{"id":194360,"date":"2006-12-22T00:00:00","date_gmt":"2006-12-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-gomathi-vs-the-state-election-commission-on-22-december-2006"},"modified":"2018-06-08T20:17:25","modified_gmt":"2018-06-08T14:47:25","slug":"m-gomathi-vs-the-state-election-commission-on-22-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-gomathi-vs-the-state-election-commission-on-22-december-2006","title":{"rendered":"M.Gomathi vs The State Election Commission on 22 December, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Gomathi vs The State Election Commission on 22 December, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 22\/12\/2006\n\nCORAM\nTHE HONOURABLE MR. JUSTICE K.MOHAN RAM\n\nW.P.(MD) No.10061 of 2006\n\nAND\nW.P.(MD) No.10310, 10318, 10319 and 10408 of 2006 and\nW.P.(MD) SR Nos.43620, 44144 of 2006 and\n M.P.(MD) Nos.1 and 1 of 2006 and\nM.P.(MD) SR Nos.43622 and 44146 of 2006\n\nW.P.(MD) No.10061 of 2006:-\n\nM.Gomathi\t\t\t... Petitioner\n\nVs\n\n1. The State Election Commission\n    Rep. By its Secretary\n    100 Feet Road, Vadapalani, Chennai - 600 026.\n\n2. The District Collector\n    Tirunelveli District\n    Tirunelveli.\n\n3. The Returning Officer\n    Mela Neelithanallur Panchayat Union\n    Tirunelveli District\n\n4. K.Vellathurachi\n\n5. Mr. S.Murugan\n    Commissioner \/ Block Development Officer\n    Mela Neelithanallur Panchayat Union\n    Tirunelveli District.\t\t... Respondents<\/pre>\n
Prayer<\/p>\n
Petition filed under Article 226 of the Constitution of India praying
\nfor the issuance of a writ of mandamus directing respondents 1 to 3 herein to
\nrecount the votes in Ward No.14 of Mela Neelithanallur Panchayat Union in the
\npresence of any other Returning Officer other than the fifth respondent herein
\nand to declare the results by following the provisions of Tamil Nadu Panchayat
\nElection Rules scrupulously.\n<\/p>\n
!For Petitioner \t:  Mr. S.Durairaj, for Mr. Veerakathir Raman<\/p>\n
For Respondents  \t:  No Appearance.\n<\/p>\n
W.P.(MD) No.10310 of 2006:-\n<\/p>\n
M.Manikandan\t\t\t\t\t\t... Petitioner\n-Vs.-\n\n1. N.Karmegam\n2. Mallik\n3. K.V.Mahalingam\n4. Loganathan\n5. P.Sevogan\n6. Raju\n7. Mannan Chinnadi\n8. The Returning Officer for\n    Panchayat President and\n    for Ward Member-cum-Commissioner\n    Madurai East Panchayat Union\n    Chockikulam Madurai, Madurai District.\n<\/pre>\n
9. The State Election Commissioner, Chennai\t\t\t… Respondents<\/p>\n
Prayer:  Petition filed under Article 226 of the Constitution of India praying
\nfor the issuance of a writ of mandamus directing the eighth respondent herein to
\nrecount the votes in the election held on 13.10.2006 for Panchayat President for
\nMeenakshipuram Village Panchayat, Madurai West Panchayat Union, Madurai
\nDistrict, in the presence of any other Returning Officer and to declare the
\nresults by following the provisions of the Tamil Nadu Panchayat Election Rules
\nscrupulously.\n<\/p>\n
\tFor Petitioner \t:  Mr. R.Vijayakumar
\n\tFor Respondents  \t:  No Appearance.\n<\/p>\n
– – –\n<\/p>\n
W.P.(MD) No.10318 of 2006:-\n<\/p>\n
A.Sinnamokkai\t\t\t\t\t\t... Petitioner\n-Vs.-\n\n1. The Chief Election Commissioner\n    State of Tamil Nadu, Chennai.\n\n2. The District Collector\n    Theni District, Theni.\n\n3. The Commissioner,\n    Pallayakotati Panchayat Union\n    Andipatty Taluk, Theni District.\n\n4. A.Muthuraman\t\t\t\t\t\t... Respondents\n\n<\/pre>\n
Prayer:  Petition filed under Article 226 of the Constitution of India praying
\nfor the issuance of a writ of mandamus directing the third respondent to recount
\nthe votes for the election held for the position of the Ward Member in Ward No.1
\nof Palayakottai Panchayath, Theni District.\n<\/p>\n
\tFor Petitioner \t:  Mr. N.Sundaresan, for M\/s. Sun Associates.
