IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06/10/2003
CORAM
THE HONOURABLE MR.JUSTICE R.JAYASIMHA BABU
AND
THE HONOURABLE MR.JUSTICE S.K.KRISHNAN
W.A.No.2598 of 2001
S.Vijayakumar .. Appellant
-Vs-
1. The Returning Officer,
Semusigapuram Village Panchayat,
Rajapalayam Panchayat Union,
Virudhunagar District.
2. The District Election Officer,
Virudhunagar District,
Virudhunagar.
3. The State Election Commissioner,
Vadapalani, Chennai.
4. S.Muthuramalingam .. Respondents
Writ Appeal under Clause 15 of the Letters Patent against the order of
this Court dated 8-11-2001 in W.P.No.21505 of 2001.
!For petitioner : M/s.G.Jeremiah
^For respondents: Mr.P.S.Jayakumar for RR1 to 3
Mr.M.Thirunavukkarasu for R4
:JUDGMENT
(The Judgment of the Court was delivered by R.Jayasimha Babu,J.)
The appellant seeks to take advantage of an error committed by the
Returning Officer who had issued a certificate in Form 26 under the Tamil Nadu
Panchayats (Elections) Rules to the appellant, even though he was not the
person who had polled the largest number of votes and was therefore, not
entitled to be regarded as an elected candidate.
2. The certificate was issued on 21-10-2001. On the same day,
immediately after realising the error, the impugned order was issued, which
sets out in detail the number of votes polled by each one of the candidates.
It shows that the fourth respondent had obtained the highest number of votes
and that the appellant had obtained 178 votes, which is 68 votes less than 246
votes that had been obtained by the fourth respondent. The appellant/writ
petitioner does not dispute the correctness of those figures. Clearly, the
writ petitioner was not entitled to be regarded as elected candidate.
3. Rule 67 of the Tamil Nadu Panchayats (Elections) Rules, 1995 in
sub-rule 3(a) provides thus:
“In the case of election of member of Village Panchayats, after Returning
Officer has completed the scrutiny and counting of votes, he shall declare
elected, its candidate or candidates, as the case may be, to whom the largest
number of valid votes have been given and complete and certify the return in
Form 24 and send the signed copy to the District Election Officer and the
State Election Commission.”
(The other parts of that Rule are not set out as they are not necessary).
4. Form 26 is to be issued only to the person to whom the largest
number of valid votes had been given. If such a Form is given to a person who
has not polled the largest number of valid votes, such a person does not
acquire a indefeasible right to be regarded as person elected, solely on the
strength of issue of Form 26 under Rule 69.
5. In order to be regarded as the elected candidate, the person
should have polled the highest number of votes. Form 24 is to be first
prepared in which the number of votes polled by each of the candidates is
required to be set out. Form 26 which is to be given to the elected
candidate, must be given only to the person who has polled the largest number
of votes and whose name is found in Form 24 along with the number of votes
polled by him. The error committed by the Returning Officer in giving Form 26
to a person who has polled the highest number of votes, is not a Form on which
the recipient can rely, to claim the status of an elected member of the
Panchayat.
6. In this case, error was realised on the same day on which the
counting was done, the writ petitioner was informed of the error and the
details which are required to be set out in Form 24, had been incorporated in
the letter that was sent to him on the same day.
7. The submission made by learned counsel for the appellant that even
in such cases, the only remedy is by way of election petition under Section
258 of the Tamil Nadu Panchayats Act, cannot, having regard to what has been
stated earlier, be accepted. Section 258 of the Act no doubt requires that
the election of a member shall not be called into question except by an
election petition. Here, what has been done is not the calling into question
the election of any member. What has been done is to recall the certificate
given to a person who was not entitled to receive the same, having regard to
the number of votes polled and who was not entitled to be regarded as the
elected member. It is only when having regard to the number of votes polled,
a person is declared as the elected member and given the certificate, the
provisions of Section 258 are attracted.
8. Recalling of the certificate erroneously given to the writ
petitioner who had not received the highest number of votes, was therefore
perfectly in accordance with law. We do not find any merit in the writ appeal
and the same is dismissed. No costs.
Index: Yes.
Internet: Yes.
cs
To
1. The Returning Officer,
Semusigapuram Village Panchayat,
Rajapalayam Panchayat Union,
Virudhunagar District.
2. The District Election Officer,
Virudhunagar District,
Virudhunagar.
3. The State Election Commissioner,
Vadapalani, Chennai.