Madras High Court
M.Babu vs 21 S.Sumathi on 19 April, 2022
W.P.No.9576 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.9576 of 2022
M.Babu
S/o.D.Mabbu Reddy
11th Ward Councillor
Kallakurichi Municipality
No.9/20-A, Raja Nagar
Gandhi Road, Kallakurichi- 606 202
Kallakurichi District. .. Petitioner
Vs
1 The State Election Commissioner
Tamilnadu State Election Commission
No.208/2, Jawaharlal Nehru Road
Arumbakkam
Chennai- 600 106.
2 The District Election Officer/
District Collector, Office of the
District Collector, Kallakurichi
Kallakurichi District.
3 The District Election Observer
Office of the District Collector
Kallakurichi,
Kallakurichi District.
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W.P.No.9576 of 2022
4 The Superintendent of Police
Kallakurichi, Kallakurichi District.
5 The Returning Officer/Municipal Commissioner
Kallakurichi Municipality,
Kallakurichi- 606202
Kallakurichi District.
6 R.Subburayalu
S/o.Ramasamy
2nd Ward Councillor
Kallakurichi Municipality
residing at No.135B
VOC Nagar, Kallakurichi
Kallakurichi District - 606 202.
7 A.K.Ramesh
S/o.Kuppusamy
1st Ward Councillor
Kallakurichi Municipality
residing at No.90/B
Kachirapalayam Road, Kallakurichi
Kallakurichi District – 606 202.
8 T.Ashwinkumar
S/o.Natarajan
3rd Ward Councillor
Kallakurichi Municipality
residing at No.146A, Kesavalu Nagar
Kallakurichi, Kallakurichi District - 606 202.
9 A.Sameembanu
W/o.Abdul Rasak
4th Ward Councillor
Kallakurichi Municipality
residing at 54-K, Maamanandhal Road
Kallakurichi,
Kallakurichi District - 606 202.
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W.P.No.9576 of 2022
10 R.Yuvarani
W/o.Raja,
5th Ward Councillor
Kallakurichi Municipality
residing at No.165, Kulathumettu Street
Kallakurichi, Kallakurichi District - 606 202.
11 M.Seenivasan
S/o.Muniyan,
6th Ward Councillor
Kallakurichi Municipality
residing at 128/8, Voikkalmettu Street
Kallakurichi, Kallakurichi District - 606 202.
12 K.Meenatchi
W/o.Kesavan,
7th Ward Councillor
Kallakurichi Municipality
residing at No.22K/1/189, Kottaimedu
Kallakurichi, Kallakurichi District - 606 202.
13 Vimala
W/o.Vijaymanoj,
8th Ward Councillor
Kallakurichi Municipality
residing at No.143/64C, Siruvangur Road
Kallakurichi, Kallakurichi District – 606 202.
14 C.Paulraj
S/o.Chinnathambi,
9th Ward Councillor
Kallakurichi Municipality
residing at No.189/B, New Colony, Karunapuram
Kallakurichi,
Kallakurichi District – 606 202.
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W.P.No.9576 of 2022
15 A.Fathimabeevi
W/o.Abiubakkar,
10th Ward Councillor
Kallakurichi Municipality
residing at 14, MNR Nagar,
Durugam Road Kallakurichi,
Kallakurichi District - 606 202.
16 R.Selvam
S/o.Radhakrishnan,
13th Ward Councillor
Kallakurichi Municipality
residing at No.52/25, Agaratgabjikkau Street
Kallakurichi, Kallakurichi District – 606 202.
17 T.Vijayakumari
W/o.Kalaiselvan,
14th Ward Ward Councillor
Kallakurichi Municipality
residing at No.83, Vilanthangal Road
Kallakurichi, Kallakurichi District – 606 202.
18 S.Devaraj
S/o.Sundaramurthy,
15th Ward Councillor
Kallakurichi Municipality
residing at No.32/B, Manikoondu Road
Kallakurichi, Kallakurichi District.- 606 202.
19 A.Gnanvel
S/o.Arumugam
17th Ward Councillor
Kallakurichi Municipality
residing at 16/19, EB Colony,
Anna Nagar, Kallakurichi,
Kallakurichi District.- 606 202.
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W.P.No.9576 of 2022
20 V.Uma
W/o.Venkatesan,
20th Ward Councillor
Kallakurichi Municipality
residing at 23/12A, Mariamman Koil Street
Yemappair, Kallakurichi,
Kallakurichi District – 606 202.
21 S.Sumathi
W/o.Selvaraj,
21st Ward Councillor
Kallakurichi Municipality
residing at Yemappair Colony
Kallakurichi,
Kallakurichi District - 606 202. .. Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for a writ of declaration declaring the process of election held
on 04.03.2022 for the post of Chairman of Kallakurichi Municipality in
contravention of the Rules 102, 107, 108 read with Rules 49 (2) and
52 (3) of the Tamil Nadu Town Panchayats, Third Grade Municipalities
and Municipal Corporation Councils (Elections) Rules, as null and void
non-est-in-law.
