Madras High Court
K.K.Ramesh vs National Human Rights Commission on 26 March, 2019
Bench: S.Manikumar, Subramonium Prasad
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.(MD).No.6062 of 2019
W.M.P.(MD).Nos.4836 and 4837 of 2019
K.K.Ramesh .. Petitioner
Vs.
1.National Human Rights Commission
Rep. by its Secretary,
G.P.O. Complex,
Manav Adhikar Bhawan,
C Block, INA,
New Delhi - 110023.
2.Union of India,
Rep. by its Home Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
3.Union of India,
Rep. by its Secretary,
Ministry of Law and Justice,
Shastri Bhawan,
New Delhi - 110 115.
4.The Chief Election Commissioner,
Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
http://www.judis.nic.in New Delhi - 110 001.
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5.The Chief Election Officer (CEO)
Tamil Nadu, Fort.St.George,
Secretariat, Chennai - 600 009.
6.Stated of Tamilnadu,
Rep. by its Home Secretary,
Secretariat, Chennai.
7.The Director General of Police,
Dr. Radhakrishna Street,
Chennai.
8.The Bharathiya Janaya Party,
Rep. By its General Secretary/President,
New Delhi.
9.The Indian National Congress,
Rep. By its General Secretary/President,
New Delhi.
10.The All India Anna Dravida Munnetra Kazhagam,
Rep. By its General Secretary/President,
226, Avvai Shanmugam Salai, Royapettah,
Chennai.
11.The Dravida Munnetra Kazahagam,
Rep. By its General Secretary/President,
Anna Arivalayam, Anna Salai, Chennai - 18.
12.The Desiya Murpokku Dravida Kazhagam,
Rep. By its General Secretary/President,
Koyambedu, Chennai.
13.The Pattali Makkal Katchhi,
Rep. By its General Secretary/President,
Dindivanam, Vizhupuram District.
Headquarters, Chennai.
14.The Viduthalai Siruthaikal Katchi,
Rep. By its General Secretary/President,
http://www.judis.nic.in Velacherry, Chennai.
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15.The Marumalarchi Dravida Munnetra Kazhagam,
Rep. By its General Secretary/President,
Thayagam, Egmore, Chennai.
16.The Tamil Manila Munnetra Kazhagam,
Rep. By its General Secretary/President,
No.14, 5th Cross Street, Ellaiyamman Colony, Chennai.
17.The Nam Tamilar Katchi,
Rep. By its General Secretary/President,
Hospital Road, Senthil Nagar, Porur,
Chennai.
18.The Samuthuva Makkal Katchi,
Rep. By its General Secretary/President,
Chennai, Tamil Nadu.
19.The Tamil Nadu Muslim League,
Rep. By its General Secretary/President,
40/33, Maraiyakkar Street,
Seethakathi Nagar, George Town, Chennai.
20.The Forward Block,
Rep. By its General Secretary/President,
Chennai, Tamil Nadu.
21.The Amma Makkal Munnetra Kazhagam,
Rep. By its General Secretary/President,
Chennai, Tamil Nadu.
22.The Marxist Communist Party of India,
Rep. By its General Secretary/President,
Chennai, Tamil Nadu.
23.The Communist Party of India,
Rep. By its General Secretary/President,
Chennai. .. Respondents
(R8 to R23, are suo motu impleaded,
vide order dated 14.03.2019)
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Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, issuance of a Writ of Mandamus, directing the 2nd respondent to
instruct the 4th and 5th respondents to issue notification, A) To publish
the giving and receiving cash for vote is punishable offence in TV, News
Papers, Radio and Display Board; B) To increase the number of flying
squad appointed by Election Commission to control cash for vote to
monitoring; C) To publish the contact number of flying squad to complaint
against the cash for vote; D) To Register case against the head of political
party who installs temporary or permanent flex boards / hoardings and
establishes temporary dais for political meeting in the middle of the road
or Pathway or junction or Bazaar by affecting traffic; and E) If election is
postponed or cancelled for the reason of distribution of cash for vote or
for deviating any Election Rules the huge money spent for election by
Government will be recovered from the candidate / Head of political
party.
For Petitioner : Mr.M.Purushothaman
For Respondents 4 & 5 : Mr.Niranjan Rajagopalan
For Respondents 6 & 7 : Mr.V.Jayaprakash Narayanan
Government Pleader
ORDER
(Order of this Court was made by S.MANIKUMAR, J.) Instant Public Interest Litigation has been filed for the following Prayers:-
"A) To publish the giving and receiving cash for vote is http://www.judis.nic.in punishable offence in TV, News Papers, Radio and Display 5 Board;
B) To increase the number of flying squad appointed by Election Commission to control cash for vote to monitoring;
C) To publish the contact number of flying squad to complaint against the cash for vote;
D) To Register case against the head of political party who installs temporary or permanent flex boards / hoardings and establishes temporary dais for political meeting in the middle of the road or Pathway or junction or Bazaar by affecting traffic; and E) If election is postponed or cancelled for the reason of distribution of cash for vote or for deviating any Election Rules the huge money spent for election by Government will be recovered from the candidate / Head of political party."
2. Case of the petitioner is that there are newspapers reports in all the leading newspapers and T.V.Channels, regarding cash for vote exists in Bye Elections and Lok Sabha, Elections and State Assembly Elections. A survey report also speak about the increasing cash for vote practice in Tamilnadu. According to him, corruption and vote for cash, being practiced in all the elections in Tamilnadu. If one political party has a overwhelming superiority in money, newspapers support and give patronage, and it will be almost impossible, barring an economic collapse, for it ever to be defeated. This would result in some voters being denied http://www.judis.nic.in 6 an equal voice and some candidates, denied equal chance. Since taking money for casting votes in favour of a candidate is a mean act like auctioning the self esteem of an individual, voters should shun cash, for votes. Indian Democracy is the biggest democracy in the world. Meaning of democracy is by the people for the people and of the people. So, pay and get cash for casting vote is ugly one.
3. Petitioner has further submitted that all the political parties openly paid cash for vote, to the voters- in Madurai, Thirumangalam Bye Election held on 2009. A main major political party paid Rs.5,000/- each to the voters to caste their vote, to their favoured candidates. The election commission hands were tied and election commission officials were seen as silent spectators in Madurai, Thirumangalam Bye Election constituency. These news reported in all the leading newspapers all over India and the elected candidates failed to submit the election expenses in a proper manner and accounts submitted were totally not true and bona fide one. The Election Commission did not take any action on the elected candidate.
4. The petitioner has further submitted that Madurai Thirumangalam Bye Election in the year 2009 in the root cause of case, http://www.judis.nic.in 7 for vote practice in Tamilnadu and earned a name, as Thirumangalam formula. Since the Election Commission has not taken a stringent action, Thirumangalam formula method spreaded all over India. In 2009 Parliamentary Election, as Major Political Party in Madurai District gave Rs.500/-, as a bribe to each voter. Even in 2014 Parliamentary Election, two major political parties gave Rs.200/- as bribe to each voter. At that point of time, these news were reported in all the leading newspapers all over India. The Election Commission officials failed to control cash for vote practice and the officials were threatened by a major political party, which caused major law and order problems and made disturbances to a common man. The people ran from pillar to post and police made lathi charge in many places. But the Election Commission did not take any action on the elected candidate.
5. The petitioner has further submitted that on 21.04.2014, 22.04.2014 and 23.04.2014 AIADMK party men distributed Rs.200/- for a vote to the people of Madurai Constituency. All leading newspapers published the news in Madurai. Some people caught hold of AIADMK men and handed over to the police. But, the police did not arrest them and not taken any action. In this regard, petitioner made a complaint to the Flying Squad and Election. Control Room. But, they did not come to the http://www.judis.nic.in 8 occurrence place and all the government department machineries supported the ruling AIADMK party workers. Therefore, the election held in Madurai was not normal, and it was against democracy, Constitutional laws and Representation of the people Act 1951. In an RTI application, the Director General of Police, has stated that 3742 cases were reported in Tamil Nadu, during the Lok Sabha Election held in 2014. A sum of Rs.27,93.42,000/- (Rupees Twenty Seven crore ninety three lakh forty two thousand only) was seized in Tamil Nadu, during the Lok Sabha Election 2014.
6. It is the further case of the petitioner that Election Commission of India issued a Notification on 01.04.2016 and declared Assembly Election in the following states, 1) Assam, 2) Kerala 3) Tamilnadu, 4) West Bengal, 5) Puducherry and the date of Tamilnadu State Assembly Election was declared on 16.05.2016. Two major political parties in Tamil Nadu bribed Rs.250/- to Rs.10,000/- to each voter all over Tamil Nadu, in the Tamil Nadu General Assembly election held on 16.05.2016. The Election commission seized Rs.750 Crores. The major political party candidates spent between Rs.5 crores to 10 crores in their constituencies to attract voters, and to favour them. The candidates submitted false and fabricated accounts to the Election Commission and http://www.judis.nic.in 9 cheated Election Commission and escaped from the clutches of law.
7. The petitioner has further submitted that due to the failure of flying squads, cash for vote created lot of problems and therefore, the assembly elections for Tanjore and Aravankurichi were postponed, thus cash for vote came to light to the entire nation. But cash for vote was practiced in all the 232 constituencies. The Election Commission received many complaints from most of the constituencies in the assembly election 2016. But, the Election Commission did not take any stringent action and not postponed or cancelled the general assembly elections of Tamilnadu 2016. Therefore, Tamil Nadu Assembly Election 2016 conducted by the Election Commission of India is invalid, not proper, not genuine and bona fide.
8. The petitioner has further submitted that even though hundreds of complaints were made about cash for vote practice all over 234 constituencies in Tamil Nadu, the Election Commission formally postponed the election only in two constituencies, (1) Thanjore, (2) Aravankurichi, knowing fully well of the cash for vote, in all the 234 constituencies. In the year 2016 Tamilnadu General Assembly, Mrs.J.Jayalalitha was elected and became the Chief Minister of Tamilnadu http://www.judis.nic.in 10 and after some months, she died and as per the People Representation Act, 1951, if a member of Legislative dies, bye-election should be conducted within 6 months. But the Election Commission of India announced the election on 12.04.2017 and all the major political parties in Tamilnadu, paid huge amount of money to the voters in R.K.Nagar Bye Election and since the Election Commission machineries failed to control cash for vote practice, postponed R.K.Nagar bye election. In this regard, W.P.No.24083 of 2017, was filed and an order was passed on 18.09.2017.
9. The petitioner has further submitted that two major political parties openly paid cash for vote to the voters in R.K.Nagar Bye Election held in the year 2018. These political parties paid Rs.20,000/- to each voter to cast his vote in favour of their candidates. The election commission hands were tied and the Election Commission Officials were seen as silent spectators in Chennai R.K.Nagar bye election constituency.
These news were reported in all the leading newspapers all over India and that the elected candidate failed to submit the election expenses in a proper manner and accounts submitted were not true and bona fide. The election commission did not take any action on the elected candidate.
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10. The petitioner has further submitted that AIADMK party members promised money and thereby forced, threatened and gathered innocent people, along with children to sit for political rallies, in open fields for 4 to 5 hours without drinking water and other basic facilities under direct sun, in summer that lead many harmful injuries and loss of life and the same were questioned by the National Human Right Commission, New Delhi. Deaths were reported after meetings conducted by a leading political party at Viruthachalam on 11.04.2016 and at Salem on 20.04.2016.
11. All political parties are using plastic flags, plastic banner, plastic flex and plastic hoarding for political Election propaganda, which are the types of one time useable plastic, which should be banned from using in political election propagandas.
12. The petitioner has further submitted that the present wholly optional voting system in India has been the main root cause for the maximum corruption and bribery in this nation, as the political parties and their candidates are spending huge money, as a good business investment, in public elections to lure the voters to cast their votes by indirect compulsion in favour of a particular party candidate, by all sorts http://www.judis.nic.in 12 of immoral methods, to cheat the mass of the average public. After coming to power, the huge money invested politicians are performing immoral and illegal process of earning manifolds of the investment which shall be more than enough for 10/100 of his/her generations, which makes them to lead the richest life without any work.
13. The petitioner has further submitted that while the political rules are engaged in corruption the beaurocrates, contractors, businessmen, Government employees etc., have also been taking active part in bribery and corruption system.
14. The petitioner has contended that following things may be enforced in the reform process of mandatory voting procedure.
i) The total number of contesting of independent candidates shall be restricted to a maximum of 10, by random picking up the from the lot and duty refunding the deposit money to the non allowed (not selected) independent candidates in order to avoid creation of chaos with the filing of more number of independents by some vested elements to confuse the voting public.
ii) Door to door campaigning shall be stopped to avoid illegal giving of money and other gifts to the voters and also the other troubles and http://www.judis.nic.in 13 nuisance from the politicians to the common public.
iii) List of candidates shall be published in both print and visual medias, at common places and important Government offices, at Government expenses / arrangement.
iv) It must be the people's duty to know the list of contesting candidates from such places and media information, well prior the mandatory voting, to choose the right one, as per the individual person's interest.
v) Arrangements shall be made by the Government in each constituency to bring all the candidates, in one stage to say about their election manifesto and campaigning speech within a allotted time frame.
vi) Political parties / independent candidates may be allowed to conduct public meetings and processions only.
vii) Punishments, such as stopping the civil rights of getting any/many of all kinds of Government benefits and services may be imposed on non cast voters, upto the next election.
15. Parliament has enacted the Representation of People Act, 1951 and some other Acts, to prevent and curtail the corrupt practice of cash for vote, to conduct a fair Election. For the past two decades citizens of India are in the daily news papers that most of the government heads, http://www.judis.nic.in 14 Ministers of Central and State Governments, and higher officials are involved in corrupt practices, disproportionate assets over and above their income, their arrest and conviction etc. In India, there are so many laws enacted by the Parliament and State Legislatures, to prevent corrupt practices cash for vote by the politicians. But, the enacted laws are only in paper and the law enforcing authorities are not implementing the laws properly, because the implementing authorities also join hands with the corrupt politicians and higher officials of the Government. Higher officials of the Government escape from the clutches of law, by using their powers joining with corrupt politicians. Hence, Parliament of India has proposed to enact a law, to bring the corrupt politicians, into the clutches of law.
16. The petitioner has further submitted that in the last few years in Tamilnadu, politicians are paying cash for vote to the people and after coming to power, they are earning, by many corrupt practices, in all the departments of the state Government i.e., scam in allotment of River sand quarry permits, scam in grant of Licence for Mines and Minerals, scam in Granite, scam in Aavin Milk, scam in cutting of trees in Megamalai, scam in purchase of electricity, scam in appointment of TNPSC Group - I post, scam in purchase of eggs for the noon meal centres, scam in appointment made for the posts of school watchman on the basis http://www.judis.nic.in 15 of MLAs and MPs recommendation, scam in appointment of noon meal employees etc., Further many criminal cases have been registered against former and present Ministers of the State Government, present and former MLAs and MPs of Tamilnadu for corrupt practices and purchase of assets disproportionate to their income. Since there is no stringent action or law, to crush the practice of cash for vote in the Representation of people Act 1951 or in other laws, politicians are not afraid to continue the practice of case for vote and politicians without fear submit false accounts to the Election Commission. The Election Commission is not taking strict action, on those who have filed false accounts. So, the politicians escape from the clutches of law without fear.
17. The petitioner has further submitted that even though the Honble Supreme Court, various High Courts and Law Commission of India have issued orders, given suggestions, observations, directions and reports, Government and Election Commission have not implemented the same, not made any reforms, and not strengthened the real democratic value.
18. For the abovesaid reasons, petitioner has sent a representation dated 04.03.2019, through email and ordinary post to the respondents by http://www.judis.nic.in 16 seeking intervention in this regard. But till date, the respondents did not take any action, on the representation of the petitioner. Hence, petitioner has filed the instant writ petition, for the prayers, stated super.
19. Added further, Mr.M.Purushothaman, learned counsel for the petitioner fairly admitted that prayers 1 to 3 sought for are general in nature. He submitted that there is no adequate penal provision in the Representation of People Act, 1951, that if an election is cancelled, at the instance of candidate or candidates, he/they should be disqualified from contesting the elections. On the above averments and submissions, he prayed for suitable directions. Inviting the attention of this Court to the orders made in W.P.No.18284 of 2016 dated 01.06.2016 and W.P.Nos.21149 of 2016, etc. batch of writ petitions, dated 14.06.2018, passed by Hon'ble Division Benches of this Court, prayed for suitable directions, on the prayers 4 and 5, respectively, like in Vishaka's case, and further submitted that in exercise of powers under Article 226 of the Constitution of India, High Court can issue such directions, to fill up the vacuum.
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20. Learned counsel for the petitioner also submitted that a brief note, and prayed for consideration, is extracted hereunder:-
"To thwart further attempts to check malpractices the Election Commission may require the Political parties to vouch for their candidates.
To check this it is very pertinent that this Hon'ble Court may be pleased to direct the Election Commission of India to invoke its plenary powers under Article 342(1) of the Constitution to require all political parties hereinafter to submit an undertaking vouching for the integrity and credibility of candidates nominated by them.
Already under the Election Symbols order Form - A and B are certified by the Political party for each of the candidates fielded by it for allotment of symbols.
In the Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 the Hon'ble Supreme Court directed the Commission to require all candidates to submit affidavits regarding their criminal antecedents and wealth. Thereafter only the same was also incorporated by way of amendment to the Representation of Peoples Act.
In order to ensure minimum standards of purity of elections the liability of political parties can be ensured by requiring them to file undertakings/affidavits like:
We the (Political Party) hereby certify that the candidate(name) is to best of our knowledge, from our enquiry with our party cadres and other sources and from public had not indulged in any electoral offence/or any case in this regard is pending against him.
We further undertake that in case the above said candidate indulges in electoral corrupt practices in the present election for which he is nominated on our behalf we (political party) under to abide by any penal as well as other actions that the Election Commission imposes or undertakes."
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21. It is his further contention that acting on the orders of this 18 Court in W.P.Nos. 21149 of 2016 etc batch of writ petitions, a proposal has been made to the Parliament, to introduce Section 58 B to the Representation of People Act, 1951.
22. Responding to the above contentions, Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, submitted that out of the five prayers sought for, in the writ petition, Model Code of Conduct issued, covers all the three issues and in addition to the above, periodically directions have been issued by the Election Commission of India. As regards removal of Hoardings, Flex Boards, Flag Poles, again the model code of conduct, governs the issue and in this context, he also invited the attention of this Court to the orders made in W.P.No.17768 of 2016 dated 25.03.2019.
23. As regards the prayer, to register case against the head of the party who installs temporary or permanent flex boards/hoardings and establishes temporary dais, for public meeting in the middle of the road or pathway or junction or bazaar, by affecting traffic, there are provisions on the model code of conduct to take action, against the violators. On the aspect of bribery, Sections 171 (B) and 171 (E) of the Indian Penal Code, would be applicable.
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24. Inviting the attention of this Court, to the interim order dated 14.03.2019, made in this writ petition, regarding political parties engaging vehicles, for carrying people to attend meetings, Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, submitted that under the Motor Vehicles Act, 1988 and the rules framed there under, when there is a permit to carry, there cannot be a blanket order.
In this context, he also referred to an order passed in W.P.No.11094 of 2014, dated 17.04.2014.
25. In support of his contention on all the prayers sought for, Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, took us through the relevant provisions in the Model Code of Conduct, Compendium of Instruction on Election Expenditure Monitoring and the periodical orders issued by the Commission. He further submitted that under the SVEEP (Systematic Voter Education and Electoral Participation) initiatives, awareness is created among the public through various events. He also submitted that sufficient Flying Squad have been deployed in the constituency and depending upon the situation, Election Commission would increase deployment of the flying squad. Help line has already been notified and an App is also created in public domain. http://www.judis.nic.in 20 Learned counsel for the Election Committee of India submitted that following the orders of the Kerala High Court, directions have been issued by the Election Commission of India, on the use of plastics, biomedical waste etc.
26. Finally he submitted that recoveries have been made and cases have been registered. For the above said reasons, he prayed for dismissal of the writ petition.
27. Heard the learned counsel for the parties and perused the materials available on record.
28. Petitioner has made averments in general, based on newspaper reports. Firstly writ based on newspaper report is not maintainable and it is worthwhile to consider few decisions:-
(i) A Hon'ble Division Bench of this Court in A.S.M.Kumar v. State of Tamil Nadu reported in 2008 (5) MLJ 399, to which, one of us, is a party, has considered the following judgments, "8.The question of admissibility of the newspaper reports came up for consideration in Samant N.Balkrishna and another Vs.George Fernandez and other reported in 1969 (3) SCC 238 at paragraph 26, the Apex Court observed that http://www.judis.nic.in "A newspaper item without any further proof of what had 21 actually happened through witnesses is of no value. It is at best a second hand evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publish it. In this process truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."
9. As regards nature and admissibility of a newspaper report, the Supreme Court in Lakmi Raj Shetty and another Vs. State of Tamil Nadu reported in 1988 (3) SCC 319, opined that "...We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein."
10.In Quamarul Islam Vs. S.K.Kanta reported in 1994 (1) SCC 452, the question as to whether mere production of the copy of the newspaper be treated as proof of the report of the speech (news item) contained therein came up for consideration. The Apex Court at Paragraph 48 of the judgment held that, "48.Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence.
