Madras High Court
P.Janaki vs Tamil Nadu State Election Commission on 29 November, 2011
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/11/2011 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.12905 of 2011 and W.P.(MD)No.13322 of 2011 And M.P.(MD) Nos.1,2,3, 1 and 2 of 2011 P.Janaki .. Petitioner in WP 12905/2011 Palanichamy .. Petitioner in WP 13322/2011 vs. Tamil Nadu State Election Commission, Represented by its Commissioner, 208/2, Jawaharlal Nehru Salai, Arumbakkam, Chennai. .. R-1 in WP 12905/2011 The District Election Officer/The District Collector, Thiruchirappalli. .. R-2 in WP 12905/2011 The Returning Officer/Commissioner, Thottiyam Panchayat Union, Thottiyam, Thiruchirappalli District. .. R-3 in WP 12905/2011 The Assistant Returning Officer/Head Master, Panchayat Union School (North), Kolakkudi Village, Thottiyam Taluk, Thiruchirappalli District. .. R-4 in WP 12905/2011 The President, Appananallur Panchayat, Appananallur, Thottiyam Panchayat Union, Thottiyam Taluk, Thiruchirappalli District. .. R-5 in WP 12905/2011 The Tamil Nadu State Election Commission, Represented by its Commissioner, Jawaharlal Nehru Road, Koyambedu, Chennai. .. R-1 in WP 13322/2011 The District Collector, Ramnad District, Ramnad. .. R-2 in WP 13322/2011 The Returning Officer/Block Development Officer, Nainarkovil Panchayat Union, Paramakudi Taluk, Ramnad District. .. R-3 in WP 13322/2011 The Assistant Returning Officer, Pagaivendri Village, Paramakudi Taluk, Ramnad District. .. R-4 in WP 13322/2011 WP 12905/2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Declaration, to declare Serial No.7 of the Advice dated Nil of the first respondent to the third and fourth respondents as illegal and contrary to the Tamil Nadu Panchayat Act, 1994 and the Tamil Nadu Panchayat (Election) Rules, 1995. WP 13322/2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned re-election notification issued by the third respondent in Na.Ka.The.1/1973/11 dated 11.11.2011 in so far as the election to the post of Vice-President of Pagaivendri Village, Nainarkovil Panchayat Union, Ramanathapuram District and quash the same as illegal, ultra vires and consequently direct the respondents to permit the petitioner to cast his vote in the election which was held on 29.10.2011 for the post of Vice-President of Pagaivendri Village, Nainarkovil Panchayat Union, Ramanathapuram District. !For Petitioner in WP 12905/2011... Mr.T.Chandrasekaran For Petitioner in WP 13322/2011 ... Mr.P.Arun Jayatram ^For Respondents in both WPs ... Mr.K.Mahendran, Special Government Pleader. :COMMON ORDER
Both these writ petitions revolve around a simple question as to whether a person elected directly by the electorate, as the President of a Village Panchayat, is entitled to cast his vote in the election to the post of Vice President of the Village Panchayat or not.
2. I have heard Mr.T.Chandrasekaran and Mr.P.Arun Jayatram, learned counsel appearing for the petitioners and Mr.K.Mahendran, learned Special Government Pleader appearing for the respondent.
3. W.P.No.12905 of 2011 is filed by a person, who was elected as the Councilor from Ward No.8 of Appananallur Village Panchayat, in the elections held on 19.10.2011. The Village Panchayat comprises of 9 wards. After the election of the President of the Panchayat and the election of 9 Ward members, the Returning Officer convened the meeting of the Panchayat for the purpose of electing the Vice President on 29.10.2011. According to the petitioner, she had the support of 4 members, but one of her supporters by name D.Saravanan elected as Councilor of Ward No.7 was kidnapped. It is the further case of the petitioner that on account of such an illegal act, the petitioner and 3 of her supporters did not participate in the election, forcing the Returning Officer to adjourn the election to the post of Vice President for want of quorum. Now the petitioner apprehends that the President of the Panchayat will be permitted to vote and that the same may tilt the balance against her, due to the non- availability of D.Saravanan. But finding that the instruction at Serial No.7 of the Guidelines issued by the Tamil Nadu State Election Commission enables the President of the Panchayat to vote in the election to the post of Vice President, the petitioner in W.P.No.12905 of 2011 seeks to declare the said instruction at Serial No.7 of the Guidelines issued by the Election Commission as contrary to the provisions of the Tamil Nadu Panchayats Act, 1994 and the Tamil Nadu Panchayats (Elections) Rules 1995.
