Madras High Court
Dr.M.Nakkeeran vs The State Election Commissioner on 25 January, 2022
W.P.Nos.736, 953, 958, 1201 & 1268 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.Nos.736, 953, 958, 1201 & 1268 of 2022
& WMP.Nos.807, 1019 & 1376 of 2022
WP.No.736 of 2022 :
Dr.M.Nakkeeran .. Petitioner
Vs
1.The State Election Commissioner,
State Election Commission,
100 Feet Ring Road, Vadapalani, Chennai-26.
2.The Secretary, State Election Commission,
100 Feet Ring Road, Vadapalani, Chennai-26
3.State of Tamil Nadu, Rep. by the
Principal Secretary to Government,
Department of Health and Family Welfare,
Fort St. George, Chennai. .. Respondents
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WP.No.953 of 2022 :
Prof.Dr.R.A.Pandyaraj .. Petitioner
Vs
1.The State of Tamil Nadu
Rep. by its Principal Secretary to Government
Health and Family Welfare Department
Fort St.George Secretariat
Chennai-9.
2.The State Election Commissioner,
State Election Commissioner,
100 Feet Ring Road, Vadapalani, Chennai-26.
3.The Secretary
State Election Commission,
100 Feet Ring Road,
Vadapalani, Chennai-26. .. Respondents
W.P.No.958 of 2022 :
The Federation of Maduravoyal
Residents Welfare Association Rep. by
its General Secretary C.Thirumaladimai .. Petitioner
Vs
1.The Tamil Nadu State Election Commission
Rep. by its State Election Commission
No.208/2 Jawaharlal Nehru Road
Opp. CMBT Arumbakkam, Chennai-106.
2.The State of Tamil Nadu
Rep. by its Principal secretary to Government
Municipal Administration and
Water Supply (Election) Department,
Fort St. George, Secretariat, Chennai-9.
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3.The Secretary Government
Rural Development and Panchayat Raj Department,
Government of Tamil Nadu
Fort St. George Secretariat, Chennai-9.
4.The State of Tamil Nadu
Rep. by Principal Secretary to Government
Ministry of Health and Family Welfare
Fort St. George Chennai-9.
5.The State of Tamil Nadu
Rep. by Principal Secretary to Government
Municipal Administration and Water Supply Department,
Fort St. George
Chennai-9. .. Respondents
WP.No.1201 of 2022 :
Nearvazhi Iyakkam, Rep by its
Managing Trustee T.Ganeshkumar .. Petitioner
Vs
1.The Chief Secretary of Tamil Nadu
Rep by its Secretary, Secretariat
Fort St. George Chennai
2.The Tamil Nadu Election Commission
Rep. by its Secretary Tamil nadu
State Election Commission
Secretariat, Fort St. George, Chennai
3.The Tamil Nadu Revenue Disaster Management
Rep.by its Secretary
Tamil Nadu State Election Commission
Secretariat
Fort St. George Chennai
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4.The Tamil nadu Health and Family Welfare
Rep by its Secretary
Tamil Nadu State Election Commission
Secretariat, Fort St. George Chennai .. Respondents
WP.No.1268 of 2022 :
K.Hyder ali .. Petitioner
Vs
1.The State Election Commissioner,
rep. by its Secretary No.208/2
Jawaharlal Nehru Salai
Arumbakkam, Chennai-106.
2.The Government of Tamil Nadu
Rep.by its Secretary Health Department
Fort St. George Secretariat Chennai-9. .. Respondents
Prayer: Petitions filed under Article 226 of The Constitution of India
praying for the issuance of a Writ of Mandamus
(i) directing the respondents to take in to consideration the
present covid pandemic situation and accordingly defer the holding of
elections to 21 corporations 138 Municipalities and 490 Town
panchayats and any other local bodies till the covid pandemic
situation improves (WP.No.736 of 2022);
(ii) directing the respondents to defer notification and
conduction
of local body elections in respect of Corporations Municipalities and
Town Panchayats and any other local bodies till the Covid-19 third
surge wave is minimized (WP.No.953 of 2022);
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(iii) directing the 1st respondent to defer the local body
elections to a date where the COVID situation permits conduct of
election and further direction to the 4th and 5th respondents to set
up a committee taking inputs from the concerned Health Authorities
and assessing the pandemic situation from mandated authorities like
Corporation and Municipalities and to ensure the protection of general
Public which is guaranteed and Article 21 of the Constitution of India
(W.P.No.958 of 2022);
(iv) directing the 1 to 4 respondents to restrain them from
conducting the local body election in the State of Tamil nadu by
considering petitioners representation dated 20.01.2022
(WP.No.1201 of 2022); and
(v) directing the respondents to defer for holding the Local
body election for 21 corporations, 138 municipalities and 490 town
panchayat till the Covid-19 spread fully controlled by the Government
of Tamil Nadu (WP.No.1268 of 2022).