These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the http://www.judis.nic.in Editor and publisher, PW4 by itself cannot amount to proving the 22 contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial Judge could not treat the newspaper reports as duly 'proved' only by the production of the copies of the newspaper. The election petitioner also examined Abrar Razi, PW5, who was the polling agent of the election petitioner and a resident of the locality in support of the correctness of the reports including advertisements and messages as published in the said newspaper. We have carefully perused his testimony and find that his evidence also falls short of proving the contents of the reports of the alleged speeches or the messages and the advertisements, which appeared in different issues of the newspaper. Since, the maker of the report which formed basis of the publications, did not appear in the court to depose about the facts as perceived by him, the facts contained in the published reports were clearly inadmissible. No evidence was led by the election petitioner to prove the contents of the messages and the advertisements as the original manuscript of the advertisements or the messages was not produced at the trial. No witness came forward to prove the receipt of the manuscript of any of the advertisements or the messages or the publication of the same in accordance with the manuscript. There is no satisfactory and reliable evidence on the record to even establish that the same were actually issued by IUML or MYL, ignoring for the time being, whether or not the appellant had any connection with IUML or MYL or that the same were published by him or with his consent by any other person or published by his election agent or by any other person with the consent of his election agent." http://www.judis.nic.in
11.The Supreme Court dealing with a "pro bono publico"
23litigation in B.P.Singhal Vs.State of Tamil Nadu and others reported in 2004 (13) SCC 673, wherein the petitioner sought for a transfer of an investigation from Tamil Nadu State Police to the Central Bureau of Investigation, opined that:
"the petition is lacking in material particulars. All the averments made in the petition are based, by and large, on news reports and not on personal knowledge. The petition does not state that the petitioner has taken any care to verify himself the correctness of the averments made."
12.In yet another decision in Dr.B.Singh Vs. Union of India (UOI) and others reported in 2004 (3) SCC 363 dealing with a public interest litigation, challenging the propriety of the third respondent therein for being considered for appointment as a Judge, the Supreme Court while expressing its anguish found that:
"the petitioner has no where stated that he has personal knowledge of the allegations made against R3. He does not even aver that he made any effort to find out whether the allegations have any basis. He only refers to the representation of Ram Sarup and some other paper cuttings of news items. It is too much to attribute authenticity or creditability to any information or fact merely because, it found publication in a newspaper or journal or magazine or any other form of communication, as though it is gospel truth. It needs no reiteration that newspaper reports per se do not constitute legally acceptable evidence."
13. In matters relating to public interest litigation, the Supreme Court has time and again cautioned that the Court has to be satisfied about (a)the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; http://www.judis.nic.in
c) the information being not vague and indefinite. The 24 information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. Reference can be made to the recent decision of the Apex Court in Holicow Pictures Pvt., Ltd., Vs. Prem Chandra Mishra and others reported in 2008 (1) CTC 711 (Para 20)."
(ii) After considering the decisions of the Hon'ble Apex Court, at Paragraph 16, a Hon'ble Division Bench has observed as follows:
"It is now well settled that a news item published in the newspaper are only hearsay and no judicial notice can be taken unless supported by further authentic evidence. Though the parameters of public interest litigation have been indicated by the Supreme Court in large number of cases, yet unmindful of the real intentions and objectives, the petitioner, without verifying the authenticity or otherwise of the news items, has chosen to resort http://www.judis.nic.in to the extra ordinary jurisdiction. The Public Interest Litigation 25 intended to ameliorate the grievance of the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated, should not be misused. Before maintaining a cause before the Court one should prove that there is concrete and credible basis, not withstanding the credentials claimed of the person moving the courts."
29. However, a Hon'ble Division Bench of this Court in W.P(MD).No.6062 of 2019, dated 14.03.2019, while ordering notice, issued the following direction.
"7. The authorities are directed not to allow any mass transportation of people to the venue of the election meeting or for any procession to be taken out by the political parties except as per law."
30. On the aspect of registration of criminal cases and recovery, Inspector General of Police, Establishment-Cum-Nodal Officer of Police Headquarters for Election Expenditure Monitoring, Chennai, has sent a reply dated 25.03.2019 to the Chief Electoral Officer and Secretary to Government, Public (Elections-X) Department, Chennai, is extracted hereunder:-
POLICE DEPARTMENT From To H.M.Jayaram, I.P.S., Thiru.Satyabrata Sahoo, I.A.S., Inspector General of Police, Chief Electoral Officer & Establishment, Secretary to Government, http://www.judis.nic.in
-Cum-Nodal Officer of Public (Elections-X) Department, 26 Police Headquarters for Secretariat, Chennai - 9. Election Expenditure Monitoring, Tamil Nadu, Chennai - 4.
================================================================= Rc.No.003670/LSE-2019/EEM/2019 Dated: 25.03.2019.
Sir, Sub: Elections - General Election to Lok Sabha - 2019 and Bye- elections to Tamil Nadu Legislative Assembly - 2019 - Commission's instructions on day to day Seizure report - Reply furnished - Regarding.
Ref: Letter No.3150/Elc-X/2019, Public (Elections-X) Department, Dated 21.03.2019 of the Chief Electoral Officer & Secretary to Government, Secretary, Tamil Nadu, Chennai-9.
As called for in the reference cited, I am herewith furnishing the composite Daily Seizure Report of the Flying Squads (FS) and Static Surveillance Teams (SST) upto the date of 24.03.2019.
Yours Sincerely, Encl: As above, IGP, Establishment
-Cum-Nodal Officer of Police Headquarters for Election Expenditure Monitoring, Tamil Nadu, Chennai - 4.
Copy to: The Under Secretary, Election Commission of India, Nirvachan Sadan, New Delhi.
1.Total Cash Seizure (in Rs.Cr.)
FS/SST/POLICE Total
seizure on
S. Seizure of previous day Progressive seizure
24.03.2019
No.
1 2 3 4
1 Flying Squad 15,75,71,820 65,53,095 16,41,24,915
Static
2 16,22,80,281 66,54,385 16,89,34,666
Surveillance
Other Police
3 15,57,000 Nil 1557000
Parties
Total 32,14,09,101 0 Total 33,46,16,581
Grand Total (Rs.In Crore) 33.46
http://www.judis.nic.in
27
2. Total Liquor Seizure (Quantity in ltr & it value Rs.in Cr.) FS/SST/POLICE Progressive seizure Seizure on Seizure of previous day Total liquor seizure in the state S.No. 24.03.2019 Qty. Value Qty. Value Qty. Value Brandy, Rum - Brandy, Rum -
1 1,87,445 Nil Nil 1,87,445
269.945 269.945 Ltr
2 Beer - 177.25 ltr 49,840 Nil Nil Beer-177.25 ltr 49,840
18 bottles of 18 bottles of
unpermitted unpermitted
3 2,160 Nil Nil 2160
Pondicherry Pondicherry Union
Union Liquors. Liquors
Total 2,39,445 0 Total 2,39,445
Grand Total (Rs. In Crore) 0.023945
3. Total drugs/narcotics seizure by FS/SST/other Police authority etc. (quantity in Kg. and its value in Rs.Cr.) Description and Qty. up to 24.03.2019 Progressive seizure S.No. 23.03.2019 Qty. Value Qty. Value Qty. Value Tobacco & Beedi Tobacco & Beedi 1 13,69,720 Nil Nil 13,69,720
- 2,317.4 kg 2,317.4 Kg Kutka - 310 2 15,800 Nil Nil Kutka - 310 pockets 15,800 pockets Hans 3 Hans - 25 Box 1,12,200 50,000 Hans - 25 Box 1,62,200
31.15 Kg Panmasala Big Panmasala Big Bag -
4 3,000 Nil Nil 3,000
Bag - 3 Nos 3 Nos
Total 15,00,720 Total 50,000 Total 15,50,720
Grand Total (Rs. In Crore) 0.155072
4. Total Precious metal seizure
(Gold, Silvar, ornaments etc., seized and value in Rs.) Description and Qty. up to S. 24.03.2019 Progressive seizure 23.03.2019 No. Qty. Value Qty. Value Qty. Value 1 Gold-209.537 Kg 65,68,37,800 Nil Nil Gold-209.537 Kg 65,68,37,800 Silver - 314.048 2 Silver-317.048 Kg 1,36,01,528 Nil Nil 1,36,01,528 Kg Silver Articles - Silver Articles -
3 18,21,000 Nil Nil 18,21,000 330 Nos 330 Nos 4 Zinc Bar No.11 66,60,000 Nil Nil Zinc Bar No.11 66,60,000 http://www.judis.nic.in (used in Silver (used in Silver 28
4. Total Precious metal seizure (Gold, Silvar, ornaments etc., seized and value in Rs.) work), Total work), Total weight Kg 222.425 weight Kg 222.425 Gold coated Gold coated 5 2,50,000 Nil Nil 2,50,000 ornaments ornaments 67,91,70,32 Total Total 0 Total 67,91,70,328 8 Grand Total 67,91,70,328
5. Total other items/freebies seizure (Laptop, Cooker, Sarees etc., meant for inducement voters) and its value in Rs. Cr.
Description and Qty. up to
S. 24.03.2019 Progressive seizure
23.03.2019
No.
Qty. Value Qty. Value Qty. Value
1 Laptop 11,68,118 Nil Nil Laptop 11,68,118
2 Cooker 13,99,700 Nil Nil Cooker 13,99,700
Saree
8,43,00 Sarees and
3 Sarees and clothes 39,41,050 and 47,84,050
0 clothes
clothes
Other 6,14,14
4 Other items 81,16,448 Other items 87,30,588
items 0
Foreign Currency Foreign Currency
5 75,62,430 Nil Nil 75,62,430
in Indian value in Indian value
14,57,
Total 2,21,87,746 Total Total 2,36,44,886
140
Grand Total (Rs. In Crore) 2.364489
31. Details of Expenditure monitoring teams, are extracted hereunder:-
Details of Expenditure monitoring teams Sl.No. Name of the District Number No of No of No of No of No of of ACs Flying static Video Video Accou Squads Squads Surveilla Viewing nting nce teams teams teams 1 2 3 4 5 6 7 8 1 THIRUVALLUR 10 30 30 10 10 1 2 CHENNAI 16 48 48 16 16 3 3 KANCHEEPURAM 11 33 33 11 33 2 4 VELLORE 13 39 39 13 13 2 5 KRISHNAGIRI 6 18 18 6 6 1 http://www.judis.nic.in 6 DHARMAPURI 5 15 15 5 5 1 29 Details of Expenditure monitoring teams 7 TIRUVANNAMALAI 8 24 24 8 8 2 8 VILLUPURAM 11 33 33 11 11 2 9 SALEM 11 33 33 11 11 1 10 NAMAKKAL 6 18 18 6 6 1 11 ERODE 8 24 24 8 8 1 12 THE NILGIRIS 3 9 9 3 3 1 13 COIMBATORE 10 30 30 10 10 2 14 DINDIGUL 7 21 21 7 7 1 15 KARUR 4 12 12 4 4 1 16 TIRUCHIRAPPALLI 9 27 27 9 9 1 17 PERAMBALUR 2 6 6 2 2 1 18 CUDDALORE 9 27 27 9 9 1 19 NAGAPATTINAM 6 18 18 6 6 1 20 THIRUVARUR 4 12 12 4 4 1 21 THANJAVUR 8 24 24 8 8 1 22 PUDUKKOTTAI 6 18 18 6 6 0 23 SIVAGANGA 4 12 12 4 4 1 24 MADURAI 10 30 30 10 10 1 25 THENI 4 12 12 4 4 1 26 VIRUDHUNAGAR 7 21 21 7 7 1 27 RAMANATHAPURAM 4 12 12 4 4 1 28 THOOTHUKKUDI 6 18 18 6 6 1 29 TIRUNELVELI 10 30 30 10 10 2 30 KANNIYAKUMARI 6 18 18 6 6 1 31 ARIYALUR 2 6 6 2 2 1 32 TIRUPPUR 8 24 24 8 8 1 TOTAL 234 702 702 234 234 39
32. In addition to that, daily activity report on seizure of cash, is extracted hereunder:-
Sl.No Name of the Team Figure on date of Progressive figure No. of FIT Progressive report ) including the date filed on date figure of FIR 25.03.2019) of report of report filed (25.03.2019) including the date of report 1 Flying Squad Rs.65,53,095 Rs.16,41,24,915 1 27 http://www.judis.nic.in 2 Other Police Rs. 0 Rs.15,57,000 0 0 30 Sl.No Name of the Team Figure on date of Progressive figure No. of FIT Progressive report ) including the date filed on date figure of FIR 25.03.2019) of report of report filed (25.03.2019) including the date of report authority 3 Static Surveillance Rs.66,54,835 Rs.16,89,35,116 1 20 Team Total Rs.1,32,07,930 Rs.33,46,17,031 2 47
33. On prayers 1 to 3, Election Commission of India, has issued the Model Code of Conduct, Compendium of Instructions Election Expenditure Monitoring, and periodical orders, which we shall consider, Expenditure Observer (EO):-
1. Expenditure Observer (EO):
Expenditure Observers are appointed by the Commission for specified constituencies to observe the election expenses incurred by the candidates. There shall be at least one Expenditure Observer for each district. However, it shall be ensured that each Expenditure Observer ordinarily does not have more than five Assembly Constituencies under his observation. Visits by the Expenditure Observer:
The Expenditure Observer shall reach the constituency on the day of the notification of elections for the duration of 3 clear days. During this visit he shall meet all the teams engaged in election expenditure monitoring. If the Expenditure Observer is not satisfied with the performance of the AEO he shall ask for a change and the DEO shall provide an additional list of officers; he may change AEOs depending on their suitability. He shall also train all the officials about the procedure of expenditure monitoring and ensure that the teams are properly equipped. He shall coordinate with the DEO, S.P, Nodal Officers of Police, Income Tax and State Excise and with other enforcement agencies. He will leave the constituency only after submitting poll preparedness report. He shall again visit the constituency, for the second time, on the date immediately after the date of withdrawal of candidatures and shall remain in http://www.judis.nic.in the constituency during the entire campaign period, and shall leave the 31 constituency only after the poll. If he is performing the function of the General Observer, he will leave the constituency only after scrutiny of Form 17-A, and after ensuring that the Presiding Officer‘s diary is complete and the strong rooms are sealed. He may also be required to stay till the completion of counting.
The Expenditure Observer shall once again visit the district on 25th day after the declaration of results of election and stay in the district for 8 clear days to assist the DEO in scrutinizing the statements of accounts of election expenditure submitted by the candidates after the declaration of results. He should be present in the Account Reconciliation Meeting to be convened by the DEO on the 26th day after the declaration of results. The DEO shall facilitate the lodging of accounts by all within 30 days of declaration of result. Role of Expenditure Observer:
Expenditure Observers are the eyes and ears of the Commission for monitoring of election expenditure. The Expenditure Observer shall supervise and guide all the election expenditure monitoring personnel engaged in the constituency. He shall guide the DEO in imparting final training to all the expenditure monitoring personnel.
He shall supervise the functioning of the Assistant Expenditure Observers. He shall give final training to the Assistant Expenditure Observers and ensure that proper training is imparted to the official deployed in this role. There may be more than one AEO for the constituency, depending on the requirement. He shall periodically inspect the functioning of all the teams engaged in expenditure monitoring and wherever there is laxity or irregularities in functioning of any of the teams, he shall bring it to the notice of the DEO. The DEO shall take corrective steps immediately on the recommendation of the Expenditure Observer.
He shall inspect the expenditure register of each candidate at least three times during the campaign period and give his comments on the discrepancies. The dates of inspection should be fixed in such a way that the gap between two inspections should not be less than 3 days and the last inspection should be fixed not earlier than 3 days from the poll day, so that major campaign expenditure is covered under inspection.
http://www.judis.nic.in For any understatement of expenditure in the candidate‘s register, the 32 Expenditure Observer shall give his remarks in the candidate‘s register during inspection and put his signature. The same shall be noted in the Shadow Observation Register and the signature of the election agent/candidate obtained on it. Such discrepancy should be referred to the R.O. on the same day, who shall issue notice to the candidate on the same day as per order of Commission, dated 29th May, 2015 (Annexure-C11). In case of any difficulty, the Expenditure Observer shall inform the Commission and seek its guidance. The EO shall coordinate with the Investigation Directorate of the Income Tax Dept., Nodal Officer of Police, Nodal Officer of State Excise Dept., and ensure that there is free flow and exchange of information among all the agencies. On receipt of information from any agency, action is to be taken promptly by the law enforcement agencies concerned. In case action is not taken in time by any agency, he shall immediately bring it to the notice of the Commission, with a copy to the CEO.
In the past, some instances have been brought to the notice of the Commission in which the action of the Expenditure Observer gave the impression that he had exceeded his brief by getting actively involved in enforcement action. The Commission, therefore, reiterates that the guidelines contained in the above- said para of the Compendium should strictly be adhered to by all the Expenditure Observers and they should not be involved in any action being taken by the Enforcement Agencies as per their laws.
(Annexure-B16) In case of any seizure by the Surveillance Teams, Flying Squads, Investigation Directorate of Income Tax or by Police or State Excise Dept., he shall communicate report to the Commission on the same day with a copy to the CEO. He shall mention the suppression of campaign expenditure, if any, vis-a-vis the Shadow Observation Register, noticed during inspection of day to day accounts of the candidates. In this regard Order of the Commission issued on 29th May, 2015 (Annexure-C11), for formation of District Expenditure Monitoring Committee and decision on the replies of the candidates shall be followed. He shall ensure that a copy of this order is served on all candidates. During his last visit, he shall assist the DEO in submitting the Scrutiny Report correctly. In case he does not agree with the DEO, he shall mention all the reasons citing evidences, in the http://www.judis.nic.in space provided for his comments in the DEO‘s Scrutiny Report.33
Expenditure Observer Reports:
The Expenditure Observer has to submit the following reports:
(i) Arrival and Departure Report within 24 hours (Annexure-B1),
(ii) First report on the third day of his first visit i.e., after the date of notification (Annexure-B2),
(iii) Second report within 24 Hrs. after withdrawal of candidature during the 2nd visit. (Annexure-B3),
(iv) Third report after the poll (Annexure-B4) and
(v) Fourth and final report after his 3rd visit ( Annexure-B5) He shall also inform to the MCMC of all the instances of suspected Paid News brought to his notice independently, by any source, on the same day for necessary action. Besides, he shall report to the Commission, in his third report, all the instances of Paid News as decided by the MCMC, and forward a photocopy or CD/DVD of the Advertisement/Paid News to the Commission, with a copy to the CEO.
2. Assistant Expenditure Observer (AEO):
Assistant Expenditure Observers (AEO) shall be appointed for each constituency on date of notification of election by the DEO and if a change is suggested by the Expenditure Observer, the same shall be carried out. The AEO shall be of the rank of Group B Officer or equivalent in other Central Government Services. If the officers of Income Tax Dept. are engaged by the Investigation Directorate for the seizure of cash and goods, then such names should not be requisitioned for the AEO‘s duty. If there is absence of such officers in the district, then officers of the State Treasury or Finance Department may be nominated. He should preferably be a local officer, posted within the same district or nearby but whose work place and home town should not be in the same Constituency. The AEO shall be provided with a vehicle, one personal security officer and a local SIM card and office space in the office premises of the RO, as he will be coordinating with all the teams, nodal officers and the Expenditure Observer. If the HQ of the AEO is different from the constituency, he shall be provided with lodging and boarding in the constituency.
He shall be deployed in the constituency from the date of the notification and shall not leave the constituency without the permission of the Expenditure http://www.judis.nic.in Observer. There shall be at least one Assistant Expenditure Observer for each 34 Assembly Constituency/Segment. But in expenditure sensitive constituencies, there may be two or more Assistant Expenditure Observers - one for outdoor recording of events and other for coordination with the teams. The Assistant Expenditure Observer shall see reports of the video CDs, read all the complaints and reports with respect to each candidate, and study the Shadow Observation Register and the candidate‘s Expenditure Register. He shall supervise the maintenance of the Shadow Observation Register and Folder of Evidence. The Assistant Expenditure Observer shall be trained by the DEO before arrival of EO and he shall work under the supervision and guidance of EO. He shall ensure that all the expenditure related reports/ orders in respect of each candidate are obtained from all the teams engaged in Expenditure Monitoring and are properly reflected in the candidate‘s day to day accounts of Election Expenditure. In case of complaint of corrupt practice, he shall pass on the same to the Flying Squads for immediate action and inform the Expenditure Observer immediately. The Flying Squads shall report to him about action taken on each complaint. If no action is taken by the squad or there is delay in taking action, he should bring it to the notice of Expenditure Observer, who in turn shall report to the Commission with a copy to the DEO and the CEO. If he thinks that the SST is not working properly or is not correctly deployed he may suggest changes to ensure that major arterial roads are covered by SSTs. He shall submit a daily report to the Expenditure Observer on all his activities as per Annexure-B6. Till the EO reaches the Constituency, the AEO shall submit his report to DEO/RO which shall be brought to the notice of the EO afterwards. The Folder of Evidence shall have all records of the evidences collected during the campaign. He shall make it available to the Expenditure Observer at the time of inspection of the candidate‘s register for election expenses. In case of any evidence of suppression or understatement of expenses is found in the candidate‘s register, the Assistant Expenditure Observer shall bring it to the notice of the Expenditure Observer and through him to the candidate appropriately during the inspection.
On the days fixed for inspections of register of a candidate, the Assistant Expenditure Observer assigned to keep a watch on the expenditure in that constituency should be present, along with the Shadow Observation Register and Folder of Evidence.
http://www.judis.nic.in The Assistant Expenditure Observer shall assist the EO and also the DEO in 35 submission of his scrutiny report to the Commission. He shall remain present during the third visit of Expenditure Observer to the district and shall assist him in his task.
