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(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.

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.