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M. Gomathi & Others v/s The State Election Commission, Rep. By its Secretary, 100 Feet Road, Vadapalani, Chennai 600 026. & Others

    W.P.(MD) Nos.10061, 10310, 10318, 10319 and 10408 of 2006 and W.P.(MD) SR Nos.43620, 44144 of 2006 and M.P.(MD) Nos.1 and 1 of 2006 and M.P.(MD) SR Nos.43622 and 44146 of 2006

    Decided On, 22 December 2006

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE K. MOHAN RAM

    For the Petitioner: S. Durairaj for Veerakathir Raman, R. Vijayakumar, S. Muthu Krishnan & S. Mohan, S.C. Robert Bruce, R. Anand, K. Mahendran, Advocates, N. Sundaresan for M/s. Sun Associates. For the Respondent: R-1, R-2, R-4 & R-5, No Appearance, R3, V. Chellammal, Spl.G.P.



Judgment Text

(Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 1 to 3 herein to recount the votes in Ward No.14 of Mela Neelithanallur Panchayat Union in the presence of any other Returning Officer other than the fifth respondent herein and to declare the results by following the provisions of Tamil Nadu Panchayat Election Rules scrupulously.


Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the eighth respondent herein to recount the votes in the election held on 13.10.2006 for Panchayat President for Meenakshipuram Village Panchayat, Madurai West Panchayat Union, Madurai District, in the presence of any other Returning Officer and to declare the results by following the provisions of the Tamil Nadu Panchayat Election Rules scrupulously.


Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the third respondent to recount the votes for the election held for the position of the Ward Member in Ward No.1 of Palayakottai Panchayath, Theni District.


Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records in notice No.Na.Ka.7/1219/2006 issued by the third respondent herein dated 18.10.2006 and quash the same and directing respondents 1 to 3 herein to recount the votes of women candidates in Ward No.5 of Thiruchuli Panchayath in the presence of any other Returning Officer other than third respondent herein and to declare the results by following the Provision of Tamil Nadu Panchayat Election Rules scrupulously.


Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents to consider the representation of the petitioner dated 19.10.2006 for recounting the votes and direct the respondents to recount the votes and announce the results of Kannanoor Panchayat which was held on 15.10.2006.


Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the first respondent to order for recounting of the polled votes of the ?Karuvantha Village Panchayat President Election? w

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hich was taken place on 15.10.2006 and consequently direct the above said respondents to furnish the result of recounting vide Form No.22 to the petitioner.


Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the second respondent herein to recount the votes in the election held for Panchayat President for A.Puthur Panchayat Union, Ramnad District, in the presence of the Returning Officer and to declare the results by following the provisions of Tamil Nadu Panchayat Election Rules scrupulously.


Common Order:


The petitioners contested in the Panchayat Elections that were held on 13.10.2006 and 15.10.2006 respectively. The results were declared on 18.10.2006. The petitioners, who lost in the election sought for recounting of the votes. But, according to the petitioners, no orders were passed by the Returning Officers concerned. Hence the above writ petitions have been filed seeking the above said reliefs. The contention of the petitioners is that once a written application is filed under Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995 seeking recounting of the votes, the Returning Officers are duty bound to either accept or reject the request of the petitioners, but the Returning Officers concerned have not passed any orders on the applications submitted by the petitioners.


2. Separate but identical submissions were made by the learned counsel for the petitioners. The learned counsel for the petitioners mainly contended that when a written request for recounting has been made to the Returning Officer, an order should have been passed either accepting or rejecting the same. Learned counsel for the petitioner in W.P.(MD) S.R.No.44144 of 2006 submitted that the petitioner in that writ petition has already filed an election petition and the same is pending. Nevertheless the learned counsel submitted that an order should be passed in the writ petition directing the recounting of votes.