4. The petitioner in W.P.No.13322 of 2011 was elected as the President of Pagaivendri Village Panchayat on 19.10.2011. The election to the post of Vice President was notified to be held on 29.10.2011. The Panchayat comprises of 6 Wards. Two candidates contested. Both secured 3 votes each. The petitioner wanted to cast his vote, but was not permitted to vote. Therefore with the support of a majority of the members, the petitioner managed to have a resolution passed on 29.10.2011, postponing the election to the post of Vice President. Consequently, the Returning Officer issued a notification on 11.11.2011, announcing that the election to the post of Vice President for this Panchayat will be held on 30.11.2011. Therefore, challenging the re-election notification and also seeking a direction to the respondents to permit him to cast his vote in the election that was already held on 29.10.2011, the petitioner has come up with the above writ petition.
5. A perusal of the facts and the prayer with which the petitioners in the above two writ petitions have come up to this Court would show that while the petitioner in the first writ petition contends that the elected President cannot cast vote in the election to the post of Vice President, the petitioner in the next writ petition takes a contrary stand. But in so far as the Tamil Nadu State Election Commission is concerned, it has taken a stand that the President is entitled to vote. In the Instructions and Guidelines issued by the Tamil Nadu State Election Commission, relating to indirect elections to the posts of Chairmen and Vice Chairmen of Panchayat Unions and the post of Vice President of Village Panchayats, the Election Commission has stated that those elected as Ward Councilors as well as persons elected as the President of the Panchayats would be entitled to vote in the election to the post of Vice President of the Village Panchayat. The Election Commission has also relied upon Section 43 (7) of the Tamil Nadu Panchayats Act, for holding that an elected President of the Village Panchayat is entitled to vote in the election to the post of Vice President.
6. Though the petitioner in the first writ petition has challenged the Instructions issued by the Tamil Nadu State Election Commission, she has not chosen to challenge the vires of Section 43(7). On the contrary, the contention of the learned counsel for the petitioner in the first writ petition is that the Instructions issued by the Election Commission are contrary to Section 43(7) and that Section 43(7) does not give voting right to a President. In the light of such a contention, it is necessary to examine the provisions of the Act and the Rules.
7. The expression "Member" is defined in Section 2(18) of the Tamil Nadu Panchayats Act, 1994 to mean a member of the Village Panchayat or the Panchayat Union Council or the District Panchayat. The expression "President" is separately defined under Section 2(26) to mean the President of the Village Panchayat. The Act does not define either the expression "Ward" or the expression "Ward Member", though it defines the expressions "Member" and "President".
8. Section 10 of the Act deals with election of members of Village Panchayats. In broad terms, Section 10 states that the members of the Village Panchayat shall be elected in such manner as may be prescribed. But the Section contains 3 provisos. By the first proviso, it is declared that no person can be elected as a member of more than one Ward or as a member of more than one Village Panchayat. The second proviso precludes a person who contests for election as a member of the Village Panchayat from contesting the election to the post of President of a Village Panchayat. The third proviso to Section 10 states that no member of a Village Panchayat shall be eligible to stand for election as President of a Village Panchayat.
9. From the fact that the Act defines the expressions "Member" and "President" separately and also from the mandate contained in Section 10, it is clear that the President of a Village Panchayat is treated as distinct and different from a member of a Village Panchayat. Sections 42 to 48 deal with the posts of President and Vice President of Village Panchayats, their method of election and the functions carried to be carried out by them. Section 43(1)(a) provides for the election of President, directly by the electorate of a Village Panchayat. There are two provisos under Section 43(1). These provisos are similar to the provisos contained in Section 10. By the first proviso, a person contesting for election as President is made ineligible to contest for election as a member of the Village Panchayat. By the second proviso, the President of a Panchayat is made ineligible to contest for election as a member. Sub Section (7) of Section 43 reads as follows:-
"(7) The President shall be an ex-officio member of the Village Panchayat and shall have all the rights and privileges of an elected member of the Village Panchayat."
10. Section 44 prescribes the manner in which an election of Vice President shall takes place. It reads as follows:-
"44. Election of Vice-President.--(1) The Vice-President shall be elected by the Village Panchayat from among its elected members in accordance with such procedure as may be prescribed.
(2) If at an election held under sub-section (1), no Vice-President is elected, a fresh election shall be held for electing a Vice-President."
11. It is pertinent to note that Section 44(1) gives two indications. The first is about the persons from among whom the Vice President shall be elected. The second is about the persons by whom the Vice President is to be elected. On the first aspect, Section 44(1) states that the Vice President shall be elected from among the elected members. On the second aspect, Section 44(1) states that the Vice President shall be elected by the Village Panchayat.
