Dismissed

A.Kasina Beevi v. the State Election

Madras HC12 Oct 2011WP(MD)/11507/2011

Case brief

AI extract

What is this about?

This judgment dismisses multiple writ petitions challenging the State Election Commission's decisions regarding the acceptance and rejection of nominations for local body elections in Tamil Nadu. The court held that jurisdiction is barred by Articles 243-O and 243ZG of the Constitution and Section 258 of the Tamil Nadu Panchayats Act, reserving challenges for election petitions. It rejected claims that procedural flaws in rejection constituted a 'monstrous situation' justifying Article 226 intervention. The court ruled that Return Officers cannot conduct summary enquiries into criminal disqualifications during scrutiny and that remedies lie in election disputes after results are declared.

What the court decided

A.Kasina Beevi Vs the State Election — Pension and Retirement Benefits | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 12-10-2011 CORAM:

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THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN

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W.P.(MD)Nos. 11502, 11506, 11507, 11508, 11511, 11518, 11520, 11525, 11530, 11534 to 11540 of 2011, 11542 to 11547, 11548, 11549, 11551, 11552, 11553, 11555 to 11560, 11565, 11580 and 11581 to 11586, 11605, 11632, 11672 and 11678 of 2011 And

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M.P.(MD) Nos.1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 2, 3, 1, 2, 1, 1, 2, 1, 1, 1, 2, 3, 1, 1, 1, 1, 1, 1, 1, 2, 1, 2, 1, 1, 1, 1, 1, 1, 1, 1 and 1 of 2011

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WP.(MD).No.11507/2011 :

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A.KASINA BEEVI ... PETITIONER

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THE STATE ELECTION COMMISSIONER (LOCAL BODY ELECTIONS), TAMILNADU STATE ELECTION COMMISSION, VADPALANI, CHENNAI.

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THE ELECTION OFFICER THONDI I GRADE TOWN PANCHAYAT, THONDI,

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THIRUVADANAI TALUK, RAMANATHAPURAM DISTRICT.

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THE ASSISTANT RETURNING OFFICER, K THONDI I GRADE TOWN PANCHAYAT,

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THONDI, THIRUVADANAI TALUK,

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RAMANATHAPURAM DISTRICT. ... RESPONDENTS

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Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents to permit the petitioner to contest for the post of Councilor in Ward No.13 of Thondi I Grade Town Panchayat in Ramanathapuram District, in local body election to be held on 17.10.2011, by accepting the nomination form submitted by the petitioner and by considering Challan No.98 issued erroneously in the name of Razul Mohaidheen instead of the petitioner Kasina Beevi.

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For Petitioner : Mr.P.Santhanakurishnan For State Election Commission : Mr.K.Mahendran, Special Government Pleader. For State of Tamil Nadu Respondents 2 & 3 : Mr.R.Karthikeyan AGP

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C O M M O N O R D E R

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All these writ petitions arise either out of the non-acceptance or rejection of the nominations filed by the petitioners or out of the alleged improper and illegal acceptance of the nominations of a few https://hcservices.ecourts.gov.in/hcservices/ persons, for election to the local bodies in the State of Tamil Nadu, scheduled to be held on 17^th and 19^th October 2011.

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I have heard the learned counsel appearing for the respective petitioners, Mr.K.Mahendran, learned Special Government Pleader appearing for the State Election Commission and the Returning Officers and Mr.G.R.Swaminathan, learned counsel appearing for a contesting respondent in one writ petition viz., W.P.(MD) No.11506 of 2011.

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The Tamil Nadu State Election Commission issued a notification on 13.9.2011 announcing the elections to the local bodies. The schedule drawn up in the election notification is as follows:-

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29.09.2011

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30.09.2011

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Last date for filing nominations

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Scrutiny of nominations

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30.09.2011 Publication of list of valid nominations - 03.10.2011 Last date for withdrawal of nominations and the publication of the final list of contesting

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candidates.

