Madras High Court
S.Ananthi vs The State Election Commissioner on 2 December, 2021
W.P.No.25551 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.25551 of 2021
S.Ananthi .. Petitioner
Vs
1.The State Election Commissioner,
O/o State Election Commission,
No.208/2, Jawaharlal Nehru Road,
Jai Nagar,
Koyambedu – 600 106.
2.The District Collector,
District Election Officer,
Villupuram District.
3.The Block Development Officer/
Election Officer of Panchayat,
President and Ward Members
Mailam Panchayat Union,
Villupuram District.
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4.The Counting Officer,
Ward No.16, Mailam Block,
Villupuram District.
5.Jothilakshmi .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of mandamus directing the District Collector,
Villupuram District, The Block Development Officer, Election Officer
of Panchayat President and ward members, Mailam Panchayat Union
and the Counting Officer Ward No.16, Mailam Block, Villupuram
District, the 2nd to 4th respondents to recount the votes polled on
9.10.2021 in the Panchayat President Election of No.136,
Kolliangunam Village, Mailam Panchayat Union, Villupuram District
on the basis of the representations dated 12.10.2021, 13.10.2021
to the 2nd and 3rd respondents and consequently direct the
respondents to declare the petitioner as winning President candidate
for the Kolliangunam Panchayat, Mailam Union, Villupuram District.
For the Petitioner : Mr.K.Balakrishnan
For the Respondents : Mr.S.Siva Shanmugam
for respondent No.1
: Mr.P.Muthukumar
State Government Pleader
for respondent Nos.2 to 4
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W.P.No.25551 of 2021
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
The writ petition has been filed to seek a direction on the
respondent Nos.2 to 4 for recounting the votes polled on 9.10.2021
in reference to Ward No.16 in the Panchayat President Election of
No.136, Kolliangunam Village, Mailam Panchayat Union, Villupuram
District based on the representations given by the petitioner.
2. It is submitted that pursuant to the notification for local
body election, election for Ward No.16, Mailam Block, Villupuram
District was held on 09.10.2021. The petitioner made an
application for recounting of the votes, but the Returning Officer did
not pass any orders despite a mandate under Rule 66 of the Tamil
Nadu Panchayats (Election) Rules, 1995 (for short, '1995 Rules').
As per Rule 66 of the 1995 Rules, whenever an application is filed
for recounting of votes, the Returning Officer has to decide it. He
may allow the application in whole or in part. Learned counsel for
the petitioner submits that no decision on the application was taken
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W.P.No.25551 of 2021
and thereby, without recounting the votes, the result of the election
was declared. In view of the above, the present writ petition has
been filed seeking a direction for recounting of votes as there is a
statutory failure on the part of the Returning Officer to take a
decision on the application submitted by the petitioner for
recounting of the votes.
3. On the issue of maintainability, learned counsel for the
petitioner has made a reference to the judgment of this Court in the
case of Dravida Munnetra Kazhagam (DMK), through its
Secretary, Legal Wing and others v. The Tamil Nadu State
Election Commissioner and others in W.P.No.24078 of 2011
etc., decided on 26.4.2012 [2012 SCC OnLine Mad 1720],
wherein it was held that a writ petition questioning the election can
be entertained and the writ petition is maintainable before the High
Court if exceptional or extraordinary circumstances are established.
In the said judgment, it has also been held that in the event a
decision is called in question on fact not involving exceptional or
extraordinary circumstances, the High Court would not be justified
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W.P.No.25551 of 2021
in entertaining the writ petition. The questions involving factual
aspect could be resolved only in an election petition. In view of the
judgment aforesaid, learned counsel for the petitioner submits that
the writ petition to seek a direction on the Returning Officer for
recounting of the votes is maintainable.
4. A reference of the judgment of this Court in the case of All
India Anna Dravida Munnetra Kazhgam, through its Fisheries
Wing Secretary v. The State Election Commissioner and
others, reported at 2007 (1) CTC 705 has been given. Therein
also, the writ petition was entertained questioning the process of
election. The writ petition was found maintainable under Article 226
of the Constitution considering the extraordinary and exceptional
circumstances of the case. The issue of alternative remedy of
election petition was considered. This Court held that the
alternative remedy would not deter the court to exercise the
extraordinary jurisdiction in a situation which warrants such
interference. The right to vote being a constitutional right, the writ
petition is maintainable and it assumes the character of a
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W.P.No.25551 of 2021
fundamental right attracting Article 19(1)(a) of the Constitution of
India which guarantees freedom of expression. The prayer is,
accordingly, made to entertain the writ petition for issuance of a
direction on the Returning Officer to recount the votes and
thereafter to declare the results afresh.