For Petitioners : Mr.S.Prabhakaran,
Senior Counsel for
Mrs.Dakshayani Reddy for
petitioner in WP.No.736 of
Mr.AR.L.Sundaresan,
Senior Counsel for
Mr.G.Sankaran for petitioner
in WP.No.953 of 2022
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Mr.T.Mohan for
Ms.T.Dharani for petitioner
in WP.No.958 of 2022 and
Mr.P.S.Raman, Senior
Counsel for Mr.Deepan
Udhay for petitioner in
WP.No.1201 of 2022
Mr.M.Vijayakumar for
petitioner in WP.No.1268 of
For Respondents Mr.R.Shanmugasundaram,
Advocate General assisted
by Mr.P.Muthukumar, State
Government Pleader for
State
Mr.S.Sivashanmugam,
Standing Counsel for State
Election Commission
COMMON ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
We have heard the learned counsel for the respective parties.
2. The above writ petitions have been filed seeking a direction
to the State Election Commission to defer the urban local body
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elections in the present situation of Covid-19.
3. The above writ petitions have been filed apprehending a
Notification from the State Election Commission for election to
urban local bodies.
4. It is the submission of the respective learned counsel
appearing for the petitioners that looking into the present situation
of Covid-19 Third Phase, the State Election Commission and the
State Government should have taken a decision to defer elections to
urban local bodies and that if the elections are held after two or
three months, it will not affect the citizens of the State, but in case
of conduct of elections in the present scenario, it may affect public
health. Therefore, according to them, there is no urgency for the
State Election Commission to notify elections to urban local bodies.
They would further submit that though the elections were scheduled
to be held in the year 2016, for the past five years, no elections
were notified and hence, the petitioners sought to defer the
elections, which is not otherwise conducted within time schedule.
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5. The learned counsel for the respective petitioners have
referred to various documents and figures showing the present
status of the State of Tamil Nadu with reference to Covid-19 Third
Phase. They would submit that the number of cases is going on the
higher side; so also the causalities and at present, if elections are
conducted, it may give rise to further increase in the number of
cases. Taking into consideration the aforesaid situation, the State
Election Commission be directed to defer elections, to the urban
local bodies by two or three months.
6. The learned counsel appearing for the respective petitioners
have made a reference to the provisions of the Disaster
Management Act, 2005 (for brevity, the Act of 2005) and submitted
that even the State is under an obligation to take measures, as
envisaged under Sections 38 to 40 of the Act of 2005 and even the
State Election Commission has to take note of the present situation
so as to avoid spreading of Covid-19, as house to house
campaigning would be undertaken in the urban local body elections,
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which is different when compared to assembly elections or
parliamentary elections. There would be a possibility of spread of
Covid-19 Third Phase in house to house campaigning and therefore,
appropriate directions are required to be given to defer the elections.
7. It is otherwise required as per the mandate under Article 47
of The Constitution of India. The public health is one of the subjects,
which is required to be taken note of by the State and for that
reason, the State is required to pass appropriate orders even under
the Disaster Management Act of 2005. Article 243 of The
Constitution of India mandates for the elections every five years.
But, it cannot be taken in ignorance of Article 47 of The Constitution
of India. The elections should not be held at the cost of public
health, otherwise, there would be a violation of Article 47 of The
Constitution of India. In view of the aforesaid and with reference to
Article 47 of The Constitution of India, apart from the Act of 2005,
the prayer is made to issue appropriate directions as sought in the
writ petitions.
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8. The learned counsel appearing for the respective petitioners
have made a reference to the recent judgment of the Hon'ble
Supreme Court in the case of State of AP Vs. the Andhra
Pradesh State Election Commission [WP(Civil) No.437 of
2020 dated 18.3.2020] wherein the State Election Commission
concerned issued a Notification on 15.3.2020, postponing elections
for the local bodies such as panchayats and municipal bodies, by six
weeks. The Supreme Court refused to interfere for the reason that
the postponement of elections was due to possible outbreak of
Covid-19 pandemic. The view taken by the Apex Court in the said
decision needs to be applied in the present case though the only one
distinguishing factor in the case before the Supreme Court was that
the State Election Commission had already taken a decision and
issued a Notification to postpone the elections whereas in the
present case, no such decision has been taken by the State Election
Commission of Tamil Nadu. Therefore, this Court may issue
directions to the State Election Commission to postpone the
elections in the present scenario.