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The petitioners in all these writ petitions filed nominations for contesting the elections either to the post of Ward Members of different Panchayat Unions or to the post of President of various Panchayats. After the scrutiny of nominations was over on 30.9.2011, the petitioners have come up with the above writ petitions, for ventilating a variety of grievances, which can be categorised into the following:-

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(i) The improper acceptance of the nominations of some candidates, who, according to the petitioners, are disqualified in terms of the provisions of the Act and the Rules, from contesting.

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(ii) The arbitrary rejection or non-acceptance of the nominations of the petitioners on flimsy or on no valid grounds.

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Since the legal issues arising for consideration in the above two categories of cases differ from each other, to some extent, I have grouped all the cases under the above two categories and I shall deal with each of the above two categories of cases separately. CASES ARISING OUT OF IMPROPER ACCEPTANCE OF NOMINATIONS OF RIVAL CANDIDATES:

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W.P.(MD) Nos.11502, 11530, 11551, 11552, 11605 and 11632 of 2011 fall under this category.

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In W.P.No.11502 of 2011, the nomination filed by one Bhanumathi is objected to by the petitioner on the ground that her name is not found in the electoral roll and that she did not enclose the Voter ID card and ration card to the nomination paper. But the writ petitioner has not even impleaded her as a party.

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In W.P.No.11530 of 2011, the challenge is to the acceptance of the nominations of the respondents 5 and 6 therein, for the post of Panchayat Union Councilor of Vilathikulam Panchayat Union. According to the petitioner, the fifth respondent is a resident of Vilathikulam Township, but by making a false claim that she is a resident of Chithavanaickenpatti Panchayat, she filed a nomination. Similarly, it is claimed by the petitioner that the sixth respondent was a Government Contractor, but the same was suppressed by him. It is also claimed by the petitioner that the Returning Officer actually rejected the nominations of the respondents 5 and 6 on the grounds stated above and he also promised to issue orders of rejection later, since there was a power cut at that time. But subsequently, the names of the respondents 5 and 6 were found in the final list of candidates. Therefore, the petitioner has come up with a prayer to declare the inclusion of the names of the respondents 5 and 6 in the final list of candidates as null and void. In support of his contention that the Returning Officer originally rejected the nominations of the respondents 5 and 6 and promised to issue rejection orders later, the petitioner has also filed the copy of the proceedings https://hcservices.ecourts.gov.in/hcservices/ dated 1.10.2011 of the Returning Officer. 9. In W.P.No.11551 of 2011, the petitioner sought the rejection of the nomination of the fourth respondent on the ground that the fourth

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respondent was convicted by a criminal court in C.C.No.114 of 1998 on the file of the Judicial Magistrate, Thanjavur which was also confirmed on appeal by the District and Sessions Court, Thanjavur in C.A.No.15 of 2009. But the nomination was accepted on the ground that a revision was pending on the file of this Court and that the conviction was not a disqualification.

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In W.P.No.11552 of 2011, the petitioner sought the disqualification of the third respondent on the ground that he was not a resident of Bavajikottai Panchayat. The petitioner has also claimed that the third respondent has not paid professional tax and that without resigning the post of President of Kanyakurichi Panchayat, the third respondent could not be an Elector in Bavajikottai Panchayat.

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In W.P.Nos.11605 and 11632 of 2011, the claim is that the names of the contesting respondents were not found in the electoral rolls and that they are not residents of the concerned village. Thus the prayer for the rejection of nominations of the respondents is sought, either on the ground of conviction in a criminal case or on the ground of residential status or on the ground that the Returning Officer played foul, after rejecting the nominations in public, but reversing it later in private.