The Assistant Expenditure Observer shall co-ordinate with the Media Certification and Monitoring Committee (MCMC) at the district level and report to the Expenditure Observer about its effective functioning. If all the cables/channels/newspapers are not being watched by this committee, it should be brought to the notice of the Expenditure Observer/Commission immediately with a copy to the DEO and the CEO. If any campaign related public rally/procession/event could not be videographed due to unavailability of a videographer, the Assistant Expenditure Observer shall mention such incident in the Shadow Observation Register. If any advertisement in print or electronic media is not reported by the media committee, the Assistant Expenditure Observer shall obtain a copy and mention it in the Shadow Observation Register.
3. Video Surveillance Teams (VST):
One or more Video Surveillance Team shall be deployed for each Assembly Constituency/ Segment consisting of at least one official and one videographer. If necessary, more teams may be deployed on the recommendation of the Expenditure Observer. The Assistant Expenditure Observer shall personally supervise videography of sensitive events and big public rallies in the constituency. If more than one public rally is organized on the same day, more than one video teams shall be deployed to record the procession and the rally. The Video Surveillance Team shall be properly trained and oriented to capture all the expenditure related events and evidences. The Video Surveillance Team, at the beginning of the shooting shall record in voice mode the title and the type of event, date, place and the name of the party and candidate organizing the event. It shall videograph the vehicles/event/poster/cut-outs etc. in such a way that the evidence of each vehicle, its make and registration number, items of furniture, size of rostrum, banner and cutout etc. can be clearly seen and the expenses thereon can be calculated. Wherever possible, statements of the drivers and passengers of the vehicles should also be recorded to prove that the vehicles were used for election purpose, if such vehicles are parked outside the venue of rally.
During the shooting of the event, the video team shall also record in voice http://www.judis.nic.in describing the estimated number and types of vehicles, chairs/ furniture/ 36 lights/ loudspeakers etc., the approximate size of rostrum/banner/poster/cutout etc. used in the event. It will then be easier for the Video Viewing Team to cross check with reference to the visuals and estimate the expenditure of the event. They will also record the speech and other events to monitor whether any Model Code of Conduct (MCC) violation has occurred.
The video surveillance team shall prepare a Cue Sheet at the time of recording in the format given in Annexure-B7. This cue sheet should be given to the viewing team along with the recorded CD. The video CD should have a unique identification number, date and name of the staff/officer and should always be kept with the cue sheet. The purpose of maintaining a cue sheet is to see at a glance the evidence available in the CD and also to view the relevant part of the evidence in a short time.
In case of more than one event or public rally or procession on the same day, appropriate number of video teams should be deployed and the DEO will provide all logistics required by the Assistant Expenditure Observer.
4. Video Viewing Team (VVT):
There shall be a Video Viewing Team for each Assembly Constituency/Segment with one officer and two clerks.
The Video Viewing Team shall make CDs in house out of the video recordings, captured by Video Surveillance Teams. Video recordings should not be given to any outside agency for editing or for any other purpose to avoid manipulation by any outsider. The video CDs captured by video surveillance team shall be viewed by the Video Viewing Team daily t o identify expenditure related issues and MCC related issues. They shall submit, on the same day and in any case not later than the next day, their reports related to expenditure to the Accounting Team/ Assistant Expenditure Observer. In expenditure related reports, the team will put the registration number of all the vehicles and their make, size of the dais, the number of chairs, size of the text in Banner/Poster, size and number of cut- outs and all other items of expenditure captured in the video. The reports/observations related to the MCC shall be submitted by this team to the General Observer/RO. The Accounting Team and the Assistant Expenditure Observer shall calculate the total expenditure as per the notified rates of the items used, based on the video evidences and make the relevant entries in the http://www.judis.nic.in Shadow Observation Register for the candidate concerned. The same shall be 37 compared with the candidate‘s register when that is produced before the Expenditure Observer for verification. As explained earlier, any suppression or omission shall be pointed out for corrective measures in writing by the R.O. immediately within 24 hours.
5. Accounting Team (AT):
There shall be at least one Accounting Team for each Assembly Constituency/Segment consisting of one official and one Assistant / Clerk. The personnel of the Accounting Team should be drawn from the accounts sections of various Government departments, or Public Sector Undertakings. The accounting teams shall work under the guidance of the Assistant Expenditure Observer for maintaining the 'Shadow Observation Register' and 'Folder of Evidence' of each candidate of the Assembly Constituency / Segment. They shall enter the items of expenditure, as reported to them and put the notified rates against each item and calculate the total expenditure on the items for each candidate. The format of 'Shadow Observation Register' is given at Annexure-B11.
There are cases when election campaign material is used after filing of nomination, though it might have been paid for before the nomination is filed. The team shall ensure that the expenditure on all the election campaign material which is used after the filing of nomination is included in the Shadow Observation Register, though the payment for it may have been made before filing of nominations. Similarly, the expenditure on rally or procession in connection with filing of nomination should be shown as part of the election expenditure.
6. Complaint Monitoring Control Room and Call Centre:
A 24X7 Call Centre shall be established in the Control Room at the district level to operate from the date of announcement of election. The call centre shall be given a toll free telephone number with 3 or 4 hunting lines which will be widely publicized for the public to inform the election monitoring machinery regarding corrupt practices related to the election. A senior officer shall be put in-charge of the control room and call centre who shall be responsible for receiving and recording the complaints and passing them on to the officer concerned or the flying squad for action without any delay. The call centre will be provided with sufficient staff to man the telephone lines round the clock.
http://www.judis.nic.in All voice complaints made by any member of the public/whistle blower should 38 be entered in the complaint register with timings noted against each complaint and should be entered into a register to be maintained in the format given in Annexure-B13. The expenditure related complaints are to be passed on immediately to the officer concerned of the Flying Squad with intimation to the Expenditure Observer, and in case of MCC related complaints, a copy is to be passed on to the General Observer. The Expenditure Observer and General Observer shall inspect this register from time to time to ensure that the control room functions smoothly and the complaints are passed on instantly for further necessary action.
7. Media Certification and Monitoring Committee (MCMC) and Paid News:
There shall be a Media Certification and Monitoring Committee (MCMC) in each district. For detailed instructions and guidelines -Compendium of Instruction on Media Related Matters, January, 2017' may be referred to. If the MCMC finds any advertisement or advertorial published in print media, it shall bring it to the notice of Expenditure Observer and a copy of the same will be placed in the Folder of Evidence. The expenditure on this advertisement will be mentioned in the Shadow Observation Register and intimated to the candidate during inspection of his register. As per section 127 A of the R.P. Act, 1951, no person shall print or publish or cause to be printed or published any election pamphlet or poster, handbill or other document without mentioning the name and address of the printer and the publisher, and without obtaining declaration from the publisher which is attested by two persons. It is the responsibility of such press to deliver a copy of the declaration along with copy of the document to the DEO/CEO, within a reasonable time after printing the document.
Paid News:
The "Paid News" has been defined by the Press Council of India as 'any news or analysis appearing in any media (print and electronic) for a price in cash or kind as consideration'. The Commission has decided to go by this definition. The MCMC shall see all the newspapers, print media, electronic media, cable network, mobile network and other modes of mass communication, like bulk SMSs etc., and keep record of the advertisements, advertorials, messages, discussions and interviews relating to the candidates and parties. This committee will submit a Daily Report with respect to each candidate in a http://www.judis.nic.in prescribed format to the accounting team with copy to RO and Expenditure 39 Observer with respect to expenditure incurred by the candidate on election advertising including the assessed cases of Paid News, along with supportive paper cuttings/clippings, recordings of relevant TV and radio advertisements, which will also be included in the Shadow Observation Register. The RO will issue notice to the candidate with regard to the incidents of Paid News in consultation with the Expenditure Observer for not showing the expenditure on such publication. The Expenditure Observer shall send a report of Paid News along with copy thereof to the Election Commission within 24 hours. The CEO shall obtain standard rate cards from the TV channels/Radio Channels/ News Papers, broadcasting/circulated in the State/ UT, six months before due date of expiry of Lok Sabha/State/UT assembly. Such rate cards will be given to the Accounting Team for calculation of rates of advertisements. The Accounting Team will calculate the expenditure involved at the DAVP/DPIR rate, whichever is lower, and will mention it in the Shadow Observation Register. The Expenditure Observer will bring such discrepancies to the notice of the candidate/his election agent at the time of inspection and mention the discrepancies in the expenditure on account of Paid News in the remarks column of the Register of Election Expenses of the candidate. The copies of all such notices along with the paid news should be displayed on the notice board of R.O and the District Election Website/ CEO Website. The copies of the same can be given to any member of public on payment of Rs.1/- per page.
8. Flying Squads (FS) and Static SurveillanceTeams (SSTs):
There shall be three or more dedicated Flying Squads in each Assembly Constituency/Segment for tracking of illegal cash transactions or any distribution of liquor or any other items suspected of being used for bribing the voters. The Flying Squads shall consist of one Senior Executive Magistrate as the head of the team, one senior police officer, one videographer and 3 to 4 armed police personnel. They are to be provided with a dedicated vehicle, mobile phone, a video camera and necessary Panchnama documents required for seizure of cash or goods.
There shall be three or more static surveillance teams in each Assembly Constituency with one Magistrate and three or four police personnel in each team. This team shall put up check posts and keep a watch on t h e movement http://www.judis.nic.in of large quantities of cash, illegal liquor, any suspicious item or arms being 40 carried in their area. The entire process of checking shall be videographed. The locations of static surveillance teams shall be changed periodically to maintain an element of surprise.
9. Expenditure Monitoring Cell:
The DEO shall appoint one senior officer, not below the rank of SDM/ADM, conversant with accounting as the Nodal Officer of the Expenditure Monitoring Cell. All teams mentioned above and the Nodal Officer shall constitute the Expenditure Monitoring Cell.
10. Expenditure Sensitive Constituency (ESC) and Expenditure Sensitive Pockets (ESPs) On the basis of history, profile of the constituency and past developments, the CEO shall identify the constituencies which are prone to high expenditure and corrupt practices. Such a constituency shall be termed as an "Expenditure Sensitive Constituency". For such a constituency, there shall be two Assistant Expenditure Observers, such additional number of Flying Squads, Static Surveillance Teams and Video Surveillance Teams as required, over and above, those deployed in the remaining constituencies. The CEO should facilitate effective functioning of the teams engaged in expenditure monitoring work. The list of such constituencies should be sent to the Commission well in advance The Expenditure Sensitive Pockets are to be identified in consultation with the Expenditure Observer (during first visit), on the basis of the literacy or economic development or the number of complaints in the last election. Such pockets are to be kept under close vigil by the SSTs during last three days before elections.
(i) The DEO and SP in consultation with the Expenditure Observer shall identify the Expenditure Sensitive Pockets in the constituency. These areas should be under 24x7 surveillance by the SSTs during the last three days of poll. There shall be a mix of CPF in the SST during this period.
(ii) Where information is received that a candidate is indulging in high election expenditure, such candidate should be put under video surveillance all the time.
11. Nodal Officers
(a) Nodal Officer in the CEO Office: The CEO shall appoint one senior officer in his office, not below the rank of Jt. CEO, for coordination on expenditure monitoring with Commission, training of election expenditure monitoring related personnel and political party functionaries, coordination with all the DEOs, other http://www.judis.nic.in Nodal Officers in the state, Expenditure Observers, all enforcement agencies 41 involved in election expenditure monitoring and with the Commission. He will compile information regarding all types of seizure made during the election period and send the same to the Commission on a daily basis and also compile and send the same, in Annexure-C6, to the Commission by 1 PM on the day of poll.
(b) Nodal Officer of Police: One officer of the level of Inspector General at the Police Head Quarters of the state, as selected by the Commission, shall be notified as the Nodal Officer for coordination with all flying squads, SSTs, law enforcement agencies and with the Commission. His office telephone/fax number and mobile number shall be intimated to the Expenditure Observers, Investigation Directorate, Excise Department and other law enforcement agencies during election. He shall train all the master trainers of the districts, who in turn shall train all personnel engaged in Flying Squad or SST. He shall be responsible for coordination with other law enforcement agencies, engaged in the election expenditure monitoring.
He shall compile the seizure reports by the FSs and SSTs sent by the SPs of districts and send the composite Daily Activity Report as per Annexure- B8, B9 & B10 by fax to the Expenditure Monitoring Cell of Commission every day, with a copy to the CEO and also compile and furnish to the Commission in Annexure- C10 by 1 PM on the day of poll.
(c) Nodal Officer of Income Tax: The Commission, before announcement of General Election, appoints a Nodal Officer in the office of DGIT (Inv) not below the rank of Addl./Joint DIT (Inv. Wing) for sharing of information etc. with the Commission and CEO of state for effective implementation of Election Expenditure Monitoring by way of seizure of unaccounted money suspected to be used in election etc. and submission on alternate days of the report in the prescribed format (Annexure- B15) and also compile and furnish to the Commission in Annexure-C9 by 1 PM on the day of poll.
(d) Nodal Officer of Excise: The Commission, before announcement of General Election, appoints a Nodal Officer (Excise) not below the rank of Commissioner for flow of information etc. with the Commission and CEO of State for effective implementation of Election Expenditure Monitoring by reporting of seizures made of illicit liquors by them during electioneering and also for reporting of related statistics in the prescribed format. (Annexure- B14) and also compile and http://www.judis.nic.in furnish to the Commission in Annexure-C8 by 1 PM on the day of poll.
42(e) Nodal Officer of Expenditure Monitoring Cell:
(i) The Nodal Officer of Expenditure Monitoring Cell in the district headquarters will coordinate with the DEO for providing adequate manpower and facilities of office space and equipment. The Nodal Officer will train the manpower engaged in various teams of the expenditure monitoring work well in advance, before the notification of election. The DEO can deploy any other officer or employee whose services are required for expenditure monitoring.
(ii) The Expenditure Monitoring Cell shall be responsible for video graphing all public meetings/rallies political parties/potential candidates during the period between announcement of election by ECI and notification of election. All such expenditure incurred by political parties as per the video CDs/DVDs are to be calculated by this Cell and handed over to DEO for estimating the expenditure by the political parties, during such period. Although this expenditure is not to be included in candidate‘s register, the party has to show this expenditure to the Commission, within 75 days of Assembly Poll or 90 days of Lok Sabha poll.
The CEO shall collect district-wise report as to the total expenditure by the party during this period and also the period up to declaration of result and forward to the Commission within 45 days of declaration of result. The Toll free number in complaint Monitoring Cell shall be given wide publicity encouraging the public to register complaints. The Assistant Expenditure Observers (AEOs), FSs, SSTs, Video Surveillance Teams (VSTs), Video Viewing Teams (VVTs) and Accounting Teams shall continue with their duty only up to date of poll/re-poll. However, the AEOs and Accounting Teams shall report for duty one day before the day of counting and again on 25th day after the date of declaration of result and shall remain for a period of eight days, for the purposes of giving training to the candidates/election agents in submission of accounts of election expenses and to assist in preparation of the DEOs Scrutiny Report and Expenditure Observer Report-IV. The AEOs and Account Teams shall be relieved thereafter.
Flying Squad (FS):-
1. There shall be three or more Flying Squads (FS) in each Assembly Constituency/Segment. The FS shall start functioning from the date of announcement of election and shall continue till completion of poll.
2. The Flying Squad shall (a) attend to all model code of conduct http://www.judis.nic.in violations and related complaints; (b) attend to all complaints of threat, 43 intimidation, movement of antisocial elements, liquor, arms and ammunition and large sum of cash for the purpose of bribing of electors etc.; (c) attend to all complaints regarding election expenditure incurred or authorized by the candidates / political party; (d) videograph with the help of Video Surveillance Team (VST), all major rallies, public meetings or other major expenses made by political parties after the announcement of election by the Commission.
3. In Expenditure Sensitive Constituencies (ESC), there shall be more FSs, depending on the requirement. The FS shall not be given any other work during the period. The names and mobile numbers of the Magistrate as head of the FS and other officials in FS 284 shall be provided to the Complaint Monitoring Control Room and Call Centre, RO, DEO, General Observer, Police Observer, Expenditure Observer and Assistant Expenditure Observer. In ESCs, CPF or State Armed Police may be mixed in the FS, depending on the situation and the DEO shall take necessary steps in this regard. The DEO shall constitute the FS with officers of proven integrity.
4. Whenever a complaint regarding distribution of cash or liquor or any other item of bribe or regarding movement of antisocial elements or arms and ammunition, is received, the FS shall reach the spot immediately. In case of suspicion of commission of any crime, the incharge Police Officer of FS shall seize cash or items of bribe or other such items, and gather evidence and record statement of the witnesses and the persons from whom the items are seized and issue proper Panchnama for seizure as per the provisions of CrPC to the person from whom such items are seized. He shall ensure that case is submitted in the Court of competent jurisdiction within 24 hrs. The Magistrate of the FS will ensure that proper procedure is followed and there is no law and order problem.
5. The Magistrate of the FS shall send a Daily Activity report in respect of items of seizure of bribe or cash to the D.E.O. in a format as per Annexure -
A, with a copy to R.O., S.P. and the Expenditure Observers, and shall also send Daily Activity report in respect of model code of conduct violations to RO, DEO, S.P. and General Observer in the format as given in Annexure-B. The S. P. shall send daily activity report to Nodal Officer of Police Headquarter, who shall compile all such reports from the district and send a consolidated report in the same format ( i.e.,: Annexure – A & B) on the next day by fax/ e-mail to the http://www.judis.nic.in Commission with a copy to the CEO of the state.
446. The entire proceeding shall be video recorded. The Incharge Officer of FS shall also file complaints/F.I.R. immediately against (i) the persons, receiving and giving bribe; and (ii) any other person from whom contraband items are seized, or (iii) any other antisocial elements found engaged in illegal activity. The copy of the complaint/FIR shall be displayed on the notice board of the R.O. for public information and be sent to the DEO, General Observer, Expenditure Observer and Police Observer. The Expenditure Observer shall mention it in the Shadow Observation Register, if it has links with any candidate’s election expenditure.
7. In case, a complaint is received about distribution of cash, gift items, liquor or free food; or about threat/ intimidation of electors; or of movement of arms/ammunitions/ antisocial elements and it is not possible for the FS to reach the spot immediately, then the information shall be passed on to the Static Surveillance Team, nearest to the spot or to the police station of that area, who shall rush a team to the spot for taking necessary action on the complaint. All seizures made by the police authorities either on receipt of complaints forwarded by FS or received independently shall also be reported to the FS which shall incorporate such seizure reports in its Daily Activity Reports in relevant rows/columns and this is done to avoid duplication of reports of seizure.
8. Each FS shall announce through a Public address system, fitted onto its vehicle, the following in local language in the area under its jurisdiction: “As per section 171 B of Indian Penal Code, any person giving or accepting any gratification in cash or kind during election process, with a view to inducing the person to exercise his electoral right is punishable with imprisonment up to one year or with fine or with both. Further, as per section 171 C of Indian Penal Code, any person who threatens any candidate or elector, or any other person, with injury of any kind, is punishable with imprisonment up to one year or with fine or both. Flying Squads have been formed to register cases against both the giver and the taker of bribe and for taking action against those who are engaged in threat and intimidation of electors. All the Citizens are hereby requested to refrain from taking any bribe and in case, anybody offers any bribe or is having knowledge about the bribe or cases of threat/intimidation of electors, then he should inform on the toll free number……………., of the 24x7 Complaint http://www.judis.nic.in Monitoring Cell of the district, set up for receiving the complaints”.
459. As per Commission’s instruction No. 23/1/2015-ERS, dated 21-02- 2015, Booth Level Awareness Groups (BAGs) formed for purification and authentication of electoral rolls of the booth will also be associated in collecting the evidences of malpractices taking place in their area either by mobile software developed by the Commission or otherwise. Whenever the BAG provides any information, the Flying Squad should reach the spot within shortest possible time and take necessary action and gather corroborative evidences.
10. The DEO shall publish pamphlets quoting the above in English or Hindi or local language and distribute through the flying squad in prominent places. Press release should also be issued by the DEO on the election expenditure monitoring measures.
11. After the announcement of elections, DEO shall make an appeal as mentioned in para 8 above in print and electronic media for the benefit of general public about the monitoring mechanism, which is being put in place during election process.
12. All the vehicles used by the Flying Squads shall be fitted with the CCTV cameras/ webcams or shall have video cameras (keeping in view the availability and economic viability) for recording the interception made by the Flying Squads"
34. As regards Flag Poles, this Court in W.P.No.17768 of 2016, dated 08.03.2019 has issued the following directions:-
"In 2016, when the State Assembly Elections were conducted, contending inter alia that there was violation of Tamil Nadu State Election Commission's Code by political parties, encroaching upon the public places, viz., roadsides, parks, play grounds, common places without any permission of the government and flag poles were erected permanently, causing traffic congestion and danger to the vehicle owners, petitioner has filed the instant writ petition for a mandamus, directing the Chief Electoral Officer, Secretary to Government, Public (Elections) Department, Chennai, the Chief Secretary, Government of Tamilnadu, Chennai, the Secretary to Government, Revenue Department, Government of Tamilnadu, Chennai, the Secretary to Government, Highways Department, Government of Tamilnadu, Chennai, the Secretary to Government, Department of Rural Development, Government of Tamilnadu, Chennai, the http://www.judis.nic.in Secretary to Government, Department of Municipal Administration, Government 46 of Tamilnadu, Chennai, the Commissioner of Land Administration, Department of Land Administration, Chennai and the Regional officer, National Highways Authority of India, Chennai, the respondents 1 to 9 respectively, to remove the flagpoles erected in public places permanently and further direct the respondents to put a complete ban on erecting flagpoles permanently or temporarily in public places all over the state of Tamil Nadu by considering his representation dated 07.05.2016. In the supporting affidavit, the petitioner has pointed out that erection of flagpoles near the State / National Highways, is without permission.
