe scrutiny of nominations was over on 30.9.2011, the petitioners havecome up with the above writ petitions, for ventilating a variety ofgrievances, which can be categorised into the following:-(i) The improper acceptance of the nominations of some candidates,who, according to the petitioners, are disqualified in terms of theprovisions of the Act and the Rules, from contesting.(ii) The arbitrary rejection or non-acceptance of the nominations ofthe petitioners on flimsy or on no valid grounds.5. Since the legal issues arising for consideration in the above twocategories of cases differ from each other, to some extent, I havegrouped all the cases under the above two categories and I shall dealwith each of the above two categories of cases separately.CASES ARISING OUT OF IMPROPER ACCEPTANCE OF NOMINATIONS OF RIVALCANDIDATES:6. W.P.(MD) Nos.11502, 11530, 11551, 11552, 11605 and 11632 of 2011fall under this category.7. In W.P.No.11502 of 2011, the nomination filed by one Bhanumathi isobjected to by the petitioner on the ground that her name is not found inthe electoral roll and that she did not enclose the Voter ID card andration card to the nomination paper. But the writ petitioner has not evenimpleaded her as a party.8. In W.P.No.11530 of 2011, the challenge is to the acceptance of thenominations of the respondents 5 and 6 therein, for the post of PanchayatUnion Councilor of Vilathikulam Panchayat Union. According to thepetitioner, the fifth respondent is a resident of Vilathikulam Township,but by making a false claim that she is a resident ofChithavanaickenpatti Panchayat, she filed a nomination. Similarly, it isclaimed by the petitioner that the sixth respondent was a GovernmentContractor, but the same was suppressed by him. It is also claimed by thepetitioner that the Returning Officer actually rejected the nominationsof the respondents 5 and 6 on the grounds stated above and he alsopromised to issue orders of rejection later, since there was a power cutat that time. But subsequently, the names of the respondents 5 and 6 werefound in the final list of candidates. Therefore, the petitioner has comeup with a prayer to declare the inclusion of the names of the respondents5 and 6 in the final list of candidates as null and void. In support ofhis contention that the Returning Officer originally rejected thenominations of the respondents 5 and 6 and promised to issue rejectionorders later, the petitioner has also filed the copy of the proceedingsdated 1.10.2011 of the Returning Officer.9. In W.P.No.11551 of 2011, the petitioner sought the rejection ofthe nomination of the fourth respondent on the ground that the fourthrespondent was convicted by a criminal court in C.C.No.114 of 1998 on thefile of the Judicial Magistrate, Thanjavur which was also confirmed onappeal by the District and Sessions Court, Thanjavur in C.A.No.15 of2009. But the nomination was accepted on the ground that a revision waspending on the file of this Court and that the conviction was not adisqualification.10. In W.P.No.11552 of 2011, the petitioner sought thedisqualification of the third respondent on the ground that he was not a https://hcservices.ecourts.gov.in/hcservices/ resident of Bavajikottai Panchayat. The petitioner has also claimed thatthe third respondent has not paid professional tax and that withoutresigning the post of President of Kanyakurichi Panchayat, the thirdrespondent could not be an Elector in Bavajikottai Panchayat.11. In W.P.Nos.11605 and 11632 of 2011, the claim is that the namesof the contesting respondents were not found in the electoral rolls andthat they are not residents of the concerned village. Thus the prayer forthe rejection of nominations of the respondents is sought, either on theground of conviction in a criminal case or on the ground of residentialstatus or on the ground that the Returning Officer played foul, afterrejecting the nominations in public, but reversing it later in private.12. In so far residential status is concerned, it is not a questionwhich can be gone into at the pre-election stage. It is a matter whichrequires evidence. In Rampakavi Rayappa Belagali vs. B.D.Jatti {AIR 1971SC 1348}, the Supreme Court made it clear that the entries made in theElectoral Roll of a Constituency can only be challenged in accordancewith the machinery provided by the Act and the Rules and not in any otherForum. In Hari Prasad Mulshankar Trivedi vs. V.B.Raju {1974 (3) SCC 415},the Constitution Bench of the Supreme Court went to the extent of holdingthat by virtue of Section 30(a) of The Representation of the People Act,1950, the jurisdiction of the Court is ousted with regard to theentitlement of a person to be registered in an Electoral Roll. In boththese cases, the Supreme Court held that even the jurisdiction of theElection Tribunal stands ousted, in respect of such matters unless thedisqualification of the candidate could be traced to any of theConstitutional provisions. These decisions were followed by a DivisionBench of this court in Dr.Subramaniam Swamy vs.T.T.V.Dinakaran {2004 (1)LW 712}. But if the disqualification could be traced to theConstitutional provisions, the same can be dealt with by the ElectionTribunal, as pointed by me in S.Nagavalli vs. The Election Officer {2011(4) LW 703}. But in any case, it is not a matter that could be consideredin a writ petition under Article 226. Therefore, the writ petitions wherethe prayer is based upon the residential status of the rival candidates,are liable to be rejected.13. In so far as W.P.No.11530 of 2011 is concerned, the petitionerraises a plea that the Returning Officer turned volte face, after orallyrejecting the nominations of the respondents 5 and 6 with a promise toissue written orders later. But this is an issue which cannot be decided,especially in a writ petition without a counter affidavit. Once theReturning Officer chooses to deny this allegation, it becomes a disputedquestion