Madras High Court
M.T. Chidambaram vs The Election Commissioner, State ... on 23 November, 2004
Author: V. Kanagaraj
Bench: V. Kanagaraj
JUDGMENT M. Thanikachalam, J.
1. An unsuccessful candidate, who aspired to become the Vice Chairman of the Municipality, is the appellant/writ petitioner.
2. The brief facts necessary to dispose of this appeal:
(a) The appellant was elected as a Councilor to Ward No. 23 of Nagercoil Municipality in the election held in the year 2001. On 31.10.2001, for the election of the Vice Chairman, a meeting was convened at about 9.30 a.m., presided by the Chairman of the Municipality viz., the second respondent herein. On the basis of the notice issued for the election of the Vice Chairman, the appellant/ petitioner contested in the election, as the nominee of TMC, whereas Murugan, the third respondent herein contested as the nominee of BJP. In addition, a candidate from Congress Party also contested, for the post, resulting voting.
(b) In the election, the petitioner secured 24 votes and Murugan viz., the third respondent secured 23 votes, while the Congress candidate had secured only four votes. The Chairman, instead of declaring the appellant as the successful candidate, on the basis of majority vote polled, for the post of Vice Chairman, had voted for the BJP candidate, thereby making the votes polled by the third respondent and the petitioner, as equal, which was objected. The Chairman not accepting the objection, conducted reelection or second ballot, in which the BJP candidate had secured three votes from the Congress Councilors, whereas the petitioner has got one vote. Thus, the third respondent secured 26 votes, and the petitioner secured 25 votes. On the basis of the ballot secured, the second respondent, ignoring the objections of the petitioner, immediately declared the third respondent as the duly elected Vice Chairman of the Municipality.
(c) The procedure adopted by the second respondent in conducting the election is illegal, since he had no right to vote in the election, for the Vice Chairman, since his duty is only to oversee the arrangement, without actual participation in the election. Under Section 7-A as well as Proviso 2 of Section 7-A of the Tamil Nadu District Municipalities Act (hereinafter called the Act), the Chairman has no authority or right to cast his vote in favour of any candidate, since the Council shall consists of Councilors, which should be exclusive of its Chairman. The Chairman, being a member of the BJP party, had misused his office, cast a vote, which is not available to him, thereby making the election process itself illegal. Under the above circumstances, it is just and necessary that the first respondent should be directed, to declare the petitioner as duly elected Vice Chairman to the Office of the Vice Chairman of Nagercoil Municipality, by the issue of a Writ of Mandamus.
(d) The learned single Judge, when the writ petition came up for admission, directing the counsel for the first respondent alone to take notice, heard the matter at once, which brought to surface, that the Chairman is also entitled to cast his vote and there was no irregularity or illegality of any kind, in the procedure adopted by the second respondent, while conducting the election. Thus concluding, the learned single Judge dismissed the writ petition, on 5.12.2001, which is under challenge in this appeal.
4. Heard the learned counsel for the appellant and the learned counsel for the respondents.
5. The prayer in the writ petition reads:
"It is prayed that this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction to direct the 1st respondent to declare the petitioner as duly elected to the office of Vice Chairman of Nagercoil Municipality and pass such further or other orders and thereby render justice."
Thus, it is seen, there is no prayer to set aside the election, in which the third respondent has been declared as the successful candidate, for the post of Vice Chairman of Nagercoil Municipality. Unless the election of the third respondent is set aside, question of issuing direction by way of Mandamus to the first respondent, to declare the petitioner as the duly elected to the Office of the Vice Chairman of Nagercoil Municipality, may not be possible. If at all, under the powers vested with this Court, relief could be moulded, if possible. For that also, the petitioner should make out a case, how the election of the third respondent is invalid or void or illegal or against any provisions of law, thereby warranting the cancellation of the election, or questioning the election of the third respondent, basically.
6. By going through the affidavit, it is seen the only point raised, for challenging the election held on 31.10.2001, in which the third respondent has been declared as elected to the office of the Vice Chairman is, that the Chairman of the Municipality viz., the second respondent herein had himself cast a vote, in favour of the third respondent, which is not available to him, thereby equalising the votes secured by the appellant and the third respondent. No grounds to set aside the election, as contemplated under Section 51(b) of the Act, have been alleged. Since the writ petition was dismissed at the stage of the admission itself, the third respondent, who has been elected as Vice Chairman, had no occasion or chance, to file his counter, justifying his election to the post, making necessary allegations, how the election is not vitiated by any irregularity. In this case, most of the facts are admitted one and therefore, even in the absence of any counter, the petition as well as the appeal could be disposed of and we do not find any difficulty also, since the dispute raised in this case, is purely question of law and interpretation of Sections and Rules.