3. The main issue that has to be decided in the above writ petitions is as to whether the writ petitions are maintainable. For deciding the said issue, it will be useful to refer to the following relevant provisions of the Tamil Nadu Panchayats Act, 1994 (hereinafter referred to as ?the Act?) and the Tamil Nadu Panchayats (Elections) Rules, 1995 (hereinafter referred to as "the Rules"):-


"(i) Section 258. Election petitions.- (1) No election of a president or a chairman or a member shall be called in question except by an election petition presented to the District Judge of the district in which the panchayat is situated, within forty-five days from the date of the publication of the result of the election under this Act.


(2) An election petition calling in question any such election may be presented on one or more of the grounds specified in Section 259 by any candidate at such election, by any elector of the ward concerned or by any member.


(3) A petitioner shall join as respondents to his petition all the candidates at the election."


(ii) Section 259. Grounds for declaring elections to be void. - (1) Subject to the provisions of sub-section (2), if the District Judge is of opinion -


(a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act, or,


(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or


(c) that any nomination paper has been improperly rejected, or


(d) that the result of the election insofar as it concerns a returned candidate has been materially affected -


(i) by the improper acceptance of any nomination, or


(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent, or


(iii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or


(iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Court shall declare the election of the returned candidate to be void".


"(iii) Rule. 66. Recount of votes. - (1) After the completion of the counting and recording in Form 22 the total number of votes polled by each candidate under sub-rule (2) of rule 64, the Returning Officer shall announce the same. After such announcement, and before the declaration of the result of the election, a contesting candidate or in his absence his election agent may apply in writing to the Returning Officer for a recount of all or any of the votes already counted stating the grounds on which he demands such recount.


(2) On such application being made, the Returning Officer shall decide the matter and may allow the application in whole or in part, or may reject it in toto if it appears to him to be frivolous or unreasonable.


(3) Every decision of the Returning Officer under sub-rule (2) shall be in writing and contain the reasons therefor.


(4) If the Returning Officer decides under sub-rule (2) to allow an application either in whole or in part, he shall -


(a) count the votes again in accordance with his decision;


(b) amend the result sheet in Form 22 to the extend necessary after such recount; and


(c) announce the amendments so made by him.


(5) After the total number of votes polled by each candidate has been announced under sub-rule (1) or under sub-rule (4) of this rule, the Returning Officer shall complete and sign the result sheet in Form 22 and no application for a recount shall be entertained thereafter :


Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates or the election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1).?


?(iv) Rule 122. Election petitions. - Save as otherwise provided, no election held under the Act, shall be called in question except by an election petition presented in accordance with Section 258 of the Act or the rules, to the District Judge under whose jurisdiction the Panchayat or the District Planning Committee or other statutory committees fall, by any candidate or elector against the candidate who has been declared to have been duly elected.?


?(v) Rule 136. Grounds for declaring election to be void.- If the election court is of opinion -


(1) that the existence of all or any of the grounds specified in Section 259 of the Act, has been established, or


(2) that on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act, then the Court may declare the election of the returned candidate to be void.?


4. To decide the above issue, it will also be useful to refer to the law laid down by the Honourable Apex Court in the following decisions:-


(a) In the case of Vadivelu Vs. Sundaram and Others reported in 2000 (8) S.C.C. 355 in paragraphs 19 and 20 it has been laid down as follows:-


"Rule 66 of the T.N.Panchayats (Elections) Rules, 1995 states that after the completion of counting and recording in Form 22 the total number of votes polled by each candidate under sub-rule (2) of Rule 64, the Returning Officer shall announce the same. After such announcement, and before the declaration of the result of the election, a contesting candidate or in his absence, his election agent may apply in writing to the Returning Officer for a re-count of all or any of the votes already counted stating the grounds on which he demands such re-count. Therefore, an application for re-count shall be made before the declaration of the result of the election, but after the completion of the counting, when such result is entered in Part II of Form 20."