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In so far residential status is concerned, it is not a question which can be gone into at the pre-election stage. It is a matter which requires evidence. In Rampakavi Rayappa Belagali vs. B.D.Jatti {AIR 1971 SC 1348}, the Supreme Court made it clear that the entries made in the Electoral Roll of a Constituency can only be challenged in accordance with the machinery provided by the Act and the Rules and not in any other Forum. In Hari Prasad Mulshankar Trivedi vs. V.B.Raju {1974 (3) SCC 415}, the Constitution Bench of the Supreme Court went to the extent of holding that by virtue of Section 30(a) of The Representation of the People Act, 1950, the jurisdiction of the Court is ousted with regard to the entitlement of a person to be registered in an Electoral Roll. In both these cases, the Supreme Court held that even the jurisdiction of the Election Tribunal stands ousted, in respect of such matters unless the disqualification of the candidate could be traced to any of the Constitutional provisions. These decisions were followed by a Division Bench of this court in Dr.Subramaniam Swamy vs.T.T.V.Dinakaran {2004 (1) LW 712}. But if the disqualification could be traced to the Constitutional provisions, the same can be dealt with by the Election Tribunal, as pointed by me in S.Nagavalli vs. The Election Officer {2011 (4) LW 703}. But in any case, it is not a matter that could be considered in a writ petition under Article 226. Therefore, the writ petitions where the prayer is based upon the residential status of the rival candidates, are liable to be rejected.

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In so far as W.P.No.11530 of 2011 is concerned, the petitioner raises a plea that the Returning Officer turned volte face, after orally rejecting the nominations of the respondents 5 and 6 with a promise to issue written orders later. But this is an issue which cannot be decided, especially in a writ petition without a counter affidavit. Once the Returning Officer chooses to deny this allegation, it becomes a disputed question of fact into which the Writ Court will not go, especially when the election is less than a week away. Therefore, W.P.No.11530 of 2011 is also liable to be rejected.

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In so far as W.P.No.11551 of 2011 is concerned, it is the case of the petitioner that the third respondent was convicted for an offence under Section 3(a) of The Railway Property (Unlawful Possession) Act, 1966. He was sentenced to imprisonment for one year and ordered to pay a fine of Rs.1,000/- by the Trial Court. The same was confirmed by the https://hcservices.ecourts.gov.in/hcservices/ Sessions Court on appeal. On a revision filed by the fourth respondent, the fourth respondent was let on bail by this Court, on 11.12.2009. Therefore, the question to be considered is as to whether the above

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conviction is a disqualification under the Act and the Rules.

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Section 33 of The Tamil Nadu Panchayats Act, 1994, prescribes two qualifications, for candidates seeking election as Member or President of a Panchayat. They are (i) that his name should appear on the electoral roll of the Panchayat and (ii) that he should have completed his 21^st year of age. Sections 34, 35 and 37 speak of disqualifications of candidates, while Section 36 speaks of disqualification of voters. Section 38 deals with disqualification of the members already elected to hold office. Fortunately, we are not concerned here with cases under Sections 36 and 38. Persons who are disqualified under these provisions (34, 35 and 37), are:-

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Persons disqualified under Section 34:

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(i) Village Administrative Officer or Village Servant

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(ii) Other Officers or Servants of the State or Central Government or of a Village Panchayat, Panchayat Union Council, District Panchayat, Municipal Council or the Municipal Corporations of Chennai, Madurai, Coimbatore or any other Corporation.

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(iii) Officers or Servants of any Industrial Township, Cantonment or any body corporate owned or controlled by the State or Central Government. Persosn disqualified under Section 35:

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(iv) Every person convicted of an offence punishable under Sections 58 to 71 of The Tamil Nadu Panchayats Act, 1994.

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(v) Every person convicted of an offence punishable under Chapter IX-A of The Indian Penal Code (offences relating to elections).

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(vi) Every person disqualified by or under any law for the time being in force for the purposes of election to the Legislative Assembly of the State.

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The above disqualifications are for a period of 5 years from the date of conviction.

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Persons disqualified under Section 37:

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(vii) A person sentenced by a Criminal Court to imprisonment for any offence involving moral delinquency, is disqualified when the sentence is in force and for 6 years from the date of expiry of the period of sentence.

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(viii) A person convicted of an offence punishable under The Protection of Civil Rights Act, 1955, disqualified for a period of 6 years from the date of conviction.

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(ix) A person who is of unsound mind or a deaf-mute as at the last date of filing the nomination or at the date of election.

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(x) A person adjudicated as insolvent or an undischarged insolvent.

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(xi) A person interested in a subsisting contract with the Panchayat, except as a shareholder in a company.