7. From the pleadings and the arguments advanced before us, the points that arise for consideration, in this appeal are:
(i) Whether the writ petition is maintainable under Article 226 of the Constitution of India, in view of the fact that the Act contemplates specific provision to challenge the election by way of election petition under Section 51(a) of the Act.
(ii) Whether the Chairman has the right to cast vote for the election of Vice Chairman of the Municipality.
(iii) Whether the reelection or second ballot taken for the election of Vice Chairman is not legally sound and the same is against any provisions of law.
In order to appreciate the above points raised by either parties, we have to remember certain admitted facts.
8. In the election held on 31.10.2001, for the election of Vice Chairman, three candidates had contested and they are the petitioner, third respondent and one Congress candidate. The total members and number of councilors participated in the election are 51. The petitioner, being the nominee of TMC, had secured 24 votes, whereas the third respondent being the nominee of BJP, had secured 23 votes, while the third candidate, who contested under the banner of Congress, had secured only four votes. The Chairman, being the BJP candidate, favoured the third respondent, by casting his vote, thereby equalising the votes secured by the petitioner and the third respondent, making a tie. Despite the fact this was objected, the Chairman conducted reelection and in the reelection, the third respondent had secured 26 votes, whereas the petitioner had secured only 25 votes totaling 51. It seems, the Congress candidate had not contested or eliminated at later point of time. Since the third respondent had secured the maximum votes, or in other words majority of the members of the council had favoured the third respondent, the second respondent declared him as the duly elected Vice Chairman of the Municipality, which was challenged unsuccessfully in the writ petition. Regarding the above facts, we find no dispute.
9. The learned counsel appearing for the appellant/writ petitioner, Mr. V. Raghavachari submitted, that the Chairman, not being the elected member of any Ward, is not entitled to cast his vote, thereby improperly equalising the votes secured by the petitioner and the third respondent, on which basis, the subsequent reelection or second ballot took place, which should be held as illegal or violative of the rules and regulations. Only on this ground, it was urged that since the petitioner had secured in the first ballot 24 votes, he should be declared as the Vice Chairman of the Municipality, ignoring the second election conducted by the Chairman, since according to the learned counsel, it is not an election conducted, as per the rules prescribed, which could be ignored, as non est.
10. The learned senior counsel Mr. Kalyana Sundaram appearing for the third respondent countering the above arguments submitted, that the Chairman, though not an elected member of any Ward, being the member of the council, is entitled to vote for the election of Vice Chairman and in this view, the casting of his vote favouring the third respondent, cannot be found fault, consequently, it is not possible to say, that the second ballot conducted, as per the rules, is against the rules and regulations, warranting declaring the petitioner, as the elected candidate, in view of the first election, in which the petitioner had secured only 24 votes.
11. It is the further submission of the learned senior counsel, for the third respondent, that even assuming that the Chairman had no right to vote for the election of the Vice Chairman, since the petitioner had not secured more than one half of the number of votes polled, he cannot claim that he should be declared to have been duly elected, whereas it is incumbent upon the Chairman, who presided over the election, should conduct second election, which was done properly, in which the third respondent had secured more than one half of the total number of the votes polled, thereby entitling him to declare, to have been duly elected, which was done in this case according to law, not liable to be set aside, indirectly.
12. The third submission of the learned senior counsel for the third respondent is, that the writ petition itself is not maintainable, since if at all, the affected parties, who had contested in the election, could challenge the election result, only by way of election petition before the court concerned and not by way of writ petition, in the High Court, bypassing the remedy available under the Act.
13. Before going into the merits of the case, we feel it would be better to decide the maintainability of the writ petition, in order to proceed further. If the writ petition itself is not maintainable, then question of giving any findings, on other points may not arise for consideration.
14. Article 243ZA of the Constitution of India mandates, that the conduct of all election to the Municipalities shall be vested in the State Election Commission, referred to in Article 243K. Part IX of the Constitution provides the constitution of Municipalities and its functions, how it should be functioned, etc. As per the power vested under the Constitution of India, states have enacted laws and in this case, we are governed by the Tamil Nadu District Municipalities Act, 1920 as amended. Therefore, any dispute arises in the District Municipalities, it should be generally dealt with under the said Act.