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9. A further reference is made to the latest judgment of the
First Bench of the Calcutta High Court in the case of Bimal
Bhattacharya Vs. State of West Bengal [reported in 2022 SCC
Online Cal 140]. The issue before the Calcutta High Court was
similar to what has been raised before this Court and therefore, the
judgment of the Calcutta High Court applies to the facts of the
present case. After taking note of the situation prevailing due to
pandemic, the State Election Commission concerned was directed to
take appropriate decision in the matter to defer elections for 4 to 6
weeks. The learned counsel for the respective petitioners have
sought to apply the judgment of the Calcutta High Court on the
facts of the present case.
10. It is the submission of the petitioners that a direction
similar to what has been given by the Calcutta High Court can be
given even with reference to the judgment of the Supreme Court in
the case of Benedict Denis Kinny Vs. Tulip Brian Miranda
[reported in 2020 SCC OnLine SC 802] wherein elaborate
discussions were made regarding exercise of jurisdiction under
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Articles 32 and 226 of The Constitution of India. In view of the
judgment of the Supreme Court in the case supra, this Court may
exercise its jurisdiction under Article 226 of The Constitution of
India to issue directions to the State Election Commission of the
nature as prayed for by the petitioners and for that purpose, the
order dated 27.9.2021 passed by the Supreme Court issuing
directions to the State Election Commission to hold elections within
a period of four months should not be taken to be a bar for
exercising the jurisdiction under Article 226 of The Constitution of
India.
11. It is their further submission that in the said judgment of
the Supreme Court, elaborate discussions with regard to the
provisions restricting the jurisdiction of this Court under Article 226
of The Constitution of India have been made, which is larger than
that of the Supreme Court of India under Article 32 of The
Constitution of India, this Court may pass appropriate orders to
direct the State Election Commission to postpone the elections and
it is more so when the order passed by the Supreme Court in the
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case of S.Shankar Vs. Election Commission of India
[M.A.No.1404 of 2021 in M.A.No.821 of 2021 in M.A.No.2120
of 2020 in W.P.(Civil) No.1443 of 2019 dated 27.9.2021], was
not after taking note of the present situation of pandemic. Rather,
the issue regarding Covid pandemic was not argued in the said case.
12. In view of the facts aforesaid, the order of the Apex Court
dated 27.9.2021 would not close the jurisdiction of this Court under
Article 226 of The Constitution of India. It does not operate even as
a res judicata. A prayer is made for exercise of jurisdiction under
Article 226 of The Constitution of India without being influenced by
the order of the Apex Court dated 27.9.2021, as, it is, otherwise,
not applicable to the facts of this case.
13. A reference is made to paragraphs 30 to 34 of the
judgment of the Supreme Court in the case of Benedict Denis
Kinny (cited supra) to submit that even if a statutory bar has
been caused with regard to exercise of jurisdiction by the High Court
under Article 226 of The Constitution of India, the same was not
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accepted by the Apex Court. Rather, the exercise of jurisdiction
under Article 226 of The Constitution of India was permitted. A
reference to the judgment of the Apex Court in the case of
L.Chandra Kumar Vs. Union of India [reported in (1997) 3
SCC 261] was also given to reiterate that this Court is having
ample power under Article 226 of The Constitution of India and it
would not otherwise offend the order passed by the Apex Court
dated 27.9.2021.
14. The next argument made by the petitioners is with
reference to Rule 22 of the Tamil Nadu Town Panchayats, Third
Grade Municipalities, Municipalities and Corporations (Elections)
Rules 2006 (for short, the Rules of 2006), which mandates that
before issuance of any Notification, the State Election Commission
shall, in pursuance of the Constitutional provisions, consult the
Government before issuing Notification for elections. It is submitted
that no consultation with the State Government has been made by
the State Election Commission for issuance of the Notification for
election. Thus, even the provisions of Rule 22 of the Rules of 2006
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have been violated and accordingly, a prayer is made not only with
reference to the present situation of pandemic, but also with
reference to the Rules of 2006 to issue appropriate order to direct
the State Election Commission to defer the elections. It is also
prayed that the elections may be directed to be notified only after
consultation with the Government as per Rule 22 of the Rules of
2006.
15. The writ petitions are contested by the State Election
Commission. It is submitted by the learned Standing Counsel
appearing for the State Election Commission that the Notification for
election is yet to be issued and therefore, the writ petitions are
premature. It is further submitted that taking into consideration the
directions issued by the Government from time to time with regard
to the present situation of Covid-19 III Phase, appropriate orders
have been issued giving protocol to be maintained during the course
of elections.