\n\tFor Respondents  \t:  No Appearance.\n<\/p>\n
– – –\n<\/p>\n
W.P.(MD) No.10319 of 2006:-\n<\/p>\n
S.Kundhidevi\t\t\t\t\t\t... Petitioner\n-Vs.-\n\n1. The State Election Commissioner,\n    Rep. by its Secretary\n    100 Feet Road, Vadapalani,\n    Chennai - 26.\n2. The District Collector,\n    Virudhunagar District,\n    Virudhunagar.\n3. The Returning Officer,\n<\/pre>\n
    Panchayat Presidents & Panchayat Ward Members
\n      and Commissioner,
\n    Thiruchuli Panchayat Union
\n    M.Reddiapatti
\n    Virudhunagar District.<\/p>\n
\n4. V.Tamilselvi\n5. M.Karuppasamy\t\t\t\t\t\t... Respondents\n\n<\/pre>\n
Prayer:  Petition filed under Article 226 of the Constitution of India praying
\nfor the issuance of a writ of certiorarified mandamus to call for the records in
\nnotice No.Na.Ka.7\/1219\/2006 issued by the third respondent herein dated
\n18.10.2006 and quash the same and directing respondents 1 to 3 herein to recount
\nthe votes of women candidates in Ward No.5 of Thiruchuli Panchayath in the
\npresence of any other Returning Officer other than third respondent herein and
\nto declare the results by following the Provision of Tamil Nadu Panchayat
\nElection Rules scrupulously.\n<\/p>\n
\tFor Petitioner \t:  Mr. S.Muthu Krishnan & S.Mohan.
\n\tFor Respondents  \t:  Mrs. V.Chellammal, Spl. G.P., for R-3.\n<\/p>\n
\t\t\t   No Appearance, for R-1, R-2, R-4 & R-5.\n<\/p>\n
– – –\n<\/p>\n
W.P.(MD) No.10408 of 2006:-\n<\/p>\n
A.Prayer Sing Rajanayagam\t\t\t\t\t... Petitioner\n-Vs.-\n\n<\/pre>\n
1. The Election Officer \/ Block Development Officer
\n    Thiruvattar Union, Kanyakumari District.\n<\/p>\n
2. The District Election Officer \/ District Collector,
\n    Nagercoil, Kanyakumari District\t\t\t\t… Respondents<\/p>\n
Prayer:  Petition filed under Article 226 of the Constitution of India praying
\nfor the issuance of a writ of mandamus directing the respondents to consider the
\nrepresentation of the petitioner dated 19.10.2006 for recounting the votes and
\ndirect the respondents to recount the votes and announce the results of
\nKannanoor Panchayat which was held on 15.10.2006.