of fact into which the Writ Court will not go, especially whenthe election is less than a week away. Therefore, W.P.No.11530 of 2011 isalso liable to be rejected.14. In so far as W.P.No.11551 of 2011 is concerned, it is the case ofthe petitioner that the third respondent was convicted for an offenceunder Section 3(a) of The Railway Property (Unlawful Possession) Act,1966. He was sentenced to imprisonment for one year and ordered to pay afine of Rs.1,000/- by the Trial Court. The same was confirmed by theSessions Court on appeal. On a revision filed by the fourth respondent,the fourth respondent was let on bail by this Court, on 11.12.2009.Therefore, the question to be considered is as to whether the aboveconviction is a disqualification under the Act and the Rules.15. Section 33 of The Tamil Nadu Panchayats Act, 1994, prescribes twoqualifications, for candidates seeking election as Member or President ofa Panchayat. They are (i) that his name should appear on the electoralroll of the Panchayat and (ii) that he should have completed his 21st yearof age. Sections 34, 35 and 37 speak of disqualifications of candidates,while Section 36 speaks of disqualification of voters. Section 38 dealswith disqualification of the members already elected to hold office. https://hcservices.ecourts.gov.in/hcservices/ Fortunately, we are not concerned here with cases under Sections 36 and38. Persons who are disqualified under these provisions (34, 35 and 37),are:-Persons disqualified under Section 34:(i) Village Administrative Officer or Village Servant(ii) Other Officers or Servants of the State or Central Government orof a Village Panchayat, Panchayat Union Council, District Panchayat,Municipal Council or the Municipal Corporations of Chennai, Madurai,Coimbatore or any other Corporation.(iii) Officers or Servants of any Industrial Township, Cantonment orany body corporate owned or controlled by the State or Central Government.Persosn disqualified under Section 35:(iv) Every person convicted of an offence punishable under Sections58 to 71 of The Tamil Nadu Panchayats Act, 1994.(v) Every person convicted of an offence punishable under ChapterIX-A of The Indian Penal Code (offences relating to elections).(vi) Every person disqualified by or under any law for the time beingin force for the purposes of election to the Legislative Assembly of theState.The above disqualifications are for a period of 5 years from the date ofconviction.Persons disqualified under Section 37:(vii) A person sentenced by a Criminal Court to imprisonment for anyoffence involving moral delinquency, is disqualified when the sentence isin force and for 6 years from the date of expiry of the period ofsentence. (viii) A person convicted of an offence punishable under TheProtection of Civil Rights Act, 1955, disqualified for a period of 6years from the date of conviction.(ix) A person who is of unsound mind or a deaf-mute as at the lastdate of filing the nomination or at the date of election.(x) A person adjudicated as insolvent or an undischarged insolvent.(xi) A person interested in a subsisting contract with the Panchayat,except as a shareholder in a company.(xii) A person employed as a paid legal practitioner on behalf of thePanchayat or against the Panchayat.(xiii) A person found not to belong to the Scheduled Castes orScheduled Tribes, is disqualified for contesting from a reservedconstituency.(xiv) A person who is already a member of a Panchayat whose term ofoffice has either not expired or not commenced.(xv) A person who is in arrears of any kind to a Panchayat, upto andinclusive of the previous year.(xvi) A person who failed to lodge an account of the electionexpenses within the time and in the manner prescribed and who has no goodreason or justification for such failure.16. Therefore, the question as to whether the conviction of thefourth respondent in W.P.No.11551 of 2011 would be a disqualificationwithin the ambit of Section 35 or 37 (1) of the Act, is a question whichdeserves consideration. But such consideration is not possible at thehands of the Returning Officer, in view of the limited scope of theenquiry that he is entitled to undertake at the time of scrutiny ofnominations. 17. As a matter of fact, the issue relating to disqualification ofpersons with a criminal background has engaged the attention of theCourts as well as the Law Commission of India and the Government forquite some time. If we have a look at the decisions of the Supreme Courtin Union of India vs. Association of Democratic Reforms {2002 (5) SCC294} and in People's Union of Civil Liberties vs. Union of India {2003 https://hcservices.ecourts.gov.in/hcservices/ (4) SCC 399}, it could be seen that the proviso to Direction No.4contained in paragraph 14 of the order of the Election Commission ofIndia dated 28.6.2002, empowering the Returning Officers to conduct asummary enquiry, was held to be invalid by the Apex Court. I had anoccasion to deal with this aspect in greater detail in Krishnamoorthy vs.Sivakumar {2009 (3) CTC 446}. In PUCL, the Supreme Court held in para 73as follows:-“73. While no exception can be taken to the insistence ofaffidavit with regard to the matters specified in the judgmentin Association for Democratic Reforms case, 2002 (5) SCC 294,the direction to reject the nomination paper for furnishingwrong information or concealing material information andproviding for a summary enquiry at the time of scrutiny of thenominations, cannot be justified. ....”18. Therefore, it may not be possible for the Returning Officer tohold an enquiry into these aspects. Hence the refusal of the ReturningOfficer to reject the nomination of a candidate, cannot be the subjectmatter of a writ petition, especially pre-election. The only remedy opento the petitioners in these cases, without any doubt in my mind, is toraise an election dispute, if at all, the candidates against whom thepetitioners make