16. The learned Standing Counsel appearing for the State
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Election Commission submits that the first order was passed on
10.12.2021 indicating as to how the elections would be conducted
and subsequent to it, another order was passed with regard to the
details of containment zones. According to the learned Standing
Counsel, the State Election Commission would take all precautions
in holding the elections, which are yet to be notified. It is also
submitted that the State Election Commission is under an obligation
to notify elections pursuant to the directions given by the Apex
Court and therefore, while holding the elections, they would not only
take note of public health, but also ensure that protocol prescribed
is adhered to properly, for which, detailed instructions have been
given in the order dated 10.12.2021. It is also submitted that a
Notification for the elections would be issued after compliance of
Rule 22 of the Rules of 2006, as, otherwise, the State Government
has already issued appropriate instructions.
17. The allegations for non compliance of the provisions of
Rule 22 of the Rules of 2006 are not made out. The learned
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Standing Counsel further submits that in view of the order passed
by the Apex Court dated 27.9.2021, the State Election Commission
is under an obligation to notify the elections within a period of four
months. After referring to the relevant orders and action taken by
the respondents, the learned Standing Counsel has sought to
dismiss the writ petitions.
18. The learned Advocate General appearing for the State
submits that the State Government would abide by the directions of
this Court. The State Government is taking every care to control the
spreading of Covid-19 Third Phase. Further, according to the learned
Advocate General, appropriate instructions have been given to the
State Election Commission. According to him, the State has made
arrangements for medical assistance and even for oxygen and
medicines. He has prayed for issuance of appropriate orders, which
would be followed by the State Government.
19. Per contra, the learned counsel appearing for the
respective petitioners submit that if the petitioners are required to
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approach the Apex Court in the light of the orders passed by the
Supreme Court dated 27.9.2021, an appropriate direction for it may
be given to the petitioners after granting an interim order at least
for two weeks to restrain the State Election Commission to issue a
Notification. A reference is made to the order passed by this Court
on 01.12.2021 in W.P.No.22288 of 2021 etc. Therein though a
reference to the order passed by the Apex Court directing the State
Election Commission, Puducherry to hold the elections within time
frame was made, yet this Court continued the interim order for a
period of two weeks, so that the Commission may approach the
Supreme Court for appropriate orders. The petitioners pray for
issuance of similar directions in the present case also.
20. We have carefully considered the rival submissions of the
parties and perused the records.
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21. The batch of writ petitions have been filed seeking a
direction to the State Election Commission to postpone or defer the
elections to urban local bodies till the surge of Covid-19 pandemic
comes to an end. The petitioners have made a reference to the
details, which contain as to how many persons are getting affected
by Covid-19 Third Phase every day and as to the number of active
cases in the State of Tamil Nadu apart from hospitalization.
22. Based on those figures, it is submitted by the petitioners
that the State Government or the State Election Commission should
have taken a decision to postpone the election, which was,
otherwise, due and scheduled to be held in the year 2016 and as the
elections could not be held for five years, by deferring the elections
for a period of two to three months, the Constitutional mandate
would not get affected.
23. To appreciate the said argument of the petitioners, we
need to make a reference to the order passed by the Apex Court
dated 27.9.2021 wherein a direction was given to the State Election
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Commission to hold elections within a period of four months. The
said order dated 27.9.2021 was on an application. The direction to
hold the elections within a period of four months was given on an
affidavit filed by the State Election Commission. It was keeping in
mind the fact that elections for the local bodies could not be held in
the year 2016 and even thereafter, so as to comply with the
mandate of The Constitution of India. The failure of the State
Election Commission was taken note of by the Apex Court for calling
an affidavit. An affidavit was filed to ensure the elections within four
months. In the light of the aforesaid, these writ petitions have been
filed apprehending a Notification in compliance of the directions
given by the Apex Court. The prayer is to direct the State Election
Commission to postpone or defer the elections in the present
scenario of Covid-19 pandemic Third Phase.
24. The question that arises for consideration is as to whether
this Court should pass an order with reference to the directions
made by the petitioners overlooking the directions of the Apex Court
to the State Election Commission to hold the elections within a
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period of four months.
25. The learned counsel appearing for the respective
petitioners submit that this Court, while exercising jurisdiction under
Article 226 of The Constitution of India, has vast powers to issue
appropriate orders in the fitness of the case and a reference is made
to the judgment of the Apex Court in the case of In Re :
Distribution of Essential Supplies and Services During
Pandemic [SMW(C) No.3 of 2021 dated 27.4.2021]. Therein
the Apex Court made a distinction between exercise of jurisdiction
under Article 32 of The Constitution of India by the Supreme Court
and exercise of jurisdiction by the High Court under Article 226 of
The Constitution of India.