\n\tFor Petitioner \t:  Mr. S.C.Robert Bruce.\n<\/p>\n
\tFor Respondents  \t:  No Appearance.\n<\/p>\n
– – –\n<\/p>\n
W.P.S.R.(MD) No.43620 of 2006 (For maintainability):-\n<\/p>\n
Parvathy\t\t\t\t\t\t\t… Petitioner\n<\/p>\n
-Vs.-\n<\/p>\n
1. The Assistant Returning Officer
\n    Karuvantha Village Panchayat
\n    V.K.Pudur Taluk, Tirunelveli District.\n<\/p>\n
2. The Returning Officer-cum-\n<\/p>\n
    Block Development Officer
\n    Alangulam Union, Tirunelveli District.\n<\/p>\n
3. The District Election Officer-cum-\n<\/p>\n
     the District Collector
\n    Tirunelveli District, Tirunelveli.\n<\/p>\n
4. The State Election Officer
\n    Office of the State Election Commission
\n    Vadapalani, Chennai.\t\t\t\t\t… Respondents<\/p>\n
Prayer:  Petition filed under Article 226 of the Constitution of India praying
\nfor the issuance of a writ of mandamus directing the first respondent to order
\nfor recounting of the polled votes of the ‘Karuvantha Village Panchayat
\nPresident Election’ which was taken place on 15.10.2006 and consequently direct
\nthe above said respondents to furnish the result of recounting vide Form No.22
\nto the petitioner.\n<\/p>\n
\tFor Petitioner \t:  Mr. R.Anand.\n<\/p>\n
\tFor Respondents  \t:  No Appearance.\n<\/p>\n
– – –\n<\/p>\n
W.P.S.R.(MD) No.44144 of 2006 (For maintainability):-\n<\/p>\n
K.Kaliammal\t\t\t\t\t\t... Petitioner\n-Vs.-\n\n1. The State Election Commission\n    Rep. by its Commissioner\n    Vadapalani, Chennai - 600 026.\n\n<\/pre>\n
2. The Election Officer \/ Block Development Officer
\n    Bogalur Panchayat Union,
\n    Chathirakadu, Ramnad District.\n<\/p>\n
3. The Assistant Returning Officer
\n    Bogalur Panchayat Union,
\n    Chathirakadu, Ramnad District.\n<\/p>\n
4. Mr. Veluchamy\n<\/p>\n
5. Kavitha\n<\/p>\n
6. Muruganandam\n<\/p>\n
7. Sathaiah\n<\/p>\n
8. Sethu\n<\/p>\n
9. Kesavan\n<\/p>\n
10. Haridoss\n<\/p>\n
11. Valarmathi\t\t\t\t\t\t… Respondents<\/p>\n
Prayer:  Petition filed under Article 226 of the Constitution of India praying
\nfor the issuance of a writ of mandamus directing the second respondent herein to
\nrecount the votes in the election held for Panchayat President for A.Puthur
\nPanchayat Union, Ramnad District, in the presence of the Returning Officer and
\nto declare the results by following the provisions of Tamil Nadu Panchayat
\nElection Rules scrupulously.\n<\/p>\n
\tFor Petitioner \t:  Mr. K.Mahendran.\n<\/p>\n
\tFor Respondents  \t:  No Appearance.\n<\/p>\n
– – –\n<\/p>\n
:COMMON ORDER<\/p>\n
\tThe petitioners contested in the Panchayat Elections that were held on
\n13.10.2006 and 15.10.2006 respectively.  The results were declared on
\n18.10.2006.  The petitioners, who lost in the election sought for recounting of
\nthe votes.  But, according to the petitioners, no orders were passed by the
\nReturning Officers concerned.  Hence the above writ petitions have been filed
\nseeking the above said reliefs.  The contention of the petitioners is that once
\na written application is filed under Rule 66 of the Tamil Nadu Panchayats
\n(Elections) Rules, 1995 seeking recounting of the votes, the Returning Officers
\nare duty bound to either accept or reject the request of the petitioners, but
\nthe Returning Officers concerned have not passed any orders on the applications
\nsubmitted by the petitioners.\n<\/p>\n
\t2. Separate but identical submissions were made by the learned counsel for
\nthe petitioners.  The learned counsel for the petitioners mainly contended that
\nwhen a written request for recounting has been made to the Returning Officer, an
\norder should have been passed either accepting or rejecting the same.  Learned
\ncounsel for the petitioner in W.P.(MD) S.R.No.44144 of 2006 submitted that the
\npetitioner in that writ petition has already filed an election petition and the
\nsame is pending.  Nevertheless the learned counsel submitted that an order
\nshould be passed in the writ petition directing the recounting of votes.\n<\/p>\n
\t3. The main issue that has to be decided in the above writ petitions is as
\nto whether the writ petitions are maintainable.  For deciding the said issue, it
\nwill be useful to refer to the following relevant provisions of the Tamil Nadu
\nPanchayats Act, 1994 (hereinafter referred to as “the Act”) and the Tamil Nadu
