Madras High Court
P.Soodamani vs The Tamil Nadu State on 16 September, 2014
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.09.2014
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
W.P.(MD) No.15151 of 2014
and
W.P.(MD) No.15290 & 14999 of 2014
and
M.P.(MD) No.1 of 2014 in all W.Ps.
and
M.P.(MD) Nos.2 & 3 of 2014
in
W.P.(MD) No.15290 of 2014
P.Soodamani ... Petitioner in W.P.(MD) No.15151 of 2014
M.Rajasekaran ... Petitioner in W.P.(MD) No.15290 of 2014
S.K.Hariharasudhan ... Petitioner in W.P.(MD) No.14999 of 2014
-vs-
1.The Tamil Nadu State
Election Commission
rep.by it's Chief Election
Commissioner
Jawaharlal Nehru Salai
(100 Feet Road
Arumbakkam, Chennai-106 .... 1st Respondent in all W.Ps.
2.The Assistant Election Returning Officer
Muthukulathur Union
Ramanathapuram
3.The District Collector
Ramanathapuram District
Ramanathapuram
4.Paneer ... 2 to 4 Respondents in W.P.(MD)
No.15151 of 2014
5.The District Election Officer /
District Collector
Dindigul District, Dindigul
6.The Returning Officer /
The Commissioner
Dindigul Municipal Corporation
Dindigul
7.Pandi ... 2 to 4 Respondents in W.P.(MD)
No.15290 of 2014
8.The Assistant Election Returning Officer
Madurai Corporation, Madurai
9.The Madurai City Municipal Corporation
rep.by it's Commissioner
Aringar Anna Maligai, Madurai
10.K.Latha ... 2 to 4 Respondents in W.P.(MD)
No.14999 of 2014
PRAYER (in W.P.(MD) No.15151 of 2014)
Writ Petition is filed under Article
226 of the Constitution of India to issue a writ of declaration declaring
that the declaration of the fourth respondent as having been elected
unopposed as Union Councilor for the seventh ward of the Muthukulathur Union,
Ramanathapuram District, on 08.09.2014, is null and void and consequently
direct the first respondent to hold election for the said ward in accordance
with law.
PRAYER (in W.P.(MD) No.15290 of 2014)
Writ Petition is filed under Article
226 of the Constitution of India to issue a writ of certiorarified mandamus
calling for the records relating to the impugned Form No.6, issued by the
third respondent under Rule 27 (9) Tamil Nadu Town Panchayats, Third Grade
Municipalities, Municipalities and Corporation (Elections) Rules, 2006 and
quash the same and consequently direct the third respondent to accept the
petitioner's nomination papers as valid and conduct the election of the
Member in 9th Ward, Dindigul Municipal Corporation in accordance with the
above Election 2006.
PRAYER (in W.P.(MD) No.14999 of 2014)
Writ Petition is filed under Article
226 of the Constitution of India to issue a writ of declaration declaring
that the declaration of the fourth respondent as having been elected
unopposed as Union Councilor for the 85th Ward of the Madurai City Municipal
Corporation, on 08.09.2014, is null and void and consequently direct the
first respondent to hold election for the said ward in accordance with law.
!For Petitioners : Mr.G.R.Swaminathan
for Mr.V.Malayendran
(W.P.(MD) No.15151 of 2014)
for Mr.T.Antony Arul Raj
(W.P.(MD) No.14999 of 2014)
Mr.M.Sridharan
(W.P.(MD) No.15290 of 2014)
For Respondents : Mr.K.Chellapandian, A.A.G.
for Mr.M.Raja Rajan, G.A.,
for RR1 to 3 in W.P.(MD) No.15151 of 2014
for R1 in W.P.(MD) No.14999 of 2014
Mr.R.Murali
for RR2 & 3 in W.P.(MD) No.14999
of 2014
Mr.S.Satheesh Kumar, A.G.P.,
for RR1 & 2 in W.P.(MD) No.15290 of 2014
Mr.J.Lawrance
for R3 in W.P.(MD) No.15290 of
2014
:COMMON ORDER
Reserved : 15.09.2014 Pronounced on : 16.09.2014
Since the legal issue involved in all these writ petitions are identical, at the request made by the learned counsels appearing on either side, all these writ petitions were clubbed, heard together and disposed of by this common order. With the consent of both parties, all these writ petitions are taken up for final disposal.