15. Section 51-A of the Act says:
"No election of Chairman or a Councilor shall be called in question except by an election petition presented to the District Judge of the District in which the Municipality is situated within forty five days from the date of publication of the result of the election under Section 27."
Section 51-B of the Act enumerates the grounds on which an election could be declared as void and they are:
(a) that on the date of this election a returned candidate was not qualified or was disqualified, to be chosen as chairman or councillor under this Act or
(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or
(c) that any nomination paper has been improperly rejected, or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially effect-
(i) by improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent or
(iii) by the improper acceptance of refusal of any vote or reception of any vote which is void, or
(iv) by the non compliance with the provisions of this Act or of any rules or orders made thereunder the District Judge shall declare the election of the returned candidate to be void.
(2) If in the opinion of the District Judge a returned candidate has been guilty by an agent, any corrupt practice, but the Judge is satisfied.
(a) that no such corrupt practice was committed at the election by the candidate, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate.
(b) that the candidate took all reasonable means for preventing the commission of corrupt practices at the election; and
(c) that in all other aspects the election was free from any corrupt practice on the part of the candidate or any of his agents.
Then the District Judge may decide that the election of the returned candidate is not void."
None of the grounds stated above, is available in this petition. In addition, Section 51 of the Act is also silent, regarding the post of Vice Chairman, though it says specifically Chairman and Councilor. When those grounds are not available in this case, admittedly, an election petition, as contemplated under Section 51(a) of the Act, is not maintainable, before the District Judge of the District. Therefore, as rightly submitted by the learned counsel for the appellant/petitioner, in our considered opinion, the election petition before the court concerned alone cannot be the remedy and the writ petition is well maintainable, since the jurisdiction conferred upon this Court under Article 226 of the Constitution cannot be abridged or curtailed on the given facts and circumstances of the case.
16. It is the specific case of the appellant, that by the improper or illegal conduct of the Chairman, in casting his vote in favour of the third respondent, which he is not entitled to do so, a reelection has been ordered, which by itself is illegal, is not a ground to set aside the election, as contemplated under Section 51(b) of the Act. Therefore, this ground could not be raised before the District Judge to set aside the election, in this case. When the basis of the election and the proceedings conducted for the election of the Vice Chairman itself are challenged as illegal, void in its inception, the power of High Court to issue writs cannot be curtailed or denied. Since the Article says, the High Court shall have powers for any other purpose and that 'any other purpose' in this case should be, to find out whether the procedure adopted by the second respondent had vitiated the election itself. In this view of the matter, we are unable to agree with the submission of the learned senior counsel for the third respondent, that the writ petition is not maintainable, whereas the election petition alone could be maintained. Thus holding the writ petition is maintainable, we have to see whether the petitioner is entitled to the relief claimed, or any other moulded relief, which could be done by this Court.
17. The submission of the learned counsel for the appellant/writ petitioner, that the Chairman, who was directly elected by the people, is not entitled to vote for the election of Vice Chairman of the Municipality, appears to be not well founded, legally acceptable, since the rules framed under the Act as well as the explanation available under the Act, confers power upon the Chairman also, to cast vote as the member of the Council. In this context, we have to see certain provisions under the Act.
18. "Councillor" is defined under Rule 2(x) of the Councils (Election) Rules 1996, which reads:
"Councillor" means a member elected from a ward of a Panchayat Town or of a Municipality or of a Municipal Corporation, as he case may be."
19. Part VII of the Councils (Elections) Rules 1996 deals with the election of Vice chairman, Deputy Mayor, Members of the Statutory Committees and Chairman of Wards Committee. Rule 70 of Councils (Elections) Rules deals with the election of Vice Chairman and Deputy Mayor, which reads:
"The Vice Chairman of the Town Panchayat or Municipal Council or Deputy Mayor of the Corporation Council shall be elected by and from among the councillors of the wards of the Town Panchayat or Municipality or Corporation, as the case may be, in the manner prescribed in these rules at a meeting specially convened by the Returning Officer."