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(xii) A person employed as a paid legal practitioner on behalf of the Panchayat or against the Panchayat.

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(xiii) A person found not to belong to the Scheduled Castes or Scheduled Tribes, is disqualified for contesting from a reserved constituency.

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(xiv) A person who is already a member of a Panchayat whose term of office has either not expired or not commenced.

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(xv) A person who is in arrears of any kind to a Panchayat, upto and inclusive of the previous year.

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(xvi) A person who failed to lodge an account of the election expenses within the time and in the manner prescribed and who has no good reason or justification for such failure.

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Therefore, the question as to whether the conviction of the fourth respondent in W.P.No.11551 of 2011 would be a disqualification https://hcservices.ecourts.gov.in/hcservices/ within the ambit of Section 35 or 37 (1) of the Act, is a question which deserves consideration. But such consideration is not possible at the hands of the Returning Officer, in view of the limited scope of the

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enquiry that he is entitled to undertake at the time of scrutiny of nominations.

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As a matter of fact, the issue relating to disqualification of persons with a criminal background has engaged the attention of the Courts as well as the Law Commission of India and the Government for quite some time. If we have a look at the decisions of the Supreme Court in Union of India vs. Association of Democratic Reforms {2002 (5) SCC 294} and in People's Union of Civil Liberties vs. Union of India {2003 (4) SCC 399}, it could be seen that the proviso to Direction No.4 contained in paragraph 14 of the order of the Election Commission of India dated 28.6.2002, empowering the Returning Officers to conduct a summary enquiry, was held to be invalid by the Apex Court. I had an occasion to deal with this aspect in greater detail in Krishnamoorthy vs. Sivakumar {2009 (3) CTC 446}. In PUCL, the Supreme Court held in para 73 as follows:-

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“73. While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Association for Democratic Reforms case, 2002 (5) SCC 294, the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. ....”

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Therefore, it may not be possible for the Returning Officer to hold an enquiry into these aspects. Hence the refusal of the Returning Officer to reject the nomination of a candidate, cannot be the subject matter of a writ petition, especially pre-election. The only remedy open to the petitioners in these cases, without any doubt in my mind, is to raise an election dispute, if at all, the candidates against whom the petitioners make allegations, get elected. Hence these 6 writ petitions W.P.Nos.11502, 1530, 11551, 11552, 11605 and 11632 of 2011 are dismissed. No costs. Consequently connected miscellaneous petitions are also dismissed.

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CASES ARISING OUT OF REJECTION OR NON-ACCEPTANCE OF NOMINATIONS OF THE PETITIONERS:

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The grounds on which the nominations of the writ petitioners have been either rejected or simply not accepted, fall under various categories. They are:-

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(i) that the candidate has failed to fill up the column relating to

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age;

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(ii) that the name of the candidate was not found in the electoral list, though the RDO has given a Certificate dated 29.9.2011;

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(iii) that the candidate has not paid the current house tax;

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(iv) that the name of the candidate is found in the electoral rolls

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of more than one constituency;

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(v) that the candidate has failed to furnish the name of the Bank in

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which he holds an account;

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(vi) that the last page of the nomination form alone was not notarised, though the other pages were duly attested and notarised;

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(vii) that the candidate had not mentioned the dues payable to the

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Cooperative Bank;

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(viii) that the deposit made had been taken in the name of somebody

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else (proposer) and not in the name of the candidate;

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(ix) that page-7 of the affidavit not enclosed, though the candidate

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actually had enclosed; and

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(x) that the candidate had not submitted his letter of resignation from the post of Librarian to the Competent Authority though he submitted https://hcservices.ecourts.gov.in/hcservices/ to an incompetent Authority.

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Before I could take up for consideration the individual writ petitions in which either the orders of rejection or the non-acceptance

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of the nominations are under challenge, I must deal with two preliminary objections raised by Mr.K.Mahendran, learned Special Government Pleader appearing for the Election Commission. They are:-

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(i) that in respect of elections to the Wards which form the subject matter of W.P.Nos.11525, 11534, 11535, 11538, 11539, 11540, 11555, 11558 and 11583 to 11585 of 2011, the results of elections have already been declared, in view of the fact that the nomination of only one candidate survived in the final list; and

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(ii) that in any case, there is a bar of jurisdiction of this Court, both in terms of the Constitution of India and in terms of the provisions of The Tamil Nadu Panchayats Act, 1994.