\nPanchayats (Elections) Rules, 1995 (hereinafter referred to as “the Rules”):-
\n“(i) Section 258. Election petitions.- (1) No election of a president or a
\nchairman or a member shall be called in question except by an election petition
\npresented to the District Judge of the district in which the panchayat is
\nsituated, within forty-five days from the date of the publication of the result
\nof the election under this Act.\n<\/p>\n
\t(2) An election petition calling in question any such election may be
\npresented on one or more of the grounds specified in Section 259 by any
\ncandidate at such election, by any elector of the ward concerned or by any
\nmember.\n<\/p>\n
\t(3) A petitioner shall join as respondents to his petition all the
\ncandidates at the election.”\n<\/p>\n
(ii) Section 259. Grounds for declaring elections to be void. – (1) Subject to
\nthe provisions of sub-section (2), if the District Judge is of opinion –\n<\/p>\n
(a) that on the date of his election a returned candidate was not qualified or
\nwas disqualified, to be chosen as a member under this Act, or,\n<\/p>\n
(b) that any corrupt practice has been committed by a returned candidate or his
\nagent or by any other person with the consent of a returned candidate or his
\nagent, or\n<\/p>\n
(c) that any nomination paper has been improperly rejected, or\n<\/p>\n
(d) that the result of the election insofar as it concerns a returned candidate
\nhas been materially affected –\n<\/p>\n
(i) by the improper acceptance of any nomination, or\n<\/p>\n
(ii) by any corrupt practice committed in the interests of the returned
\ncandidate by a person other than that candidate or his agent or a person acting
\nwith the consent of such candidate or agent, or\n<\/p>\n
(iii) by the improper acceptance or refusal of any vote or reception of any vote
\nwhich is void; or\n<\/p>\n
(iv) by the non-compliance with the provisions of this Act or of any rules or
\norders made thereunder, the Court shall declare the election of the returned
\ncandidate to be void”.\n<\/p>\n
“(iii) Rule. 66. Recount of votes. – (1) After the completion of the counting
\nand recording in Form 22 the total number of votes polled by each candidate
\nunder sub-rule (2) of rule 64, the Returning Officer shall announce the same.
\nAfter such announcement, and before the declaration of the result of the
\nelection, a contesting candidate or in his absence his election agent may apply
\nin writing to the Returning Officer for a recount of all or any of the votes
\nalready counted stating the grounds on which he demands such recount.
\n\t(2) On such application being made, the Returning Officer shall decide the
\nmatter and may allow the application in whole or in part, or may reject it in
\ntoto if it appears to him to be frivolous or unreasonable.
\n(3) Every decision of the Returning Officer under sub-rule (2) shall be in
\nwriting and contain the reasons therefor.\n<\/p>\n
(4) If the Returning Officer decides under sub-rule (2) to allow an application
\neither in whole or in part, he shall –\n<\/p>\n
\t(a) count the votes again in accordance with his decision;\n<\/p>\n
\t(b) amend the result sheet in Form 22 to the extend necessary after such
\nrecount; and\n<\/p>\n
\t(c) announce the amendments so made by him.\n<\/p>\n
(5) After the total number of votes polled by each candidate has been announced
\nunder sub-rule (1) or under sub-rule (4) of this rule, the Returning Officer
\nshall complete and sign the result sheet in Form 22 and no application for a
\nrecount shall be entertained thereafter :\n<\/p>\n
Provided that no step under this sub-rule shall be taken on the completion of
\nthe counting until the candidates or the election agents present at the
\ncompletion thereof have been given a reasonable opportunity to exercise the
\nright conferred by sub-rule (1).”\n<\/p>\n
“(iv) Rule 122. Election petitions. – Save as otherwise provided, no election
\nheld under the Act, shall be called in question except by an election petition
\npresented in accordance with Section 258 of the Act or the rules, to the
\nDistrict Judge under whose jurisdiction the Panchayat or the District Planning
\nCommittee or other statutory committees fall, by any candidate or elector
\nagainst the candidate who has been declared to have been duly elected.”\n<\/p>\n