As per this rule, the persons, who are eligible or competent to contest the post for Vice Chairman and Deputy Mayor must be the elected councilors of the wards of the Town Panchayat or Municipality or Corporation, as the case may be. This rule does not say that the Councilors, as defined under Rule 2(x) alone are competent to vote in the election, pertaining to Vice Chairman, except qualification. Therefore, the above Rule, as claimed by the learned counsel Mr. V. Raghavachari, fails to lend support to his submission, that only elected councilors alone are competent to vote, for the post of Vice Chairman.
20. The learned Government Advocate to clarify the above point, drew our attention to Rule 75 of Councils (Elections) Rules and the explanation appended thereto. Rule 75 of Councils (Elections) Rules gives guideline how the meeting for election of Vice Chairman of Municipality has to be conducted and by whom it should be presided over, etc. Rule 83 of Councils (Elections) Rules contemplates voting procedure, where it says:-
"Every Member shall, on receiving the ballot paper, proceed to the voting compartment for the purpose of recording his vote or votes and put a mark on it with the help of the instrument provided for this purpose by the Returning Officer, on the ballot paper against the name or names of the candidate or candidates for whom he wishes to vote. He shall, before quitting the voting compartment fold up the ballot paper so as to conceal the mark and put the ballot paper so folded, into the ballot box in the presence of the Returning Officer."
thereby showing that the members of the council are also entitled to cast their votes, in the election of Vice Chairman to the Municipality. It is not the intent of the legislators, as exposed by Rule 83 of Councils (Elections) Rules, that Councilors alone are entitled to vote, since the rule does not say, "every councillor shall, on receiving the ballot paper..". If the intention of the legislators was that only the elected councilors alone should vote, to elect a Vice Chairman, certainly they would have expressed so, in the voting procedure prescribed under Rule 83 of Councils (Elections) Rules.
21. At this juncture, it is pertinent to note, the previous rules of the year 1978 vide G.O. Ms. No. 913 Rural Development and Local Administration, 18th June 1978 and the present rules. In the rules framed in the year 1978, Rule 12 contemplates voting procedure, wherein we find as follows:
"The Councillor shall on receiving the ballot paper proceed to the voting........ President of the meeting."
While substituting the new rule in the year 1996, under Rule 83, which must be equivalent to old Rule 12, the legislators have introduced the word "Every member" instead of "The councilor" deployed under Rule 12 of the year 1978. This would indicate, that the legislators were conscious of the fact, that originally the councilor alone had the right to receive ballot papers for the election of Vice Chairman, whereas at present every member is entitled to receive the ballot papers. The only question now we have to see and decide is, whether the word "member" will include the "chairman".
22. In this context, we have to see the explanation to Rule 75, which reads as follows:
"The expression 'members' referred to in this rule and in the rules 76 to 91 hereinafter occurring in these rules, shall mean the elected councillors and includes the Chairman and Mayor, as the case may be."
While drafting the rules, the legislators were so cautious to omit Rule 70, which prescribes the competency to contest for the post of Vice Chairman, since it says specifically the Vice Chairman of the Municipal Council shall be elected by and from among the councillors of the wards of the Municipality. Though it says, "elected by' while prescribing the rules for voting, it says specifically that the member is also entitled to cast his vote, which is explained in the explanation including the Chairman of the Municipality also. Section 14 of the Act says, the Chairman shall by virtue of his office be a member of council and of every committee of the council. If we read the section in harmonious to the rules quoted above viz., Rules 75 and 83, the only possible inference that could be drawn by us is, that the Chairman of the Municipality is also entitled to vote, for the purpose of electing the Vice Chairman of the Municipality.
23. The learned single Judge, though has not considered the Rules, interpreting Section 14 of the Act, as well as considering the effect of Sections 6 & 7, has rightly come to the conclusion, that the Chairman shall by virtue of the office, being a member of council, is entitled to vote, which cannot be found fault. For the foregoing reasons, on the basis of the Rules quoted above, we are of the opinion, that the Chairman is entitled to cast his vote and in this way, in the case on hand, when his party candidate had secured less vote, he cast his franchise in his favour, thereby equalising the votes secured by the petitioner and the third respondent, in which we are unable to find any irregularity or illegality, warranting to say that the Chairman acted against the spirit of any Rules or acted detriment to the interest of the public. Therefore, on the ground that the Chairman had cast his vote, then conducted reelection, it is not possible to set aside the election of the third respondent indirectly, declaring the appellant as the duly elected Vice Chairman of the Municipality.