2. All the three petitioners filed nominations for election to the post of Councilor of the Wards in the respondent local bodies. The petitioner in W.P.(MD) No.15151 of 2014 filed nomination for being elected to the post of the Seventh Ward Member of Muthukulathur Union, Ramanathapuram District. The petitioner in W.P.(MD) No.15290 of 2014 filed nomination for the post of the Ninth Ward Member of Dindigul Municipal Corporation. The petitioner in W.P.(MD) No.14999 of 2013 filed nomination for the post of 85th Ward Member of Madurai City Municipal Corporation.
3. The facts are not in dispute and therefore it would not be necessary to go into the schedule of the election, date of nominations, date of scrutiny etc. In all the three petitions, the nominations filed by the petitioners were withdrawn and consequently, the private respondents were declared as elected for the said post.
4. Mr.G.R.Swaminathan, learned counsel for the petitioners submitted that the impugned action of the respondents is wholly arbitrary and the democratic process has been subverted. It is submitted that Article 243-O of the Constitution of India will not operate as a bar for entertaining a writ petition at all times and the Honourable Supreme Court in the case of Harnek Singh v. Charanjit Singh, reported in (2005) 8 SCC 383, held that the said provision is not per se bar for judicial review, which is the basic structure of the constitution and there may be some cases, where a writ petition could be entertained. In support of such contention, reliance was also placed on the decision of the Honourable Supreme Court in the case of K.Venkatachalam v. A.Swamickan, reported in (1999) 4 SCC 526. Further, it is submitted that when the action of the authorities subverted the constitutional purpose, it should be treated as fraud on constitution. In support of such contention, reliance has been placed on the decision of the Honourable Supreme Court in the case of Lillykutty v. Scrutiny Committee, SC & ST, reported in (2005) 8 SCC 283.
5. The learned counsel, by referring to Rule 30(2)(a) of the Tamil Nadu Panchayats (Election) Rules, 1995, (hereinafter, referred to as 'the Rules') submitted that any candidate may withdraw his candidature by a notice in Form 7 and subscribed by him and delivered to the Returning Officer before the time fixed for the purpose. Further, the notice may be delivered either by such candidate in person or by his proposer, who has been authorized in this behalf in writing, by such candidate. It is submitted that there is no such authorization and the withdrawal was unilaterally done and it is contrary to the said Rule. Further, it is submitted that in terms of Rule 30(2)(d) of the Rules, the Returning Officer shall, on being satisfied as to the genuineness of the notice of withdrawal and the identity of the person delivering it, cause a notice showing the list of candidates, who have withdrawn their candidature in Form 8 to be affixed in the notice board.
6. The learned counsel further submitted that an election petition could be filed under Section 258 of the Tamil Nadu Panchayats Act, 1994 (hereinafter, referred to as 'the Act') and an election could be set aside on the grounds referred to in Section 259 of the Act and in the instant case, none of the grounds in Section 259 of the Act are attracted and therefore the petitioners need not be driven to file an election petition. Further, it is submitted that the petitioners' case will not fall under Section 259(1)(d), since it is not a rejection of nomination, but alleged withdrawal. Therefore, the petitioners are entitled to invoke jurisdiction under Article 226 of the Constitution of India.
7. Mr.K.Chellapandian, learned Additional Advocate General, assisted by Mr.M.Raja Rajan, learned Government Advocate, for the respondents, by referring to the notification issued in respect of Ramanathapuram District, submitted that the same provides for a procedure to withdraw the nomination in terms of Clause 12 of the Notification, which provides that Form 7 could be submitted either by the candidate or by the proposer with the signature of the candidate and records and photographs are available to establish that the proposer of the candidate duly authorized has submitted a withdrawal of the nomination of the petitioner in W.P.(MD) No.15151 of 2014. Therefore, it is submitted that there is absolutely no error in the decision making process and if at all the petitioners are aggrieved they have to file an election petition.
