IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01/08/2003
Coram
The Honourable Mr. Justice V.S. SIRPURKAR
W.P. No.21660 OF 2001
1. Smt. K. Adilakshmi
2. A. Annamalai
3. M. Manjan
4. Smt. V. Jagathambal
5. Kolanji ..... Petitioners
-Vs-
1. State of Tamil Nadu
rep. by Collector
Villupuram District
Villupuram
2. The Block Development Officer
Kallakurichi Panchayat Union
Kallakurichi
3. The Assistant Returning Officer
Kallakurichi Panchayat Union
Kallakurichi
4. A. Arunachalam
5. T. Amutha
6. Natesan ..... Respondents
Petition under Art.226 of the Constitution of India, praying for Writ of
Mandamus as stated in the petition
For Petitioners :: Mr. S. Udayakumar
For Respondents :: Mr. S.Kandasamy, Spl.G.P.
For respondents 1 and 3 :: Mr. V. Dhakasekar for R2
Mr. P. Tamizhvel
for respondents 4 to 6
:ORDER
This is a pathetic story where the democratic process of
election was not only polluted and contaminated but some serious misconducts
have been performed and yet this Court is not in a position to do anything in
the matter. Before proceeding further, it must be mentioned that the main
subject of this writ petition has become infructuous. The following facts
will help us understand the situation.
2. There were going to be elections of Village Panchayat at
Ranganathapuram village in Villupuram District. The second respondent herein,
viz. the Block Development Officer, Kallakurichi Panchayat Union, was the
Returning Officer. The elections were to be held on 16-10-2 001 and they were
accordingly held. We are concerned with the election process in respect of
Ward No.3, which was a multi-member ward in the sense that from that ward,
three members, viz. one lady scheduled caste candidate and two other
scheduled caste candidates, were to be elected. Counting for this election
was done on 21-10-2001 and to begin with, petitioners 1, 2 and 3 herein were
declared to be the successful candidates and they were given the certificate
of election under the signature of the second respondent, who was being
assisted by the third respondent Assistant Returning Officer, Kallakurichi
Panchayat Union. Naturally, the petitioners, who were given the certificate
of election in their favour duly signed in Form 25, expected to be sworn in as
the Members of the Panchayat Union, but to their utter dismay, they found that
three other persons, viz. M/s. Amudha, Arunachalam and Natesan were invited
to take oath in the first meeting of the council. The said three persons were
stated to have taken oath in the first meeting of the council held on
25-10-2001 and were then inducted as the duly sworn members of the village
panchayat. The petitioners straight away rushed before this Court by this
writ petition, which seems to have been filed on 5-11-2001, i.e. about ten
days after the concerned three persons having taken the oath. The petitioners
have been studiously careful enough not to join the said three persons as
parties to the writ petition. The petitioners came with a very innocuous
prayer, which is couched in the following terms:
“…pleased to issue a Writ of Mandamus or any other appropriate writ or order
or direction, directing the respondents herein to permit the petitioners
herein to take oath as ward members in the second respondent meeting of the
Renganathapuram Village Panchayat, Kallakurichi Panchayat Union, Villupuram
District and pass such further or other orders as this Hon’ble Court may deem
fit and proper and thus render justice.”
When the whole writ petition is perused, it is seen that the petitioners,
after setting out the basic facts regarding the holding of the election,
counting of the votes pooled, declaration of results, etc. stated in
paragraph 4 that when the petitioners approached the second respondent
Returning Officer for taking oath as contemplated under Sec.40 of the Tamil
Nadu Panchayats Act, 1994 (in short ‘the Act’), they came to know that there
was a first council meeting to be held on 2 5-10-2001 and when the petitioners
went to the council for attending that meeting, the second respondent had
insisted upon them to hand over the original certificate of declaration
already given by him. The petitioners then insisted that those certificates
were being sought for in a mala fide manner by the second respondent and that
the petitioners were erroneously not allowed to take oath on 25-10-2001.
Petitioners do mention that they were not able to take oath on 25-10-2001 .