26. It is no doubt true that the jurisdiction of this Court under
Article 226 of The Constitution of India is quite vast and it is not
only to address the issues with regard to fundamental rights, but
also with regard to legal rights.
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27. The question would, however, be as to whether exercise of
such jurisdiction can be going against the directions of the Apex
Court.
28. It is not a case where we refuse to exercise our jurisdiction
under Article 226 of The Constitution of India with reference to any
bar under the statutory provisions or the judgment of the Supreme
Court, but to maintain judicial discipline and thereby not to pass any
order contrary to the directions of the Apex Court.
29. At this stage, an argument was advanced by the
petitioners stating that the issue with regard to Covid-19 pandemic
Third Phase was not an issue before the Apex Court for issuance of
directions to conduct elections and therefore, the order of the Apex
Court dated 27.9.2021 is not binding and they will not operate as
res judicata.
30. The arguments raised by the petitioners cannot be
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accepted, as, otherwise, judicial discipline cannot be maintained. It
is more so when no one prevented the petitioners to approach the
Apex Court to seek appropriate directions for postponement or
deferment of the elections on the grounds urged before us. This
Court rather asked the learned counsel for the respective petitioners
as to why an application has not been moved before the Apex Court
for extension of time with regard to the situation of Covid-19
pandemic Thrid Phase. It is submitted that petitioners being not
parties to the litigation before the Apex Court, the application could
not be moved. It is only the State Election Commission, which ought
to have moved the Supreme Court.
31. The aforesaid above argument of the petitioners is not
acceptable in view of the fact that if the petitioners have any
grievance in holding the election and the State Election Commission
has to conduct elections pursuant to the undertaking given before
the Apex Court, anyone aggrieved by the directions issued therein
could have approached the Apex Court. The State Election
Commission, in their wisdom, did not file any application seeking
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postponement of election. It may be for the reason that they have
already issued a detailed order to maintain protocol in the elections,
which is yet to be notified. The detailed protocol would be referred
to in the subsequent paragraphs of this judgment. The State
Election Commission may be justified to proceed further in the
matter in view of the precautions already ordered in the ensuing
elections.
32. In any case, none of the parties approached the Apex
Court to seek appropriate orders to extend the period and in the
absence of it, this Court cannot issue directions contrary to what
had been directed by the Apex Court. Though the direction of the
Apex Court dated 27.9.2021 was not after considering the Third
Phase of Covid-19 pandemic, yet we cannot ignore that second
wave of pandemic was existing. The Apex Court, taking note of the
delay in holding the elections, going against the mandate of The
Constitution of India, directed the State Election Commission to file
an affidavit/undertaking to hold elections. Thus, we are not in
agreement with the learned counsel for the petitioners to issue a
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direction for postponement or deferment of elections going against
the order of the Apex Court.
33. The State Election Commission has otherwise issued a
detailed order for the elections, to be notified. Paragraph 9 of the
order dated 10.12.2021 issued by the State Election Commission is
quoted hereunder for ready reference:
“Election Campaign :
(1) The candidates can undertake house to house
campaign with minimum (maximum 3)
supporters, maintaining social distance in the
campaign and they shall wear face mask without
fail. As far as possible, the priority should be
given to the campaign through electronic media.
(2) The campaign is restricted to the concerned local
body ward/village panchayat.
(3) The convoy of vehicles should be broken after
every three vehicles. The intervals between two
sets of convoy of vehicles should be half an
hour.
(4) Candidates can use printed notices for their
campaign. While campaigning bearing face mask
and hand gloves are compulsory.
(5) In view of Covid-19, campaigning in large
groups is not allowed.
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(6) Covid positive candidates shall restrict their
campaign through electronic media only and
physical presence in campaign is not allowed.
(7) Candidates can arrange meetings in the ward
strictly following all covid-19 protocols.
(8) All political parties and all candidates should
exercise a degree of responsibility and ensure
that campaign meetings and gatherings even
limited to private groups, maintain the covid
protocol.
(9) The use of masks is mandatory since there is a
fine, which is attracted upon masks not being
used.
(10) The distancing norms must be maintained at all
times and measures for sanitation should be
resorted to frequently.
(11) It would also be the duty of the candidates to
make voters aware of protocol at meetings and
gatherings and wherever they campaign.