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The first preliminary objection of the learned Special Government Pleader in respect of those 11 writ petitions, can be disposed of without much ado. As seen from the election schedule announced by the State Election Commission, the last date for filing nominations was 29.9.2011. The date for scrutiny was 30.9.2011. The date for withdrawal of nominations and publication of final results was 3.10.2011. The nominations of the petitioners in these 11 writ petitions were either rejected or not accepted. This fact became obvious by the Evening of 30.9.2011. On 3.10.2011, after the time fixed for withdrawal of nominations expired, the Returning Officer is obliged as per Rule 32 of The Tamil Nadu Panchayats (Elections) Rules 1995 to declare the results. As per Rule 32(1)(a) of the Rules, immediately after the preparation of the list of contesting candidates in Form-9, in accordance with Rule 31, the Returning Officer is obliged to affix a copy of Form No.9 in the Notice Board in his office and also affix the declaration of the candidate duly elected, if there was only one contesting candidate. Therefore, on the Evening of 3.10.2011, if the Returning Officer had found that there was only one contesting candidate, he must immediately declare the election of such candidate. Once the declaration of election has been made, it is not possible for this Court to go into the question of rejection of nomination of the rival candidate.

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However, Mr.Veera.Kathiravan, learned counsel for the petitioners contended that under the proviso to Sub-Rule (7) of Rule 29, the Returning Officer is obliged to allow time to the candidate in respect of whose nomination he has raised objections. The time allowed to the candidate is prescribed as until 11.00 A.M., of the next day following the date fixed for scrutiny. In this case, the date fixed for scrutiny was 30.9.2011. Therefore, according to the learned counsel, the Returning Officer ought to have allowed time to the petitioners till 11.00 A.M., on 1.10.2011 to rebut the objections, in terms of the proviso to Sub-Rule (7) of Rule 29. It is the contention of the learned counsel for the petitioners that since this was not done, the declaration of results was vitiated.

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But the said contention does not take the petitioners anywhere. The date for withdrawal of nominations was fixed as 3.10.2011. In terms of Rule 32(1)(a), Form-9 could be prepared only on 3.10.2011. Therefore, irrespective of whether an opportunity was given to the petitioners on 1.10.2011 or not, what followed on 3.10.2011 is a matter of fact. Even if there has been a wrong declaration of results, the same cannot be upset by this Court in a writ petition, since the writ petition itself was filed only on 4.10.2011, after such declaration. There can be no doubt that after the declaration of results, the only remedy is to file an election dispute.

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Mr.Veera.Kathiravan, learned counsel for the petitioners raised a contention that in view of the holidays for the Court, the writ petitions https://hcservices.ecourts.gov.in/hcservices/ could be filed only on 3.10.2011 and moved before the Vacation Judge on 4.10.2011. It is his contention that on 4.10.2011, this Court made it clear that any thing done on and from 4.10.2011 till the date of re-

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opening of the Court viz., 10.10.2011, shall not prejudice the interest of the petitioners. Therefore, according to the learned counsel, the respondents are not entitled to take refuge under the declaration of results.

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But unfortunately for the petitioners, the declaration of results under Rule 32(1)(a) was to be made on the Evening of 3.10.2011 itself, immediately after the time for withdrawal of nominations expired. The writ petitions came up for admission only on 4.10.2011. Therefore, any order passed by this Court on 4.10.2011, cannot have the effect of annulling the declaration of results made on 3.10.2011 in terms of Rule 32(1)(a). Hence, all these 11 writ petitions are dismissed, leaving it open to the petitioners to raise election disputes. No costs. Consequently connected miscellaneous petitions are also dismissed.

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The second preliminary objection with regard to the maintainability of the writ petitions in view of the constitutional and the statutory bar, requires a more elaborate consideration. Therefore, let me now take up the issue relating to maintainability.