8. It is further submitted that the proposer is present in the Court and the learned Additional Advocate General produced photographs said to have been taken showing the proposer filing the withdrawal of the nomination before the Returning Officer. Thus, by referring to Section 258 of the Act, it is submitted that these writ petitions are not maintainable. Further, it is submitted that the case of the petitioners itself relate to improper rejection of nominations, which would fall within the Section 259(1)(c).
9. At this juncture, the learned counsel for the petitioners vehmentally opposed the contention stating that the petitioners' case is that none of the grounds in Section 259 of the Act are attracted.
10. In reply, the learned Additional Advocate General submitted that in effect the petitioners seek to challenge the rejection of their nominations, which fall under one of the grounds contemplated under Section 259(1) of the Act. The learned Additional Advocate General, in support of his contention, stating that the writ petitions are not maintainable, relied upon the decisions of the Honourable Supreme Court in the cases of N.P.Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and others, reported in AIR 1952 SC 64(1); Boddula Krishnaiah and another v. State Election Commissioner, reported in (1996) 3 SCC 416, decision of the Honourable Division Bench of this Court in the case of Vaikundaraj, M. v. State of Tamil Nadu, reported in 1997 (I) CTC 296; and the decision of the learned Single Judge of this Court in the case of C.S.Bhuvaneswari v. The State Election Commissioner, reported in 2012 (1) CTC 67. Further, it is submitted that along with Form 7, authorization letters are available and the private respondents in the writ petitions have been declared as elected and therefore the petitioners have to file an election petition.
11. In reply, the learned counsel for the petitioners submitted that even if such an authorization has been given and Form 7 is filed, the Returning Officer has to examine the genuineness of the notice of withdrawal, which has not been done in the case and it is a case of fraudulent withdrawal and will not come under the category of improper rejection of nomination under Clause
(c) of Section 259(1) of the Act and these cases where they are post- declaration challenged and in the instant case since there was no election, the petitioners should not be prevented to approach the Court.
12. Mr.M.Sridharan, learned counsel for the petitioner in W.P.(MD) No.15290 of 2014 adopted the submissions of Mr.G.R.Swaminathan, learned counsel for the petitioners in W.P.(MD) Nos.15151 & 14999 of 2014. Heard the learned counsel for the parties and perused the materials placed on record.
13. Before we venture into the factual matrix, it would be first necessary to consider the scope and jurisdiction of this Court to examine the correctness of the decision of the Returning Officer in holding that the petitioners' nominations have been withdrawn. It is not in dispute that the results of the election has been consequently declared and the private respondents in all these writ petitions have been declared as successful candidates. The legal issue, which could be culled out from the decisions commencing from the case of N.P.Ponnuswami (cited supra), is that the Honourable Supreme Court, while considering the very question pointed out that the law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, (i) while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution and (ii) after they have been completed by means of an election petition. It was further pointed out that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court.
14. Following the above decision, the Honourable Supreme Court in the case of Boddula Krishnaiah (cited supra), which arose out of a controversy in respect of the election of a Gram Panchayat, wherein a writ petition was filed before the High Court, after the draft roll was prepared by the competent authority including the names of 94 persons, but subsequently their names were deleted and a direction was issued by the High Court to allow the 94 persons to participate in the election but on the date of the poll they could not exercise their franchise. Subsequently, they sought for further direction and the High Court directed not to declare the results of the election to the Gram Panchayat. The aggrieved parties moved for vacating the interim direction issued by the High Court and after hearing the parties, the High Court directed the revenue officials to scrutinize the claim of the respondents as to whether they are residing in the village and for which a report was submitted stating that only 20 persons eligible to be included in the voters' list as they were found living in the village during such enquiry. On those facts, the High Court passed an Order directing 20 persons, who were eligible to vote should be allowed to participate in the election. The said order passed by the High Court was challenged by the Honourable Supreme Court. The Honourable Supreme Court, after taking into consideration the decision in the case of N.P.Ponnuswami (cited supra) and the decisions in the cases of Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman, reported in (1985) 4 SCC 689 and State of U.P. v. Pradhan Sangh Kshettra Samiti, reported in 1995 Supp (2) SCC 305, held that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election processing giving direction to the election officer to stall the proceedings or to conduct the election process afresh and the only remedy is to raise an election dispute.