allegations, get elected. Hence these 6 writ petitionsW.P.Nos.11502, 1530, 11551, 11552, 11605 and 11632 of 2011 are dismissed.No costs. Consequently connected miscellaneous petitions are alsodismissed.CASES ARISING OUT OF REJECTION OR NON-ACCEPTANCE OF NOMINATIONS OF THEPETITIONERS:19. The grounds on which the nominations of the writ petitioners havebeen either rejected or simply not accepted, fall under variouscategories. They are:-(i) that the candidate has failed to fill up the column relating toage;(ii) that the name of the candidate was not found in the electorallist, though the RDO has given a Certificate dated 29.9.2011;(iii) that the candidate has not paid the current house tax;(iv) that the name of the candidate is found in the electoral rollsof more than one constituency;(v) that the candidate has failed to furnish the name of the Bank inwhich he holds an account;(vi) that the last page of the nomination form alone was notnotarised, though the other pages were duly attested and notarised;(vii) that the candidate had not mentioned the dues payable to theCooperative Bank;(viii) that the deposit made had been taken in the name of somebodyelse (proposer) and not in the name of the candidate;(ix) that page-7 of the affidavit not enclosed, though the candidateactually had enclosed; and(x) that the candidate had not submitted his letter of resignationfrom the post of Librarian to the Competent Authority though he submittedto an incompetent Authority.20. Before I could take up for consideration the individual writpetitions in which either the orders of rejection or the non-acceptanceof the nominations are under challenge, I must deal with two preliminaryobjections raised by Mr.K.Mahendran, learned Special Government Pleaderappearing for the Election Commission. They are:-(i) that in respect of elections to the Wards which form the subjectmatter of W.P.Nos.11525, 11534, 11535, 11538, 11539, 11540, 11555, 11558and 11583 to 11585 of 2011, the results of elections have already beendeclared, in view of the fact that the nomination of only one candidatesurvived in the final list; and https://hcservices.ecourts.gov.in/hcservices/ (ii) that in any case, there is a bar of jurisdiction of this Court,both in terms of the Constitution of India and in terms of the provisionsof The Tamil Nadu Panchayats Act, 1994.21. The first preliminary objection of the learned Special GovernmentPleader in respect of those 11 writ petitions, can be disposed of withoutmuch ado. As seen from the election schedule announced by the StateElection Commission, the last date for filing nominations was 29.9.2011.The date for scrutiny was 30.9.2011. The date for withdrawal ofnominations and publication of final results was 3.10.2011. Thenominations of the petitioners in these 11 writ petitions were eitherrejected or not accepted. This fact became obvious by the Evening of30.9.2011. On 3.10.2011, after the time fixed for withdrawal ofnominations expired, the Returning Officer is obliged as per Rule 32 ofThe Tamil Nadu Panchayats (Elections) Rules 1995 to declare the results.As per Rule 32(1)(a) of the Rules, immediately after the preparation ofthe list of contesting candidates in Form-9, in accordance with Rule 31,the Returning Officer is obliged to affix a copy of Form No.9 in theNotice Board in his office and also affix the declaration of thecandidate duly elected, if there was only one contesting candidate.Therefore, on the Evening of 3.10.2011, if the Returning Officer hadfound that there was only one contesting candidate, he must immediatelydeclare the election of such candidate. Once the declaration of electionhas been made, it is not possible for this Court to go into the questionof rejection of nomination of the rival candidate. 22. However, Mr.Veera.Kathiravan, learned counsel for the petitionerscontended that under the proviso to Sub-Rule (7) of Rule 29, theReturning Officer is obliged to allow time to the candidate in respect ofwhose nomination he has raised objections. The time allowed to thecandidate is prescribed as until 11.00 A.M., of the next day followingthe date fixed for scrutiny. In this case, the date fixed for scrutinywas 30.9.2011. Therefore, according to the learned counsel, the ReturningOfficer ought to have allowed time to the petitioners till 11.00 A.M., on1.10.2011 to rebut the objections, in terms of the proviso to Sub-Rule(7) of Rule 29. It is the contention of the learned counsel for thepetitioners that since this was not done, the declaration of results wasvitiated.23. But the said contention does not take the petitioners anywhere.The date for withdrawal of nominations was fixed as 3.10.2011. In termsof Rule 32(1)(a), Form-9 could be prepared only on 3.10.2011. Therefore,irrespective of whether an opportunity was given to the petitioners on1.10.2011 or not, what followed on 3.10.2011 is a matter of fact. Even ifthere has been a wrong declaration of results, the same cannot be upsetby this Court in a writ petition, since the writ petition itself wasfiled only on 4.10.2011, after such declaration. There can be no doubtthat after the declaration of results, the only remedy is to file anelection dispute.24. Mr.Veera.Kathiravan, learned counsel for the petitioners raised acontention that in view of the holidays for the Court, the writ petitionscould be filed only on 3.10.2011 and moved before the Vacation Judge on4.10.2011. It is his contention that on 4.10.2011, this Court made itclear that any thing done on and from 4.10.2011 till the date of re-opening of the Court viz., 10.10.2011, shall not prejudice the interestof the petitioners. Therefore, according to the learned counsel, therespondents are not entitled to take refuge under the declaration ofresults.25. But unfortunately for the petitioners, the declaration of resultsunder Rule 32(1)(a) was to be made on the Evening of 3.10.2011 itself,immediately after the time for withdrawal of nominations