12. Therefore, it is clear that the Vice President should be elected by the Village Panchayat. The word "Village Panchayat" is defined in Section 2(37) to mean a Panchayat constituted as such under Section 6(1). Section 6(1) mandates that a Village Panchayat shall be constituted for each Panchayat Village, consisting of such number of elected members.
13. Therefore, it is clear that the Vice President of a Panchayat shall be elected only by the Village Panchayat, constituted in terms of Section 6(1). The fact that the President of a Village Panchayat is distinct and different from the Village Panchayat constituted under Section 6(1), is made clear by Section 6(2). As per Section 6(2), the administration of the Village vests in the Village Panchayat. But Section 6(2) makes it clear that the Village Panchayat is not entitled to exercise the functions expressly assigned by or under this Act or any other law, to its President. Therefore, it is clear that the President of a Panchayat is not an elected member of the Panchayat. This is on account of several factors, two of which we have seen here viz., (i) the definition of the expressions "Member" and "President" are different and (ii) the functions of the President are also kept unencroachable by the elected members by Section 6(2) of the Act.
14. The conclusion that the President of a Village Panchayat is neither a "Member" within the meaning of the expression under Section 2(18) nor an elected Member within the meaning of Section 6(1), is fortified by Section 43(7). Section 43(7) makes the President of the Village Panchayat only an ex-officio member and confers upon him all the rights and privileges of an elected member of the Village Panchayat. Therefore, whatever rights and privileges the elected members of a Village Panchayat get, are conferred upon the President also, by Section 43(7). But for section 43 (7), the President cannot enjoy any of the rights and privileges of the elected members. Keeping this fundamental position in mind, let us now move over to the provisions of the Tamil Nadu Panchayats (Elections) Rules, 1995.
15. Part VIII of the Tamil Nadu Panchayats (Elections) Rules, 1995, comprising of Rules 93 to 99 contain the provisions for the election of Vice President of Village Panchayats. But the procedure for the conduct of the election of Vice President, is to be traced to Rules 75 to 88. This is by virtue of Rule 95. Therefore, for understanding the procedure to be followed in the election of Vice President, we may have to advert to Rules 75 to 88, which deal with the election of Chairmen of a District Panchayat or a Panchayat Union Council. Rule 78 prescribes that if more than one candidate contests, the votes of the Ward Members shall be taken by ballot. Rule 79 obliges the Returning Officer to provide a voting compartment in which the Ward Members present at the meeting can record their votes in secrecy. Rule 82(1) mandates the supply of ballot papers in Form 28-A to every Ward Member present at the meeting. The ballot paper is to be assigned a serial number and signed by the Returning Officer at the appropriate place. Rule 83 obliges the Ward Members to proceed to the voting compartment for the purpose of recording his vote. Rule 85 deals with the procedure to be adopted by a Ward Member, who is illiterate or blind or who suffers from a physical infirmity. Rule 86 stipulates that after the voting by the Ward Members is over, the Returning Officer should open the ballot box in the presence of the Ward Members present, take out the ballot papers and record the number of votes obtained by each candidates.
16. A careful reading of Rule 95 read with Rules 78 to 86 would show that all these Rules refer only to "Ward Members". The expression "Ward Member" is not defined in the Act. But Rule 2(xxxi) of the Rules defines a "Ward Member". Clauses (a) and (b) of Rule 2(xxxi) are not relevant for our purpose. But Clause
(c) of Rule 2(xxxi) defines a "Ward Member" in relation to a village panchayat, to mean a person elected under Section 10 from the Ward of a Village Panchayat, in so far as the election of a Vice President is concerned. As we have seen earlier, Section 10 deals with the election of members of a Village Panchayat. Therefore a combined reading of Rules 78 to 86, read with the definition of the expression "Ward Member" appearing in Rule 2(xxxi) as well the provisions of Section 10 of the Act, would lead us to the conclusion that it is only the Ward Members who are entitled to vote in the election to the post of Vice President. Such a view, as contended by Mr.T.Chandrasekaran, learned counsel for the petitioner also derives the support from the contents of Form 28-A. The Form 28- A appears as follows:-
FORM 28-A BALLOT PAPER [See Rule 82(1)] ELECTION OF CHAIRMAN/VICE-CHAIRMAN/VICE-PRESIDENT Serial Number:
NAME WARD NUMBER NAME WARD NUMBER NAME WARD NUMBER NAME WARD NUMBER Returning Officer.
17. In the ballot paper prepared in terms of Rule 82(1) in Form 28-A, there is no place for the President to cast his vote. Therefore, the situation appears to be fluid.
