BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/10/2008
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
W.P(MD).Nos.1851 of 2008
R.Pavithra Kannan ... Petitioner
Vs.
1.Tamilnadu State Election Commission,
Rep. by Its Secretary,
Chennai - 26.
2.The District Collector cum
Election Officer,
Pudukkottai District,
Pudukkottai.
3.The Returning Officer,
Manamelkudi Union,
Pudukkottai District. ...Respondents
Prayer
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Mandamus directing the first respondent to rectify
the defects in total votes declared by the third respondent and to correct the
total votes secured by each candidate in District Councilor Election in
Manamelkudi Union, Pudukkottai District.
!For Petitioners ... Ms.K.Elil Selvi
^For Respondents ... Mr.R.Manoharan, G.A.
:ORDER
Heard Ms.K.Elil Selvi, learned counsel for the petitioner and
Mr.R.Manoharan, learned Government Advocate for the respondents.
2. The grievance of the petitioner as found expressed and exposited
in the affidavit accompanying the petition as well as from the submissions made
by the learned counsel for the petitioner could be portrayed thus:
The actual name of the petitioner, Pavithra Kannan is Kandasamy and
as such he also got the said fact declared in the official gazette and there is
no dispute regarding the identity; even though the petitioner secured more votes
than his opponent namely Ramasamy, he was not declared as the successful
candidate; the respondent in collusion with one another person indulged such
malpractices; the petitioner in fact came to know of all these malpractices only
on 31.12.2007 after getting details relating to votes, as found enclosed in the
typed set of papers, whereupon the writ has been filed instead of filing appeal
for the reason that the election was fraught and infested with fraud committed
by all the three respondents.
3. The learned counsel for the petitioner would also submit that during
the pendency of the writ petition, an Election petition was also presented by
the petitioner before the District Judge concerned on 28.02.2008 and on the same
day, it was returned by him with the following endorsement.
“Returned:
The Election conducted on 18.10.2006. How this petition is
maintainable at present. Time 1 month.
sd/****PDJ
28.02.2008.
As such the learned counsel for the petitioner would submit that the petitioner
is virtually now without any remedy and he may be provided with relief.
4. Whereas, the learned Government Advocate placing reliance on the
counter filed by the second respondent would develop his argument that no writ
would lie but only appeal would lie and that the appeal itself, it appears was
filed belatedly and the petitioner is not at all entitled to any relief.
5. I am of the considered opinion in the facts and circumstances of this
case, the petitioner, it appears, after knowing the result of the election, has
not filed immediately Election petition, obviously according to him, he was not
aware of the actualities relating to vote status. Only after getting
particulars on 31.12.2007 from the authority concerned, he got satisfied about
the fact that a fraud had been played on him even though he got more votes.
However by that time itself the appeal time was over and the petitioner thought
fit to approach this Court with this writ petition. During the pendency of this
writ petition, the petitioner also tried to file an Election Petition, but the
same was returned.
6. Hence, I could see from the petitioner’s action taken that he is having
a genuine grievance that he has been victimised by the officials and while
holding so, I do not in any way give any finding on facts that the respondents
have committed any malpractices, but the petitioner on seeing the particulars
furnished by the third respondent on 31.12.2007 felt that he is having a genuine
grievance and it should be got redressed by approaching the Court.
7. As correctly pointed out by the learned Government Advocate, writ is
not the proper remedy as in the writ proceedings, factual aspects involved in
this case cannot be gone into. However, in view of the long lapse of time and
in the interest of justice that the petitioner is having a genuine grievances to
air before the District Judge, I am of the considered view that the following
direction could be issued:
The Election petition shall be presented by the petitioner before the
District Judge concerned within a period of 10 days from the date of receipt of
a copy of this order and the District Judge concerned is directed to take the
same on file and number it and deal with the same as per law.
8. With the above direction, the writ petition is disposed of. No costs.
arul
To
1.The Secretary,
Tamilnadu State Election Commission,
Chennai – 26.
2.The District Collector cum
Election Officer,
Pudukkottai District,
Pudukkottai.
3.The Returning Officer,
Manamelkudi Union,
Pudukkottai District.