expired. Thewrit petitions came up for admission only on 4.10.2011. Therefore, any https://hcservices.ecourts.gov.in/hcservices/ order passed by this Court on 4.10.2011, cannot have the effect ofannulling the declaration of results made on 3.10.2011 in terms of Rule32(1)(a). Hence, all these 11 writ petitions are dismissed, leaving itopen to the petitioners to raise election disputes. No costs.Consequently connected miscellaneous petitions are also dismissed.26. The second preliminary objection with regard to themaintainability of the writ petitions in view of the constitutional andthe statutory bar, requires a more elaborate consideration. Therefore,let me now take up the issue relating to maintainability.27. Article 243-O of the Constitution bars the jurisdiction of Courtsto call in question (i) the validity of any law relating to de-limitationof constituencies or allotment of seats and (ii) an election to anyPanchayat, except by way of an election petition, presented to suchauthority as provided by any law made by the State Legislature. A similarbar is found in respect of elections to Municipalities under Article 243-ZG and in respect of elections to the Parliament and the Legislatures ofStates under Article 329. 28. Apart from the above constitutional bar, there is also astatutory bar under Section 258 (1) of The Tamil Nadu Panchayats Act,1994. It says that no election of a President or a member shall be calledin question, except by an election petition presented to the DistrictJudge of the District in which the Panchayat is situated, within 45 daysfrom the date of publication of the result of the election under the Act. 29. It may be noted that the bar under Articles 243-O(b), 243-ZG(b)and 329(b) of the Constitution and the bar under Section 258(1) of the1994 Act, are identically phrased. All of them speak of a challenge to anelection. The phrase “no election” appearing both in the above provisionsof the Constitution and in the provision of the Act, carry the samemeaning, as the latter is the adoption of the former. The interpretationto be given to the expression “election” was considered by a ConstitutionBench of the Supreme Court in N.P.Ponnuswami vs. Returning Officer,Namakkal {AIR 1952 SC 64}. It was held therein that the word “election”appearing in Article 329 (b) of the Constitution was used in acomprehensive sense as including the entire process of electioncommencing with the issue of a notification and terminating with thedeclaration of election of a candidate. The Court further held that apetition under Article 226 challenging the validity of any of the actsforming part of that process would be barred. The principles laid down inthe said decision were reiterated by a 7 Member Bench of the Apex Courtin Hari Vishnu Kamath vs. Ahmed Ishaque {AIR 1955 SC 233}. However, thelarger Bench added a rider holding that the decisions of the Tribunalsbefore whom election disputes are raised, are subject to the supervisoryjurisdiction of the High Courts under Article 226.30. Again in Lakshmi Charan Sen vs. A.K.M. Hassan Uzzaman {1985 (4)SCC 689}, the Supreme Court pointed out that very often, the exercise ofjurisdiction, especially the writ jurisdiction involves questions ofpropriety than of power. Though in paragraph-28 of the said decision, theSupreme Court carved out an exception holding that the preparation andrevision of electoral rolls is a continuous process, not connected withany particular election, the cases on hand do not relate to thepreparation of electoral rolls. These cases relate to the non-acceptanceof nominations, which certainly form part of the whole of the electoralprocess. Therefore, the metaphor used by V.Krishna Iyer, J., in MohinderSingh Gill vs. The Chief Election Commissioner {AIR 1978 SC 851} thatArticle 329 (b) is like the great wall of China, would apply to the caseson hand. The attempt made by the petitioners to make it a Berlin wall,cannot be sustained. 31. Section 259 (1) of The Tamil Nadu Panchayats Act, 1994, indicatesthe grounds on which an election to a Panchayat could be challenged. They https://hcservices.ecourts.gov.in/hcservices/ are:-(i) that on the date of election, the returned candidate was notqualified or was disqualified to be chosen as a member under the Act;(ii) that the returned candidate or his agent or any one with hisconsent, was guilty of corrupt practices;(iii) that any nomination paper was improperly rejected; and(iv) that the results of the election, in so far as it concerns areturned candidate has been materially affected, either due to improperacceptance of any nomination or due to any corrupt practice committed inthe interests of the returned candidate or due to improper acceptance orrefusal of any vote or due to non-compliance with the provisions of theAct, the Rules or the orders issued thereunder.32. While the improper rejection of any nomination paper is coveredby Section 259(1)(c), the improper acceptance of any nomination iscovered by Section 259(1)(d)(i). The distinction between the two lies inthe fact that the election of a candidate can be challenged successfullyon the ground of improper rejection of any nomination paper, withoutanything more. But the challenge to an election on the ground of improperacceptance of any nomination, would succeed only if the electionpetitioner establishes that such improper acceptance of any nominationmaterially affected the result of the election in so far as the returnedcandidate is concerned. 