5. We have considered the submissions made by learned
counsel for the petitioner.
6. It is the case of the petitioner that after issuing notification
for local body election, the petitioner and other parties participated
in the election process. The votes were polled on 09.10.2021 and
counting was held on 12.10.2021. The petitioner is said to have
made an application for recounting of the votes and the same has
not been considered by the Returning Officer and, therefore, it is
alleged that Rule 66 of the 1995 Rules has not been complied with.
7. The first question for our consideration is as to whether a
writ petition would be maintainable to seek a direction for
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W.P.No.25551 of 2021
recounting of votes on an application alleged to have been
submitted by the petitioner.
8. To answer the aforesaid issue, a reference to Article 243-O
of the Constitution is necessary and the same is quoted hereunder:
“243-O. Bar to interference by courts in
electoral matters.— Notwithstanding anything in
this Constitution,—
(a) the validity of any law relating to the delimitation
of constituencies or the allotment of seats to such
constituencies, made or purporting to be made under
article 243K, shall not be called in question in any
court;
(b) no election to any Panchayat shall be called in
question except by an election petition presented to
such authority and in such manner as is provided for
by or under any law made by the Legislature of a
State.”
9. As per the provision quoted above, no election to any
Panchayat shall be called in question except by an election petition
presented to such authority and in such manner as is provided for
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W.P.No.25551 of 2021
by or under any law made by the Legislature of a State. Article
243-O(b) imposes a bar on questioning the election of any
Panchayat, except by way of an election petition. In view of the
above, the writ petition under Article 226 of the Constitution would
not be maintainable in the given circumstances. The view aforesaid
is supported by a judgment of the Apex Court in the case of Harnek
Singh v. Charanjit Singh and others, reported at (2005) 8 SCC
383. Paragraphs 16 and 17 of the said judgment are relevant and
are quoted hereunder:
"16. Article 243-O of the Constitution mandates that
all election disputes must be determined only by way
of an election petition. This by itself may not per se
bar judicial review which is the basic structure of the
Constitution, but ordinarily such jurisdiction would
not be exercised. There may be some cases where a
writ petition would be entertained but in this case we
are not concerned with the said question.
17. In C. Subrahmanyam [(1998) 8 SCC 703] a
three-Judge Bench of this Court observed that a writ
petition should not be entertained when the main
question which fell for decision before the High Court
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W.P.No.25551 of 2021
was non-compliance with the provisions of the Act
which was one of the grounds for an election petition
in terms of Rule 12 framed under the Act."
10. The aforesaid view of the Apex Court was affirmed by a
Larger Bench of the Apex Court in Laxmibai v. Collector, Nanded
and others, reported at (2020) 12 SCC 186, wherein the law on
the point in question has been reiterated as under:
"43. Section 10-A of the 1959 Act and Section 9-A of
the 1961 Act read with Articles 243-K and 243-O, are
pari materia with Article 324 of the Constitution of
India. In view of the judgments referred, we find that
the remedy of an aggrieved person accepting or
rejecting nomination of a candidate is by way of an
election petition in view of the bar created under
Section 15-A of the 1959 Act. The said Act is a
complete code providing machinery for redressal to
the grievances pertaining to election as contained in
Section 15 of the 1959 Act. The High Court though
exercises extraordinary jurisdiction under
Article 226 of the Constitution of India but such
jurisdiction is discretionary in nature and may
not be exercised in view of the fact that an
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W.P.No.25551 of 2021
efficacious alternative remedy is available and
more so exercise restraint in terms of Article
243-O of the Constitution of India. Once
alternate machinery is provided by the statute,
the recourse to writ jurisdiction is not an
appropriate remedy. It is a prudent discretion
to be exercised by the High Court not to
interfere in the election matters, especially
after declaration of the results of the elections
but relegate the parties to the remedy
contemplated by the statute. In view of the
above, the writ petition should not have been
entertained by the High Court. However, the
order of the High Court that the appellant has
not furnished the election expenses incurred on
the date of election does not warrant any
interference."