(b) In the case of P.K.K.Shamsudeen Vs. K.A.M.Mappillai Mohideen and others reported in 1989 (1) S.C.C. 526 in paragraph 13 it has been observed as follows:-


"The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes". (Emphasis supplied)


(c) In the case of Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee & Others and reported in 2006 (8) S.C.C. 487 in paragraphs 19, 24 and 29 it has been observed as follows:-


"19. It is well-settled principle that where elections are conducted in accordance with the provisions of a statute and the statute also provides a remedy of settlement of election disputes by filing an election petition before a tribunal, it is that remedy alone which should be availed of and recourse cannot be taken to proceedings under Article 226 of the Constitution. This view has been taken in a series of decisions rendered by this Court. The earliest decision was rendered in 1952 S.C.R. 218 = A.I.R. 1952 S.C. 64 (N.P.Ponnuswami Vs. Returning Officer) by a Bench of six learned Judges. In this case the nomination paper of the appellant for election to the Madras Legislative Assembly was rejected by the Returning Officer. The appellant challenged the rejection of the nomination paper by filing a writ petition in the High Court which was dismissed on the ground that it had no jurisdiction to interfere with the order of the Returning Officer on account of Article 329(b) of the Constitution, which says that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. In appeal, this Court examined the question whether the writ petition would be maintainable at the initial stage against an order rejecting the nomination paper. Certain observations made in A.I.R. Para 9 of the reports are relevant and they are being reproduced below: (S.C.R. Page 228)


"The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court". (Emphasis Supplied)


24. There are several other decisions where the same view has been taken 1998 (1) S.C.C. 572 = A.I.R. 1988 S.C. 616 (S.T.Muthusami Vs. K.Natarajan) is a case relating to election to the office of Chairman of a Panchayat Union under the Tamil Nadu Panchayats Act 1958 where it was held that the parties who are aggrieved by the result of the election can question the validity of the election by an election petition which is an effective alternative remedy and it is not appropriate for the High Court to interfere with the election process.


29. In view of the nature of the dispute raised, the proper remedy for the petitioner was to file an election petition as provided in Section 31 of the Act where parties could have got opportunity to lead oral evidence. No exceptional or extraordinary circumstances were disclosed which could justify recourse to the extraordinary remedy under Art. 226 of the Constitution and for not availing the remedy provided by the Statute.


(d) In the case of S.P.Gupta Vs. Union of India (1981 Supp. S.C.C. 87 = A.I.R. 1982 S.C. 149) it is observed as follows:-


"The Court does not decide issues in the abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The Court cannot take upon itself the role of a commission of inquiry ? a knight errant roaming at will with a view to destroying evil wherever it is found."


5. A close reading of the provisions contained in Sections 258 and 259 of the Act and Rules 66, 122 and 136 of the Rules and the law laid down in the various decisions referred to above leads this Court to the irresistible conclusion that unless the affected candidate is able to allege and substantiate by acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes. Further as laid down in 2006 (8) S.C.C. 487 (referred to supra) where elections are conducted in accordance with the provisions of a statute and the statute also provides a remedy for settlement of election disputes by filing an election petition before the tribunal, it is that remedy alone which should be availed of and recourse cannot be taken to proceedings under Article 226 of the Constitution of India.


6. Section 259 (1) (d) (iii) of the Act provides that if the District Judge is of the opinion that the result of the election insofar as it concerns a returned candidate has been materially affected by the improper acceptance or refusal of any vote or reception of any vote which is void, the Court shall declare the election of the returned candidate to be void. One of the allegation in the writ petitions is that some valid votes have been rejected and invalid votes have been accepted and if such an allegation is alleged and proved by acceptable evidence in the Election Petition instituted before the Election Tribunal and if the Election Tribunal comes to the conclusion that it is imperative to order recounting to do complete justice between the parties, then recounting will definitely be ordered. Therefore, the contention of the learned counsel for the petitioners that a prayer for recounting cannot be made before the Elections Tribunal is liable to be rejected.