In paragraph 6, it is mentioned that the other four elected members took oath
on that day and that the Vice President of the Council was elected on
31-10-2001. It is then tried to be shown that the only dispute was that the
petitioners were not allowed to take oath though they were the successful
candidates in the election. It is further stated in the affidavit that a
lawyer’s notice was served on the Collector, first respondent herein, on
29-10-2001, who promised to look into the matter, but did nothing. It is
further pointed out that no notice for the meeting was served on any of the
petitioners and then it is stated in paragraph 7 that the respondents were
illegally trying to prevent the petitioners from taking oath. From the whole
structure of the petition, it is apparent that the petition was restricted
only to the subject of taking oath as the members of the Village Panchayat.
The reference to other persons who took oath on that day is studiously omitted
in the affidavit and it is probably in that view that the prayer is
restricted, which will be apparent from the very language thereof.
3. When the matter came up before this Court, this Court only
issued rule on 9-11-2001. Along with the writ petition, a miscellaneous
petition (WMP No.32024 of 2001) was also filed in which a direction was sought
in the identical terms of the main prayer clause in the writ petition. The
learned Judge, however, only issued a notice. Private notice was also allowed
and all these orders came to be passed on the same day, i.e. on 9-11-2001.
When the miscellaneous petition came up for further hearing on the question of
interim relief on 8-1-200 3, the learned counsel for the petitioner made a
statement that the direction petition had been rendered infructuous and,
therefore, that petition was disposed of. However, the hearing of the writ
petition itself was expedited and that is how the matter has come before me
now.
4. In the meantime, respondents 2 and 1 have come up with the
reply affidavits. The gravamen of these affidavits seems to be that after
counting of the votes on 21.10.2001 though the certificate of election in Form
No.25 was handed over to the petitioners that was actually wrong and because
of the fraud played on the part of the petitioners themselves. It is then
accepted that three other persons, viz. M/ s.Amudha, Arunachalam and
Natarajan represented that in fact they were the elected candidates as they
had secured more number of votes and, therefore, the records were again
verified on that very day and it was actually found that the elected
candidates were only M/s.Amudha, Arunachalam and Natesan and not the
petitioners and, therefore, the certificates of election issued in favour of
the petitioners were cancelled and fresh certificates of election were granted
in favour of the above said three persons and on that basis those three
persons were administered oath and that even the meetings of the council
thereafter were over and now almost fifteen meetings have been over after the
first meeting and that there would be no question of entertainment of the writ
petition. It is also suggested that the writ petition has become infructuous
because the initial prayer made in the writ petition did not survive because
of the elapse of time.
5. Mr. Udayakumar, learned counsel for the petitioners,
however, pointed out that he has made an amendment application during the
pendency of the writ petition wherein, he has sought the quashing of the
certificates of election issued in favour of the three abovenamed candidates.
Learned counsel also submits that he has filed the documents to suggest that
fresh certificates of declaration were made in favour of those three persons
after cancellation of the certificates of declaration made in favour of the
petitioners.
6. There is also another impleadment application on behalf of
the three elected candidates who were allowed to take oath on 25-10-2001.
That application was ordered on 25-4-2003. They have also filed a counter in
which they denied that ners were the elected candidates. They pointed out
that the number of votes secured by them was more than the number of votes
secured by the petitioners. They further pointed out that in the chaos and
melee which took place during the counting process, the petitioners managed to
interpolate the result-sheet and create some false documents on the basis of
which an entirely incorrect Form No.25 came to be passed in favour of the
petitioners and when ultimately they pointed out all these to the Returning
Officer, the Returning Officer rectified the mistake and issued fresh
certificates of declaration to them by certifying their victory and they were
rightly allowed to take oath.
7. On this factual background, it falls for me to consider as
to whether the writ petition should be entertained at all and what is the
course of action to be taken further.
8. The following are the admitted facts:
1.That there were certificates of declaration issued in favour of the three
newly added respondents certifying their election from Ward No.3;
2.that those three respondents were allowed to take oath on 25-10-200 1;
3.that these petitioners did not file any election petition challenging the
so-called election of the three newly added respondents;
4.that in the writ petition, the petitioners did not join the three newly
added respondents as parties to begin with;
5.that on the day when the writ petition came to be filed, the three
respondents had already taken oath but their election was not challenged even
in the writ petition;
6.that the writ petition was completely silent about the three respondents
having taken oath on 25-10-2001
(though the petitioners also claimed in the writ petition to have approached
the authorities on the very day of the first meeting of the council); and
7.that it is now by the amendment petition that the certificates of
declaration made in favour of the three newly added respondents was sought to
be quashed.