18. Since Section 44(1) confers voting rights only upon the "Village Panchayat" as defined in section 2(37), constituted in terms of Section 6(1) and also since Section 43(7) confers upon the President all the rights and privileges of elected members, the focus in the provisions of the Act is on the "elected members". But the focus under the Rules appears to be on "Ward Members". Therefore, the question that is now raised, is as to whether the right reserved only for the Ward Members, could also be exercised by the President by virtue of Section 43(7), which confers upon the President only the rights and privileges of the elected members and not the rights and privileges of the Ward Members. But this question will assume the significance only if the expression "elected Member" is used as a distinct and different from the expression "Ward Member". The fact that all Ward Members are elected members cannot be in dispute. Similarly, the fact that all elected members are naturally Ward Members cannot also be in dispute. Therefore, despite the lack of clarity in the Act, I do not think that there is any reason to exclude the President from exercising his franchise in the election to the post of Vice President.
19. What is important is that what is prohibited is laid out clearly by the Act and the Rules. That a person holding office as President cannot contest for the post of Ward Member and vice-versa and that a member of a ward cannot contest for election to another ward or panchayat, are all made clear in the Act. There is no similar prescription in express terms in the Act and the Rules, prohibiting the President from casting his vote in the election to the post of Vice President. Therefore, what is not prohibited by the Act or the Rules, cannot be prohibited by a judicial interpretation.
20. The State Election Commission has understood Section 43(7) to mean that the President is also entitled to cast his vote in the election to the post of Vice President. Since the Commission has primacy in matters relating to elections, the way they have understood a particular provision in the Act, is of great significance, unless it is found by the court to be clearly in contravention of the express language or object of the statute. Rule 143 of the Tamil Nadu Panchayats (Elections) Rules, 1995 recognises this primacy. It reads as follows:-
"143. Removal of difficulties, if any, by State Election Commission.---(1) The State Election Commission may issue such general or special directions as may in its opinion be necessary, for the purpose of giving due effect to these rules, or holding any election under the Act. (2) If any difficulty arises in giving effect to the provisions of these rules, or in holding any election, the State Election Commission as occasion may require, may, by order, do anything which appears to it necessary for the purpose of removing the difficulty."
21. The Instructions and Guidelines issued by the State Election Commission, interpreting Section 43(7) in a manner conferring a right upon the President to vote in the election for the post of Vice President, do not run contrary, either to the express statutory provisions or to the object of those provisions. The Instructions issued by the Election Commission are also saved by Rule 144, which reads as follows:-
"144. Savings.--All orders, direction, etc., issued by the Government, State Election Commission or District Election Officer, for the preparation of electoral rolls and for the conduct of elections under these rules, shall unless repugnant to these rules, be deemed to have been issued or made under these rules."
22. Therefore, the Instructions and Guidelines issued by the Election Commission, which interpret Section 43(7) to confer a right upon the President of a Village Panchayat to vote in the election to the post of Vice President, have sanctity in terms of Rules 143 and 144. The understanding of the Election Commission is also not repugnant to the scheme of the Act or the Rules. Therefore, W.P.No.12905 of 2011 is dismissed. The other writ petition W.P.No.13322 of 2011 is disposed of, directing the respondents to permit the President of the Pagaivendri Village Panchayat to vote in the election to the post of Vice President to be held on 30.11.2011. But the prayer of the petitioner in W.P.No.13322 of 2011 for allowing him to cast his vote in the election held on 29.10.2011 itself, cannot be sustained. There will be no order as to costs. Consequently connected miscellaneous petitions are closed.
Svn To
1.The Commissioner, Tamil Nadu State Election Commission, 208/2, Jawaharlal Nehru Salai, Arumbakkam, Chennai.
2.The District Election Officer/The District Collector, Thiruchirappalli.
3.The Returning Officer/Commissioner, Thottiyam Panchayat Union, Thottiyam, Thiruchirappalli District.
4.The Assistant Returning Officer/Head Master, Panchayat Union School (North), Kolakkudi Village, Thottiyam Taluk, Thiruchirappalli District.
5.The President, Appananallur Panchayat, Appananallur, Thottiyam Panchayat Union, Thottiyam Taluk, Thiruchirappalli District.
6.The Commissioner, Tamil Nadu State Election Commission, Jawaharlal Nehru Road, Koyambedu, Chennai.
7.The District Collector, Ramnad District, Ramnad.
8.The Returning Officer/Block Development Officer, Nainarkovil Panchayat Union, Paramakudi Taluk, Ramnad District.
9.The Assistant Returning Officer, Pagaivendri Village, Paramakudi Taluk, Ramnad District.