2. Considering various provisions of the Act and erection of flag poles at various places, temporarily during conferences, public meetings by using powered drillers endangering underground telecom cables, etc, causing inconvenience to road users, especially pedestrians, a Hon'ble Divison Bench of this Court on 03.12.2018, ordered as hereunder.
The writ petition is filed as a Public Interest Litigation and it is a case of the petitioner that in the light of ensuing election to various Legislative Assembly Constituencies in the State of Tamil Nadu, the Election Commission had issued a copy of Conduct and Guidelines and one of which is removal of flagpole of all political parties, which came to be erected in the public places. It is also the case of the petitioner that erecting of flagpoles temporarily during conferences, public meetings by using powered drillers endanger underground telecom cables etc., and it is also causing hazard to road users, especially to pedestrians and despite the said illegalities taking place right in front of the eye of the statutory authorities concerned, no action has been taken and therefore, came forward to file this writ petition.
2. The petitioner / Party-in-Person would submit that on account of erection of flagpoles by taking a small trench by using powered drillers, underground optical cables get affected, which will lead to telecommunication hindrance. In the event of erecting poll, there is a likelihood that it may also fall on the road users and pedestrians and despite statutory authorities aware of the same, they deliberately turn a blind eye to the illegalities that takes place in front of the own eyes and therefore, prays for appropriate orders,
3. Per contra, Mr.Niranjan Rajagopal, learned counsel accepts notice on http://www.judis.nic.in behalf of the 1st respondent and would submit that since as of now, no election 47 is going to place place, he may come out with a response and prays for time and so also Mr.R.Udhayakumar, learned Additional Government Pleader, who accepts notice on behalf of respondents 2 to 8.
4. This Court has considered the submission made by the petitioner / Party-in-Person and also perused the relevant Statutes.
5. It is relevant to extract the following provisions: The Tamil Nadu Highways Act, 2001 : Section 26 and 30
26. Prevention of unauthorised occupation of highway.-(1) No person shall occupy or encroach on any highway within the highway unauthorised occupation of boundaries. highway. (2) Notwithstanding anything contained in sub-section (1), the Highways authority may, with the concurrence of the Collector and with due regard to the safety aid convenience of traffic and subject to such conditions, and on payment of such rent or other charges as may be prescribed, grant permission, of a temporary nature, to any person-
(a) to make any temporary use of any highway in front of any building owned or occupied by him or make a temporary structure overhanging the highway; or
(b) to put up a temporary awning or tent, pandal or other similar erection or a temporary stall or scaffolding on any highway; or (c) to deposit or cause to be deposited building materials, goods for sale or other articles on any highway for a specified period; or (d) to make a temporary excavation on any highway for carrying out any repairs or improvements to building on lands adjoining such highway:
Provided that no such permission shall be deemed to be valid beyond a period of one year, unless it is expressly renewed by the Highways authority. (3) permission granted under sub-section (2) shall clearly specify the date upto which and the purpose for which the occupation of the highway is authorised and the exact portion of the highway so permitted to be occupied, and shall also be accompanied by a plan or sketch of that portion of the highway. A copy of such permission shall be communicated to the Collector for the purpose of record. (4) The person in whose favour such permission has been given shall produce the permit for inspection whenever called upon to do so by the Highways authority, or any officer authorised by it in that behalf and shall, at the end of the period specified in the permit, vacate the portion of the highway occupied by him, after restoring it to the same state as it originally http://www.judis.nic.in stood before the occupation by him. (5) The Highways authority shall maintain 48 a complete record of all such permissions granted, and shall also cause an inspection to be made in every case at the expiration of the period upto which such occupation has been permitted, to ensure that the portion of the highway has actually been vacated. (6) The permission granted under sub-section (2) shall be in such form and subject to such conditions as may be prescribed.
30.Restoration of property to original state where it is dealt with in contravention of section 9.- (1) Where any person has erected any building or made or extended any excavation or carried out any mining or other operation or made any material change in the use of land, or constructed, formed or laid out any work of means of access or any other acts in contravention of section 9 or in contravention of any of the terms and conditions of the permission granted under sub-section (2) of section 26, the 'Highways authority may, by order, require such person to restore the land or building to its original condition or to bring the land or building in conformity with the terms and conditions specified in such permission, within such period as may be specified in the order. (2) If such person fails to comply with such order within the period specified in the order, the Highways authority may itself take such measures as appear to it to be necessary to give effect to the order and recover the cost thereof from such person as an arrear of land revenue.
Chennai City Municipal Corporation Act, 1919:
Section 220 & 223:
220. Prohibition against obstructions in streets.—No one shall build any wall or erect any fence or other 5[obstruction or projection or make any encroachment] in or over any street 6[or any public place, the control of which is vested in the corporation] except as hereinafter provided.
3[223. Power to allow certain projections and erections.—(1) The Commissioner may grant a licence, subject to such conditions and restrictions as he may think fit, to the owner or occupier of any premises—
(a) to put up or continue to have verandas, balconies, sun-hades, weather frames and the like, to project over a street.Or (b) in streets in which the construction of arcades has been sanctioned by the council, to put up or continue to have an arcade, or to construct or to continue to have any step or drain-covering necessary for access to the premises].
http://www.judis.nic.in (2) With the concurrence of the commissioner of police, the commissioner may 49 grant a licence. Subject to such conditions and restrictions as he may think, fit, for any temporary construction in any street or in any public place, the control of which is vested in the corporation.
(3) No licence shall be granted under sub-section (1) if the projection or construction is likely to be injurious to health or cause public inconvenience or otherwise materially interfere or result in material interference with the use of the road as such.
(4) On the expiry of any period for which a licence has been granted under this or after due communication of an order of suspension or revocation of such licence, the commissioner may, without notice, cause any projection or construction put up under sub-section (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner provided in section 387 from the person to whom the licence was granted.
1[(5) The council shall have power to lease road sides and street margin vested in the corporation for occupation on such terms and conditions and the such period as it may fix :
Provided that no such lease for any term exceeding three years shall be valid unless the sanction of the State Government therefore shall have been first obtained :
Provided further that if the State Government consider that any occupation of a road side or street margin under a lease granted by the council under this section is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road side or street margin as such, the State Government may direct the council to cancel or modify the lease and the council shall thereupon cancel or modify the lease accordingly.] 223-A. Power of council to set up hoardings and levy fees—Subject to the provisions of the 3[Tamil Nadu] Open Places (Prevention of Disfigurement) Act, 1959 (3[Tamil Nadu] Act 2 of 1959) and sections 129-A to 129-F of this Act, the commissioner may, with the sanction of the council, set up, for the exhibition of advertisements, hoardings, erections or other things in suitable place owned by, or vested in the corporation and may permit any person to use any such hoarding, erection or thing on payment of such fee as may be prescribed by regulations made by the council in this behalf. Explanation 1.—For the purposes of sections 129-D and 129-E the person who http://www.judis.nic.in has been permitted to use any hoarding, erection or thing under this section 50 shall be deemed to be the owner or the person in occupation of such hoarding, erection or thing.] Explanation II.—For the removal of doubts, it is hereby declared that any fee payable by any person to use any hoarding, erection or thing under this section shall be deemed to be the owner or the person in occupation of such hoarding, erection or thing.] Tamil Nadu District Municipalities Act, 1920: Sections 180, 182, 183, 186
180. Prohibition against obstructions in or over streets .—No one shall build any wall or erect any fence or other obstruction, or projection, or make any encroachment in or over any street, except as hereinafter provided.
182. Removal of encroachments .— (1) The 1 [Executive Authority] may, by notice, require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar or ground-floor window) situated against or in front of such premises and in or over any street. (2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give any person a prescriptive title thereto or that it was erected or made with the permission or licence of any municipal authority duly empowered in that behalf, and that the period, if any, for which the permission or licence is valid has not expired, the Municipal Council shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.
183. Power to allow certain projections and erections .— (1) The Council may grant a licence, subject to such conditions and restrictions as it may think fit, to the owner or occupier of any premises to put up verandas, balconies, sunshades, weather-frames and the like, to project over a street, or in streets in which the construction of arcades has been sanctioned by the Council, to put up an arcade ; or to construct any step or drain-covering necessary for access to the premises.
186. Prohibition against making holes and causing obstruction .—(l) No person shall make a hole or cause any obstruction in any street, unless, he previously http://www.judis.nic.in obtains the permission of the 1 [Executive Authority] and complies with such 51 conditions as that officer may impose. (2) When such permission is granted, such person shall, at his own expense., cause such hole or obstruction to be sufficiently fenced and enclosed until the hole or obstruction is filled up or removed and shall cause such hole or obstruction to be sufficiently lighted during the night.
Tamil Nadu Panchayats Act, 1994 Section 220:
220. (I) Save as otherwise expressly provided in or may be prescribed under this Act, every application for any licence or permission under this Act or any rule, by-law or regulation made thereunder, or for the renewal thereof, shall be made not less than thirty and not more than ninety days before the earliest date with effect from which, or the commencement of the period (being a year or such less period as is mentioned in the application) for which the licence or permission is required. (2) Save as aforesaid, for every such licence or permission, fees may be charged on such units and at such rates as may be fixed by the panchayat provided that the rates shall not exceed the maximum, if any, prescribed. (3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the executive authority of the village panchayat or the commissioner or the chief executive officer. The application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules, by-Iaws and regulations and all conditions ordinarily imposed. (4) The acceptance of the pre-payment of the fee for any such licence or permission shall not entitle the person making such pre-payment to the licence or permission, but only to a refund of the fee in case of refusal of the licence or permission. (5) If an act, for which any such licence or permission is necessary is done without such licence or permission, or in a manner inconsistent with the terms of the licence or permission obtained, then- (a) the executive authority of the village panchayat or the commissioner or the chief executive officer may by notice require the person so doing such act to alter, remove, or as far as practicable restore to its original state, the whole, or any part of any property, movable or immovable, http://www.judis.nic.in public or private affected thereby, within a time to be specified in the notice;52
and further, . (b) if no penalty has been specially provided in this Act for so doing such act the person so doing it shall be punishable with fine not exceeding fifty rupees for such offence. (6) Whenever any person is convicted of an offence in respect of the failure to obtain any such licence or permission, the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the panchayat the amount of the fee chargeable for the licence or permission, and may, in his discretion, also recover summarily and pay over to the panchayat such amount, if any as he may fix as the costs of the prosecution. Explanation:- The recovery of the fee for a licence or permission under this subsection shall not entitle the person convicted to the licence or permission.
Tamil Nadu Panchayats (Prohibition against obstruction in or over Public Roads, removal of encroachments, etc.,) Rules, 2000:
15. Restriction on making hole, etc., on roads, (1) The Village Panchayat or Panchayat Union Council shall earmark certain places with ready made holes for erecting poles in any public road vested with them.
(2) No person shall make a hole, or cause any obstruction in any public road other than these places specified in sub-rule (1) unless he previously obtains the permission of the Executive Authority or Commissioner and complies with such conditions as the Executive Authority or Commissioner may impose.
(3) When such permission is granted, such person shall, at his own expense, cause such hole or obstruction to be sufficiently fenced and enclosed until the hole or obstruction is filled up or removed and shall cause such hole or obstruction to be sufficiently lighted during the night.
(4) If any person contravenes the provisions of this rule, the Executive Authority or Commissioner shall fill up the hole or remove the obstruction or cause the hole or obstruction to be lighted, as the case may be, and may free cover the cost of so doing from such person.
6. A perusal and consideration of the above cited statutory provisions and rules would prima facie disclose that erection of flagpoles by any political parties or organisation without license or permission is prohibited. But the said provisions are complied with rather in breach and in by way of compliant and http://www.judis.nic.in the Local body authorities concerned, for the reason best known to them, 53 turning a blind eye to the said unlawful activities, the result being, pedestrians as well as the road users are put to grave risk and peril. In the event of those flag polls and other temporary constructions likely to fall down, ultimately, it may be the duty of the State to compensate them without putting any liability and responsibility on the violators. Therefore, it is for the Local Body concerned to ensure that no flagpoles are erected on the road margin, especially on the platforms or arches put up across the roads without prior permission / license as contemplated under the said provisions.
7. Call on 09.01.2019. Status reports / counter affidavits of the respondents with supporting documents, if any, by then.
3. Though directions have been granted on 03.12.2018 to the respondents to file a status reports / counter affidavits, no report or counter affidavit has been filed.
4. On 28.01.2019, when the matter came up for further hearing, having regard to the submission of the learned Additional Government Pleader that the flag pole in question has already been removed by the Collector of Salem District, and taking note of the request to grant time to file a status report, the Hon'ble Division Bench passed another order on 28.01.2019, as hereunder.
This Court while entertaining the writ petition has passed a detailed order on 03.12.2018, as to the alleged menace of erecting flag polls near the side of the State / National Highways etc., and directed the official respondents to file status report and counter affidavit.
2. When the matter is listed today, Mr.E.Manoharan, learned Additional Government Pleader appearing for the State Government would submit that flag polls in question has been removed by the Collector of Salem District and seeks further time to file status report in that regard. The erection of flag polls near the road / State and National Highways is going on for quite some time and therefore, this Court requires the response of the 1st respondents also.
Call on 18.02.2019 with supporting documents, if any, by then.
5. Today, when the matter came up for further hearing, on the basis of the instructions, Mr.E.Manoharan, learned Additional Government Pleader submitted that pursuant to the order of this Court made in W.P.No.17768 of http://www.judis.nic.in 2016 dated 03.12.2018, extracted supra, Additional Secretary to the 54 Government, Rural Development and Panchayat Raj Department, Chennai, 6th respondent herein, has issued instructions to the Director of Rural Development and Panchayat Raj Department, Chennai to furnish the details of the action taken report to the Government and to file the status report / counter affidavit. Following which, the Director of Rural Development and Panchayat Raj Department, Chennai has issued a circular to all the District Collectors to take immediate action, as per the directions of this Court in W.P.No.17768 of 2016 dated 03.12.2018, so as to regulate erection of flag poles on the road margin, especially on the platforms or arches, etc. and send an action taken report in this regard to the Directorate immediately.
6. Letter dated 07.02.2019 of the Additional Secretary to the Government, Rural Development and Panchayat Raj Department, Chennai, 6th respondent and the circular dated 13.02.2019 of the Director of Rural Development and Panchayat Raj Department, Chennai, to all the District Collectors are reproduced hereunder.
Rural Development and Panchayat Raj Department Secretariat, Chennai - 9.
Website : www.tnrd.gov.in Telephone: (044)-25675135 Fax No.: (044)-25675849 Letter No.28383/PR.2/2018-1 dated 07.02.2019 From Dr.Pinky Jowel, IAS, Additional Secretary to Government.
To The Director of Rural Development and Panchayat Raj, Chennai - 15.
http://www.judis.nic.in Sir, 55 Sub: RD&PR Department - W.P.No.17768 of 2016 filed by Thiru.A.Radhakrishnan, with a prayer to take action to remove the flagpoles erected in the public places permanently and to put ban on erection of flagpoles in public places - Regarding.
Ref: Orders passed by the High Court of Madras dated 3.12.2018 in W.P.No.17768/2016.
----
I am directed to enclose a copy of the High Court cited, wherein the High Court has observed as follows:-
In the event of those flag polls and other temporary constructions likely to fall down, ultimately, it may be the duty of the State to compensate them without putting any liability and responsibility on the violators. Therefore, it is for the Local Body concerned to ensure that no flagpoles are erected on the road margin, especially on the platform or arches put up across the roads without prior permission / license as contemplated under the said provisions.
2. I am therefore to request you file status report/ Counter Affidavit in respect of RD&PR Department and send the Action taken report to Government immediately.
Yours faithfully, sd/-
for Additional Secretary to Government
From To
Director of Rural Development and The District Collector,
Panchayat Raj, All District.
Panagal Building
Saidapet,
Chennai - 15
Roc.No.7575/2019/PRI 1-4, Dated: 13.02.2019. Sir, Sub: Rural Development and Panchayat Raj Department -
W.P.No.17768 of 2016 filed by http://www.judis.nic.in Thiru.A.Radhakrishnan, with a prayer to take action 56 to remove the flagpoles erected in public places permanently and to put ban on erection of flagpoles in public places - Regarding.
Ref: 1. Orders passed by the Hon'ble High Court of Madras, dt.3.12.2018 in W.P. No.17768/2016
2. The Government letter No.28383/ PR 2 /2018 - 1 dated:07.02.2019.
3. The Government letter No.28383/ PR 2 /2018 - 1 dated:08.02.2019.
***** I invite kind attention to the references cited. In the reference 1st cited, the Hon'ble High Court of Madras in W.P. No.17768/2016 has ordered as follows:
"A perusal and consideration of the above cited statutory provisions and rules would prima facie disclose that erection of flagpoles by any political parties or organisation without license or permission is prohibited. But the said provisions are complied with rather in breach and in by way of compliant and the Local body authorities concerned, for the reason best known to them, turning a blind eye to the said unlawful activities, the result being, pedestrians as well as the road users are put to grave risk and peril. In the event of those flag polls and other temporary constructions likely to fall down, ultimately, it may be the duty of the State to compensate them without putting any liability and responsibility on the violators. Therefore, it is for the Local Body concerned to ensure that no flagpoles are erected on the road margin, especially on the platforms or arches put up across the roads without prior permission / license as contemplated under the said provisions."
Hence, I request you to take immediate action on the above matter, so as to regulate the erection of flag poles on the road margin, especially on the platforms or arches, etc. and send an action taken report in this regard to this Directorate immediately.
Encl.: Ref.1 for Director Copy to:
1. The Addl. Chief Secretary to Govt., RD & PR Dept., Chennai-9.
http://www.judis.nic.in
2. Thiru.M.Manoharan, Addl. Govt. Pleader, Govt. Pleader's Office, 57 Law Officer's Block, High Court, Chennai - 104.
3. The Assistant Director (Panchayats), All District.
7. That apart, Mr.Niranjan Rajagopal, learned counsel appearing for the Chief Electoral Officer, Chennai, 1st respondent submitted that in the matter of prevention of defacement of property and other campaign related items, including erection of flagpoles and banners, as advertisements during the elections, instructions have been issued by the Election Commission of India dated 18.01.2012 to all the Chief Secretaries, States and Union Territories and the Chief Electoral Officers of all States and Union Territories. Instructions dated 18.01.2012 of the Election Commission of India reads thus.
ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110 001 No.437 /6/INST/2012-CC&BE Dated:18th January, 2012 To
1) The Cabinet Secretary, Cabinet Secretariat, Rashtrapati Bhawan, New Delhi.
2) The Chief Secretaries of all States and UTs.
3) The Chief Electoral Officers of all States and UTs.
Subject- Prevention of defacement of Property and other campaign related items revised instructions - regarding.
Sir/Madam I am directed to state that on the announcement of the General Elections to the Legislative Assemblies of the States of Goa, Manipur, Punjab, Uttar Pradesh and Uttarakhand, the provisions of Model Code of Conduct have come into force w.e.f. 24th December, 2011. The Commission has decided to reiterate its instructions issued vide its letter no. 3/7/2008/JS-II dated 7th October, 2008 (copy enclosed) contained in Para 5 under the heading ‘DEFACEMENT OF PRIVATE PLACES’, as under: -
"Sub-para (d) “Subject to any restrictions under any local law or any court orders in force, the political parties, candidates, their agents, workers and http://www.judis.nic.in supporters may put up banners, buntings, flags, cut-outs, on their property, 58 provided they do so on their own volition, voluntarily and without any pressure from any party, organization or person, and provided further that these do not cause any inconvenience in any manner to anyone else. If such display of banners, flags etc. aims to solicit vote for any particular candidate, then the provisions of Section 171H of IPC would be attracted and would have to be followed. Section 171H of the IPC stipulates that whoever without the general or special authority in writing of a candidates incurs or authorizes expenses on account of the holding of any public meeting or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidates, shall be punished with fine which may extend to five hundred rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.” Yours faithfully, sd/-
(K.N.BHAR) SECRETARY ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110 001 No.3/7/2008/JS-II Dated:7th October, 2008 To
1) The Secretary to Government of India, Ministry of Home Affairs, New Delhi - 110 001.
2) The Chief Secretaries of all States and UTs.
3) The Chief Electoral Officers of all States and UTs.
Subject- Prevention of defacement of Property and other campaign related items - revised instructions - regarding.
http://www.judis.nic.in Sir, 59 I am directed to invite a reference to the Commission’s letter No.3/7/2007/JS-II, dated 16th October, 2007, regarding prevention of defacement of property in connection with election campaign.
2. In the past, the Commission has suggested the enactment of special laws by state governments for dealing with defacement of properties effectively. Some states have enacted special legislations to govern and regulate defacement of property, While the other states have legislation that either only cover specific areas, like municipalities etc., or have no legislation at all. A tabular statement on respective positions obtaining in the states in this respect based on the information available in the Commission is enclosed in the schedule appended to this circular (marked as Annexure-I). Since a uniform law throughout the country is not available, what is enforceable differs from state to state. Keeping in view the forthcoming general election to the LokSabha due in 2009, it has become necessary to lay down, for smooth conduct of campaign during elections and for clear understanding of all authorities who have the responsibility for the implementation at the field level as also of the observers who are deputed to oversee the elections in different states/constituencies, a comprehensive set of guidelines with respect to defacement of property.
3. After considering all aspects of the matter in depth, the Commission has, in supersession of the earlier instructions, laid down the following directions, to be followed by political parties, candidates, individuals and organizations etc. during the election period:
Defacement of Public Places
4 (a) No wall writing, pasting of posters/papers or defacement in any other form, or erecting/displaying of cutouts, hoardings, banners, flags etc. shall be permitted on any Government premise (including civil structures therein). For this purpose a Government premise would include any Govt. office and the campus wherein the office building is situated.
