IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.2.2011. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(PD)No.3010 of 2010 and M.P.Nos.1 and 2 of 2010 D.Raja Petitioner vs. 1. P.Chandran 2. A.Madeswari 3. S.Natarajan 4. The Returning Officer cum Block Development Officer, Panchayat Union, Kolli Hills, Namakkal Taluk & District. 5. District Election Officer, (District Collector), Namakkal. 6. State Election Commissioner, Office at No.6, Revathi Street, Jawaharlal Nehru Road, Vadapalani, Chennai. Respondent Civil Revision Petition against the order dated 8.6.2010 passed in E.O.P.No.48 of 2006 on the file of the Additional District Judge (Fast Track Court), Namakkal. For petitioner : Mr.D.Shivakumaran For R1 : Mr.M.Aniruthan For R4 : Ms.S.Anitha For R5 : Mr.O.Paranthaman ORDER
The first respondent in Election O.P.No.48 of 2006 is the revision petitioner.
2. The first respondent herein filed Election Petition under sections 258 and 259 of the Tamil Nadu Panchayats Act read with Rule 61 and 66 of Tamil Nadu Panchayat (Elections) Rules, 1995 challenging the declaration that the petitioner is the elected candidate in respect of Fifth Ward Councillor of Kolli Hills Panchayat Union and for re-counting the ballot papers.
3. The case of the first respondent was that he contested the election for Panchayat Union for ward No.5 of Kolli Hills Panchayat Union and the petitioner herein and respondents 2 and 3 also contested for the same ward. There were seven booths for the election held in 5th Ward and there were discrepancies in the number of votes in Form No.20 and 23 and in respect of booth No.39 (Men), the votes were not counted and despite the oral and written objection made by the first respondent to count the votes polled in booth No.39 (Male), the Election Officer, at the instance of the MLA, rejected the counting and declared that the petitioner herein as the successful candidate. It was further stated that the postal ballots were not opened in the presence of all candidates and no accounts were maintained about the number of postal ballots received and therefore, the election of the petitioner herein is to be declared as null and void and recounting has to be ordered.
4. The fourth respondent herein filed counter denying the allegations made in the petition in general and stated that the election was conducted in a fair manner, in accordance with the provisions of the Tamil Nadu Panchayat Election Rules and in the election, there were no malpractices as alleged by the petitioner.
5. The petitioner herein remained ex parte.
6. The court below accepted the case of the first respondent and ordered re-counting of the votes including the postal votes.
7. Aggrieved by the same, this revision is filed by the revision petitioner.
8. According to the learned counsel for the revision petitioner, there is no basis for the allegation made by the first respondent herein that the votes polled in booth number 39(Male) was not counted and as a matter of fact, as per Ex.R8, 338 votes were polled in booth number 39(Male) and as per Ex.R8, the revision petitioner secured 83 votes and the first respondent herein secured 102 votes and two other candidates secured 4 and 111 votes. Therefore, as per Ex.R8, viz., Form No.23, it is evident that the votes polled in booth number 39(Male) was counted and as a matter of fact, the petitioner herein secured lesser number of votes than the first respondent and another independent candidate and that would also prove that the votes polled in booth number 39(Male) was counted. He further submitted that there is no discrepancy in the total number of votes polled and total number of votes counted and admittedly, 2819 votes were polled and out of them 241 votes were declared as invalid and therefore, the total number of valid votes is 2578 and the postal votes were 11 and hence, the total number of votes polled was 2589 and as per the votes secured by each candidate as evidenced by Ex.A3, the total number of votes secured by all the candidates is 2588 and there is difference of one vote in respect of booth number 37 and having regard to the margin of difference between the petitioner and the first respondent, the difference in one vote will not make the election invalid as the petitioner secured 37 votes more than the first respondent and therefore, there is no need to recount the votes.
9. On the other hand, the learned counsel for the first respondent submitted that it is the specific case of the first respondent that the votes polled in booth number 39(Male) was not counted and immediately after the announcement of the result, an application was given by the first respondent to the fourth respondent, Election Officer and without passing any order as per the provisions of Rule 66 of the Tamil Nadu Panchayat Rules, the fourth respondent declared the result and the fourth respondent also admitted in evidence that the first respondent gave a petition immediately after the announcement of the result. He, therefore, contended that when there is violation of Rule 66, the election has to be set aside and the court below has only ordered re-counting of all the votes and therefore, there is no illegality in the order of the court below. He further submitted that the postal ballot covers were not opened in the presence of the first respondent and it is also admitted by the fourth respondent that he is maintaining the particulars about the number of postal covers received and in the absence of such particulars, it cannot be stated that only 11 postal covers were received and taking into consideration of all these aspects, the court below has ordered recounting and therefore, that order does not warrant interference.
10. Heard the counsel. As stated supra, the petitioner herein remained ex parte. It is specifically stated in the petition filed by the first respondent herein that the votes polled in respect of booth No.39(Male) was not counted and he also objected to the same orally and also gave written representation and that was rejected. The fourth respondent, in his counter, did not specifically deny the said allegations of the first respondent herein and the fourth respondent has generally denied all the allegations. Further, the fourth respondent also admitted in evidence that the first respondent has given a representation about the non-counting of votes in respect of booth No.39(Male).
11. Therefore, having regard to the specific averment in the petition by the first respondent and the absence of denial by the fourth respondent and the admission by the fourth respondent in evidence that the first respondent has given representation regarding the non-counting of votes polled in booth No.39(Male), according to me, the court below has rightly held that there is violation of Rule 66 of the Tamil Nadu Panchayat Election Rules. Therefore, the order of the court below regarding recounting of the votes in respect of booth No.39(Male) is upheld.
12. However, there is no material placed by the first respondent herein regarding postal votes. Admittedly, in the representation given by the first respondent immediately after the declaration of the result, which was marked as Ex.P4, he has not stated about any malpractices regarding the postal votes. He has only stated that he demanded the recounting of votes polled in respect of booth No.39(Male) and that was refused to be entertained. In his representation, Ex.P4, he did not mention about the postal votes. Hence, the grievance of the first respondent regarding the postal votes cannot be entertained at this stage. Further, no other material has been placed by the first respondent about the malpractice in other booths and his allegation is only in respect of booth No.39(Male) wherein 339 votes were polled. In such circumstances, it is not necessary to order re-counting of votes polled in all the booths and it is sufficient if the votes polled in booth No.39(Male) alone is recounted to find out the number of votes each candidate secured.
In the result, the revision is partly allowed. The order of the court below is modified to the extent that the votes polled in booth No.39(Male) has to be recounted in the presence of all the candidates by giving proper notice to them and the result of the votes secured by each candidate in respect of booth No.39(Male) shall be intimated to the court below and the whole exercise shall be completed within thirty days from the date of receipt of copy of this order and on receipt of the particulars, the court below shall direct the Returning Officer to declare the result on the basis of the recounting.
ssk.
To
1. The Additional District Judge
(Fast Track Court), Namakkal.
2. The Record Keeper,
V.R. Section,
High Court,
Chennai