15. The Honourable Division Bench of this Court in the case of Vaikundaraj, M (cited supra), while considering the writ petition filed to quash the proceedings of an Election Officer, with regard to the allotment of seats for women in Puliyangudi Municipality, held that in the light of the bar contained under Article 243-ZG of the Constitution, the only remedy for the petitioner therein was to file an election petition.
16. The above legal proposition cannot be disputed by the petitioners. It is the endeavor of the learned counsel for the petitioners to convince this Court that the mandate in Article 243-O of the Constitution may not per se bar judicial review, which is the basic structure of the Constitution and there may be some cases where a writ petition would be entertained. In Harnek Singh (cited supra), the Honourable Supreme Court though made such an observation, did not go into the said question as the case did not require the question to be considered. This is evident from the observation made in Paragraph No.16 of the said decision, which reads as follows:
?16. Article 243-O of the Constitution mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases, where a writ petition would be entertained but in this case we are not concerned with the said question.?
17. As noticed above, the Honourable Supreme Court has observed that ordinarily the said jurisdiction should not be exercised. Therefore, the petitioner has to carve out an exception that the present case is an extraordinary case or rarest of rare cases for this Court should exercise jurisdiction under Article 226 of the Constitution.
18. In fact, an identical contention was raised before this Court in W.P.(MD) No.14868 of 2014, wherein it was contended that this Court, invoking the power under Article 226 of the Constitution of India, is entitled to adjudicate into the facts and it is not in all cases the petitioner should be directed to file an election petition and in support of such contention, reliance was placed on the decision in the case of All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner, reported in 2007 (1) CTC
705. This Court, by Order dated 15.09.2014, considered the very question and observed that:
?In support of such contention, much reliance was placed reliance on the decision in the case of All India Anna Dravida Munnetra Kazhagam (cited supra). In fact, this very contention was examined by this Court in the case of C.S.Bhuvaneswari (cited supra) and it was pointed out that rejection or non-acceptance of nomination on the grounds stated would not make out a case to fall under the category of ?rarest of rare cases? warranting interference under Article 226 of the Constitution of India. It was further pointed out that the question as to whether the rejection of the nomination papers was on substantial grounds or not is a question of fact and non-compliance of the statutory Rules in individual cases cannot give raise to a presumption that a monstrous situation had arisen and declared to interfere in the election process. I am in respectful agreement with a view taken by V.Ramasubramanian, J., in the case of C.S.Bhuvaneswari (cited supra).?
19. The observations contained in the case of C.S.Bhuvaneswari (cited supra) are equally applicable to the case on hand and it cannot be brought under the exceptions so as to say it is the rarest of rare cases. The situation in the case of All India Anna Dravida Munnetra Kazhagam (cited supra) was entirely different and in the context of those facts such direction was issued. Therefore, this Court is not convinced to hold that this is one of rarest of rare cases, where the Court should exercise jurisdiction under Article 226 of the Constitution ignoring the constitutional mandate under Article 243-O of the Constitution.