33. Since the improper rejection of nomination is covered by Section259(1)(c) and the improper acceptance of nomination is covered by Section259(1)(d)(i) of the Act, a Division Bench of this Court held inB.Pazhaniswamy vs. The Tamil Nadu Chief Election Commissioner, Madras{1997 (1) MLJ 612}, that it was not permissible for this Court tointerfere, under Article 226 of the Constitution, with the acceptance orrejection of the nomination papers in an election to Panchayats.34. There is one decision of a Division Bench of this Courtexpressing a contrary view, which supports the case of the petitioners onthe question of maintainability. It is in O.M.Noorudeen vs. The DistrictCollector {1986 WLR 139}. In that case, the nomination of a candidate whosought election to the post of President of Keeranur Town Panchayat wasrejected on the ground that he was a Contractor in Thoppampatti PanchayatUnion. Contending that the order of rejection was frivolous and not inaccordance with Section 25 (2)(c) of The Tamil Nadu Panchayats Act, 1958,the candidate filed writ petition under Article 226. Mohan, J., dismissedthe writ petition on the ground that a writ petition cannot beentertained. But the same was reversed by a Division Bench ofM.N.Chandurkar, C.J., and K.Venkataswami, J., holding as follows:-"This is patently a case where the Returning Officerseems to have gone out of the way in rejecting thenomination paper of the appellant on the specious pleathat the appellant was a Contractor when on the face ofit, that reason is not even found in the statute at all.In a case like this which in our view falls within thecategory of extraordinary cases, this Court could exerciseits jurisdiction under Article 226 of the Constitution andit cannot allow an illegality to continue and allow theelection to be held with the surest chance of the electionbeing set aside and the candidates and the StateGovernment being put to incur expenditure over again. Weare conscious of the fact that an election petition in agiven case is the proper remedy. But we are not reluctantto exercise out jurisdiction under Article 226 of theConstitution in a case where there is a flagrant violationof the legal provision when once that is brought to ournotice." https://hcservices.ecourts.gov.in/hcservices/

35. But at the same time, when the above decision was rendered, thebar of jurisdiction was not traceable to any Constitutional provisions.Part IX dealing with "the Panchayats" was inserted into the Constitutionmuch later, after the above decision of the Division Bench. It was inPart IX that Article 243-O containing a bar to interference by Courts inelectoral matters was inserted. Until then, there was a doubt about theapplicability of the provisions of Article 329 (b) of the Constitution,to the elections to the Panchayats. But with the insertion of Article243-O, the doubt got dispelled. Moreover, the 1958 Panchayats Act, wasreplaced by The Tamil Nadu Panchayats Act, 1994. Therefore, the bar todayis both constitutional as well as statutory. Hence the above decision ofthe Division Bench, cannot be taken to be applicable anymore, to cases ofsuch nature.36. However, a very strong reliance is placed by the learned counselfor the petitioners, upon a decision of the Full Bench of this Court inAll India Anna Dravida Munnetra Kazhagam vs. The State ElectionCommissioner {2007 (1) CTC 705}, where the learned Judges of the DivisionBench who heard a public interest litigation, differed in their views,leading to the matter being referred to a third Judge. Two out of the sixquestions that P.K.Misra, J., as he then was, took up for consideration,as seen from para 185 of the decision were, (i) as to whether in view ofthe provisions contained in Article 243-ZG of the Constitution of India,the High Court has any jurisdiction to entertain and decide any petitionunder Article 226 and (ii) as to whether in view of the availability ofthe remedy of filing election petition under the statute before theElection Tribunal, the High Court can decide such matters under Article226 of the Constitution.37. After tracing the history of the constitutional provisions andthe entire gamut of law as laid down by the Supreme Court and the variousCourts, the learned Judge concluded in para 253(2) as follows:-“(2) Any decision taken by the Election Commission issubject to the judicial review by the High Court, of coursewithin the known parameters of such jurisdiction. However, theHigh Court is required to be very circumspect in such mattersand interfere only in rarest of rare cases. Where the HighCourt comes to the conclusion that free and fair election hasnot been held and there is a mockery of democracy and theElection Commission has failed in its duty to protectdemocracy by ensuring free and fair election, the High Courtcan in order to protect the concept of democracy, interfere insuch matters, even after the election process is over,notwithstanding the fact that alternative remedy may beavailable and notwithstanding the fact that some disputedquestions are required to be decided. This again wouldobviously depend upon the facts and circumstances of each caseand such jurisdiction is to be exercised in rarest of rarecases where the monstrosity of the situation so compels.”38. A careful reading of the law laid down by the Full Bench,extracted above, would show that restraint is the rule and interferenceis the exception. The Full Bench has cautioned that interference by thisCourt could only be in the rarest of rare cases, where the High Courtcomes to the conclusion (i) that free and fair election had not been held(ii) that there was a mockery of democracy and (iii) that the ElectionCommission failed in its duty to protect democracy by ensuring free andfair election. In the last line of paragraph 253 (2), the Bench observedthat the monstrosity of the situation should compel the exercise of thejurisdiction. Therefore, we have to see if the cases on hand would fallwithin the category of rarest of rare cases and as to whether a monstroussituation had arisen. https://hcservices.ecourts.gov.in/hcservices/