(b) If the local law expressly permits or provides for writing of slogans, displaying poster, etc., or erecting cut-outs, hoardings, banners, political advertisement, etc., in any public place (as against a Govt. premise) on payment or otherwise, this 46 may be allowed strictly in accordance with the relevant provisions of the law and subject to Court orders, if any on this subject. It should be ensured that any such place is not dominated/monopolized by any http://www.judis.nic.in particular party(ies) or candidate(s). All parties and candidates should be 60 provided equal opportunity in this regard.
(c) If there is a specifically earmarked place provided for displaying advertisements in a public place, e.g. bill boards, hoardings etc. and if such space is already let out to any agency for further allocation to individual clients, the District Election Officer through the municipal authority concerned, if any, should ensure that all political parties and candidates get equitable opportunity to have access to such advertisement space for election related advertisements during the election period.
Defacement of Private Places
5. (a) In the States where there is no local law on the subject, and subject to the restrictions under the law where there is a law, temporary and easily removable advertisement materials, such as flags and banners may be put up in private premises with the voluntary permission of the occupant. The permission should be an act of free will and not extracted by any pressure or threat. Such banner or flag should not create any nuisance to others. Photo-copy of the voluntary permission in writing obtained in this connection should be submitted to the Returning Officer within 3 days of putting up the flags and banners in such cases in the manner prescribed in sub para(c) below.
(b) If the local law does not expressly permit wall writing, pasting of poster, and similar other permanent/semi-permanent defacement which is not easily removable, the same shall not be resorted to under any circumstances, even on the pretext of having obtained the consent of the owner of the property. This will also apply in the states where there is no local law on the subject of prevention of defacement of property.
(c) Where the local law expressly permits wall writings and pasting of posters, putting up hoardings, banners, etc. on private premises with the owner’s permission, the contesting candidates or the political parties concerned shall obtain prior written permission from the owner of the property and submit photocopies of the same within3days to the Returning Officer or an officer designated by him for the purpose, together with a statement in the enclosed proforma (marked as Annexure-2). The statement in such cases and in the cases mentioned in sub-para (a) above should clearly mention therein the name and address of the owner of the property from whom such permission has been http://www.judis.nic.in obtained together with expenditure incurred or likely to be incurred for the 61 purpose. Nothing inflammatory or likely to incite 47 disaffection amongst communities shall be permissible in such writings/display. The expenditure incurred in this mode on specific campaign of candidate(s) shall be added to the election expenditure made by the candidate. Expenditure incurred on exclusive campaign for a party without indicating any candidate shall not be added to candidate’s expenditure. The contesting candidate shall furnish such information village/locality/town-wise, to the Returning Officer, or the authorized officer within 3 days of obtaining the requisite permission, for easy checking by the Returning Officer or the Election Observer or any officer connected with the conduct of elections.
(d) Subject to any restrictions under any local law or any court orders in force, the political parties, candidates, their agents, workers and supporters may put up banners,buntings flags, cut-outs, on their own property, provided they do soon their own volition, voluntarily and without any pressure from any party, organization or person, and provided further that these do not cause any inconvenience in any manner to anyone else. If such display of banners, flags etc. aims to solicit vote for any particular candidate, then the provisions of Section 171H of the IPC would be attracted and would have to be followed. Section 171H of the IPC stipulates that whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.
DEFACEMENT OF HALLS/AUDITORIUMS AND OTHER PUBLIC PROPERTIES
6. In the case of Halls/Auditoriums/Meeting venues owned/controlled by the Government/ local authorities/PSUs/Cooperatives, if the law/guidelines governing their use do not preclude political meetings therein, there is no http://www.judis.nic.in objection to it. It shall be ensured that the allocation is done on equitable basis 62 and that there is no monopolization by any political party or candidates. In such venues, displaying of banners, buntings, flags, cut-outs, may be permitted during the period of meetings subject to any restrictions under the law/ guidelines in force. Such banners, flags, etc. shall be got removed by the party/individual who used the premises immediately after conclusion of the meeting, and in any case within a reasonable period after the meeting is over. Permanent/Semi-Permanent defacement such as wall writing/pasting of posters etc. shall not be permitted in such premises.
7. If any political party/association/candidate/person indulges in defacement of any property in violation of the local law, if any, or the above instructions, the Returning Officer/District Election Officer shall issue notice to the offender for removing the defacement forthwith. If the political party/association/candidate/person does not respond promptly, the district authorities may take action to remove the defacement, and the expenses incurred in the process shall be recovered from the political party/ association/candidate/person responsible for the defacement. Further, the amount also shall be added to the election expenditure of the candidate concerned, and action should also be initiated to prosecute the offender under the provisions of the relevant law (under the law relating to prevention of defacement, if any, or under the provisions of the general law for causing willful damage to the property of others).
DEFACEMENT OF VEHICLES
8. (a) In private vehicles, subject to the provisions of the Motor Vehicles Act, Rules thereunder and subject to court orders in force, if any, flags and stickers may be put on the vehicles by the owner of the vehicle on his own volition, in such a manner that they do not cause any inconvenience or distraction to other road users. If such display of flags and stickers aims to solicit vote for any particular candidate, then the provisions of Section 171H of the IPC would be attracted and would have to be followed.
(b) On commercial vehicles, display of any flag, sticker etc. shall not be permitted, unless such vehicle is a vehicle validly used for election campaign after obtaining the requisite permit from the District Election Officer/Returning Officer and the display thereof in original on the wind screen.
http://www.judis.nic.in
(c) External modification of vehicles including fitting of Loudspeaker 63 thereon, would be subject to the provisions of the Motor Vehicles Act/Rules and any other Local Act/Rules. Vehicles with modifications and special campaign vehicles like Video Rath etc., can be used only after obtaining the requisite permission from the competent authorities under the Motor Vehicles Act.
OTHER CAMPAIGN RELATED ITEMS
9. Subject to accounting for the expenditure, the following may be permitted:-
(a) In processions and rallies etc., flags, banners, cutouts etc. can be carried subject to local laws and prohibitory orders in force;
(b) In such procession, wearing of party/candidate supplied special accessories like cap, mask, scarf etc. may be permitted. However, supply of main apparels like saree, shirt, etc. by party/candidate is not permitted.
(c) Educational institutions including their grounds {whether Govt.
aided, private or Govt. shall not be used for political campaigns and rallies.
10. The Chief Electoral Officers are requested to bring the directions of the Commission to the notice of the District Election Officers, Returning Officers and all other election related authorities, and all political parties in the State, including State units of recognized National and State parties, and all registered un-recognized parties based in the State, and also the contesting candidates (at the time of elections) for information and compliance.
11. Please acknowledge receipt of this letter. The Chief Electoral Officers may kindly confirm that action as required above has been taken.
Annexure-1 Defacement of Properties – Law Sl. No. Name of State/ UT Name of Act/Rule Extent of applicability
1. Andhra Pradesh The Andhra Pradesh It extends to the entire Prevention of Disfigurement State.
of Open Places and
Prohibition of Obscene and
Objectionable Posters and
Advertisements Act, 1997
2. Arunachal Pradesh The Arunachal Pradesh It extends to the entire
Prevention of Defacement of State.
Property Act, 1997.
3. Bihar The Bihar Prevention of It extends to the entire
Defacement of Property Act, State.
http://www.judis.nic.in 1985.
64
Sl. No. Name of State/ UT Name of Act/Rule Extent of applicability
4. Chhattisgarh No separate law/Act framed It extends to the entire
by the State. But the Madhya State.
Pradesh
SampattiVirupanNivaranAdhi
niyam, 1994 is applicable in
the state.
5. Goa The Goa Prevention of It extends to the entire
Defacement of Property Act, State.
1988 as amended vide Act of
1992 and 2001.
6. Haryana The Haryana Prevention of It extends to the entire
Defacement of Property Act, State.
1989 as amended vide Act of
1996.
7. Himachal Pradesh The Himachal Pradesh Open It extends to the entire
Places (Prevention of State and come into
Disfigurement) Act, 1985. force in the areas comprised in the Municipal Corporation of Shimla at once and shall come into force in the remaining part of the State on such date as the State Govt. may by notification, appoint.
8. Jharkhand No separate law/Act but the It extends to the entire Bihar Prevention of State.
Defacement of Property Act, 1985 is applicable in the state.
9. Jammu &Kashmir The Jammu & Kashmir It extends to the entire Prevention of Defacement of State.
Property Act No. XIX of 1985.
10. Karnataka The Karnataka Open Places It extends to Bangalore, (Prevention of Mysore, Hubli, Dharwar, Disfigurement) Act, 1981 as Mangalore and Belgaun amended vide Act of 1983. constituted or continued under the Karnataka Municipal Corporation Act – 1976, or under any other law on 05.05.81 and come into force in the Municipalities, notified areas, sanitary Boards, constituted or continued under the Karnataka Municipalities Act – 1964, or under any other law, or in any other local area, on such date, as the State Government may by http://www.judis.nic.in notification appoint.
65Sl. No. Name of State/ UT Name of Act/Rule Extent of applicability
11. Madhya Pradesh The Madhya Pradesh It extends to the entire Sampatti Virupan Nivaran State.
Adhiniyam, 1994. It extends to the entire State.
12. Maharashtra Maharashtra Act No. VIII of Nothing is specifically 1995 – regarding prevention mentioned about the of Defacement of Property. extent of applicability.
13. Mizoram The Mizoram Prevention of It extends to the entire Defacement of Property Act, State.
1995.
14. Nagaland The Nagaland Prevention of It extends to the Defacement of Property Act, notified areas 1958. constituted under the Assam Tribal Areas (Administration of Tow Committee) regulation 1950, in any other local area or areas, on such date, as the State Govt.
may by notification may appoint.
15. Punjab The Punjab Prevention of It extends to the entire Defacement of Property Act, State.
1998.
16. Sikkim The Sikkim Prevention of It extends to the entire Defacement of Property Act, State.
1988.
17. Tamil Nadu The Tamil Nadu Open Places It extends to the entire (Prevention of State.
Disfigurement) Act, 1959, as amended vide Act of 1992.
18. Tripura The Tripura Prevention of It extends to the entire Defacement of Property Act, State and shall apply in 1976 in conjunction with the first instance to Tripura (Prevention of municipal limits of Defacement of Property) Agartala Town, but the Amendment Bill, 1998 now in State Govt. may from force in the State. time to time by notification in the official Gazette, apply to such other local areas or areas as may be specified in the notification.
19. Uttarakhand The Uttaranchal Prevention It extends to the entire of Defacement of Public State.
Property Act, 2003
20. Andaman & Nicobar The Andaman & Nicobar It extends to the entire Islands Prevention of Union Territory of the Defacement of Property Andaman and Nicobar Regulation, 1987. Islands.
http://www.judis.nic.in 66 Sl. No. Name of State/ UT Name of Act/Rule Extent of applicability
21. Chandigarh UT The West Bengal Prevention It extends to the entire of Defacement of Property State.
Act, 1976 has been made applicable in Chandigarh UT.
22. Delhi The West Bengal Prevention It extends to the entire of Defacement of Property State.
Act, 1976 was made
applicable in Delhi. (A
separate act is under
consideration).
23. Pondicherry The Pondicherry Open It extends to whole of
Places (Prevention of the Union Territory of
Disfigurement) Act, 2000. the Pondicherry.
States in which there is no specific Law on the subject of Prevention of Defacement of Property Sl.No. Name of State / UT
1. Assam No law / Act
2. Gujarat No law / Act
3. Kerala No law / Act
4. Manipur No law / Act
5. Meghalaya No law / Act
6. Orissa No law / Act
7. Rajasthan No specific law on the subject but there is a provision in Section 198 of Rajasthan Municipalities Act, 1959 that without the consent of the owner or occupier and in case of Municipal Property, without the permission in writing of the board, affixing any poster, bill, placard or other paper or means of advertisement is punishable with fine which may extend to twenty rupees.
8. Uttar Pradesh No law / Act
9. West Bengal The earlier West Bengal Prevention of Defacement of Property Act, 1976 (West Bengal Act XXI of 1976). This Act has since been repealed.
10. Dadra & N.Haveli No law / Act http://www.judis.nic.in
11. Daman and Diu No law / Act 67 Sl.No. Name of State / UT
12. Lakshdweep No law / Act Annexure-2 State showing the details of wall-writings / posters / hoardings / banners, etc. displayed by Shri / Smt./ Ms._________________, contesting candidate in _____________ Parliamentary Constituency / Assembly Constituency.
Name of the Village / Town / Locality _____________ S.No. Name and address of Details of Wall-Writing or Expenditure incurred or the owner of the Hoardings or Banners or likely to be incurred on private property from Poster (Size of wall the wall - writing / whom written writing / hoarding / hoarding / banner / permission has been banner / poster shall be posters, etc. obtained indicated (Rs.) Total
8. Writ petition has been filed in the year 2016, contending that political parties were erecting flagpoles near State / National Highways. Though instructions dated 18.01.2012 can be made applicable only when the Code of Conduct comes into force, nevertheless, the same has to be strictly implemented in the ensuing elections, both parliamentary and State elections.
9. Almost three months have elapsed from 03.12.2018, when this Court directed the respondents to file status reports / counter affidavits. Though Mr.E.Manoharan, learned Additional Government Pleader submitted that Highways has taken up the exercise of removing the flagpoles, there are no materials.
10. District Collectors of all Districts are directed to submit the status report, as to the existing of the number of poles, in their respective Districts, with or without permission and the steps taken for removal. Reports should contain all the particulars of action taken.
11. Additional Secretary to the Government, Rural Development and Panchayat Raj Department, Chennai, is directed to file a consolidated report, http://www.judis.nic.in for all the Districts, with copies of reports submitted by the District Collectors.
6812. Commission, Greater Chennai, Corporation of Chennai is also directed to file a similar status report / counter affidavit.
13. Similarly, National Highways Authority of India, Chennai, also to submit a status report and the details of action taken."
35. Pursuant to the same, parties therein, have submitted reports, which this considered on 25.03.2019, as follows:-
2. Responding to the above, on the basis of a letter sent by the Director of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai - 15 in Roc. No.7575/2019/PRI 1-4 Dated 23.3.2019, Mr.E.Manoharan, learned Additional Government Pleader submitted that reports have been received from 31 districts. Out of 58,971 poles erected without permission, 58,172 poles have been removed. He further submitted that the consolidated report as on 23.3.2019 states that, 799 flag poles are still to be removed, in 31 districts.
Learned Additional Government Pleader further submitted that the list does not include Chennai. During the course of hearing on the information furnished, he submitted that out 799 flag poles, 308 flag poles, have been removed.
3. As regards Chennai District, learned Additional Government Pleader submitted that the exact number of poles erected without permission and removed, is yet to be received by him. Letter dated 23.3.2019 of Director of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai - 15, addressed to the Additional Chief Secretary to Governemnt, Rural Development and Panchayat Raj Department, Chennai - 9, is reproduced hereunder:
From To
Dr.K.Baskaran, I.A.S, The Addl. Chief Secretary to Govt.,
Director of Rural Development Rural Development and Panchayat
and Panchayat Raj Raj Dept.,
Panagal Building Chennai – 9
Saidapet, Chennai – 15
Roc. No.7575/2019/PRI 1-4, Dated 23.03.2019 Sir, Sub: Rural Development and Panchayat Raj Department -
W.P. No.17768 of 2016 filed by Thiru.A.Radhakrishnan with a prayer to take action to remove the flagpoles http://www.judis.nic.in erected in public places permanently and to put ban 69 on erection of flagpoles in public places – Action taken report submitted – Regarding.
Ref: 1.Orders passed by the Hon'ble High Court of Madras, dt.03.12.2018 in W.P. No.17768/2016
2.Government letter No.28383/PR.2/2018-1 dated: 07.02.2019
3.Government letter No.28383/PR.2/2018-1 dated 08.02.2019
4. DRD & PR – Ref. No. Roc. No.7575/2019/PRI 1-4, Dated: 13.02.2019
5. Orders passed by the Hon'ble High Court of Madras, dt.08.03.2019 in W.P. No.17768/2016
6. The Addl. Govt. Pleader, High Court Chennai – 104 reference dated: 12.03.2019
7. Government letter No.28383/PR.2/2018-1 dated: 18.03.2019
8. Government letter No.28383/PR.2/2018-1 dated: 19.03.2019
9. DRD & PR – Ref. No. Roc. No.7575/2019/PRI 1-4, Dated: 21.03.2019
10. Reports received from the Dist. Collectors ******* I invite kind attention to the references cited.
In the Government reference 7th and 8th cited, it has been instructed to submit the status report, as to the existing of the number of poles in the Districts, with or without permission from the competent authority and the steps taken for removal, as ordered by the Hon'ble High Court of Madras in its judgment dated 08.03.2019 in W.P. No.17768/2016.
In this regard, it is submitted that in the reference 4th cited, necessary instructions have already been issued to all the District Collectors to take immediate action based on the directions issued by the Hon'ble High Court of Madras - vide refernece 1st cited. The District Collectors have also been requested to give necessary directions to all the Block Development Officers to regulate the erection of flag poles on the road margin, especially on the platforms or arches and also they have been requested to send an action taken report in this regard.
Further, as ordered by the Hon'ble High Court of Madras in the reference 5th cited and also as instructed by the Government in the references 7th and 8th cited, all the District Collectors have been requested to send an action taken report on the above subject with the details of the number of poles with or without permission and the steps taken for removal - vide this Directorate reference 9th cited.
Accordingly, in the reference 10th cited, all the District Collectors have sent their reports regarding the action taken by them for the removal of flag poles in public places with the details of the number of poles with or without permission.
The reports received from all the District Collectors are enclosed herewith for submitting the same before the Hon'ble High Court of Madras.
http://www.judis.nic.in Encl: Reports recd. from 31 Districts.
70Sd/K.Baskaran, Director for Director Copy to:
Thiru E.Manoharan, Addl. Govt. Pleader, Govt. Pleader's office, Law Officer's Block, High Court, Chennai - 104.
Details of Removal of Flag Poles in Public Places in Rural Areas No. of Flag No. of Flag No. of Flag No. of Flag Poles Total No. of poles Sl. Name of the poles with Poles to be Flag poles in erected No. District proper removed out remove the District without permission of Col.5 d permission (Col.5 -
6) 1 2 3 4 5 6 7 1 Kancheepuram 6360 0 6360 6360 0 2 Tiruvallur 1964 0 1964 1964 0 3 Cuddalore 3371 0 3371 3371 0 4 Villupuram 3811 0 3811 3811 0 5 Vellore 2513 0 2513 2513 0 6 Tiruvannamalai 3018 2 3016 3016 0 7 Salem 1831 0 1831 1831 0 8 Namakkal 1240 0 1240 1240 0 9 Dharmapuri 1745 0 1745 1745 0 10 Krishnagiri 597 0 597 597 0 11 Erode 1601 0 1601 1601 0 12 Tiruppur 2585 0 2585 2585 0 13 Coimbatore 2188 0 2188 2188 0 14 The Nilgiris 371 0 371 371 0 15 Thanjavur 1992 0 1992 1992 0 16 Nagapattinam 1801 0 1801 1801 0 17 Tiruvarur 1400 0 1400 1242 158 18 Tiruchirappalli 1857 213 1644 1644 0 19 Karur 849 0 849 762 87 20 Perambalur 1080 0 1080 1080 0 21 Ariyalur 1185 0 1185 1185 0 http://www.judis.nic.in 71 No. of Flag No. of Flag No. of Flag No. of Flag Poles Total No. of poles Sl. Name of the poles with Poles to be Flag poles in erected No. District proper removed out remove the District without permission of Col.5 d permission (Col.5 -
6) 22 Pudukottai 1469 54 1415 1352 63 23 Madurai 2316 0 2316 2316 0 24 Theni 1356 0 1356 1356 0 25 Dindigul 2108 0 2108 2108 0 26 Ramanathapuram 685 0 685 685 0 27 Virudhunagar 2426 0 2426 2426 0 28 Sivagangai 1397 0 1397 1397 0 29 Tirunelveli 1678 0 1678 1678 0 30 Thoothukkudi 1312 0 1312 1312 0 31 Kanniyakumari 1134 0 1134 643 491
4. A perusal of the chart indicates that removal of flag poles has been done only in rural areas and not in urban areas. We make it clear that there is no exception, for removal of flag poles erected without permission from the competent authority, in Urban/Town/Municipalities/Corporations, as the case may be. The Director of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai - 15 and all other competent authorities are directed to take appropriate action for removal of flag poles in the abovesaid areas. They are bound to follow the Code of Conduct and the directions of this court, in letter and spirit or else, court would be constrained to arrive at a conclusion that there is prima facie violation of orders of this court and the model Code of Conduct.
5. Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, has submitted a compilation of reports received from 21 districts. The details are extracted hereunder:
Vellore District:
From To
Thiru.S.A.Raman I.A.S., The Chief Electoral Officer & Secy to Govt.,
http://www.judis.nic.in District Election Officer & Public (Elections-VIII), Dept,
72
District Collector, Secretariat,
Vellore District, Chennai - 9
Vellore.
-----------------------------------------------------------------------------------------------
Roc.No.H2/20000/2018 dated: 24-03-2019 Sir, Sub: Elections-General Elections to Lok Sabha, 2019 - MCC - W.P.No.17768 of 2016 - Action taken report - reg.
Ref: Government Letter No.5261/Elec-VIII/2019-1, dated: 23-03- 2019.
************ I invite kind attention to the letter cited and wish to state that the details are furnished herewith in the prescribed proforma.
Encl: Proforma
Yours faithfully,
District Collector,
Vellore
Roc.No.H2.20000/18 Collector's Office,
Vellore.