“(v) Rule 136. Grounds for declaring election to be void.-  If the election
\ncourt is of opinion –\n<\/p>\n
(1) that the existence of all or any of the grounds specified in Section 259 of
\nthe Act, has been established, or
\n(2) that on the date of his election, a returned candidate was not qualified, or
\nwas disqualified, to be chosen to fill the seat under this Act, then the Court
\nmay declare the election of the returned candidate to be void.”\n<\/p>\n
\t4. To decide the above issue, it will also be useful to refer to the law
\nlaid down by the Honourable Apex Court in the following decisions:-\n<\/p>\n
\t(a) In the case of Vadivelu Vs. Sundaram and Others reported in 2000 (8)
\nS.C.C. 355 in paragraphs 19 and 20 it has been laid down as follows:-
\n“Rule 66 of the T.N.Panchayats (Elections) Rules, 1995 states that after the
\ncompletion of counting and recording in Form 22 the total number of votes polled
\nby each candidate under sub-rule (2) of Rule 64, the Returning Officer shall
\nannounce the same.  After such announcement, and before the declaration of the
\nresult of the election, a contesting candidate or in his absence, his election
\nagent may apply in writing to the Returning Officer for a re-count of all or any
\nof the votes already counted stating the grounds on which he demands such re-
\ncount.  Therefore, an application for re-count shall be made before the
\ndeclaration of the result of the election, but after the completion of the
\ncounting, when such result is entered in Part II of Form 20.”\n<\/p>\n
\t(b) In the case of P.K.K.Shamsudeen Vs. K.A.M.Mappillai Mohideen and
\nothers reported in 1989 (1) S.C.C. 526 in paragraph 13 it has been observed as
\nfollows:-\n<\/p>\n
“The right of a defeated candidate to assail the validity of an election result
\nand seek recounting of votes has to be subject to the basic principle that the
\nsecrecy of the ballot is sacrosanct in a democracy and hence unless the affected
\ncandidate is able to allege and substantiate in acceptable measure by means of
\nevidence that a prima facie case of a high degree of probability existed for the
\nrecount of votes being ordered by the Election Tribunal in the interests of
\njustice, a Tribunal or Court should not order the recount of votes”. (Emphasis
\nsupplied)<\/p>\n
\t(c) In the case of Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management
\nCommittee & Others and reported in 2006 (8) S.C.C. 487 in paragraphs 19, 24 and
\n29 it has been observed as follows:-\n<\/p>\n
“19. It is well-settled principle that where elections are conducted in
\naccordance with the provisions of a statute and the statute also provides a
\nremedy of settlement of election disputes by filing an election petition before
\na tribunal, it is that remedy alone which should be availed of and recourse
\ncannot be taken to proceedings under Article 226 of the Constitution.  This view
\nhas been taken in a series of decisions rendered by this Court.  The earliest
\ndecision was rendered in 1952 S.C.R. 218 = A.I.R. 1952 S.C. 64 (N.P.Ponnuswami
\nVs. Returning Officer) by a Bench of six learned Judges.  In this case the
\nnomination paper of the appellant for election to the Madras Legislative
\nAssembly was rejected by the Returning Officer.  The appellant challenged the
\nrejection of the nomination paper by filing a writ petition in the High Court
\nwhich was dismissed on the ground that it had no jurisdiction to interfere with
\nthe order of the Returning Officer on account of Article 329(b) of the
\nConstitution, which says that no election to either House of Parliament or to
\nthe House or either House of the Legislature of a State shall be called in
\nquestion except by an election petition presented to such authority and in such
\nmanner as may be provided for by or under any law made by the appropriate
\nlegislature.  In appeal, this Court examined the question whether the writ
\npetition would be maintainable at the initial stage against an order rejecting
\nthe nomination paper.  Certain observations made in A.I.R. Para 9 of the reports
\nare relevant and they are being reproduced below: (S.C.R. Page 228)
\n“The law of elections in India does not contemplate that there should be two
\nattacks on matters connected with election proceedings, one while they are going