39. Before considering the question as to whether the allegationsmade by the writ petitioners indicate a monstrous situation or not, itmust be noted that in the case before the Full Bench, F.M.IbrahimKalifulla, J., extracted the facts and pleas as they unfolded before him,in paragraph 104 of his judgment. It was pointed out in paragraph 104that out of 155 Wards, into which Chennai City Municipal Corporation wasbifurcated, there were complaints pertaining to 99 Wards. But re-poll wasordered in 46 booths in 17 Wards alone. The learned Judge also notedserious allegations of booth capturing which appeared in all leadingnewspapers on the very next date of polling and the complete inaction ofthe Election Commission. Therefore, P.K.Misra, J., came down very heavilyupon the Election Commission itself in paragraph 232 of his opinion.40. Keeping in mind the factual scenario on the basis of which theFull Bench passed the above judgment, if we now come to the cases onhand, it is seen that the grievance of the petitioners is that theirnominations have been rejected arbitrarily and unlawfully. In respect ofOttanchathiram, it is claimed by the petitioners that the nominations of7 out of 20 candidates belonging to the DMK Party have been rejected.Similarly, in Thoppampatti, the nominations filed by several DMKcandidates have been rejected. According to the petitioners, there wereeither no grounds for rejection or the grounds were trivial and flimsy.One more grievance of the petitioners is that despite a demand beingmade, the Returning Officers did not communicate their decisions inwriting. In cases where nominations were rejected on trivial grounds, noopportunity was given to the petitioners as contemplated by the Rules.Therefore, according to the petitioners, the cases on hand would fallwithin the category of rarest of rare cases, warranting interference bythis Court under Article 226. 41. In order to test the above contentions, it is necessary to lookat the provisions of the Rules, under which nominations are to be filedand scrutinised. Rules 26 to 29 of The Tamil Nadu Panchayats (Election)Rules, 1995 prescribe the following procedure for filing of nominations,the requirements to be satisfied, the deposits to be made and scrutiny ofnominations. In broad and simple terms, the procedure prescribed by theserules can be crystallised as follows:-(i) The nomination should be in Form-3 and it should be delivered tothe Returning Officer either in person or by the proposer.(ii) Form-3 should be signed by the candidate and by a proposer whoshall be an elector of the Ward of Village Panchayat or the VillagePanchayat as the case may be.(iii) On the presentation of the nomination paper, the ReturningOfficer should satisfy himself that the names and electoral roll numbersof the candidate and his proposer, as entered in the nomination paper arethe same as found in the electoral roll. The Returning Officer is obligedto permit any misnomer or inaccurate description or clerical error to becorrected.(iv) A candidate may be nominated by more than one, but not more than4 nomination papers.(v) An elector who wishes to stand as a candidate shall not sign anynomination paper as a proposer.(vi) At the time of delivery of the nomination paper, the candidateshould deposit with the Returning Officer, the amount of depositprescribed under Rule 27(1).(vii) While receiving the nomination paper, the Returning Officershould inform the person delivering the same, of the date, time and placefixed for scrutiny of nominations.(viii) On the evening of everyday, after the time fixed for receivingnomination papers expired, the Returning Officer should affix a notice inForm-4 indicating all the nomination papers delivered on that date. https://hcservices.ecourts.gov.in/hcservices/ Similarly, after the expiry of the time fixed for receipt of nominationpapers on the last day, a notice in Form-5 has to be affixed. (ix) If a candidate's name has been incorrectly spelt or shown, thecandidate may make a request for correcting the mistake and the ReturningOfficer is obliged to correct the mistake.(x) On the date and hour notified, the Returning Officer shall takeup the scrutiny of nominations. Every candidate is entitled to attend thescrutiny along with one of his proposers and one other person dulyauthorised by him.(xi) Any person can object to any nomination either orally or inwriting and the Returning Officer shall examine the nomination papers anddecide one by one and Ward by Ward, all objections. After holding asummary enquiry as found necessary, the Returning Officer may reject thenomination of any person on any of the 4 grounds stipulated in clauses(a) to (d) of Rule 29(3).(xii) The grounds on which a nomination could be rejected are:-(a) that the candidate was either not qualified or disqualified underthe provisions of the Act;(b) that there was a failure to comply with Rules 26 or 27;(c) that the signature of the candidate or the proposer in thenomination paper was not genuine; and(d) that where the election is in respect of a reserved constituency,the candidate who filed the nomination did not belong to such category;(xiii) The Returning Officer should not reject any nomination on theground of any defect which is not of a substantial character. The failureto complete or any defect in completing the declaration as to symbols, isnot a defect of a substantial character.(xiv) The proceedings for scrutiny shall not be delayed or postponedexcept when they are interrupted or obstructed, by riot or open violenceor by causes beyond his control.(xv) If an objection is raised to the candidature of any person, theReturning Officer shall give time to the candidate to rebut it, till11.00 A.M., on the next day, following the date of scrutiny.(xvi) The Returning Officer shall give his decision on thatnomination on the adjourned date.(xvii) The Returning Officer should endorse on each nomination paper,his decision accepting or rejecting the nomination. He should also recordin writing, his reasons for rejecting a nomination. A copy of the reasonsmay be furnished to the candidate, if any application is made to him inthis behalf.