7. In the decision rendered in the case of R.Narayanan Vs. S.Semmalai and reported in 1980 (2) S.C.C. 537 = 1980 (1) S.C.R. 571 the same principle has been reiterated. That was a case where the difference of votes between the candidate declared elected and his nearest rival, who filed an election petition was only 19 votes and which figure would have come down to 9 votes only if the postal ballots were included. Even so the Apex Court after referring to a number of decisions and Halsbury?s Laws of England and Fraser on Law of Parliamentary Elections and Election Petitions held that without there being an adequate statement of all the material facts are founded and such averments being backed by acceptable evidence and the Court trying the petition being prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties, an order of recount of votes cannot be passed. Therefore, the right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes. Thus it is clear that merely on the basis of averments contained in the affidavit an order for recounting of votes cannot be passed. The candidate seeking recounting of votes should allege all the material facts on which the allegations of irregularity or illegality in counting of votes are founded and such averments should be backed by acceptable evidence and if the Election Tribunal trying the petition is prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties, an order of recount of votes can be passed but otherwise. Therefore the contention of the learned counsel for the petitioners that in an Election Petition the plea for recounting cannot be raised and the Election Tribunal cannot order recount is without substance and the same is liable to be rejected.


8. A reading of Rule 66 of the Rules shows that if an application as contemplated in Rule 66 of the Rules specifying the requirements of the Rules is made, it is mandatory on the part of the Returning Officer to decide the matter one way or other and such decision shall be in writing and further it should contain the reasons therefor. Therefore, the contention of Mr. K.Mahendran learned counsel appearing for the petitioners in W.P.S.R.No.44144 of 2006 merits acceptance, but it does not mean that simply because the Returning Officer has failed to render a decision on the application filed by the candidate seeking recounting of votes, a writ petition can be filed seeking recounting of votes. Even under those circumstances, the only remedy open to the aggrieved candidate is to file an Election Petition and seek appropriate remedy in the Election Petition.


9. This Court is of the considered view that the appropriate remedy for the petitioners in the above writ petitions is to file an Election Petition as provided for in the Act and Rules where they can get an opportunity to led oral evidence to establish their allegations. It has to be further pointed out that no exceptional or extraordinary circumstances are disclosed in the above writ petitions which could justify recourse to the extraordinary remedy under Art. 226 of the Constitution and for not availing the remedy provided by the Statute.


10. In the light of the law laid down in the above said decisions, this Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India cannot set-aside the duly elected candidate as that can be done only by the Election Tribunal in a properly instituted Election Petition. Even if recounting is ordered as prayed for by the petitioners, no further relief can be given to the petitioners, in these writ petitions as this Court cannot set-aside the election of elected candidates. Therefore in the considered view of this Court even if the writ petitions are entertained it will not serve any useful purpose. It is settled law that if the Court cannot set-aside the election no purpose would be served by issuing a writ and the Court can dismiss the application on that ground alone. Therefore, as pointed out above, when no relief can be given to the petitioners by issuing the writ as prayed for, the petitioners will have no fruitful result. It will only be a futile exercise and therefore this Court is of the view that the above writ petitions are not only not maintainable, but even if the writ petitions are entertained no useful purpose would be served by issuing a writ, the issuance of which will be futile.


11. The petitioners in W.P.Nos.10318, 10319 and 10408 of 2006 and W.P.S.R.No.43620 of 2006 admittedly filed applications for recounting only after the results of the election were declared. Therefore the applications for re-count were not filed in accordance with Rule-66 of the Rules, on this ground also W.P.Nos.10318, 10319 and 10408 of 2006 and W.P.S.R.No.43620 of 2006 are liable to be dismissed.


12. This Court, therefore, is of the opinion that on the facts and circumstances of the present cases, the writ petitions ought not to have been entertained for resolving the dispute relating to election.


13. The writ petitions filed by the petitioners herein are not maintainable having regard to the controversy raised which is purely factual in nature and could more appropriately be decided in an election petition, which remedy is provided under the Tamil Nadu Panchayats Act and the Rules.


14. For the reasons stated above, the writ petitions are dismissed as not maintainable.
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