\non by invoking the extraordinary jurisdiction of the High Court under Art. 226
\nof the Constitution (the ordinary jurisdiction of the Courts having been
\nexpressly excluded), and another after they have been completed by means of an
\nelection petition.  Any matter which has the effect of vitiating an election
\nshould be brought up only at the appropriate stage in an appropriate manner
\nbefore a special tribunal and should not be brought up at an intermediate stage
\nbefore any court”.                         (Emphasis Supplied)<\/p>\n
24. There are several other decisions where the same view has been taken 1998
\n(1) S.C.C. 572 = A.I.R. 1988 S.C. 616 (S.T.Muthusami Vs. K.Natarajan) is a case
\nrelating to election to the office of Chairman of a Panchayat Union under the
\nTamil Nadu Panchayats Act 1958 where it was held that the parties who are
\naggrieved by the result of the election can question the validity of the
\nelection by an election petition which is an effective alternative remedy and it
\nis not appropriate for the High Court to interfere with the election process.\n<\/p>\n
29. In view of the nature of the dispute raised, the proper remedy for the
\npetitioner was to file an election petition as provided in Section 31 of the Act
\nwhere parties could have got opportunity to lead oral evidence.  No exceptional
\nor extraordinary circumstances were disclosed which could justify recourse to
\nthe extraordinary remedy under Art. 226 of the Constitution and for not availing
\nthe remedy provided by the Statute.\n<\/p>\n
\t(d) In the case of S.P.Gupta Vs. Union of India (1981 Supp. S.C.C. 87 =
\nA.I.R. 1982 S.C. 149) it is observed as follows:-
\n“The Court does not decide issues in the abstract.  It undertakes determination
\nof a controversy provided it is necessary in order to give relief to a party and
\nif no relief can be given because none is sought, the Court cannot take upon
\nitself a theoretical exercise merely for the purpose of deciding academic
\nissues, howsoever important they may be.  The Court cannot embark upon an
\ninquiry whether there was any misuse or abuse of power in a particular case,
\nunless relief is sought by the person who is said to have been wronged by such
\nmisuse or abuse of power.  The Court cannot take upon itself the role of a
\ncommission of inquiry – a knight errant roaming at will with a view to
\ndestroying evil wherever it is found .”\n<\/p>\n
\t5. A close reading of the provisions contained in Sections 258 and 259 of
\nthe Act and Rules 66, 122 and 136 of the Rules and the law laid down in the
\nvarious decisions referred to above leads this Court to the irresistible
\nconclusion that unless the affected candidate is able to allege and substantiate
\nby acceptable measure by means of evidence that a prima facie case of a high
\ndegree of probability existed for the recount of votes being ordered by the
\nElection Tribunal in the interests of justice, a Tribunal or Court should not
\norder the recount of votes.  Further as laid down in 2006 (8) S.C.C. 487
\n(referred to supra) where elections are conducted in accordance with the
\nprovisions of a statute and the statute also provides a remedy for settlement of
\nelection disputes by filing an election petition before the tribunal, it is that
\nremedy alone which should be availed of and recourse cannot be taken to
\nproceedings under Article 226 of the Constitution of India.\n<\/p>\n
\t6. Section 259 (1) (d) (iii) of the Act provides that if the District
\nJudge is of the opinion that the result of the election insofar as it concerns a
\nreturned candidate has been materially affected by the improper acceptance or
\nrefusal of any vote or reception of any vote which is void, the Court shall
\ndeclare the election of the returned candidate to be void.  One of the
\nallegation in the writ petitions is that some valid votes have been rejected and
\ninvalid votes have been accepted and if such an allegation is alleged and proved
\nby acceptable evidence in the Election Petition instituted before the Election
\nTribunal and if the Election Tribunal comes to the conclusion that it is
\nimperative to order recounting to do complete justice between the parties, then
\nrecounting will definitely be ordered.  Therefore, the contention of the learned