For the Petitioner : Mr.K.Prabakar
For the Respondents : Mr.S.Sivashanmugam
Standing Counsel
for 1st respondent
: Mr.P.Muthukumar
State Government Pleader
assisted by
Ms.E.Ranganayaki
Additional Government Pleader
for respondents 2, 3 and 5
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W.P.No.9576 of 2022
: Mr.Hasan Mohamed Jinnah
State Public Prosecutor
assisted by Mr.A.Gopinath
Government Advocate
(Criminal Side)
for 4th respondent
ORDER
(Order of the Court was made by the Hon'ble Chief Justice)
By this writ petition, a challenge is made to the process of the
election held on 04.03.2022 for the post of Chairman of Kallakurichi
Municipality. Allegations of contravention of the Rules 102, 107,
108 read with Rules 49(2) and 52(3) of the Tamil Nadu Town
Panchayats, Third Grade Municipalities and Municipal Corporation
Councils (Elections) Rules, 2006 have been made.
2. Before taking the facts into consideration, learned counsel
for the petitioner was called upon to address the case on
maintainability of the writ petition, in view of the provision under
Article 243-ZG of the Constitution of India. The provision aforesaid
does not permit the challenge to the election save otherwise than
by way of an election petition.
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W.P.No.9576 of 2022
3. Learned counsel for the petitioner has referred to the
judgment of this Court in the case of All India Anna Dravida
Munnetra Kazhagam v. State Election Commissioner and
others, reported in 2007 (1) CTC 705. A specific reference of
paragraph 253 of the said judgment was given to show that despite
a bar under Article 243-ZG of the Constitution of India, a writ
petition was held to be maintainable. Learned counsel for the
petitioner has also referred to the judgment of the Punjab and
Haryana High Court in the case of Prithvi Raj v. State Election
Commission and others, reported in AIR 2007 P&H 178, to
buttress his argument on the maintainability of the writ petition.
4. At the outset, it is necessary for us to consider the issue of
maintainability of the writ petition.
5. A bar exists for interference by the Courts in electoral
matters under Article 243-ZG of the Constitution of India, which is
quoted hereunder:
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W.P.No.9576 of 2022
"Article 243-ZG. 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 243-ZA shall not be called in question in any
Court;
(b) no election to any Municipality 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."
6. The issue of maintainability of the writ petition was decided
by this Court recently in (i) S.Ananthi v. The State Election
Commissioner and others [W.P.No.25551 of 2021, decided
on 02.12.2021] and (ii) R.Nagaraj and others v. The Tamil
Nadu State Election Commission and others [W.P.No.8563 of
2022, decided on 07.04.2022], by distinguishing the judgment
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W.P.No.9576 of 2022
in the case of All India Anna Dravida Munnetra Kazhagam
(supra) on facts. In the case of All India Anna Dravida Munnetra
Kazhagam (supra), 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. A perusal
of paragraph 253(2) of the judgment in the case of All India Anna
Dravida Munnetra Kazhagam (supra) shows that the Larger
Bench categorically held that the exercise given by the High Court
in the said judgment should be applied in rarest of rare cases. The
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W.P.No.9576 of 2022
case on hand, in our considered opinion, does not fall under the said
category.
7. Moreover, the Apex Court in a catena of decisions, for
instance in Harnek Singh v. Charanjit Singh and others,
reported in (2005) 8 SCC 383 and Laxmibai v. Collector,
Nanded and others, reported in (2020) 12 SCC 186,
emphatically held that election disputes must be determined only by
way of election petition and a writ petition should not be
entertained. Paragraphs 16 and 17 of the judgment in Harnek
Singh (supra) 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.
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W.P.No.9576 of 2022
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
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."
8. The aforesaid view of the Apex Court was reiterated by a
Larger Bench of the Apex Court in Laxmibai (supra), 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
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W.P.No.9576 of 2022
jurisdiction is discretionary in nature and may
not be exercised in view of the fact that an
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)
9. In the light of the finding recorded in the judgments supra,
we do not find a writ to be maintainable. With due respect to the
judgment of the Punjab and Haryana High Court in the case of
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W.P.No.9576 of 2022
Prithvi Raj (supra), we hold that the jurisdiction under Article 226
of the Constitution of India cannot be exercised as a matter of
course ignoring Article 243-ZG and the view expressed by us is
supported by the judgments of the Apex Court. Referring to the
judgments quoted in the previous paragraphs, the writ petition is
not maintainable in the light of the provision under Article 243-ZG
of the Constitution of India. Finding no exception on the facts so as
to entertain the writ petition, the same is dismissed. There will be
no order as to costs. Consequently, W.M.P.Nos.9314 and 9316 of
2022 are closed.
(M.N.B., CJ) (D.B.C., J.)
19.04.2022
Index : Yes/No
bbr
To:
1 The State Election Commissioner
Tamilnadu State Election Commission
No.208/2, Jawaharlal Nehru Road
Arumbakkam, Chennai- 600 106.
2 The District Election Officer/
District Collector, Office of the
District Collector, Kallakurichi
Kallakurichi District.
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W.P.No.9576 of 2022
3 The District Election Observer
Office of the District Collector
Kallakurichi, Kallakurichi District.
4 The Superintendent of Police
Kallakurichi, Kallakurichi District.
5 The Returning Officer / Municipal Commissioner
Kallakurichi Municipality, Kallakurichi- 606202
Kallakurichi District.
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W.P.No.9576 of 2022
THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY, J.
bbr
W.P.No.9576 of 2022
19.04.2022
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