(emphasis supplied)
11. In view of the above, we are unable to accept the
argument raised by learned counsel for the petitioner on the
maintainability of the writ petition. More so, when the Supreme
Court in Harnek Singh (supra), had not accepted the prayer for
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recounting of votes, particularly, in reference to Article 243-O of the
Constitution of India.
12. The petitioner further made a reference to the judgment of
this court in the case of Anna Dravida Munnetra Kazhagam,
(supra), wherein the writ petition was entertained by this Court by
giving specific reasons. It was a case where serious allegation of
booth capturing of all wards at the instance of the political party in
power was levelled. Taking into consideration the extraordinary
situation, the writ petition was entertained. It was not a petition
challenging the election of one ward, but filed in the extraordinary
circumstances where the allegation was of wholesale rigging and
booth capturing of all the wards at the instance of the political party
in power. While rendering judgment, it was found that there exist
extraordinary circumstances to entertain the writ petition. After
taking note of the facts made available to the Court, the writ
petition was entertained. However, in the instant case, such
extraordinary or exceptional circumstances do not exist.
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13. The present writ petition has been filed basically for
violation of Rule 66 of the 1995 Rules. It is an undisputed fact that
subsequent to the election, counting of votes took place and the
result of the election was declared. In view of the above, now a
direction for recounting of votes cannot be issued as the result of
the election is not under challenge. Even otherwise, such a
challenge cannot be made by way of a writ petition, but only by an
election petition under Section 258 of the Tamil Nadu Panchayats
Act, 1994 and the Rules framed thereunder.
14. It is to be noted that the judgment in the case of Anna
Dravida Munnetra Kazhagam (supra) has taken note of the
requirement of free and fair election, which is the very foundation of
democratic institution. That apart, it was not a challenge to the
result of the election to an individual Ward, but a serious allegation
of wholesale booth capturing and rigging of all the Wards at the
instance of the political party in power. Similar is the position in
the case of case of Dravida Munnetra Kazhagam (DMK),
(supra). Therein also, taking into consideration the facts, the writ
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W.P.No.25551 of 2021
petition was entertained with a rider that in case of disputed
question of facts, the writ petition would not be maintainable. We
find that when the Constitution itself imposes a bar to question an
election save by an election petition, the other remedy would not be
available in law in ordinary course. The aforesaid view was
accepted by the Apex Court in the case of Harnek Singh and
Laxmibai cases (supra).
15. Apart from the aforesaid, we find another reason not to
entertain the writ petition. As per Section 258 of the Tamil Nadu
Panchayats Act, 1994 and the Rules framed thereunder, an election
petition was maintainable within 45 days of the declaration of the
result. The writ petition questioning the election has been filed
after the period of 45 days when remedy of election petition was no
more available to the petitioner. In those circumstances, the writ
petition would not be maintainable in view of the judgment of the
Apex Court in the case of Assistant Commissioner (CT) LTU,
Kakinada and others v. Glaxo Smith Kline Consumer Health
Care Limited, reported at 2020 SCC OnLine SC 440, therein it
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W.P.No.25551 of 2021
was held that once the statutory period expires, taking remedy by
way of writ petition would not be maintainable. Thus, for both
reasons, we do not find that the writ petition is maintainable.
16. In the result, the writ petition is dismissed.
W.M.P.No.26967 of 2021 is closed. There will however be no order
as to costs.
(M.N.B., ACJ) (P.D.A., J.)
02.12.2021
Index : Yes
bbr
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W.P.No.25551 of 2021
To:
1.The State Election Commissioner,
O/o State Election Commission,
No.208/2, Jawaharlal Nehru Road,
Jai Nagar, Koyambedu – 600 106.
2.The District Collector,
District Election Officer,
Villupuram District.
3.The Block Development Officer/Election Officer of Panchayat,
President and Ward Members
Mailam Panchayat Union,
Villupuram District.
4.The Counting Officer,
Ward No.16, Mailam Block,
Villupuram District.
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W.P.No.25551 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
bbr
W.P.No.25551 of 2021
02.12.2021
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