20. It is contended by the learned counsel for the petitioners that the petitioner did not raise an election dispute under Section 258 of the Act, since none of the grounds in Section 259 (1) of the Act are attracted. This contention does not merit acceptance, because Clause (c) of Section 259(1) of the Act states that one of the grounds for challenge is of any improper rejection of any nomination filed. The rejection of nomination paper could be for various reasons. It could be for the reason that certain columns in the nomination form or in the affidavit have remained unfilled, false statement have been made, relevant particulars have not been fully disclosed and such other matters. Ultimately, the Returning Officer, while scrutinizing the nomination form, will ensure that the nomination is full and complete in all respects and thereafter proceed to accept the same. However, it is open to the Returning Officer to reject the nomination form on the grounds mentioned. Therefore, whatever may be the reason for not accepting the nomination form, the terminology used is 'rejection'. Therefore, the rejection can be on account of material defect, furnishing of wring particulars, false statement, fraud etc. In the instant case, the nominations filed by the petitioners have been rejected as having been withdrawn. The petitioners challenged the action of the Returning Officer in withdrawal of the nominations alleging fraud. The resultant consequence was the petitioners' nomination stood rejected on account of withdrawal. Therefore, the petitioner's case would fall within Clause (c) of Section 259(1) of the Act. Even otherwise, Clause (iv) of Section 259(1)(d) of the Act states that the result of the election insofar as it concerns a returned candidate has been materially affected by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the court shall declare the election of the returned candidate to be void. Thus, if the petitioners allege non-compliance of the provisions of the Act or the Rules or orders made thereunder that would also be a ground to maintain an election petition under Section 258 of the Act. Therefore, the petitioners have to file an election petition challenging their rejection of nominations consequent upon withdrawal.
21. The other aspect that the Returning Officer has not considered the genuineness of the withdrawal etc., are all questions of facts. No specific allegation of malafides have been made against the Returning Officer except for certain vague averments, which cannot be adjudicated in these writ petitions.
22. The learned Additional Advocate General would submit that Form 7 submitted by the petitioners has been accompanied by due authorization and records to that effect are available on the file of the Returning Officer. However, this aspect could very well be adjudicated in an election dispute under Section 258 of the Act as it would also fall under one of the grounds under Section 259(1) of the Act.
23. The learned counsel for the petitioners relied upon the decision in the case of K.Venkatachalam (cited supra) and submitted that the power under Article 226 of the Constitution can be exercised. On a careful and complete reading of the said decision, it is seen that the Honourable Supreme Court took note of the long line of the decision from the case of N.P.Ponnuswami (cited supra) and observed that there cannot be any dispute that there could be a challenge to the election of the appellant by filing an election petition on the ground of improper acceptance of his nomination inasmuch as the appellant was not an elector on the electoral roll of Lalgudi Assembly Constituency. The Honourable Supreme Court exercised jurisdiction and made observation that the power under Article 226 can be exercised in the light of the fact that the appellant therein filed his nomination by impersonating himself and he would not be elected as a Member of the Lalgudi Constituency as he was not an elector from the constituency and he lacked the basic qualification under Article 173 (c) of the Constitution read with Section 5 of the Representation of the People Act, 1951 and when he sits and votes the Members of the Legislative Assembly. With these disqualifications, he is liable to penalty of five hundred rupees in respect of each day and such other matters. In the light of those facts, the Honourable Supreme Court made such an observation. The case on hand is clearly distinguishable on facts with that of the facts involved in the case of K.Venkatachalam (cited supra). In the light of the above, the petitioners have not made out any interference.
24. In the result, all these writ petitions fail and the same are dismissed. It is left open to the petitioners to agitate all the factual issues before the appropriate forum and any observation contained in this order will not be held against the petitioners in the event of they raising an election dispute. Consequently, connected miscellaneous petitions are closed. No costs.
16.09.2014
Internet : Yes / No
Index : Yes / No
krk
To:
1.The Chief Election Commissioner,
Tamil Nadu State Election Commission,
Jawaharlal Nehru Salai (100 Feet Road),
Arumbakkam, Chennai-106.
2.The Assistant Election Returning Officer,
Muthukulathur Union,
Ramanathapuram,
3.The District Collector,
Ramanathapuram District,
Ramanathapuram,
4.The District Election Officer /
District Collector,
Dindigul District, Dindigul.
5.The Returning Officer /
The Commissioner,
Dindigul Municipal Corporation,
Dindigul.
6.The Assistant Election Returning Officer,
Madurai Corporation, Madurai.
9.The Commissioner,
Madurai City Municipal Corporation,
Aringar Anna Maligai, Madurai.
T.S.SIVAGNANAM, J
krk
PRE-DELIVERY ORDER
IN
W.P.(MD) Nos.15151, 15290 & 14999 of 2014
16.09.2014