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2012 Supreme(Mad) 253
High Court of Judicature at Madras
D. MURUGESAN & K. RAVICHANDRABAABU
D. Beeman
Versus
Tamil Nadu State Election Commission Rep. By its Election Commissioner & Others
W.P.No.26449 of 2011 & M.P.Nos.1 and 2 of 2011
Decided On :Decided on: 12-01-2012
For the Petitioner - N. Jothi for M.C. Govindan, Advocates.
For the Respondents - R1 - A. Navaneethakrishnan, Advocate General, R2, R4, R6, R8, R10, R12 & R15 - R. Vijayakumar, Addl. Govt. Pleader, R14 -V. Raghavachari for Sithirai Anandan, R16, R17, R20, R21, R23 to 26 -V. Selvaraj for Ms. Lesi Saravanan, R18, R19, R22 & R28 - C. Samadharma Arasu, Advocates.
Headnote:A. TAMILNADU PANCHAYAT (ELECTION) RULES, 1995 - RULE 88 - Writ Petition praying to permit petitioner, to function as duly elected Chairman of a Panchayat Union - Contention of petitioner that Rule 88 cannot be resorted to at all by the Returning Officer in the event of there being a tie and it requires the presence of "all the ward members accepted - Held, if that was the intention of the legislature the word "all" should find a place in the said Rules itself. On the other hand it only says in the presence of "ward members". In our view more than one member becomes "Members". Therefore, at the time of drawing the lot, if two or more members are present it should be considered as sufficient compliance of presence of ward members as required under Rule 88 and consequently the drawal of the lot in their presence would be a valid procedure - Role of ward members during the drawal of lot is only to witness the drawal proceedings and not participating themselves in the voting procedure. It is only the Returning Officer who is to draw the lot and declare the duly elected candidate whose name is drawn, as successful candidate. The interpretation of Rule 88 sub-clause (1) as projected by the respondents, if made, would certainly makes the provision unworkable as it is always open to anyone or more of the ward members to walk out or abstain from the lot drawal proceedings and consequently make the said procedure invalid. The intention of the legislature is to give effect to the procedure intended upon and not to defeat the same.
B. TAMILNADU PANCHAYAT (ELECTION) RULES, 1995 - RULE 85 - Held, Rule 85, requiring the Returning Officer to record the vote in the ballot paper in accordance with the wishes of the Ward member who is an illiterate or blind or other physical infirmity applies for assistance in making a mark in the ballot paper, comes into play only during the time of election and not after the completion of election and declaration of the result thereon. When admittedly, the Returning Officer in the minutes book has not referred to any of their objections, while declaring the petitioner as the successful candidate in pursuant to the lot, this objection cannot be raised as an after thought that too after the election was over and the results have been declared.
Result : Writ Petition allowed.
K.RAVICHANDRABAABU,J.
1. The writ petition seeks for a mandamus directing the respondents 1, 2 and 4 to permit the petitioner to function as the duly elected Chairman of Kothagiri Panchayat Union, the Nilgiris District.
2. The petitioner seeks the above said relief based on the following facts and circumstances as stated hereunder:
The Tamil Nadu State Election Commission published a notification in the official gazette announcing election for 191 Panchayat Unions in the first phase of polling on 17.10.2011. The petitioner contested to the post of ward member in Ward No. 3 of Kothagiri Panchayat under DMK party ticket and he was elected as successful candidate and issued with the declaration form to that effect. There were totally 14 ward members duly elected out of which AIADMK candidates got elected in 7 wards and DMK candidates got elected in six wards and MDMK candidate got elected in one ward.
3. For the election to the post of the Chairman and Vice Chairman to the Kothagiri Panchayat Union, announcement was made by the Election Officer viz, the fourth respondent and accordingly on 29.10.2011 at 9.30 a.m. the election was held to elect the Chairman and Vice Chairman of the Kothagiri Panchayat Union. All the ward members numbering 14 were present. The petitioners name was proposed by one Arputharaj and seconded by Tmt.Sivakala. Likewise, the candidature of the 24th respondent viz., Ramesh was also duly proposed and seconded by individual members.
4. It is stated by the petitioner that 14 ballot papers were made ready through computer system and the same was countersigned by the Election Officer and distributed to the respective ward members for casting their votes. It is stated by the petitioner that votes were cast in the ballot box and the said process went on for about 30 minutes. Thereafter, the polled votes were counted by the Returning Officer and each of the contesting candidates, viz., the petitioner and the 24th respondent got seven votes each and thereby the result was a tie. It is stated by the petitioner that in view of the above position of securing equal number of votes by both the candidates, the Returning Officer consulted the District Collector for guidance and to take further steps. Thereafter, the Returning Officer proceeded to go ahead for drawal of lots as contemplated under Rule 88 of the Tamil Nadu Pannchayats (Election) Rules, 1995.
5. It is stated by the petitioner that on hearing about the steps taken by the Returning officer to go ahead for drawal of lots, pandemonium prevailed at the instance of 8 AIADMK Ward Members and in the meanwhile the outsiders belonging to AIADMK came in and created troubles to the Returning officer which lasted for nearly more than one hour and demanded repoll and open poll. It is submitted by the petitioner that the Returning Officer went on consulting with the Collector and he had kept his cell phone quite busy by contacting so many persons. The petitioner has annexed in the typed set of papers the photographs said to have been taken during the entire process of election and wants to rely on those photographs in support of his contention.
6. It is further stated by the petitioner that finally at 11.15 a.m the Returning Officer decided to draw lots and in the meanwhile the AIADMK ward members went on shouting against the Returning Officer and abused him with filthy languages. However, the Returning Officer decided to go in for drawal of lots. Accordingly, even size papers were made out wherein by his own hand, the Returning Officer had written the names of the contesting candidates and placed it in a tray by shuffling it and mixing it so as to see that no lot could be distinguished from each other. Thereafter, a third person was invited and he picked up one roll of paper and handed over the same to the Returning officer and when it was unfolded the name of the petitioner was seen written there. Thereafter, as the petitioners name was drawn in the lot, t