\ncounsel for the petitioners that a prayer for recounting cannot be made before
\nthe Elections Tribunal is liable to be rejected.\n<\/p>\n
\t7. In the decision rendered in the case of R.Narayanan Vs. S.Semmalai and
\nreported in 1980 (2) S.C.C. 537 = 1980 (1) S.C.R. 571 the same principle has
\nbeen reiterated.  That was a case where the difference of votes between the
\ncandidate declared elected and his nearest rival, who filed an election petition
\nwas only 19 votes and which figure would have come down to 9 votes only if the
\npostal ballots were included.  Even so the Apex Court after referring to a
\nnumber of decisions and Halsbury’s Laws of England and Fraser on Law of
\nParliamentary Elections and Election Petitions held that without there being an
\nadequate statement of all the material facts are founded and such averments
\nbeing backed by acceptable evidence and the Court trying the petition being
\nprima facie satisfied that an order for recount of votes is imperatively
\nnecessary to decide the dispute and do complete justice between the parties, an
\norder of recount of votes cannot be passed.  Therefore, the right of a defeated
\ncandidate to assail the validity of an election result and seek recounting of
\nvotes has to be subject to the basic principle that the secrecy of the ballot is
\nsacrosanct in a democracy and hence unless the affected candidate is able to
\nallege and substantiate in acceptable measure by means of evidence that a prima
\nfacie case of a high degree of probability existed for the recount of votes
\nbeing ordered by the Election Tribunal in the interests of justice, a Tribunal
\nor Court should not order the recount of votes.  Thus it is clear that merely on
\nthe basis of averments contained in the affidavit an order for recounting of
\nvotes cannot be passed.  The candidate seeking recounting of votes should allege
\nall the material facts on which the allegations of irregularity or illegality in
\ncounting of votes are founded and such averments should be backed by acceptable
\nevidence and if the Election Tribunal trying the petition is prima facie
\nsatisfied that an order for recount of votes is imperatively necessary to decide
\nthe dispute and do complete justice between the parties, an order of recount of
\nvotes can be passed but  otherwise.   Therefore the contention of the learned
\ncounsel for the petitioners that in an Election Petition the plea for recounting
\ncannot be raised and the Election Tribunal cannot order recount is without
\nsubstance and the same is liable to be rejected.\n<\/p>\n
\t8. A reading of Rule 66 of the Rules shows that if an application as
\ncontemplated in Rule 66 of the Rules specifying the requirements of the Rules is
\nmade, it is mandatory on the part of the Returning Officer to decide the matter
\none way or other and such decision shall be in writing and further it should
\ncontain the reasons therefor.  Therefore, the contention of Mr. K.Mahendran
\nlearned counsel appearing for the petitioners in W.P.S.R.No.44144 of 2006 merits
\nacceptance, but it does not mean that simply because the Returning Officer has
\nfailed to render a decision on the application filed by the candidate seeking
\nrecounting of votes, a writ petition can be filed seeking recounting of votes.
\nEven under those circumstances, the only remedy open to the aggrieved candidate
\nis to file an Election Petition and seek appropriate remedy in the Election
\nPetition.\n<\/p>\n
\t9. This Court is of the considered view that the appropriate remedy for
\nthe petitioners in the above writ petitions is to file an Election Petition as
\nprovided for in the Act and Rules where they can get an opportunity to led oral
\nevidence to establish their allegations.  It has to be further pointed out that
\nno exceptional or extraordinary circumstances are disclosed in the above writ
\npetitions which could justify recourse to the extraordinary remedy under Art.
\n226 of the Constitution and for not availing the remedy provided by the Statute.\n<\/p>\n
\t10. In the light of the law laid down in the above said decisions, this
\nCourt exercising extraordinary jurisdiction under Article 226 of the
\nConstitution of India cannot set-aside the duly elected candidate as that can be
\ndone only by the Election Tribunal in a properly instituted Election Petition.