Dated: 24-03-2019
PROFORMA
Number of Flag Poles Steps taken for Removal
With Permission Without Permission
0 3596 All the 3596 poles have been
removed
Yours faithfully,
District Collector,
Vellore
Krishnagiri District:
From To
Thiru.S.Prabhakar, I.A.S., The Chief Electoral Officer,
District Election Officer and and Secretary to Government
District Collector, Krishnagiri. Public (Elections III) Department,
Secretariat, Chennai - 9.
Roc.6093/2019/A7 Dated: 24.03.2019
http://www.judis.nic.in
Sir,
73
Sub: Elections - General Elections to Lok Sabah 2019 - MCC W.P.No.17768 of 2016 - Action taken Report - Regarding.
Ref: 1.The Chief Electoral Officer & Principal Secretary to Government Lr.No.5261/Elec.VIII/2019-1, Dated 23.03.2019.
Kind attention is solicited to the reference cited.
The report regarding removal of flag poles in State Highways, National Highways (including NHAI), and Local Bodies in Krishnagiri District is furnished below.
Number of Flag Poles Steps taken for Removal
With Permission Without Permission
0 809 All flag poles are removed
District Election Officer and
District Collector,
Krishnagiri.
Namakkal District:
"NO VOTER TO BE LEFT OUT"
From To
Tmt.M.Asia Mariam, I.A.S., The Chief Electoral Officer &
District Election Officer and Secretary to Govt.,
District Collector, Public (Elections. VIII) Dept.,
Namakkal Secretariat,
Chennai 600 009.
Roc: 6977/2019 A1 Dated: 24.03.2019
Sir,
Sub: Elections - GELS 2019 MCC - W.P.17768/2016 - Action taken
report - Report called for - Reg.
Ref: Govt.letter 5261/Ele.VIII/2019-1, Public (Elections.VIII) Dept.,
dated 23.03.2019.
&&&
I invite kind attention to the reference cited and wish to submit below the details of flag poles removed in Namakkal District in the prescribed format.
http://www.judis.nic.in
74
Number of Flag Poles Steps taken for
With Permission Without Permission Removal
0 1763 All the flag poles were
removed
District Election Officer &
District Collector,
Namakkal
Nagapattinam District:
Date: 23.03.2019
Flag Poles Removal report under Election Model code of conduct Sl.No Name of the District Number of Flag Poles Steps taken With Without for Removal Permission Permission 1 Nagapattinam District 0 2663 2663-Removed for District Collector, Nagapattinam.
Ramanathapuram District :
From To
Thiru K.Veera Raghava Rao, I.A.S., The Chief Electoral Officer and
District Election Officer Secretary to Government,
and District Collector, Public (Elections.VIII) Department,
Ramanathapuram. Secretariat, Chennai - 600 009.
Roc.D2/49450/2018 Dated: 24-03-2019
Respected Sir,
Sub: ELECTIONS - General Elections to Lok Sabha 2019 - Model
Code of Conduct - W.P.No.17768 of 2016 - Removal of flag poles - Action taken report - sent - regarding.
Ref: Govt. email/Letter No.5261/Elec.VIII/2019-1 dated 23-03- 2019.
I invite kind attention to the reference cited and would like to state that the particulars in connection with the status report on flag poles in State Highways, National Highways (including NHAI), local bodies are furnished in the prescribed format as detailed below:-
http://www.judis.nic.in 75 Sl.No Name of the Department Number of Flag Poles Steps taken for With Without Removal Permission Permission
1. State Highways - - -
2. National Highways - - -
3. Local Bodies --- --- ---
Village Panchayats --- 685 685 flag poles
removed.
Town Panchayats --- 41 41 flag poles
removed.
Municipalities --- 101 101 flag poles
removed.
TOTAL --- 827 All flag poles were
removed.
Yours faithfully,
District Election Officer,
and District Collector,
Ramanathapuram.
Erode District:
From To
Thiru C.Kathiravan, I.A.S., The Chief Electoral Officer and
District Election Officer / Secretary to Government,
District Collector & Returning Officer, Public (Elections-VIII) Department, 17, Erode Parliamentary Constituency, Secretariat, Chennai- 600 009.
Erode.
-----------------------------------------------------------------------------------------------
Ref.No.555/2019/K1, Dated: 24.03.2019 Sir, Sub: Elections - General Elections to Lok Sabha, 2019 - Erode District - M.C.C. - W.P.No.17768/2016 filed before the High Court of Madras at Chennai regarding removal of flag poles in public places - Filing of Action taken report - Report called for - Submitted.
http://www.judis.nic.in Ref: The Chief Electoral Officer and Secretary to Government, 76 Chennai Letter No.e.mail/5261/Elec.VIII/2019-1 Dated:
23.03.2019.
((((())))) I invite kind attention to the reference cited and I enclose herewith the report on the removal of flag poles in public places such as National High Way Roads, State High Way Roads and in Local bodies in the prescribed format as follows:
S.No Name of the Department / Number of Flag Poles Steps taken for Local Body With Without removal Permission Permission
1. Erode Corporation 0 347 All the 347 Flag Poles were removed
2. 4 - Municipalities 0 331 All the 331 Flag Poles were removed
3. 42 - Town Panchayats 0 675 All the 675 Flag Poles were removed
4. 225 - Village Panchayats 0 1601 All the 1601 Flag Poles were removed
5. State Highway Roads 0 181 All the 181 Flag Poles were removed
6. National Highway Roads 0 50 All the 50 Flag Poles were removed TOTAL 0 3185 Yours faithfully District Election Officer / District Collector & Returning Officer
17. Erode Parliamentary Constituency, Erode http://www.judis.nic.in Virudhunagar District:77
From To
District Election Officer / The Chief Electoral Officer/
District Collector, Secretary to Government,
Virudhudnagar District Public (Elections.VIII)
Virudhunagar Secretariat, Chennai-9.
Roc.No.E1/35570/2018 Dated:- 23.03.2019 Sir, Sub: Elections - General Elections to Lok Sabha 2019 -
Virudhunagar District - Model Code of Conduct - W.P.No.17768/2016 - Submitting action taken report - Regarding Ref: Letter received from the Chief Electoral Officer/Secretary to Government, Public (Elections.VIII) Department in Roc.No.email.Letter No.5261/Elec.VIII/2019-1 Dated:- 23.03.2019.
**** In compliance to the letter cited in the reference, I herewith send my report in the prescribed format in respect of Virudhunagar District as per below.
Number of Flag Poles Steps taken for
With Permission Without Removal
Permission
All the 2566 flag
0 2566 Poles were
removed
For District Election Officer /
District Collector
Virudhunagar
Salem District:
"No Voter to be Left Behind"
From To
Tmt.Rohini R.Bhajibhakare, I.A.S., The Chief Electoral Officer and
District Election Officer and Secretary to Government, Public
District Collector, (Elections-VIII), Department,
Salem. Secretariat, Chennai.
RoC. No.A1/31/2019 Date: 23.03.2019.
Sir,
Sub: Elections - Salem District - General Elections to Loksabha
2019 - Model Code of Conduct - Directions of the http://www.judis.nic.in Honourable High Court, Chennai in W.P.No.17768 of 2016 - Action 78 taken report called for - Sending of - Regarding.
Ref: email/Letter No.5261/Elc.VIII/2019-1, dated 23.03.2019 of the Chief Electoral Officer & Secretary to Government, Public (Elections.VII) Dept., Chennai-9.
I invite kind attention to the reference cited.
With reference to the orders of the Honourable Madras High Court in W.P.No.17768 of 2016 dated 08.03.2019 and the instructions of the Chief Electoral Officer, Chennai to furnish the status report on flag poles in State Highways, National Highways (including NHAI), Local Bodies, I am herewith furnishing the status of flag poles in respect of Salem District in the prescribed format for kind perusal.
Number of Flag Poles Steps taken for
With Without Removal
Permission Permission
Salem District
0 3949 All the 3949 Poles
have been
Removed.
District Election Officer and
District Collector, Salem.
Tirunelveli District
From To
Tmt.Shipa Prabhakar Satish, IAS The Chief Electoral Officer &
District Election Officer / Secretary to Government,
District Collector, Public (Elections VIII) Department,
Tirunelveli. Secretariat, Chennai - 9.
R.o.c.No.L3/9668/2019 dated: 24.03.2019 Sir, Sub: Tirunelveli District - Elections - General Elections to Lok Sabha 2019 - MCC - W.P.No.17768 of 2016 - Flag Poles - Action taken report - Sent - Regarding.
Ref: CEO & Secretary to Govt., Public (Elections) Department letter No.5261/Elec.VII/2019-1 dated 23.03.2019.
*****
http://www.judis.nic.in
79
Sl.No Local Bodies Number of Flag Poles Steps taken for
With Without Removal
Permission Permission
1. Corporation - 158 Removed
2. Municipalities - 105 Removed
3. Town Panchayats - 682 Removed
4. Village Panchayats - 1678 Removed
TOTAL - 2673
District Election Officer/
District Collector,
Tirunelveli
Thoothukudi District:
From To
Thiru Sandeep Nanduri, I.A.S., Chief Electoral Officer
District Election Officer and and Secretary to Government
District Collector, Public (Elections-VIII) Department
Thoothukudi District, Secretariat, Chennai-600 009
Thoothukudi
Roc.No.E4/31/2019 dated 24.03.2019
Sir,
Sub: Elections – Thoothukudi District – General Elections to Lok Sabha – 2019 – MCC – W.P.No.17768 of 2016 – Action taken report sent- Regarding Ref: 1) Chief Electoral Officer and Secretary to Government letter No.5261.2019-1, Public (Elections-VIII) department,dated 23.03.2019
2) Superintendent of Police, Thoothukudi district letter C.No.97/Ls/ELE/TUT/2019, dated 24.03.2019. Kind attention is solicited to the references cited. I have furnished the status report on flag poles in State Highways, National Highways (including NHAI) local bodies regarding General elections to Lok Sabha – 2019 in the following format in respect of Thoothukudi district.
Number of flag poles Steps taken for Removal
with without
permission permission
http://www.judis.nic.in 3 81 34 flag poles were removed by Police
80
Number of flag poles Steps taken for Removal
(High Court personnel and Local Government
Order) authorities after registration of cases
under Tamil Nadu Open places
(Prevention of Disfigurement) Act and
remaining 47 poles were removed by the
concerned individuals on the instruction
of local bodies
Yours faithfully,
Sd/- Sandeep Nanduri,
District Election Officer
and
District Collector, Thoothukudi
Tiruppur District
From To
Dr.K.S.Palanisamy, I.A.S., The Chief Electoral Officer
District Election Officer/ and Secretary to Government
District Collector, Chennai-600 009
Tiruppur.
Rc.No.14270/2018/K, dated 24.03.2019
Sir,
Sub: Elections-General Elections to Lok Sabha, 2019 Tiruppur District-Model code of conduct-case filed in the Hon'ble High Court of Madras in W.P.No.17768 of 2016- Status Report on removal of flag poles in State and National Highways and Local Bodies – Action taken report submitted- Regarding Ref: The Chief Electoral Officer and Secretary to Government Public (Elections – VIII) Department, Secretariat, Chennai-9 email/Letter No.5261/Elec.VIII/2019-1, dated 23.03.2019 I invite kind attention to the reference cited above As called for in the reference cited I hereby furnish the status report on flag poles in State Highways, National Highways and Local Bodies, in the format given below:
Number of flag poles Steps taken for removal With permission Without permission Nil 3130 In Tiruppur district 3130 flag poles in State Highways, National Highways and Local Bodies, were removed http://www.judis.nic.in 81 sd/- K.S.Palanisamy, District Election Officer/ District Collector Tiruppur Theni District:
From To
Smt.M.Pallavi Baidev, I.A .S., Chief Electoral Officer/
District Election Officer/ Secretary to Government
District Collector, Public (Elections) Department
Theni District Secretariat, Fort St.George
Theni-625 531 Chennai-600 009
Roc.No.34086/2018/G.1 Date.23.03.2019
Sir,
Sub: Elections-General Elections to Lok Sabha and Bye-
Elections to Tamil Nadu Legislative Assembly-2019 Theni District – Action taken report submit -reg Ref 1. The Chief Electoral Officer and Secretary to Government Public (Elections – VIII) Department, Secretariat, Chennai-9 email/Letter No.5261/Elec.VIII/2019-1, dated 23.03.2019
2. Reports received from concerned officials dated:
23.03.2019 In the reference 1st cited, I hereby furnished the status report on flag poles in State Highways, National Highways (including NHAI) and the local bodies.
Number of flag poles Steps taken for removal With permission Without permission 0 1949 All flag poles are already removed for District Election Officer/ District Collector, Theni District Udhagamandalam District:
http://www.judis.nic.in 82 From To District Election Officer & The Chief Electoral Officer & District Collector of Nilgiris Secretary to Government Udhagamandalam Public (Elections) Department Secretariat, Fort St.George Chennai-600 009 Rc.No.L1/11894/2018, dated 24.03.2019 Sir, Sub: Election – General elections to Lok Sabha 2019-MCC-
W.P.No,17768 of 2016- Action taken report – sent Ref: Govt. E-mail/Letter No.5261/Elec.VIII/2019-1 Dated 23.03.2019 I invite kind attention to the Government letter cited, in which it has been stated that the Hon'ble High Court of Madras in its order dated: 08.03.2019 in W.P.No.17768 of 2016, has directed to furnish the status report on flag pose in State Highways, National Highways (including NHAI) local bodies.
In this connection, I furnish below the above details in respect of the Nilgiris District in the prescribed format.
No and name of the Number of flag poles Steps taken for removal
Assembly segment
With Without
permission permission
108 Udhagamandalam
-
109 Gudalur (SC)
0 0
-
110 Coonoor All the 8 flag posts have
0 8
- been removed
Sd/- J.Innocent Divya
District Election officer &
District Collector
The Nilgiris
For District Election Officer
The Nilgiris
Thiruvallur District:
From To
Tmt.Mageshwari Ravikumar The Chief Electoral Officer &
District Collector Secretary to Government
Thiruvallur Chennai
http://www.judis.nic.in Rc.No.400/2018/A3, dated: .03.2019
83
Sir,
Sub: Election – General Elections to Lok sabha 2019- MCC – W.P.No.17768 of 2016 – Action Taken Report called for sent regarding Ref: Chief Electoral Officer & Secretary to Government E-mail/Letter No.5261/Elec.VIII/2019-1 Dated 23.03.2019 In the reference cited above asked the action taken report on removing of flag poles erected in public places. Consequently, in Thiruvallur District Local Body. Hence, as per prescribed format in respect of Thiruvallur District on the above subject is enclosed.
Details of removal of flag poles in public places LOK SABHA ELECTION 2019 Sl.No Name of the local Number of flag poles Steps taken for removal body With Without Permission permission 1 2 3 4 5 1 Municipality 0 494 494 flag poles removed 2 Town Panchayat 0 225 225 flag poles removed 3 Panchyat Union 0 1964 1964 flag poles removed 4 DEE Highways 0 142 142 flag poles removed Total 0 2825 District Collector Thiruvallur Karur District:
From To
Thiru.T.Anbalagan I.A.S. The Chief Electoral Officer &
District Election Officer and Secretary to Government
District Collector Secretariat
Karur District Chennai-600 009
Karur-639 007
R.C.D2/5241/2019, dated 24.03.2019
Sir,
Sub: ELECTIONS-Karur District – General elections to
Loksabha, 2019-MCC- W.P.No.17768 of 2016 – Removal of flag poles -report sent - reg Ref: The Chief Electoral Officer, Secretary Chennai Letter No.5261/Elec.VIII/2019-1 Public (Elections-VIII) Dept Dated 23.03.2019 In the reference cited, the Chief Electoral Officer has instructed to send http://www.judis.nic.in the status report on Flag poles in State Highways, National Highways (including 84 NHAI) and local bodies to be filed in connection with the order of the Hon'ble Madras High Court in W.P.No.17768 of 2016, dated 08.03.2019.
In this regard, I submit herewith the status report on removal of flag poles in State highways, National Highways (including NHAI) and local bodies in the prescribed format in respect of Karur District. Encl: As above Karur District – Removal of flag poles – format Sl.No Name of the Number of flag poles Number of flag Steps taken for department poles removed removal with without In compliance permission permission of ECI instructions 1 AD panchayat karur 0 849 849 on MCC for 2 Karur Municipality 0 109 109 the General Elections to 3 Kulithalai Municipality 0 15 15 Loksabha 4 Ad Town Panchayat 0 190 190 2019 all the Dindigul flag poles have been 5 DE Highways Karur 0 0 0 removed 6 NHAI Karur 0 47 47 Total 0 1210 1210 Kanyakumari District:
From To
Thiru.Prashant M.Wadnere I.A.S. The Chief Electoral Officer &
District Election Officer and Secretary to Government
District Collector Public (Elections VIII) Department,
Kanyakumari District Secretariat
Chennai-600 009
Lr.No.Z1/54/2019, dated 24.03.2019
Sir,
Sub: ELECTIONS- General elections to Lok Sabha, 2019-
MCC- W.P.No.17768 of 2016 – Action taken report called for – sending report – regarding Ref: Government letter No.5261/Elec.VIII/2019-1 Public (Elections-VIII) Dept, Dated 23.03.2019 I invite kind attention to the reference cited and furnish the status report on the removal of flag poles in respect of Kanniyakumari District in the prescribed format hereinafter.
Number of flag poles Steps taken for removal
With permission without permission
0 3708 1. Orders were issued to all the Municipal Commissioner, Executive officers and block development officers (Block Panchayat and Village Panchayat) to remove all flag poles erected on the road margin, especially on the platform and arches put across the roads without prior permission/license http://www.judis.nic.in as contemplated under the provisions in coordination 85 Number of flag poles Steps taken for removal with the respective Police Authorities.
2. For the general awareness of the public and all political parties/representatives, a detailed press release was issued and circulated in all the major vernacular dailies on 21.03.2019
3. The entire process of removal of flag poles was actively monitored by the District Administration to avoid fresh installation of flag poles in future.
Further it is submitted that out of the 3708 flag poles identified a number of 3708 were removed. The details are as follows:
Sl.No Name of local bodies No of flag poles identified No of flag Balance to with without poles be permission permission removed removed 1 Rural local bodies 0 1134 1134 0 2 Town Panchayats 0 1840 1838 2 3 Municipalities 0 734 734 0 Total 0 3708 3706 2 Two flag poles are left over in suchindram town panchayat due to passage of EB HT line very near to the flag poles. It will be removed on 25.03.2019 positively.
District Election Officer and District Collector Kanniyakumari District Ariyalur District:
From To
Tmt.M.Vijayalakshmi, I.A.S. The Chief Electoral Officer &
District Election Officer and Secretary to Government
District Collector Public (Elections VIII) Department,
Ariyalur Secretariat
Chennai-600 009
Rc.No.D3/1260/2019 Dated:24.03.2019
Sir,
Sub: ELECTIONS- General elections to Lok Sabha, 2019-
MCC- Action taken report on W.P.No.17768/2016- submitted - Reg Ref: Letter No.5261/2019-1, dated:23.03.2019 from the Chief Electoral Officer and Secretary to Government, Public (Elections-VIII) Dept, Chennai I invite kind attention to the reference cited and submit below the status report on flagpoles in connection with the order of Hon'ble High Court of Madras in W.P.No.17768 of 2016, dated 08.03.2019 in the prescribed format in respect of Ariyalur District.
http://www.judis.nic.in
86
Number of Flag Poles Steps taken for removal
With permission Without permission
0 1417 Out of 1417 flagpoles identified, 1308
were removed and the concessionaire
has been instructed to remove
remaining 109 flagpoles immediately
Yours faithfully,
(sd)/- M.Vijayalakshmi
District Election Officer and
District Collector, Ariyalur
To
From
The Chief Electoral Officer &
Thiru S.Sivarasu., I.A.S Secretary to Government
District Election Officer and Public (Elections VIII) Department,
District Collector Secretariat
Ariyalur Chennai-600 009
Rc.G2/14985/2018 Dated 24.03.2019
Sir,
Sub: ELECTIONS- General elections to Lok Sabha, 2019-MCC-
Action – W.P.No.17768/2016- Action taken report called for – Report sent – Regarding Ref: 1.Copy of the order of Hon'ble Madras High Court in W.P.No.17768 of 2016, Dated 08.03.2019
2. Government Letter No.5261/Elec.VIII/2019-1, Public (Elections-VIII) Dept, Dated 23.03.2019 I invite kind attention to the references cited.
As per the instructions of the Government, the status report on flag poles in state Highways, National Highways (including NHAI),local bodies is enclosed herewith in the prescribed format in respect of Tiruchirappalli District.
yours faithfully, District Election Officer & District Collector Tiruchirappalli R.C.No.G2/1498/2018 O/o District Election Officer Date:24.03.2019 and District Collector Tiruchirappalli Format Number of flag poles Steps taken for removal With permission without permission 0 2564 All the 2564 flag poles have been removed. Sivaganga District:
http://www.judis.nic.in 87 To From The Chief Electoral Officer & The District Collector Secretary to Government Sivaganga District Public (Elections V) Department, Sivaganga Secretariat Chennai-600 009 Roc.E1/4295/2019 dated 24.03.2019 Sir, Sub: Elections Law and Order – Sivanganga District- General Elections to lok sabha -2019 – W.P.No.17768 of 2016- Action taken report regarding. Daily report on law and order – Regarding Ref: The Chief Electoral Officer & Secretary to Government, Public (Elections.VIII) Department, Secretariat, Chennai-600009 letter email No.5261/Ele-VIII/2019-1, Dated 23.03.2019 I invite kind attention to the reference cited. I send here with details called for in the reference cited in respect Sivaganga District as detailed below.
