JUDGMENT :

Munishwar Nath Bhandari, J.

(Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the District Collector, Villupuram District, The Block Development Officer, Election Officer of Panchayat President and ward members, Mailam Panchayat Union and the Counting Officer Ward No.16, Mailam Block, Villupuram District, the 2nd to 4th respondents to recount the votes polled on 9.10.2021 in the Panchayat President Election of No.136, Kolliangunam Village, Mailam Panchayat Union, Villupuram District on the basis of the representations dated 12.10.2021, 13.10.2021 to the 2nd and 3rd respondents and consequently direct the respondents to declare the petitioner as winning President candidate for the Kolliangunam Panchayat, Mailam Union, Villupuram District.)

1. The writ petition has been filed to seek a direction on the respondent Nos.2 to 4 for recounting the votes polled on 9.10.2021 in reference to Ward No.16 in the Panchayat President Election of No.136, Kolliangunam Village, Mailam Panchayat Union, Villupuram District based on the representations given by the petitioner.

2. It is submitted that pursuant to the notification for local body election, election for Ward No.16, Mailam Block, Villupuram District was held on 09.10.2021. The petitioner made an application for recounting of the votes, but the Returning Officer did not pass any orders despite a mandate under Rule 66 of the Tamil Nadu Panchayats (Election) Rules, 1995 (for short, ‘1995 Rules’). As per Rule 66 of the 1995 Rules, whenever an application is filed for recounting of votes, the Returning Officer has to decide it. He may allow the application in whole or in part. Learned counsel for the petitioner submits that no decision on the application was taken and thereby, without recounting the votes, the result of the election was declared. In view of the above, the present writ petition has been filed seeking a direction for recounting of votes as there is a statutory failure on the part of the Returning Officer to take a decision on the application submitted by the petitioner for recounting of the votes.

3. On the issue of maintainability, learned counsel for the petitioner has made a reference to the judgment of this Court in the case of Dravida Munnetra Kazhagam (DMK), through its Secretary, Legal Wing and others v. The Tamil Nadu State Election Commissioner and others in W.P.No.24078 of 2011 etc., decided on 26.4.2012 [2012 SCC OnLine Mad 1720], wherein it was held that a writ petition questioning the election can be entertained and the writ petition is maintainable before the High Court if exceptional or extraordinary circumstances are established. In the said judgment, it has also been held that in the event a decision is called in question on fact not involving exceptional or extraordinary circumstances, the High Court would not be justified in entertaining the writ petition. The questions involving factual aspect could be resolved only in an election petition. In view of the judgment aforesaid, learned counsel for the petitioner submits that the writ petition to seek a direction on the Returning Officer for recounting of the votes is maintainable.

4. A reference of the judgment of this Court in the case of All India Anna Dravida Munnetra Kazhgam, through its Fisheries Wing Secretary v. The State Election Commissioner and others, reported at 2007 (1) CTC 705 has been given. Therein also, the writ petition was entertained questioning the process of election. The writ petition was found maintainable under Article 226 of the Constitution considering the extraordinary and exceptional circumstances of the case. The issue of alternative remedy of election petition was considered. This Court held that the alternative remedy would not deter the court to exercise the extraordinary jurisdiction in a situation which warrants such interference. The right to vote being a constitutional right, the writ petition is maintainab