\nEven if recounting is ordered as prayed for by the petitioners, no further
\nrelief can be given to the petitioners, in these writ petitions as this Court
\ncannot set-aside the election of elected candidates.  Therefore in the
\nconsidered view of this Court even if the writ petitions are entertained it will
\nnot serve any useful purpose.  It is settled law that if the Court cannot set-
\naside the election no purpose would be served by issuing a writ and the Court
\ncan dismiss the application on that ground alone.  Therefore, as pointed out
\nabove, when no relief can be given to the petitioners by issuing the writ as
\nprayed for, the petitioners will have no fruitful result.  It will only be a
\nfutile exercise and therefore this Court is of the view that the above writ
\npetitions are not only not maintainable, but even if the writ petitions are
\nentertained no useful purpose would be served by issuing a writ, the issuance of
\nwhich will be futile.\n<\/p>\n
\t11.  The petitioners in W.P.Nos.10318, 10319 and 10408 of 2006 and
\nW.P.S.R.No.43620 of 2006 admittedly filed applications for recounting only after
\nthe results of the election were declared.  Therefore the applications for re-
\ncount were not filed in accordance with Rule-66 of the Rules, on this ground
\nalso W.P.Nos.10318, 10319 and 10408 of 2006 and W.P.S.R.No.43620 of 2006 are
\nliable to be dismissed.\n<\/p>\n
\t12. This Court, therefore, is of the opinion that on the facts and
\ncircumstances of the present cases, the writ petitions ought not to have been
\nentertained for resolving the dispute relating to election.\n<\/p>\n
\t13. The writ petitions filed by the petitioners herein are not
\nmaintainable having regard to the controversy raised which is purely factual in
\nnature and could more appropriately be decided in an election petition, which
\nremedy is provided under the Tamil Nadu Panchayats Act and the Rules.\n<\/p>\n
\t14. For the reasons stated above, the writ petitions are dismissed as not
\nmaintainable.\n<\/p>\n
srk<\/p>\n
To<\/p>\n
1. The  Secretary
\n    The State Election Commission
\n    100 Feet Road, Vadapalani, Chennai – 600 026.\n<\/p>\n
2. The District Collector
\n    Tirunelveli District
\n    Tirunelveli.\n<\/p>\n
3. The Returning Officer
\n    Mela Neelithanallur Panchayat Union
\n    Tirunelveli District<\/p>\n
4. The Returning Officer for
\n    Panchayat President and
\n    for Ward Member-cum-Commissioner
\n    Madurai East Panchayat Union
\n    Chockikulam Madurai, Madurai District.\n<\/p>\n
5. The State Election Commissioner, Chennai<\/p>\n
6. The Chief Election Commissioner
\n    State of Tamil Nadu, Chennai.\n<\/p>\n
7. The District Collector
\n    Theni District, Theni.\n<\/p>\n
8. The Commissioner,
\n    Pallayakotati Panchayat Union
\n    Andipatty Taluk, Theni District.\n<\/p>\n
9. The State Election Commissioner,
\n    Rep. by its Secretary
\n    100 Feet Road, Vadapalani,
\n    Chennai – 26.\n<\/p>\n
10. The District Collector,
\n    Virudhunagar District,
\n    Virudhunagar.\n<\/p>\n
11. The Returning Officer,
\n    Panchayat Presidents & Panchayat Ward Members
\n      and Commissioner,
\n    Thiruchuli Panchayat Union
\n    M.Reddiapatti
\n    Virudhunagar District.\n<\/p>\n
K.MOHAN RAM, J.\n<\/p>\n
srk<\/p>\n
12. The Election Officer \/ Block Development Officer
\n    Thiruvattar Union, Kanyakumari District.\n<\/p>\n
13. The District Election Officer \/ District Collector,
\n    Nagercoil, Kanyakumari District<\/p>\n
14. The Assistant Returning Officer
\n    Karuvantha Village Panchayat
\n    V.K.Pudur Taluk, Tirunelveli District.\n<\/p>\n
15. The Returning Officer-cum-\n<\/p>\n
    Block Development Officer
\n    Alangulam Union, Tirunelveli District.\n<\/p>\n
16. The District Election Officer-cum-\n<\/p>\n
     the District Collector
\n    Tirunelveli District, Tirunelveli.\n<\/p>\n
17. The State Election Officer
\n    Office of the State Election Commission
\n    Vadapalani, Chennai.\n<\/p>\n
18. The State Election Commission
\n    Rep. by its Commissioner
\n    Vadapalani, Chennai – 600 026.\n<\/p>\n
19. The Election Officer \/ Block Development Officer
\n    Bogalur Panchayat Union,
\n    Chathirakadu, Ramnad District.\n<\/p>\n
20. The Assistant Returning Officer
\n    Bogalur Panchayat Union,
\n    Chathirakadu, Ramnad District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Gomathi vs The State Election Commission on 22 December, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22\/12\/2006 CORAM THE HONOURABLE MR. JUSTICE K.MOHAN RAM W.P.(MD) No.10061 of 2006 AND W.P.(MD) No.10310, 10318, 10319 and 10408 of 2006 and W.P.(MD) SR Nos.43620, 44144 of 2006 and M.P.(MD) Nos.1 and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-194360","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Gomathi vs The State Election Commission on 22 December, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-gomathi-vs-the-state-election-commission-on-22-december-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Gomathi vs The State Election Commission on 22 December, 2006 - 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