(12) Non compliance of instructions – anybody
violating instructions on covid-19 measures will
be liable to be proceeded against as per the
provisions of Sections 51 to 60 of the Disaster
Management Act, 2005, besides legal action
under Section 188 of the IPC and other legal
provisions as applicable as specified in Order
No.40-3/2020-DM –I(A) dated 29.7.2020 of
Ministry of Home Affairs. District Election Officer
should bring this to the notice of all concerned.”
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34. A perusal of the above quoted paragraph shows that all
the precautions for the safe conduct of the election have been
directed for the elections to be notified for the urban local bodies.
The directions given in paragraph 9 of the order dated 10.12.2021
take care of the present scenario of Covid-19 Third Phase and while
making house to house campaigning, it does not permit more than
three supporters at a time in that campaign and that too, with social
distancing. Appropriate directions have been given to the political
parties and all the candidates to exercise a degree of responsibility
and ensure that campaign meetings and gatherings are limited to
private groups so as to maintain the Covid Protocol.
35. While the State Election Commission issued appropriate
instructions in the above quoted paragraph, a further direction for
the consequence of non compliance of the instructions has been
given.
36. At this stage, we would be making a reference to Sections
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38 to 40 of the Act of 2005, which are quoted as hereunder :
“38. State Government to take measures. —
(1) Subject to the provisions of this Act, each
State Government shall take all measures specified in
the guidelines laid down by the National Authority and
such further measures as it deems necessary or expedi-
ent, for the purpose of disaster management.
2) The measures which the State Government
may take under sub-section (1) include measures with
respect to all or any of the following matters, namely:—
(a) coordination of actions of different
departments of the Government of the State, the State
Authority, District Authorities, local authority and other
non-governmental organisations;
(b) cooperation and assistance in the disaster
management to the National Authority and National
Executive Committee, the State Authority and the State
Executive Committee, and the District Authorities;
(c) cooperation with, and assistance to, the
Ministries or Departments of the Government of India in
disaster management, as requested by them or
otherwise deemed appropriate by it;
(d) allocation of funds for measures for
prevention of disaster, mitigation, capacity-building and
preparedness by the departments of the Government of
the State in accordance with the provisions of the State
Plan and the District Plans;
(e) ensure that the integration of measures for
prevention of disaster or mitigation by the departments
of the Government of the State in their development
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plans and projects;
(f) integrate in the State development plan,
measures to reduce or mitigate the vulnerability of
different parts of the State to different disasters;
(g) ensure the preparation of disaster
management plans by different departments of the
State in accordance with the guidelines laid down by
the National Authority and the State Authority;
(h) establishment of adequate warning systems
up to the level of vulnerable communities;
(i) ensure that different departments of the
Government of the State and the District Authorities
take appropriate preparedness measures;
(j) ensure that in a threatening disaster situation
or disaster, the resources of different departments of
the Government of the State are made available to the
National Executive Committee or the State Executive
Committee or the District Authorities, as the case may
be, for the purposes of effective response, rescue and
relief in any threatening disaster situation or disaster;
(k) provide rehabilitation and reconstruction
assistance to the victims of any disaster; and
(l) such other matters as it deems necessary or
expedient for the purpose of securing effective
implementation of provisions of this Act.
39. Responsibilities of departments of the State
Government. —It shall be the responsibility of every
department of the Government of a State to—
(a) take measures necessary for prevention of
disasters, mitigation, preparedness and capacity-
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building in accordance with the guidelines laid down by
the National Authority and the State Authority;
(b) integrate into its development plans and
projects, the measures for prevention of disaster and
mitigation;
(c) allocate funds for prevention of disaster,
mitigation, capacity-building and preparedness;
(d) respond effectively and promptly to any
threatening disaster situation or disaster in accordance
with the State Plan, and in accordance with the
guidelines or directions of the National Executive
Committee and the State Executive Committee;
(e) review the enactments administered by it, its
policies, rules and regulations with a view to
incorporate therein the provisions necessary for
prevention of disasters, mitigation or preparedness;
(f) provide assistance, as required, by the
National Executive Committee, the State Executive
Committee and District Authorities, for—
(i) drawing up mitigation, preparedness and
response plans, capacity-building, data collection and
identification and training of personnel in relation to
disaster management;
(ii) assessing the damage from any disaster;
(iii)carrying out rehabilitation and
reconstruction;
(g) make provision for resources in consultation
with the State Authority for the implementation of the
District Plan by its authorities at the district level;
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(h) make available its resources to the National
Executive Committee or the State Executive Committee
or the District Authorities for the purposes of
responding promptly and effectively to any disaster in
the State, including measures for—
(i) providing emergency communication with a
vulnerable or affected area;
(ii) transporting personnel and relief goods to
and from the affected area;
(iii) providing evacuation, rescue, temporary
shelter or other immediate relief;
(iv) carrying out evacuation of persons or live-
stock from an area of any threatening disaster situation
or disaster;
(v) setting up temporary bridges, jetties and
landing places;
(vi) providing drinking water, essential
provisions, healthcare and services in an affected area;
(i) such other actions as may be necessary for
disaster management.