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Article 243-O of the Constitution bars the jurisdiction of Courts to call in question (i) the validity of any law relating to de-limitation of constituencies or allotment of seats and (ii) an election to any Panchayat, except by way of an election petition, presented to such authority as provided by any law made by the State Legislature. A similar bar is found in respect of elections to Municipalities under Article 243ZG and in respect of elections to the Parliament and the Legislatures of States under Article 329.

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Apart from the above constitutional bar, there is also a statutory bar under Section 258 (1) of The Tamil Nadu Panchayats Act, 1994. It says that no election of a President or a member shall be called in question, except by an election petition presented to the District Judge of the District in which the Panchayat is situated, within 45 days from the date of publication of the result of the election under the Act.

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It may be noted that the bar under Articles 243-O(b), 243-ZG(b) and 329(b) of the Constitution and the bar under Section 258(1) of the 1994 Act, are identically phrased. All of them speak of a challenge to an election. The phrase “no election” appearing both in the above provisions of the Constitution and in the provision of the Act, carry the same meaning, as the latter is the adoption of the former. The interpretation to be given to the expression “election” was considered by a Constitution Bench of the Supreme Court in N.P.Ponnuswami vs. Returning Officer, Namakkal {AIR 1952 SC 64}. It was held therein that the word “election” appearing in Article 329 (b) of the Constitution was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate. The Court further held that a petition under Article 226 challenging the validity of any of the acts forming part of that process would be barred. The principles laid down in the said decision were reiterated by a 7 Member Bench of the Apex Court in Hari Vishnu Kamath vs. Ahmed Ishaque {AIR 1955 SC 233}. However, the larger Bench added a rider holding that the decisions of the Tribunals before whom election disputes are raised, are subject to the supervisory jurisdiction of the High Courts under Article 226.

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Again in Lakshmi Charan Sen vs. A.K.M. Hassan Uzzaman {1985 (4) SCC 689}, the Supreme Court pointed out that very often, the exercise of jurisdiction, especially the writ jurisdiction involves questions of propriety than of power. Though in paragraph-28 of the said decision, the Supreme Court carved out an exception holding that the preparation and https://hcservices.ecourts.gov.in/hcservices/ revision of electoral rolls is a continuous process, not connected with any particular election, the cases on hand do not relate to the preparation of electoral rolls. These cases relate to the non-acceptance

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of nominations, which certainly form part of the whole of the electoral process. Therefore, the metaphor used by V.Krishna Iyer, J., in Mohinder Singh Gill vs. The Chief Election Commissioner {AIR 1978 SC 851} that Article 329 (b) is like the great wall of China, would apply to the cases on hand. The attempt made by the petitioners to make it a Berlin wall, cannot be sustained.

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Section 259 (1) of The Tamil Nadu Panchayats Act, 1994, indicates the grounds on which an election to a Panchayat could be challenged. They are:-

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(i) that on the date of election, the returned candidate was not qualified or was disqualified to be chosen as a member under the Act; (ii) that the returned candidate or his agent or any one with his consent, was guilty of corrupt practices;

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(iii) that any nomination paper was improperly rejected; and

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(iv) that the results of the election, in so far as it concerns a returned candidate has been materially affected, either due to improper acceptance of any nomination or due to any corrupt practice committed in the interests of the returned candidate or due to improper acceptance or refusal of any vote or due to non-compliance with the provisions of the Act, the Rules or the orders issued thereunder.

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While the improper rejection of any nomination paper is covered by Section 259(1)(c), the improper acceptance of any nomination is covered by Section 259(1)(d)(i). The distinction between the two lies in the fact that the election of a candidate can be challenged successfully on the ground of improper rejection of any nomination paper, without anything more. But the challenge to an election on the ground of improper acceptance of any nomination, would succeed only if the election petitioner establishes that such improper acceptance of any nomination materially affected the result of the election in so far as the returned candidate is concerned.