(xviii) After all the nomination papers have been scrutinised and thedecisions accepting or rejecting the same have been recorded, theReturning Officer should prepare a list of validly nominated candidatesin Form-6 and publish the same in the place notified for receipt ofnominations.42. On the basis of the procedure laid down as above, the learnedcounsel appearing for the various petitioners contend (i) that in a fewcases rejection of nominations has been done on grounds other than thosespecified in Rule 29(3); (ii) that the rejection of nominations in somecases has been done on the ground of defects which are not of substantialcharacter, which is violative of Rule 29(5); (iii) that no opportunity ascontemplated by the proviso to Sub Rule (7) of Rule 29 was granted tocandidates to rebut the objections, until 11.00 A.M., on 1.10.2011; and(iv) that the copy of the reasons for rejection was not furnished to thecandidates.43. In one case viz., W.P.No.11580 of 2011, the rejection ispurportedly on the ground that the name of the petitioner was found inthe electoral rolls of more than one constituency. But it is not adisqualification, as seen from the law laid down by the Supreme Court in https://hcservices.ecourts.gov.in/hcservices/ Baburao vs. Manikrao {AIR 1999 SC 2028} and Pothula Rama Rao vs. PendyalaVenkata Krishna Rao {AIR 2007 SC 2924}. 44. In W.P.No.11506 of 2011, the rejection is on the ground of non-payment of house tax for the current year. It is in violation of theprescription contained in Section 37 (f) of the Act which mandatespayment of arrears only upto and inclusive of the previous year.Therefore, it is the contention of the petitioner that in violation ofSection 37 (f) of the Act and in violation of the law laid down by thisCourt in B.R.Venkatachalapathy vs. N.Manickam {1967 (2) MLJ 398}, thenomination has been rejected. 45. In one case, the rejection was on account of failure of thecandidate to mention his age. In one case, it is for failure to have thelast page attested by the notary public. In another case, the deposit asrequired by Rule 27 (1) had been made in the name of the proposer and notin the name of the contesting candidate. In one case, a sheet of paperwas missing.46. But, in my considered view, the rejection or non-acceptance ofthe nominations of the writ petitioners, on the grounds stated above,would not make these cases come under the category of "rarest of rarecases", warranting interference under Article 226 of the Constitution. Itis not the case of any of the petitioners that his/her nomination hasbeen rejected on no ground whatsoever. The uniform contention of all thewrit petitioners is that the rejection has been done on flimsy grounds oron untenable or unacceptable or trivial grounds. Therefore, it is clearthat the nominations filed by the petitioners were, in fact, defective,however insignificant they may be. The question as to whether the defectswere substantial or inconsequential in nature, is not only a question offact, but also one to which different people would respond differently,depending upon their own perceptions. A stickler to Rules, like AppealExaminers of this Court of the olden days, may treat every omission andcommission as of importance. A person known for liberal views may condoneeven substantial defects on the ground that it had become the order ofthe day. The Returning Officers, being no less infallible than the othercategory of men, may also fall under any of the above two categories.Therefore, on a strict interpretation of the Rules, if a ReturningOfficer had rejected the nomination on the ground that age was notindicated or on the ground that one page was not notarised or on theground that the name of the bank was not mentioned or on the ground thatthe deposit was not made in the name of the candidate, the same cannot betaken to indicate the prevalence of a monstrous situation, so as towarrant interference by this Court under Article 226 of the Constitution. 47. As pointed out above, the question as to whether the rejection ofthe nomination papers was on substantial grounds or not is a question offact. The non-compliance with the prescription contained in some of theRules such as Rule 29(5), the proviso under Rule 29(7) and Rule 29(8),may be good grounds for the petitioners to successfully challenge theelection of the returned candidates in election petitions. But such non-compliance with statutory rules in individual cases cannot give raise toa presumption that a monstrous situation had arisen. Perhaps anallegation that throughout the State of Tamil Nadu, a similar situationhad arisen in many of the Constituencies with the wholesale rejection ofnominations of the candidates of the rival party in a concerted manner,may bring the cases within the category of rarest of rare cases. But thatis not so as on date. Therefore, I am of the view that the cases on handdo not fall under the category of rarest of rare cases to invoke thejurisdiction of this Court under Article 226 of the Constitution.48. It is now well settled that it is not always necessary for thisCourt exercising jurisdiction under Article 226 of the Constitution togive relief to the petitioners, even if a case is made out. The grant of https://hcservices.ecourts.gov.in/hcservices/ relief depends upon various factors including the consequences that wouldflow out of the grant of the relief. As on date, the election to thelocal bodies is just about 5 days and 7 days away. The finalisation ofthe list of candidates had taken place on 3.10.2011 and everything is inplace. Though many of the writ petitioners were filed on 3.10.2011itself, they could come up for hearing only on 4.10.201. By that time,the final list of candidates in the fray had been published in accordancewith Rules 31 and 32. Therefore, an order directing the respondents redothe whole exercise is simply out of question, especially in view of thefact that the cases of the writ petitioners do not fall