24. The learned senior counsel appearing for the third respondent submitted, that even assuming that the Chairman had no right to cast vote, for the election of the Vice Chairman, the re-election or second ballot conducted by him cannot be challenged, since there is no illegality, whereas the reelection was conducted in accordance with Rule 88 of Councils (Elections) Rules 1996.
25. Rule 88 of Councils (Elections) Rules contemplates how the declaration of result of election should be made. Rule 88(1)(a) gives guideline how the result should be declared, when the number of candidates contested for the post are two. In the case on hand, three candidates have contested admittedly, at the first instance, and therefore, 88 (1)(a) is not applicable. Rule 88(1)(b) reads:
"If the number of candidates is three and if any one of them secures more than one half of the total number of votes polled, he shall be declared to have been duly elected. If none of them secures more than one half of the number of votes polled, the candidate who obtains the lesser number of votes shall be eliminated and a second ballot taken. In the event of there being an equality of votes among the three candidates, the Returning Officer shall draw lots in the presence of the members present and the candidates whose names are first and second drawn shall be retained and a second ballot taken."
26. From the reading of the above rule, it is crystal clear, that in case of three candidates contested for the post of Vice Chairman, a person who had secured more than one half of the total number of the votes polled alone, is entitled to be declared as elected. Admittedly, 51 votes were polled in this case and the petitioner had secured, at the first instances, only 24 votes, which is not more than one half of the total number of votes polled. If he had secured 26 votes, which should be more than one half of the total number of votes polled, he would have been entitled to be elected and declared as the Vice Chairman. Since in this case, admittedly, the petitioner had secured less than one half of the total number of votes polled, as per Rule 88(1)(b), there is no possibility at all legally to declare the petitioner as the duly elected Vice Chairman to the Municipality. If we do so, only considering the fact that he had secured more votes than the third respondent viz., 24 votes, then we would be offending the Rules, causing aberration, which is not permissible. Since none of the candidates had secured more than one half of the number of votes polled, as per the rule, the third candidate, who obtained lesser number of votes has to be eliminated and the second ballot has to be taken. In this way, the Congress candidate, who secured four votes had been eliminated and the second ballot was conducted as per Rule 88(1)(b) of Councils (Elections) Rules, in which admittedly, the third respondent had secured 26 votes, whereas the petitioner had secured only 25 votes. The number of votes secured by the third respondent is not only more than one half of the total number of the votes polled, but also more votes than the votes secured by the petitioner. Therefore, the Chairman of the Municipality had declared the third respondent as the duly elected Vice Chairman of the Municipality, in which we are unable to find any legal infirmity, warranting our interference to set right the same, in order to meet the ends of justice, invoking the extraordinary power given to us under Article 226 of the Constitution of India.
27. The learned counsel, Mr. V. Raghavachari would contend, that the procedure and reasons adopted by the Chairman for second ballot, are not in accordance with law and therefore, on the basis of the votes secured in the second ballot, declaring the third respondent as duly elected Vice Chairman is not legally sound. In view of our findings supra, that the Chairman has got right to vote, his favouring the third respondent equalising the votes secured by the petitioner and the third respondent cannot be described as an illegal act or showing favourtisim or exposing his mind. Despite the fact that he presided over the election, his right to vote is not curtailed under any provisions of the law, whereas as mentioned by us hereinbefore, his right to vote is recognised, which is also clarified by the Election Commission, as seen from the clarification submitted by the learned counsel for the third respondent, wherein it is said that the elected chairman and the councilors are all entitled to vote, to elect the Vice Chairman, which is in accordance with the Rules also. As submitted by the learned senior counsel for the third respondent, on the basis of the votes secured by the petitioner, declaring him as the Vice Chairman is not possible, which is prohibited under Rule 88(1)(b). In this view also, we are unable to find any fault in the second ballot taken, for the election of the Vice Chairman, in which the third respondent alone had secured more than one half of the total number of the votes polled.
28. The learned Single Judge, though has not dealt with all these points, his conclusion that no writ of Mandamus could be issued, directing the first respondent to declare the writ petitioner/appellant as duly elected Vice Chairman of the Nagercoil Municipality, is well acceptable to us, not warranting any interference, for the reasons assigned by us supra. Having regard to the facts and circumstances of the case, we are of the considered opinion that the appeal is devoid of merits and the same is liable to be dismissed.
In the result, the appeal is dismissed, directing the parties to bear their respective costs.