9. I have deliberately given the above facts in order to show
that this writ petition, as it stands today, has become infructuous. It will
have to be firstly appreciated that in the writ petition, as was filed, there
is no mention of any candidate having taken oath as the Ward Member elected
from Ward No.3 on 25-10-2001. When we carefully see the writ petition, there
is a specific assertion that the petitioners had gone to that meeting and it
is at the meeting itself that the second respondent insisted upon them to
return the certificates of election which the Returning Officer had signed in
their favour. Therefore, it cannot be countenanced that they did not even
know of the three other candidates having taken oath in that meeting itself.
There is also a reference in the writ petition to the election of the Vice
President of the Council of having taken place on 31-10-2001. It, therefore,
goes without saying that the petitioners must have known about the three
candidates who actually took oath and who were actually treated to be the
elected candidates from Ward No.3. If this was so, then, firstly, it was the
duty of the petitioners to join them as parties to the present writ petition
but, the petitioners remained quiet about it and secondly, petitioners could
have straight away proceeded to file an election petition against the three
newly added respondents, challenging their election. The petitioners have
chosen to do neither. The petitioners have instead chosen to file this writ
petition with a limited prayer showing as if that though they were the elected
candidates, they were not being allowed to take oath and that the controversy
was limited only to that extent. In fact, on the day when the writ petition
was filed, the petitioners were bound to know that the second respondent has
treated some three other persons to be the elected candidates from Ward No.3
and has also issued the certificates of declaration in their favour.
Petitioners could have always asked for the certified copies of the
certificates of declaration issued in favour of the three newly elected
candidates because that is the right of the petitioners. Even that was not
done at the time when the writ petition was filed and ultimately argued on
9-11-2001. Therefore, on the date when the petition was argued for the motion
hearing itself the petition had become infructuous because there was no
question of any oath having taken by the petitioners in the first meeting of
the council or whatever meeting because they were bound to know that the oath
was taken by some other three persons on 25-10-2001 which meeting was actually
attended by the petitioners. Be that as it may, this, however, was followed
by an amendment application in which the prayer is made to quash the
certificates of declaration issued in favour of those three newly added
respondents. Unfortunately, that cannot be done in a writ petition. That had
to be done only by filing a proper election petition. Therefore, it is
obvious that this writ petition has become infructuous.
10. Before parting with, it must be expressed that it is
really a pathetic manner in which the whole election seems to have been
conducted. Two utterly senseless affidavits came to be filed on behalf of the
first respondent Collector and second respondent Block Development Officer.
The second respondent without explaining anything accepts that he had signed
the certificates of declaration in Form No.25 in favour of the petitioners.
It is not understood as to how a Returning Officer, who was of a Gazetted
Officer of Class II stature straight away signed not one but three
certificates of declaration in favour of the candidates who were not actually
elected at all. It is not known as to what kind of control was exercised by
the second respondent officer on the third respondent who was actually in
charge of the counting of the votes as per the contentions raised by the
learned Government Pleader. It is really pathetic that the two officers
should have been setting up a theory of fraud having been played on the
counting authorities and the interpolations having been made by the
petitioners. It is not understood how those interpolations could at all be
made unless the counting authority itself was for whatever reason a privy to
that. It is really strange that no action should have been taken against the
second respondent Returning Officer. It is reported that some departmental
action has been initiated against the third respondent but even that has not
been completed as yet. One only hopes that at least at this juncture, after
reading this judgment, the Government wake up and initiate proper action
against the erring officials. I do not want to say anything more than this in
this writ petition because all this will have to be examined thoroughly by the
Government as also the Election Commission of the State. It is only hoped by
this Court that the elections are not conducted in the manner they were
conducted by the respondents.
11. With this, the writ petition is disposed of as
infructuous.
Index:Yes
Website:Yes
Jai
1. The Collector
Villupuram District
Villupuram
2. The Block Development Officer
Kallakurichi Panchayat Union
Kallakurichi
3. The Assistant Returning Officer
Kallakurichi Panchayat Union
Kallakurichi