under thecategory of rarest of rare cases.49. At this juncture, it may be useful to take note of a decision ofa 3 Member Bench of the Supreme Court in Boddula Krishnaiah vs. StateElection Commissioner {AIR 1996 SC 1595}. In that case, the names of 94persons were found in the draft electoral roll prepared by the competentauthority. But their names were deleted subsequently in the finalelectoral roll. In a writ petition filed by those persons, the High Courtgranted an interim order permitting them to participate in the election.But they could not exercise their franchise. Therefore, the High Courtpassed another order not to declare the results of the election. The HighCourt also issued another direction to the Revenue Divisional Officer tofind out how many of those persons whose names were deleted, wereeligible to be included in the list of voters. On the basis of thefindings rendered by the RDO, the High Court allowed them to participatein the election. When these directions were challenged before the SupremeCourt, the Supreme Court held as follows:-"11. Thus, it would be clear that once an electionprocess has been set in motion, though the High Court mayentertain or may have already entertained a writ petition, itwould not be justified in interfering with the electionprocess giving direction to the election officer to stall theproceedings or to conduct the election process afresh, inparticular when election has already been held in which thevoters were allegedly prevented to exercise their franchise.As seen, that dispute is covered by an election dispute andremedy is thus available at law for redressal.12. Under these circumstances, we hold that the orderpassed by the High Court is not correct in law in givingdirection not to declare the result of the election or toconduct fresh poll for 20 persons, though the writ petitionis maintainable. The High Court, pending writ petition, wouldnot be justified in issuing direction to stall the electionprocess. It is made clear that although we have held that therespondents are not entitled to the relief by interim order,this order does not preclude any candidate including defeatedcandidate to canvass the correctness of the election. Theyare free, as held earlier, to seek remedy by way of anelection petition as provided in the Act and the Rules."50. Therefore, it is not possible for me to issue any direction today(i) permitting the petitioners to participate in the election (ii)ordering the Election Commission to re-print the ballot papers, includingthe names of the petitioners and (iii) to go ahead with the process ofelection thereafter.51. It was contended by the learned counsel appearing for thepetitioners that the petitioners are not seeking either the cancellationor the postponement of the elections. The petitioners are only seekingthe acceptance of their nominations and permission to contest theelections. Therefore, the learned counsel submitted that any orderconceding their request would not amount to interference with the https://hcservices.ecourts.gov.in/hcservices/ election process. The learned counsel also relied upon a decisionrendered by D.Hariparanthaman, J., on 4.10.2011 in W.P.No.22964 of 2011.52. Though technically it is true that the petitioners are notseeking the postponement of the elections, but they are only seeking theacceptance of their nominations, the grant of the said relief is notpossible today without actually interfering with the election process. Aspointed out earlier, the last date for filing nominations was 29.9.2011.The date for scrutiny of nominations was 30.9.2011. The date forwithdrawal of nominations and for finalising the list of candidates was3.10.2011. It appears that one person by name N.Kasi moved a writpetition in W.P.No.22964 of 2011 before the learned Vacation Judge atChennai on 3.10.2011 at 2.15 P.M., before the deadline for finalising thelist of candidates expired. Therefore, the learned Judge issued adirection to the Returning Officer to consider the nomination of the writpetitioner. But the observations made by the learned Judge in paragraph-7would really clinch the issue. They are as follows:-"7. Taking into account the urgency involved in thecase, the same was heard on 2.15 P.M., on 3.10.2011 andthe learned Advocate General was present. This Courtexpressed its view that since the petitioner approachedthis Court before the last date for withdrawal ofnomination, his case could be considered separately. It isa different matter, if the petitioner approaches thisCourt after the symbols are allotted and ballet papers areprinted. In such cases, the persons aggrieved over theirrejection of nominations, could have only option toagitate against the order of rejection, by way of electionpetition."53. Therefore, in view of what is stated above, a grave situationwarranting the exercise of jurisdiction under Article 226 of theConstitution had not arisen in the cases on hand. Moreover, we havereached a stage today in the election process, where it is neitherfeasible nor justifiable, to grant the reliefs sought for by thepetitioners, overlooking the Constitutional and Statutory bar ofjurisdiction. Hence all the writ petitions are dismissed. It is open tothe petitioners to raise election disputes and if they choose to do so,any observations contained herein on merits, may not be held againstthem. There will be no order to costs. Consequently connectedmiscellaneous petitions are also dismissed.Sd/-Assistant Registrar (RTI)/True copy/Sub Assistant Registrar(CS)TO1. THE STATE ELECTION COMMISSIONER, 100 FT. ROAD, VADAPALANI,CHENNAI.2. THE DISTRICT RETURNING OFFICER, DISTRICT COLLECTOR, DINDIGUL DIST.3, THE RETURNING OFFICER, THOPPAMPATTI PANCHAYAT UNION, DINDIGUL DIST.4. TMT. MEENAL ASSISTANT RETURNING OFFICER CUM ASSISTANT BLOCK DEVELOPMENT OFFICER, THOPPAMPATTI PANCHAYAT UNION, DINDIGUL DISTGH : 09.11.2011 : 14p/5c ORDER IN WP(MD) No.11584 of 2011 Date :12/10/2011