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Since the improper rejection of nomination is covered by Section 259(1)(c) and the improper acceptance of nomination is covered by Section 259(1)(d)(i) of the Act, a Division Bench of this Court held in B.Pazhaniswamy vs. The Tamil Nadu Chief Election Commissioner, Madras {1997 (1) MLJ 612}, that it was not permissible for this Court to interfere, under Article 226 of the Constitution, with the acceptance or rejection of the nomination papers in an election to Panchayats.

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There is one decision of a Division Bench of this Court expressing a contrary view, which supports the case of the petitioners on the question of maintainability. It is in O.M.Noorudeen vs. The District Collector {1986 WLR 139}. In that case, the nomination of a candidate who sought election to the post of President of Keeranur Town Panchayat was rejected on the ground that he was a Contractor in Thoppampatti Panchayat Union. Contending that the order of rejection was frivolous and not in accordance with Section 25 (2)(c) of The Tamil Nadu Panchayats Act, 1958, the candidate filed writ petition under Article 226. Mohan, J., dismissed the writ petition on the ground that a writ petition cannot be entertained. But the same was reversed by a Division Bench of M.N.Chandurkar, C.J., and K.Venkataswami, J., holding as follows:-

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"This is patently a case where the Returning Officer

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seems to have gone out of the way in rejecting the nomination paper of the appellant on the specious plea that the appellant was a Contractor when on the face of it, that reason is not even found in the statute at all. In a case like this which in our view falls within the category of extraordinary cases, this Court could exercise https://hcservices.ecourts.gov.in/hcservices/ its jurisdiction under Article 226 of the Constitution and it cannot allow an illegality to continue and allow the election to be held with the surest chance of the election

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being set aside and the candidates and the State Government being put to incur expenditure over again. We are conscious of the fact that an election petition in a given case is the proper remedy. But we are not reluctant to exercise out jurisdiction under Article 226 of the Constitution in a case where there is a flagrant violation of the legal provision when once that is brought to our notice."

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But at the same time, when the above decision was rendered, the bar of jurisdiction was not traceable to any Constitutional provisions. Part IX dealing with "the Panchayats" was inserted into the Constitution much later, after the above decision of the Division Bench. It was in Part IX that Article 243-O containing a bar to interference by Courts in electoral matters was inserted. Until then, there was a doubt about the applicability of the provisions of Article 329 (b) of the Constitution, to the elections to the Panchayats. But with the insertion of Article 243-O, the doubt got dispelled. Moreover, the 1958 Panchayats Act, was replaced by The Tamil Nadu Panchayats Act, 1994. Therefore, the bar today is both constitutional as well as statutory. Hence the above decision of the Division Bench, cannot be taken to be applicable anymore, to cases of such nature.

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However, a very strong reliance is placed by the learned counsel for the petitioners, upon a decision of the Full Bench of this Court in All India Anna Dravida Munnetra Kazhagam vs. The State Election Commissioner {2007 (1) CTC 705}, where the learned Judges of the Division Bench who heard a public interest litigation, differed in their views, leading to the matter being referred to a third Judge. Two out of the six questions that P.K.Misra, J., as he then was, took up for consideration, as seen from para 185 of the decision were, (i) as to whether in view of the provisions contained in Article 243-ZG of the Constitution of India, the High Court has any jurisdiction to entertain and decide any petition under Article 226 and (ii) as to whether in view of the availability of the remedy of filing election petition under the statute before the Election Tribunal, the High Court can decide such matters under Article 226 of the Constitution.

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After tracing the history of the constitutional provisions and the entire gamut of law as laid down by the Supreme Court and the various Courts, the learned Judge concluded in para 253(2) as follows:-

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“(2) Any decision taken by the Election Commission is subject to the judicial review by the High Court, of course within the known parameters of such jurisdiction. However, the High Court is required to be very circumspect in such matters and interfere only in rarest of rare cases. Where the High Court comes to the conclusion that free and fair election has not been held and there is a mockery of democracy and the Election Commission has failed in its duty to protect democracy by ensuring free and fair election, the High Court can in order to protect the concept of democracy, interfere in such matters, even after the election process is over, notwithstanding the fact that alternative remedy may be available and notwithstanding the fact that some disputed questions are required to be decided. This again would obviously depend upon the facts and circumstances of each case and such jurisdiction is to be exercised in rarest of rare cases where the monstrosity of the situation so compels.”