Department Number of flag poles Steps taken for
With without removal
permission permission
Town Panchayat - 217 All flags removed
Village Panchayat - 1397 All flags removed
Municipality - 107 All flags removed
Total - 1721*
* including poles/flags located in State/National Highways yours faithfully, District Collector,Sivaganga Perambalur District:
From To
Tmt.V.Santha, I.A.S The Chief Electoral Officer &
District Collector Secretary to Government
Perambalur District Public (Elections VIII) Department,
Perambalur-621212 Secretariat
Chennai-600 009
Lr.No.RC.D2/2050/2019 Dated 03.2019
Sir,
http://www.judis.nic.in
Sub: Elections-General Elections to Lok Sabha, 2019 – MCC – Order
88
of the Hon'ble Madras High Court in W.P.No.17768 of 2016- Action taken report- called for-sent-regarding.
Ref: The Chief Electoral Officer & Secretary to Government, Public (Elections VIII) Department, Secretariat, Chennai-9, email/letter No.5261/Elec.VIII/2019-1, Dated 23.03.2019 I invite kind attention to the reference cited. I am enclosing herewith the status report on flag poles in State Highways, National Highways (inclduing NHAI) and local bodies in the prescribed format in respect of Perambalur district as requested in the reference cited.
Encl: Format Yours faithfully, for District Collector, Perambalur Rc.No.J1/2050/2019 District Collectorate, Dated: 03.2019 Perambalur Sl.No Name of the Number of flag poles Steps taken for Department With without removal permission permission 1 National Highways - 42 Removed (including NHAI) 2 Highways department - 14 Removed 3 Rural Bodies - 1080 Removed Total - 1136 For District Collector Perambalur Dharmapuri District:
From To
Tmt.S.Malarvizhi, I.A.S The Chief Electoral Officer &
District Collector Secretary to Government
Dharmapuri Public (Election VIII) Department
http://www.judis.nic.in
Chennai-9
89
Roc.No.668/2018/A2, Dt 23.03.2019
Sir,
Sub: Election-General Election to Lok Sabha 2019- MCC –
W.P.No.17768 of 2016- Action taken report
regarding.
Ref: Public (Elections VIII) Department, Lr.No.5261/ElecVIII/
2019-1, dated 23.03.2019
In response to the letter read in the reference, I wish to inform that action has been taken to remove the flag poles in State Highways, National Highways and local bodies.
I am enclosing here with the details on the subject.
District
Collector Dharmapuri
Details of removal of flag poles in public places in rural areas Number of flag poles Steps taken for removal With permission without permission 0 1745 Already removed District Collector, Dharmapuri
6. He further added that in Kanyakumari District, out of 3708 poles erected without permission, 3706 poles have been removed and two poles are yet to be removed. In Tuticorin District, inasmuch there is a court order, three poles are not removed. The above reports have been submitted by the respective District Collectors, to the Chief Electoral Officer and Secretary to the Government, Public (Elections) Department, Secretariat, Chennai.
7. By inviting the attention of this court to the compilation of the Collectors' Report submitted by Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India, Mr.E.Manoharan, learned Additional Government Pleader submitted that though the tabular heading of the tabular column indicates the details of removal of flag poles only in public places in Rural http://www.judis.nic.in areas, in reality, flag poles without permission erected on 90 urban/town/rural/municipalities/panchayats/villages have also been removed. To illustrate, he drew the attention of this Court to a report submitted by the District Election Officer and District Collector, Ramanathapuram in Roc.D2/49450/2018 dated 24.3.2019 addressed to the Chief Electoral Officer and Secretary to the Government, Public (Elections VIII) Department, Secretariat, Chennai - 600 009. Proforma dated 24.3.2019 of District Election Officer and District Collector, Ramanathapuram, at page 6, is reproduced hereunder:
Ramanathapuram District :
From To
Thiru K.Veera Raghava Rao, I.A.S., The Chief Electoral Officer and
District Election Officer Secretary to Government,
and District Collector, Public (Elections.VIII) Department,
Ramanathapuram. Secretariat, Chennai - 600 009.
Roc.D2/49450/2018 Dated: 24-03-2019
Respected Sir,
Sub: ELECTIONS - General Elections to Lok Sabha 2019 - Model Code
of Conduct - W.P.No.17768 of 2016 - Removal of flag poles - Action taken report - sent - regarding.
Ref: Govt. email/Letter No.5261/Elec.VIII/2019-1 dated 23-03- 2019.
I invite kind attention to the reference cited and would like to state that the particulars in connection with the status report on flag poles in State Highways, National Highways (including NHAI), local bodies are furnished in the prescribed format as detailed below:-
http://www.judis.nic.in 91 Sl.No Name of the Department Number of Flag Poles Steps taken for With Without Removal Permission Permission
1. State Highways - - -
2. National Highways - - -
3. Local Bodies --- --- ---
Village Panchayats --- 685 685 flag poles
removed.
Town Panchayats --- 41 41 flag poles
removed.
Municipalities --- 101 101 flag poles
removed.
TOTAL --- 827 All flag poles were
removed.
Yours faithfully,
District Election Officer,
and District Collector,
Ramanathapuram.
8. Similarly, the report submitted by the District Election Officer and District Collector, Erode dated 24.3.2019 addressed to the Chief Electoral Officer and Secretary to the Government, Public (Elections VIII) Department, Secretariat, Chennai - 600 009, is reproduced hereunder:
Erode District:
From To
Thiru C.Kathiravan, I.A.S., The Chief Electoral Officer and
District Election Officer / Secretary to Government,
District Collector & Returning Officer, Public (Elections-VIII) Department, 17, Erode Parliamentary Constituency, Secretariat, Chennai- 600 009. Erode.
--------------------------------------------------------------------------------------------------
Ref.No.555/2019/K1, Dated: 24.03.2019 Sir, Sub: Elections - General Elections to Lok Sabha, 2019 - Erode District - M.C.C. - W.P.No.17768/2016 filed before the High Court of Madras at Chennai regarding removal of flag poles in public places - Filing of Action taken report - http://www.judis.nic.in Report called for - Submitted.92
Ref: The Chief Electoral Officer and Secretary to Government, Chennai Letter No.e.mail/5261/Elec.VIII/2019-1 Dated: 23.03.2019.
((((())))) I invite kind attention to the reference cited and I enclose herewith the report on the removal of flag poles in public places such as National High Way Roads, State High Way Roads and in Local bodies in the prescribed format as follows:
S.No Name of the Department / Number of Flag Poles Steps taken for Local Body With Without removal Permission Permission
1. Erode Corporation 0 347 All the 347 Flag Poles were removed
2. 4 - Municipalities 0 331 All the 331 Flag Poles were removed
3. 42 - Town Panchayats 0 675 All the 675 Flag Poles were removed
4. 225 - Village Panchayats 0 1601 All the 1601 Flag Poles were removed
5. State Highway Roads 0 181 All the 181 Flag Poles were removed
6. National Highway Roads 0 50 All the 50 Flag Poles were removed TOTAL 0 3185 Yours faithfully District Election Officer / District Collector & Returning Officer http://www.judis.nic.in 93
17. Erode Parliamentary Constituency, Erode
9. Nevertheless, we reiterate that our previous orders would apply to both rural/urban areas and all unauthorised flag poles erected without permission have to be removed. Violation of which may invite the provisions Contempt of Courts Act, 1971 and Model Code of Conduct.
10. Insofar as National Highways Authority of India, Chennai Project Implementation Unit is concerned, on the basis of a status report, Mr.Richardson Wilson, learned counsel for the National Highways Authority of India, submitted that, out of 1665 flag poles erected by various persons/parties on National Highways, under the control of the National Highways Authority of India, Chennai Region, 1468 flag poles have been removed by the Project Directors and action is being taken to remove the remaining 197 flag poles. Wherever there is resistance from the political parties/organizations, Project Directors have been instructed to request the concerned police to grant protection for removal of flag poles.
11. Regional Officer, National Highways Authority of India, Madurai, in his report dated 19.3.2019, has stated that out of 719 flag poles, 381 flag poles have been removed and the Project Directors are taking action to remove the remaining 338 flag poles.
12. Inviting the attention of this court to Section 24 of the Control of National Highways (Land and Traffic) Act, 2002, Mr.Richardson Wilson, learned counsel for National Highways Authority of India, submitted that Section 24 of the said Act deals with prevention of occupation of highway land and in particular sub section (2)(i) of the said section deals with permission to be granted to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway.
13. Learned counsel for the National Highways Authority of India http://www.judis.nic.in submitted that Section 26 of the said Act, deals with removal of unauthorised 94 occupation and while removing if there is any obstruction, sub section (7) provides for assistance of the police if necessary to remove such occupation by use of reasonable force necessary for such removal.
14. He also submitted that Section 27 of the said Act provides for recovery of the cost of removal of unauthorised occupation and fine imposed.
15. Provisions referred are extracted hereunder:
24. Prevention of occupation of highway land.—(1) No person shall occupy any highway land or discharge any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any officer authorised by such Administration in this behalf.
(2) The Highway Administration or the officer authorised under sub- section (1) may, on an application made by a person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person—
(i) to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway, or
(ii) to put up a temporary lawning or tent or other similar construction or a temporary stall or scaffolding on the Highway, or
(iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or
(iv) to make a temporary excavation for carrying out any repairs or improvements to adjoining buildings, and such permission shall be granted subject to the conditions and on payment of the rent and other charges by issuing permit in the form as may be prescribed:
Provided that no such permission shall be valid beyond a period of one month at a time from the date on which the permission has been granted unless it is renewed by the Highway Administration or such officer on an application made by such person for the renewal of the permission.
(3) The permission granted under sub-section (2) shall specify therein—
(i) the time up to which the permission is granted;
(ii) the purpose of such permission;
(iii) the portion of the Highway in respect of which the permission has been granted, http://www.judis.nic.in 95 and shall be accompanied with a plan or sketch of such portion of Highway.
(4) The person, to whom the permit has been issued under sub-section (2), shall produce the permit for inspection whenever called upon to do so by any officer of the Highway Administration and shall, on the expiry of the permission granted under such permit, restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration.
(5) The Highway Administration or the officer issuing the permit under sub-section (2) shall maintain a complete record of all such permits issued, and shall also ensure in every case at the expiration of the period up to which the permission under a permit is granted under that sub-section that the possession of the portion of the Highway in respect of which such permission was granted has been delivered to the Highway Administration.
26. Removal of unauthorised occupation.—(1) Where the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration and in case such person fails to deliver such possession within such period, he shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27.
(2) When, as a result of the periodical inspection of highway land or otherwise, the Highway Administration or the officer authorised by such Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove such unauthorised occupation and to restore such highway land in its original http://www.judis.nic.in condition as before the unauthorised occupation within the period specified in 96 the notice.
(3) The notice under sub-section (2) shall specify therein the highway land in respect of which such notice is issued, the period within which the unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in the notice liable to penalty, and summary eviction from the highway land in respect of which such notice is issued, under sub-section (6).
(4) The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his agent or other person on his behalf or by registered post addressed to the person to whom such notice is addressed and an acknowledgment purporting to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such other person on his behalf has refused to take delivery may be deemed to be prima facie proof of service.
(5) Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice on such person.
(6) Where the service of notice under sub-section (2) has been made under sub-section (4) or sub-section (5) and the unauthorised occupation on the highway land in respect of which such notice is served has not been removed within the time specified in the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or such officer as the case may be, shall cause such unauthorised occupation to be removed at the expenses of the Central Government or the State Government, as the case may be, and impose penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and where the penalty so imposed is less than the cost of such land, http://www.judis.nic.in the penalty may be extended equal to such cost.
97(7) Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation is in the nature of—
(a) exposing any goods or article—
(i) in open air; or
(ii) through temporary stall, kiosk, booth or any other shop of temporary nature,
(b) construction or erection, whether temporary or permanent, or
(c) trespass or other unauthorised occupation which can be removed easily without use of any machine or other device, and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such occupation by use of the reasonable force necessary for such removal.
(8) Notwithstanding anything contained in this section, if the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that any unauthorised occupation on the highway land is of such a nature that the immediate removal of which is necessary in the interest of—
(a) the safety of traffic on the Highway; or
(b) the safety of any structure forming part of the Highway, and no notice can be served on the person responsible for such unauthorised occupation under this section without undue delay owing to his absence or for any other reason, the Highway Administration or the officer authorised by such Administration may make such construction including alteration of any construction as may be feasible at the prescribed cost necessary for the safety referred to in clause (a) or clause (b) or have such unauthorised occupation removed in the manner specified in sub-section (7).
(9) The Highway Administration or an officer authorised by such Administration in this behalf shall, for the purposes of this section or section 27, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:— http://www.judis.nic.in
(a) summoning and enforcing the attendance of any person and 98 examining him on oath;
(b) requiring the discovery and production of documents;
(c) issuing commissions for the examination of witnesses; and
(d) any other matter which may be prescribed, and any proceeding before such Administration or officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860) and the Administration or the officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
27. Recovery of cost of removal of unauthorised occupation and fine imposed.—(1) Where a Highway Administration or the officer authorised by such Administration in this behalf has removed any unauthorised occupation or made any construction including alteration of construction in respect of any unauthorised occupation or repaired any damage under sub-section (2) of section 36, the expenditure incurred in such removal or repair together with fifteen per cent. of additional charges or any fine imposed under this Act shall be recoverable in the manner hereinafter provided in this section.
(2) The Highway Administration or the officer authorised in this behalf by such Administration shall serve a copy of the bill in the prescribed form indicating therein the expenditure, additional charges or fine recoverable under sub-section (1) on the person from whom such expenditure, additional charges or fine is recoverable and the provisions of section 26 relating to the service of notice shall apply for the service of copy of the bill under this sub- section as if for the word “notice” the word “bill” has been substituted in that section.
(3) A copy of the bill referred to in sub-section (2) shall be accompanied with a certificate issued by the Highway Administration or the officer authorised by such Administration in this behalf and the amount indicated in the bill shall be the conclusive proof that such amount is the expenditure actually incurred for all or any of the purposes referred to in sub- section (1) as indicated in the bill.
(4) Where a Highway Administration or the officer authorised in this behalf by such Administration has removed any unauthorised occupation or http://www.judis.nic.in made any construction including alteration of construction in respect of any 99 unauthorised occupation or repaired any damage under sub-section (2) of section 36, the material, if any, recovered as a result of such removal, construction, alteration or repair shall be retained in possession of the Highway Administration or such officer till the payment of the bill in respect thereof served under sub-section (2) and on payment of such bill such material shall be returned to the person entitled for the material, but in case of the failure of such payment within the time specified for the payment in the bill, the material may be sold by auction by the Highway Administration or such officer and after deduction of the amount payable under the bill from the proceeds of the auction, the balance, if any, shall be returned to the person entitled therefor.
(5) In case where the proceeds of the auction under sub-section (4) is less than the amount recoverable under the bill referred to in that sub-section, the difference between such proceeds and the amount so recoverable or where no such auction has been made, the amount recoverable under the bill shall, in case of failure of the payment within the time specified in the bill, be recoverable as the arrears of land revenue.
16. Learned counsel for National Highways, He also brought to the notice of this court that Section 39 of the said Act, deals with for penalty for the unauthorised occupation of Highway land. The said section reads thus:
39. Offence and penalty.—(1) If any person, who has been evicted from any unauthorised occupation on a highway land under this Act, again occupies any highway land without permission for such occupation under this Act, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which shall not be less than one thousand rupees per square metre of so occupied highway land but which shall not exceed two times the cost of such highway land, or with both. (2) Any court, convicting a person under sub-section (1), may make an order for evicting that person from such occupied highway land summarily and he shall be liable to such eviction without prejudice to any other action that may be taken against him. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence punishable under sub-section (1) shall be cognizable.
http://www.judis.nic.in
17. In addition to the above, Mr.Richardson Wilson, learned counsel for 100 National Highways Authority of India also brought to the notice of this court a decision of Hon'ble First Bench of this court in W.P. No.31084 of 2017 dated 30.11.2017, wherein the Hon'ble First Bench at paragraph Nos.14 and 17 observed as under:
"14. The erection of arches, placards and display boards, banners with poles, etc., abutting into public streets and pavements, which obstruct free and safe movement of traffic or free and safe movement of pedestrians or obstructs visibility of drivers is patently illegal.
17. All arches, display boards, hoardings, placards and banners with poles or frames, etc., fixed to and/or dug into the ground, which abut into highways, public streets and pedestrian pavements shall forthwith be removed. No poles or frames or structures for arches, boards, placards, hoardings, display boards or banners shall be erected on any highway, public road, public passage or pedestrian pathway or pavement. Holes caused on pavements and roads by reason of erection of frames, poles, structures, placards, hoardings, displaying boards, banners, etc., shall forthwith be repaired. This order will not, however, prevent the respondents from erecting and/or permitting the erection/setting up of display boards, hoardings, placards and banners, which do not abut into or obstruct pavements, pedestrian pathways, public streets and highways, strictly in accordance with law. For example, display boards, placards, etc., may be installed on vacant land, buildings and/or beyond the edge of the pavement/pedestrian pathway running parallel to the pavement and/or road with the requisite approvals."
18. Learned counsel for the National Highways Authority of India, further submitted that no permission has been granted by the National Highways Authority of India to any person or authority under Section 24(2) of the Control of National Highways (Land and Traffic) Act, 2002. Submission is placed on record.
19. From the submission of the learned counsel for the National Highways Authority of India, it is abundantly clear that no permission has been granted by the competent authority, to erect a flag pole on National Highway. Provisions make it clear that such erection of poles is unauthorised, and whenever the competent authority seeks for the assistance of the police for removal of such unauthorised flag poles on National Highways, police is bound to http://www.judis.nic.in render assistance and remove the same, even by using reasonable force. Hence, 101 if any request is made by a competent authority from National Highways, the concerned Superintendents of Police, Inspectors of Police, within whose jurisdiction unauthorised flag poles, have been erected, are directed to remove the same and report to the competent authority, so as to facilitate National Highways to submit a report, as directed by this court.
20. Notwithstanding the request if any to be made by the National Highways Authority of India, we reiterate that the District Administration/District Police should remove all unauthorised flag poles. Cross verification of the reports, can be done by State, as well as the Election Commission.
21. Insofar as Chennai District is concerned, no report has been filed as to the number of flag poles erected without permission and removed. However, on oral instructions, learned Additional Government Pleader, submitted that the number of poles would be approximately 5000 and the authorities concerned, have started removing. Commissioner of Greater Chennai Corporation and Commissioner of Police, Greater Chennai, authorities who are bound to act as per the Code of Conduct, are directed to act swiftly and report to the District Election Officer/District Collectors.
22. By 1.4.2019, all the District Election Officers and District Collectors and others are directed to submit reports on the removal of unauthorised flag poles erected. Secretary to the Government, Department of Rural Development and Panchayat Raj Department, Secretary to Government, Municipal Administration, Regional Managers, Officers of National Highways Authority of India, are directed to submit further reports, on the removal of unauthorised flag poles, with supporting materials.
23. Post the matter on 1.4.2019."
36. Prayer to register a case against the head of a political party who installs Hoardings, Flex Boards, Flag Poles, cannot be granted. Case cannot be registered against a political party, but if there is a violation of http://www.judis.nic.in 102 model Code of Conduct by an individual, action can be taken.
37. Section 171B of the Indian Penal Code 1860, deals with Bribery, is extracted hereunder:-
"171B. Bribery:- (1) Whoever—
(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
(ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right;
commits the offence of bribery: Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward."
38. As rightly contended by Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, there are sufficient provisions in Indian Penal Code, for taking action against bribery.
"SYSTEMATIC VOTERS' EDUCATION AND ELECTORAL PARTICIPATION (SVEEP):
http://www.judis.nic.in 103 The Commission works on the premise of 'No Voter to be Left Behind' in its endeavor to realize universal adult suffrage. Voter education connects people to the elections. In this pursuit, several initiatives under 'Systematic Voter Education and Electoral Participation' (SVEEP), the flagship voter education programme of the Commission have been launched effectively well in advance to connect with voters of all categories in the States and UT's down to the polling station level. As per extant directions of the Commission, State SVEEP Plans have been developed, approved and the implementation is being closely monitored.
In view of the fact that VVPAT shall be used with every EVM at each Polling Station, special campaign, including hands on experience, has been undertaken right from September, 2018 for enhancing awareness, elector convenience and confidence in respect of these machines. EVM and VVPAT awareness campaign is further being carried out through different media besides EVM and VVPAT equipped Mobile Vans to cover people at block level, traditional haats, bazaars and 'Gram Sabha' etc in rural areas.
Voter Facilitation Centers have been activated in all the States and Union Territories to facilitate voters.
SVEEP (Systematic Voter Education and Electoral Participation) Initiatives -
General Elections to Lok Sabha 2019 As part of the SVEEP initiatives the following regular modes of publicity of creating awareness on Electoral Registration, Vote without fail and Ethical voting are being carried out;
1. Awareness through - Display Methods • Display of informative posters at prominent locations • At all polling station locations • At bus stands • At parking places • Near cinema theatres • Near markets • Near Public distribution shops • Display of informative banners at prominent locations • Distribution of Informative Pamphlets at busy centres http://www.judis.nic.in • In buses 104 • In restaurant • In theatres • In markets • Advertisements in local news papers
2. Awareness through - Physical Events and Activities • Street plays • Folk events • Rallies/Marathons • Competitions • Conduct of voters Festival • In colleges • Sankalp patras by students to parents • Rangoli • Human chanins • Hot air ballon
3. Awarness Compaign through Media insertions • Radio spots in FM channels • Television spots • Scrolls through Cable TV channels • Slides through cinema theatres • Through publicity vans • Through social media accounts • Through district web sites • Caller tunes • SMS through Mobile providers
4. Awareness spearding - Using partner agencies • Government departments • PDS shops • Civil society organizations • NYKS / NSS • Campus Ambassadors • Resident Welfare Associations
5. Awareness spreading - Using Innovative Methods • Flash mobs http://www.judis.nic.in • Railway platform TV advertisements 105 • Mobile display publicity vans
6. Awareness on electoral services by Publicizing the Voter Facilitation Measures • The availability of online facility for voter name search • Knowing the Status of online application • Finding the polling station locations • Schedule of distribution of voter slips during the eve of elections • Information on Location of Facilitation centers set up at Polling station • Location of Citizen service centers to avail electoral services • Location of Authorized browsing centers • Availing the services of Campus ambassadors in Educational institutions • Mobile messages sent to voters, informing them about the Polling station, part number and serial number.