40. Disaster management plan of departments of
State. —
(1) Every department of the State Government,
in conformity with the guidelines laid down by the State
Authority, shall—
(a) prepare a disaster management plan which
shall lay down the following:—
(i) the types of disasters to which different parts
of the State are vulnerable;
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(ii) integration of strategies for the prevention of
disaster or the mitigation of its effects or both with the
development plans and programmes by the
department;
(iii) the roles and responsibilities of the
department of the State in the event of any threatening
disaster situation or disaster and emergency support
function it is required to perform;
(iv) present status of its preparedness to
perform such roles or responsibilities or emergency
support function under sub-clause (iii);
(v) the capacity-building and preparedness
measures proposed to be put into effect in order to
enable the Ministries or Departments of the
Government of India to discharge their responsibilities
under section 37;
(b) annually review and update the plan referred
to in clause (a) and;
(c) furnish a copy of the plan referred to in
clause (a) or clause (b), as the case may be, to the
State Authority.
(2) Every department of the State Government,
while preparing the plan under sub-section (1), shall
make provisions for financing the activities specified
therein.
(3) Every department of the State Government
shall furnish an implementation status report to the
State Executive Committee regarding the
implementation of the disaster management plan
referred to in sub-section (1).”
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37. The provisions aforesaid fix responsibility on the State
Government to take care of the situation during disaster for its
management and to take steps and pass orders appropriate to the
situation. Further, the State Government has been issuing orders
from time to time to address the situation of Covid-19 Third Phase.
They are taking all measures to see that pandemic may not spread.
The efforts of the State Government for that purpose are
appreciated. In the light of the above, we do not find that there is
non compliance of Sections 38 to 40 of the Act of 2005 or
otherwise, for holding the elections for the urban local bodies, any
of the provisions of the Act of 2005 would be infringed. Rather, the
petitioners failed to place on record any order of the State
Government in that regard with an allegation of violation.
38. The prayer is not made in the writ petitions even to direct
the State Government to pass orders under the Act of 2005
appropriate to the situations, which include restrain of the nature,
as prayed by the petitioners. In view of the above, we do not find
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that the reference to the aforesaid provisions is of any assistance to
the petitioners.
39. A reference to Article 47 of The Constitution of India has
been given. It is no doubt true that it is the duty of the Government
to take care of public health. It is not the case of the petitioners that
the State Government failed to take precautions as envisaged under
Article 47 of The Constitution of India, in the absence of which, we
do not find the reference to Article 47 of The Constitution of India is
of any consequence. It cannot be with reference to the action of the
State Election Commission also.
40. We have already referred to the order passed by the State
Election Commission on 10.12.2021 as to how campaigning of the
elections should be held. The State Election Commission has also
taken care of the present situation and thereby issued appropriate
directions.
41. The learned counsel for the respective petitioners submit
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that the order dated 10.12.2021 was passed by the State Election
Commission at the time when the Covid-19 Third Phase was not at
the peak and therefore, it is not taking care of the present situation.
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42. We find aforesaid argument for the sake of it, as none of
the learned counsel could make a suggestion apart from what had
been directed by the State Election Commission in paragraph 9 of
the order dated 10.12.2021.
43. This Court, however, took cognizance of the issue raised
by the petitioners; so also the order passed by the State Election
Commission to see that the directions given therein are complied by
all the political parties apart from candidates contesting the
elections. For such a purpose, this Court, while disposing of these
matters, would keep the issue alive to see that if elections are
notified, the compliance of protocol as envisaged by the State
Election Commission is strictly made. Any violation thereupon can
be brought to the notice of this Court for passing appropriate orders
to provide all safeguards to the citizens due to Covid-19 pandemic
Third Phase.
44. In view of the above, while passing a final order in these
writ petitions, we will keep the issue alive not only with regard to
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the consequence given in sub-paragraph 12 of paragraph 9 of the
order dated 10.12.2021, but also to pass any other appropriate
orders in case of failure to comply with the directions of the State
Election Commission.
45. These matters need to be examined even with reference to
the Constitutional mandate for holding the elections. While passing
the order dated 27.9.2021, the Supreme Court directed the State
Election Commission to hold elections within four months. The
Constitutional mandate cannot be ignored altogether and only for
the reason that the elections have not been held for a period of five
years from 2016. The failure does not mean to be replicated or
extended further. Rather, a serious view is required to be taken. The
Constitutional mandate cannot be ignored by the Constitutional
Bodies like the State Election Commission. They owe a higher
responsibility to comply with the Constitutional mandate. A duty is
cast upon to comply with the Constitutional mandate not by the
ordinary citizens, but by the Constitutional Authority itself. In view
of the above, we find it difficult to accept any of the arguments
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W.P.Nos.736, 953, 958, 1201 & 1268 of 2022
raised by the petitioners.
46. At this stage, we would be referring to the order dated
01.12.2021 passed in W.P.No.22288 of 2021 etc. The order has
been referred to by the petitioners to urge that for a period of two
weeks, interim order may be granted.
47. We have gone through the order dated 01.12.2021 and
find that the facts in that case were quite different from the facts of
these cases. In the said case, this Court, while entertaining the writ
petitions, passed interim orders and it was continued from time to
time. When the matter came up before this Court on 01.12.2021, it
was realized that as per the Constitutional mandate, the elections
are required to be conducted and directions were given by the Apex
Court to hold elections within a time frame. The issue therein was
regarding deferment of the elections in the absence of identification
and notification of OBC category and therefore, the elections were
not notified. However, taking into consideration the peculiar facts of
the case and more particularly with regard to the fact that
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reservation to OBC category was yet to be notified by the Union
Territory of Puducherry, the interim order operating in the said writ
petitions was extended for a period of two weeks.
48. In the instant case, no interim order has been granted and
this Court is informed about the order passed by the Apex Court
dated 27.9.2021. The order dated 27.9.2021 cannot be ignored and
for that purpose, we have discussed all the issues raised by the
petitioners.
49. We do not find any ground to direct the petitioners to
approach the Supreme Court for extension for the elections. In fact,
it was upto the petitioners to take the remedy aforesaid, for which,
it was indicated by the Court at the initial stage itself. It is the
petitioners, who chose to file these writ petitions before this Court
instead of approaching the Apex Court. Accordingly, the matter has
been considered after hearing the petitioners. Finding that this Court
cannot issue any direction for postponement of the elections by
going against the directions of the Apex Court, we are unable to
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grant the relief prayed by the petitioners.
50. Accordingly, the above writ petitions are disposed of with a
direction to the State Election Commission that if a Notification is
issued for holding elections, the elections shall be conducted by
strictly following the directions given in the order dated 10.12.2021.
The State Election Commission is at liberty to issue any other
appropriate direction prior to the issuance of Notification and
subsequent to it addressing the situation of Covid-19 pandemic
Third Phase and see that whatever directions issued/to be issued by
the State Election Commission are properly complied with, without
compromising the health of the citizens and the voters of the State
of Tamil Nadu. This Court would see that the compliance is made
properly. Consequently, the connected WMPs are closed. There will
be no order as to costs.
51. We record our appreciation with regard to the assistance
given by all the senior counsel appearing for the parties.
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52. Registry is directed to list these matters again, ten days
immediately after the issuance of Notification for elections to the
urban local bodies.
(M.N.B., ACJ) (P.D.A., J.)
25.01.2022
Index : Yes/No
To:
1.The Principal Secretary to Government
State of Tamil Nadu
Health and Family Welfare
Department Fort St. George, Secretariat, Chennai-9.
2.The State Election Commissioner,
100 Feet Ring Road, Vadapalani, Chennai-26.
3.The Secretary
State Election Commission,
100 Feet Ring Road,
Vadapalani, Chennai-26.
4.The Principal secretary to Government
State of Tamil nadu
Municipal Administration and
Water Supply (Election ) Department Fort St.
George, Secretariat, Chennai-9.
5.The Secretary Government
Rural Development and Panchayat Raj
Department Government of Tamil Nadu
Fort St. George Secretariat, Chennai-9.
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6.The Principal Secretary to Government
State of Tamil Nadu
Municipal Administration and Water Supply
Department Fort St. George
Chennai-9.
7.The Chief Secretary of Tamil Nadu
Rep by its Secretary Secretariat
Fort St. George Chennai
8.The Secretary
Tamil nadu Revenue Disaster Management
Tamil Nadu State Election commission, Secretariat
Fort St. George, Chennai.
RS
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M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J
RS
W.P.Nos.736, 953, 958, 1201 & 1268
of 2022 & WMP.Nos.807, 1019 & 1376
of 2022
25.1.2022
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