• Facility of sending EPIC no to 1950 by SMS In addition to all these the following new initiatives have also been taken up:
• Publishing the date of poll and importance of voting through shopping bags.
• Awareness Stickers are pasted at all prominent places inside all types of shopping places, so as to have maximum reach. • To reach the households of all electors the messages through low cost methods having high visibility, like printed messages on milk packets delivered to households and pasting of awareness stickers on domestic gas cylinders were being carried out.
• To ensure registration of all eligible electors, special focus on Youth enrollment by conducting special enrollment drives in all educational institutions are done.
• Special category of electors like those living in old age homes, orphanages and differently abled homes have also been enrolled by conducting special drives.
http://www.judis.nic.in • The audio and video bytes including that of star icons are 106 telecasted in theatres, aired in Arasu cable TV and displayed in mobile publicity vans moving around all low voter turnout areas. • Mobile facilitation centers are operated in all important areas, which included search facility for the electors. • The social media Twitter, Facebook and Google are extensively used do disseminate information and create awareness. • Other methods of reaching the women electors through Mehandi melas, Rangoli competitions and through Self help groups were effectively utilized.
Information Dissemination through Media for a wider reach:
• All information on Election related matters are periodically informed to all stake holders using the media. Interaction with media to ensure transmission of all valid information to all stake holders is being done on a daily basis by fixing a specified time for interaction with media.
• Facilitation methods informing all important events Electoral facilitation services, status of individuals’ applications / requests and complaint redressal is also done to public using the support of media.
• Dissemination of electoral information is also done through, giving Interviews at periodic intervals to all media channels.
To have a more focused approach the following methods with the focus of Targeted Approach in Low voter turnout Assembly Constituencies was adopted;
• Intensified the campaigns in the low voter turnout polling station areas and in those areas identified as vulnerable areas • The Focus of the awareness campaigns were on • Ethical Voting - Vote with Conscience • Ensure registration of name in electoral roll • Recheck your Elector details • Exercise your Democratic Right without fail • Method of EVM voting / WPAT facility / Voting for NOTA http://www.judis.nic.in • Publicizing the options of Facilitation services 107 • 1950 call centres • SMS to 1950 • Online Services Ethical Voting:
To ensure the spreading of awareness message of,’’Vote with consciousness” and “Vote without Note”. Wide publicity relating to the penal provision for accepting and giving money for voting are widely published in the form of display of posters at prominent places and similar messages in the form of small pamphlets are also distributed to reach all households.
Apart from this, messages of famous personalities are also brought out in digital format and is being telecast in all theatres and in Arasu Cable TV.
39. On the aspect of disqualification and expenditure, let us consider the decisions quoted by Mr.M.Purushothaman, learned counsel for the petitioner. In W.P.No.18284 of 2016, dated 01.06.2016, a Hon'ble Division Bench of this Court, ordered thus:-
“The Election Commission of India is already in seizin of the dispute and in fact, has taken necessary action and continues to take further action.
2.Learned counsel for the petitioner, however, states that steps should be taken for disqualification of candidates who have been found using enormous money.
3.Learned counsel for the Election Commission states that the provisions of law may be inadequate in this behalf and the Election Commission will explore the issue and see if some recommendations have to be made for necessary changes in law.
4.Writ petition stands disposed of in terms thereof. No costs.
Consequently, W.M.P.No.15996 of 2016 stands closed.”
40. Another Hon'ble Division Bench of this Court, at paragraph No.50 of the order made in W.P.Nos.21149 of 2016 etc batch of writ http://www.judis.nic.in 108 petitions, observed thus:-
"50. It is true that unscrupulous candidates contesting elections should not be allowed to go scot-free when they disrupt elections and thereby cause huge wasteful expenditure to the State exchequer. However, this public interest litigation cannot be stretched to take over all acts of governance. In a country governed by a Constitution, of which separation of powers between the Legislature, the Executive and the Judiciary is a basic feature, this Court cannot take over legislative or executive functions. It is for the legislature to enact a law to provide for recovery of waste of public money caused by wrongful acts of contesting candidates. May be the Election Commission with its wide powers to ensure free and fair elections might make a recommendation for suitable enactment and/or amendment of law. However, until such law is passed, this Court cannot pass orders as prayed for in W.P.Nos.21149 and 21150 of 2016. These writ petitions are dismissed."
41. It is submitted by the learned counsel for the petitioner that steps have been taken to introduce Section 58 B in the Representation of People Act, 1951.
42. On the aspect of utilisation of funds, regarding advertisement, earlier the Hon'ble Supreme Court in Common Cause vs. Union of India, reported in 2015 (7) SCC 1, has ordered as follows:-
27. This will require the Court to consider the different aspects of a government advertisement campaign highlighted earlier on which we have reserved our comments. The first is with regard to publication of photographs of functionaries of the State and political leaders along with the advertisement http://www.judis.nic.in 109 issued. There can be no manner of doubt that one government advertisement or the other coinciding with some event or occasion is published practically every day. Publication of the photograph of an individual be it a State or party functionary not only has the tendency of associating that particular individual with either the achievement(s) sought to be highlighted or being the architect of the benefits in respect of which information is sought to be percolated.
Alternatively, programmes/targets for the future as advertised carry the impression of being associated with the particular individual(s). Photographs, therefore, have the potential of developing the personality cult and the image of one or a few individuals, which is a direct antithesis of democratic functioning.
28. The legitimate and permissible object of an advertisement, as earlier discussed, can always be achieved without publication of the photograph of any particular functionary either in the State of a political party. We are, therefore, of the view that in departure to the views of the Committee which recommended permissibility of publication of the photographs of the President and Prime Minister of the country and Governor or Chief Minister of the State along with the advertisements, there should be an exception only in the case of the President, Prime Minister and Chief Justice of the country who may themselves decide the question. Advertisements issued to commemorate the anniversaries of acknowledged personalities like the Father of the Nation would of course carry the photograph of the departed leader.
29. Insofar as the recommendation with regard to the appointment of Ombudsman is concerned, we are of the view that for ironing out the creases that are bound to show from time to time in the implementation of the present directions and to oversee such implementation the Government should constitute a three-member body consisting of persons with unimpeachable neutrality and impartiality and who have excelled in their respective fields. We could have but we refrain from naming the specific persons and leave the said exercise to be performed by the Union Government.
30. Insofar as performance/special audit is concerned, we do not feel http://www.judis.nic.in the necessity of any such special audit inasmuch as the machinery available is 110 adequate to ensure due performance as well as accountability and proper utilisation of public money.
31. If government advertisements adhere to the objects and parameters mentioned above we do not feel the necessity of imposing a special curb on government advertisements on the eve of the elections, as suggested by the Committee.
32. In an earlier part of the present order we had indicated the power of the purse that government advertisements invariably involve. Needless to say, the concepts of fairness and even dispensation to all media/publishing houses will have to be maintained by the Government be it at the Centre or the States.
33. We close the matters on the aforesaid note by approving and adopting the recommendations of the Committee except what has been specifically indicated above with regard to:
(1) Publication of photographs of the government functionaries and political leaders along with the advertisement(s).
(2) Appointment of an Ombudsman (3) The recommendation with regard to performance audit by each Ministry.
(4) Embargo on advertisements on the eve of the elections.
34. We also make it clear that the present directions issued under Article 142 of the Constitution cannot be comprehensive and there are several aspects of the matter which may have escaped our attention at this stage. In this regard, we would like to clarify that it is not the intention of the Court to attempt to lay down infallible and all comprehensive directions to cover the http://www.judis.nic.in issue at hand. The gaps, if any, we are confident would be filled up by the 111 executive arm of the Government itself inasmuch as the attainment of constitutional goals and values enshrined in Part IV of the Constitution is the conjoint responsibility of the three organs of the State i.e. legislative, executive and the judiciary, as earlier discussed.
43. Subsequently, the directions issued in the abovesaid case, has been modified, as follows:-
"(i) The exception carved out in para 23 of the aforesaid judgment dated 13.05.2015 permitting the publication of the photographs of the President, Prime Minister and Chief Justice of the country, subject to the said authorities themselves deciding the question, is not extended to the Governors and the Chief Ministers of the States.
(ii) In lieu of the photograph of the Prime Minister, the photograph of the Departmental (Cabinet) Minister/Minister in charge of the Ministry concerned may be published, if so desired.
(iii) In the States, similarly, the photograph of the Departmental (Cabinet) Minister/Minister in charge in lieu of the photograph of the Chief Minister may be published, if so desired.
(iv) All other observations/directions in the aforesaid judgment dated 13-5-2015 shall continue to remain in force subject to the above modification.
2. The review petitions are disposed of in the above terms."
44. If Section 58B is sought to be introduced by the Election Commission of India in the Parliament, it is for the Election Commission of India, to carry forward and Courts cannot issue any directions to enact laws. Submission of the learned counsel for the petitioner, that there is a vacuum in law, and directions can be issued, like in Vishaka's case, is not accepted.
http://www.judis.nic.in 112
45. In Destruction of Public and Private Properties, In Re vs. State of Andhra Pradesh and others, reported in (2009) 5 SCC 212, in exercise of powers under Article 142 of the Constitution of India, guidelines have been issued, after considering Hon'ble Justice Thomas Committee for amendment to Prevention of Damage to Public Property Act, 1984.
46. Chief Electoral Officer and Secretary to Government, has sent a letter No.1095/Ele.V/2019-4, dated 23.03.2019 to All District Election Officers/Returning Officers (w.e), and All Political Parties (w.e.), is extracted hereunder:-
PUBLIC (ELECTIONS.V) DEPARTMENT SECRETARIAT, CHENNAI- 600 009.
Letter No.1095/Ele.V/2019-4, Dated: 23.03.2019 From Thiru Satyabrata Sahoo, I.A.S., Chief Electoral Officer & Secretary to Government To All District Election Officers/Returning Officers (w.e) All Political Parties.(w.e.) Sir, Sub: Elections - Judgement of the High court of Kerala at Ernakulam in WP(C) No.7193 of 2019, Order dated 11.03.2019 (B.S.Syamkumar Vs. State of Kerala & Others), Vs State of Kerala & others- use of eco friendly material in elections — Reg.
Ref: 1. From Election Commission of India, New Delhi, Letter http://www.judis.nic.in No.4/3/2019/SDR, Dated: 26.02 2019.
1132. This office Letter No.1095/Ele.V/2019-1, dated:
05.03.2019.
3. From Election Commission of India, New Delhi, Letter No.3/ER/2019/SDR/Vol.II, dated: 19.03.2019 ***** I am directed to invite your kind attention to the references cited (copy enclosed), wherein, in the reference 3rd cited, the Election Commission of India has forwarded a copy of the Order dated 11th March, 2019 passed by the Hon'ble Kerala High Court in WP(C) No.7193 of 2019 (B.S. Syamkumar Vs. State of Kerala & Others), In the Order dated 11th March, 2019, the Hon'ble High Court has taken note of the Commission direction in the letter No.4/3/2019/SDR, dated: 26.02.2019 (copy enclosed) regarding making our election eco-friendly and passed the following Order:-
2. "....... We also deem it appropriate to order that all candidates and the Nations/State Political Parties must strictly adhere to the aforequoted guidelines of the Election Commission, so that only the eco-friendly materials are used during the election campaign and there is no use PVC Flex Boards and other such non-biodegradable materials as campaign, in the State of Kerala"
3. Hence, the Election Commission has requested to bring it to the notice the above said order of the Hon'ble Kerala High Court and the Commission's instructions to All District Election Officers (DEOs), Returning Officers (ROs), other election authorities, candidates and political parties of the State to ensure strict compliance of the Order.
4. I am, therefore, to forward herewith the above said order of the Hon'ble Kerala High Court and the Commission's instructions and to request you to ensure strict compliance of the above Orders/instructions during the ensuing GELS 2019 and the Bye Elections to 18 Assembly constituencies.
Yours faithfully, for Chief Electoral Officer & http://www.judis.nic.in Secretary to Government.114
47. Secretary, Election Commission of India, New Delhi, has sent a letter No.3/ER/2019/SDR/Vol.II, dated 19.03.2019, to the Chief Electoral Officers of Kerala, regarding use of eco friendly material in elections, is extracted hereunder:-
ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashok Road, New Delhi-110 001 No.3/ER/2019/SDR/Vol.II Dated: 19th March, 2019 To The Chief Electoral Officers of Kerala, Thiruvananthpuram.
Subject: - Judgment of the High Court of Kerala at Ernakulam in WP(C) No.7193 of 2019, B.S.Syamkumar Vs. State of Kerala & Ors.- use of eco friendly material in elections-regarding.
Sir, I am directed to forward herewith a copy of the Order dated 11th March, 2019 passed by the Hon’ble Kerala High Court in WP(C) No.7193 of 2019 (B.S.Syamkumar Vs. Stale of Kerala & Others). In the Order dated 11th March, 2019 the Hon’ble High Court has taken note of the Commission’s direction in the letter No.4/3/2019/SDR dated 26.02.2019 (copy enclosed) regarding making our elections eco-friendly and passed the following Order: -
“......... We also deem it appropriate to order that all candidates and the National/Stale Political Parties must strictly adhere to the aforeqnoted guidelines of the Election Commission, so that only the eco-friendly materials are used during the election campaign and there is no use of PVC Flex Boards and other such non bio-degradable materials as campaign material, in the State of Kerala.” http://www.judis.nic.in 115
2. The above said Order of the Hon’ble Kerala High Court and the Commission’s instructions may be brought to the notice of all DEOs, ROs, other election authorities, candidates and political parties based in your State to ensure strict compliance of the Order.
Kindly acknowledge receipt.
Yours faithfully, (N.T.Bhutia) Secretary
48. Secretary, Election Commission of India, New Delhi, has sent a letter No.4/3/2019/SDR, dated 26.02.2019, to all Recognized National/State Political Parties, regarding making our elections eco-
friendly, is extracted hereunder:-
ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashok Road, New Delhi-110 001 No.4/3/2019/SDR Dated: 26th February, 2019 To All Recognized National/State Political Parties.
Subject:- Making our Elections Eco-friendly.
Sir/Madam, I am directed to invite your attention to the letters bearing No. 4/3/2006/IS-II dated 16th March, 2006, No. 4/3/2004/JS-II/Vol.I dated 11th March 2004, No.4/3/2003/JS-II/Vol.I dated 1st May, 2003. No.4/3/99/JS-1I dated 16th July, 1999 and 4/3/2016/SDR dated 5th April, 2016 regarding use of environment friendly campaign material during elections.
http://www.judis.nic.in In this connection, Ministry of Environment, Forest and Climate 116 Change has approached the Commission vide letter No.12/79/2018- HSMD(Pt.) dated 17th January, 2019, (copy enclosed) with the request to impress upon all concerned to take up. sustainable practices and try using alternate option to single-use plastic during elections. It inter-alia, mentions:-
"A lot of the campaigning material including posters, cut-outs, hoardings, banners, political advertisements, etc., is made of plastic. After the elections, the campaigning materials, are discarded and become waste. Such single-use plastic waste generated during campaigning does not get collected and causes choking drainage and river systems, ingestion by stray animals, land and water pollution, open air burning, etc. leading to adverse impacts on human health environment. Some of these plastics are Poly Vinyl Chloride (PVC) based, which produces toxic emissions on burning.
A number of alternate options to use of plastic in campaigning material are available such as compostable plastics. Natural fabrics recycled paper material etc., which have a lesser environmental impact. Such materials need to be promoted as a sustainable and environmentally sound management practice. The upcoming General Elections present an excellent opportunity to introduce a behavioral change in election campaign and to promote sustainable practices."
Your attention is also drawn to Para 3 of Commission’s instructions No.509/24l/ECI/LHT/FUNC/JUD/RCC/2011 dated 20th April, 2018, which specifies that “The Solid Waste Management Rules, 2016 and the Plastic Waste Management Pules, 2016, and other applicable laws regard are hereby adopted for disposal of the campaign material by the local municipal authority and the cost for the same shall be recovered from the candidates or political parties, as the case may be, accordance with the polluter pays principle."
http://www.judis.nic.in Accordingly, the Commission reiterates that all political parties 117 should take adequate steps and measures to not use single-use plastic as campaign materials (posters, banners etc.,) during the elections in the interest o f human health and environment.
Yours faithfully (N.T.BHUTIA) SECRETARY
49. Proceedings of Mr.C.K.Mishra, Secretary, Government of India, Ministry of Environment, Forest and Climate Change, dated 17.01.2019, sent Chief Secretaries (All States / UTs), is extracted hereunder:-
SECRETARY GOVERNMENT OF INDIA MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE C.K.Mishra D.O.No.12/79/2018-HSMD(Pt.) Dated 17th January, 2019 You are aware about India’s commitment to phase out single-use plastic by 2020. The ill impacts of plastic waste, which are not recyclable or bio-degradable, are well known. I had earlier written to you,with a request to phase out single-use plastic in offices. I am again reiterating the request, particularly with reference to the upcoming General Elections.
A lot of the campaigning material including posters, cut-puts, hoardings, banners, political advertisements, etc., is made of plastic. After the elections, the campaigning materials, are discarded and become waste. Such single-use plastic waste generated during campaigning does not get collected and causes choking of drainage and river systems, ingestion by stray animals, land and water pollution, open http://www.judis.nic.in 118 air burning, etc. leading to adverse impacts on human health and environment. Some of these plastics are Poly Vinyl Chloride (PVC) based, which produces toxic emissions on burning.
A number of alternate options to use of plastic in campaigning material are available such as compostable plastics, natural fabrics, recycled paper material etc, which have a lesser environmental impact. Such materials need to be promoted as a sustainable and environmentally sound management practice. The upcoming General Elections present an excellent opportunity to Introduce a behavioural change in election campaigning and to promote sustainable practices.
In this background, I would like to request you to impress upon or all concerned to take, up sustainable practices and try using alternate options single-use plastic. This will go a long way in fulfilling India’s commitment of' phasing out single-use plastic as well as protecting human health and environment.
Yours sincerely sd/-
(C.K.Mishra)
50. Finally on the issue of vehicles carrying people or meetings and other events, a Hon'ble Division Bench of this Court, in the present writ petition, on 14.03.2019,observed thus:-
"7. The authorities are directed not to allow any mass transportation of people to the venue of the election meeting or for any procession to be taken out by the political parties except as per law."
51. In W.P.No.11094 of 2014, dated 17.04.2014, this Court has ordered thus:-
The petitioner, by way of this writ petition, seeks a direction to the http://www.judis.nic.in 119 respondents to take appropriate and necessary steps to curtail the usage of goods vehicle for transporting people for the purpose of election campaign by considering the petitioner's representation dated 12.4.2014.
2. The learned Senior Counsel appearing for the first respondent submits that the usage of goods vehicle for transporting people for the purpose of election campaign is prohibited. As and when any particular incident is brought to the notice of the Election Commission, strict action will be taken.
3. In view of that, nothing remains for adjudication in the writ petition.
Accordingly, the writ petition is disposed of. No costs."
52. As rightly pointed out, there are provisions in the Motor Vehicles Act, 1988, and the rules framed thereunder, regarding use of vehicles. Permits are issued to carry people, by the transport authorities, subject to satisfy the provisions.
53. In the light of the provisions of the Motor Vehicles Act, 1988 and the rules framed thereunder, order made in W.P.No.11094 of 2014, dated 17.04.2014, Election Commission of India, and authorities who are bound to adhere to the model code of conduct can take appropriate action, if there is any violation of the Motor Vehicles Act and the rules framed thereunder and Model Code of Conduct, and any other directions issued in this regard. Thus, the interim order made in present writ petition, is accordingly modified.
http://www.judis.nic.in 120
54. Hence, instant writ petition is dismissed. No Costs.
Consequently, the connected writ miscellaneous petition is closed.
(S.M.K., J.) (S.P., J.) 26.03.2019 Index: Yes Internet: Yes skm/dm Note:
Issue order copy on 01.04.2019.
http://www.judis.nic.in 121 To
1.Secretary, National Human Rights Commission G.P.O. Complex, Manav Adhikar Bhawan, C Block, INA, New Delhi - 110023.
2.Home Secretary, Union of India, Ministry of Home Affairs, North Block, New Delhi.
3.Secretary, Union of India, Ministry of Law and Justice, Shastri Bhawan, New Delhi - 110 115.
4.The Chief Election Commissioner, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi - 110 001.
5.The Chief Election Officer (CEO) Tamil Nadu, Fort.St.George, Secretariat, Chennai - 600 009.
6.Home Secretary, Stated of Tamilnadu, Secretariat, Chennai.
7.The Director General of Police, Dr. Radhakrishna Street, Chennai.
http://www.judis.nic.in 122 S. MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
skm/dm W.P.(MD).No.6062 of 2019 and W.M.P.(MD).Nos.4836 and 4837 of 2019 26.03.2019 http://www.judis.nic.in