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A careful reading of the law laid down by the Full Bench, https://hcservices.ecourts.gov.in/hcservices/ extracted above, would show that restraint is the rule and interference is the exception. The Full Bench has cautioned that interference by this Court could only be in the rarest of rare cases, where the High Court

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comes to the conclusion (i) that free and fair election had not been held (ii) that there was a mockery of democracy and (iii) that the Election Commission failed in its duty to protect democracy by ensuring free and fair election. In the last line of paragraph 253 (2), the Bench observed that the monstrosity of the situation should compel the exercise of the jurisdiction. Therefore, we have to see if the cases on hand would fall within the category of rarest of rare cases and as to whether a monstrous situation had arisen.

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Before considering the question as to whether the allegations made by the writ petitioners indicate a monstrous situation or not, it must be noted that in the case before the Full Bench, F.M.Ibrahim Kalifulla, J., extracted the facts and pleas as they unfolded before him, in paragraph 104 of his judgment. It was pointed out in paragraph 104 that out of 155 Wards, into which Chennai City Municipal Corporation was bifurcated, there were complaints pertaining to 99 Wards. But re-poll was ordered in 46 booths in 17 Wards alone. The learned Judge also noted serious allegations of booth capturing which appeared in all leading newspapers on the very next date of polling and the complete inaction of the Election Commission. Therefore, P.K.Misra, J., came down very heavily upon the Election Commission itself in paragraph 232 of his opinion.

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Keeping in mind the factual scenario on the basis of which the Full Bench passed the above judgment, if we now come to the cases on hand, it is seen that the grievance of the petitioners is that their nominations have been rejected arbitrarily and unlawfully. In respect of Ottanchathiram, it is claimed by the petitioners that the nominations of 7 out of 20 candidates belonging to the DMK Party have been rejected. Similarly, in Thoppampatti, the nominations filed by several DMK candidates have been rejected. According to the petitioners, there were either no grounds for rejection or the grounds were trivial and flimsy. One more grievance of the petitioners is that despite a demand being made, the Returning Officers did not communicate their decisions in writing. In cases where nominations were rejected on trivial grounds, no opportunity was given to the petitioners as contemplated by the Rules. Therefore, according to the petitioners, the cases on hand would fall within the category of rarest of rare cases, warranting interference by this Court under Article 226.

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In order to test the above contentions, it is necessary to look at the provisions of the Rules, under which nominations are to be filed and scrutinised. Rules 26 to 29 of The Tamil Nadu Panchayats (Election) Rules, 1995 prescribe the following procedure for filing of nominations, the requirements to be satisfied, the deposits to be made and scrutiny of nominations. In broad and simple terms, the procedure prescribed by these rules can be crystallised as follows:-

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(i) The nomination should be in Form-3 and it should be delivered to the Returning Officer either in person or by the proposer.

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(ii) Form-3 should be signed by the candidate and by a proposer who shall be an elector of the Ward of Village Panchayat or the Village Panchayat as the case may be.

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(iii) On the presentation of the nomination paper, the Returning Officer should satisfy himself that the names and electoral roll numbers of the candidate and his proposer, as entered in the nomination paper are the same as found in the electoral roll. The Returning Officer is obliged to permit any misnomer or inaccurate description or clerical error to be corrected.

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(iv) A candidate may be nominated by more than one, but not more than 4 nomination papers.

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https://hcservices.ecourts.gov.in/hcservices/ (v) An elector who wishes to stand as a candidate shall not sign any nomination paper as a proposer.

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(vi) At the time of delivery of the nomination paper, the candidate

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should deposit with the Returning Officer, the amount of deposit prescribed under Rule 27(1).

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(vii) While receiving the nomination paper, the Returning Officer should inform the person delivering the same, of the date, time and place fixed for scrutiny of nominations.

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(viii) On the evening of everyday, after the time fixed for receiving nomination papers expired, the Returning Officer should affix a notice in Form-4 indicating all the nomination papers delivered on that date. Similarly, after the expiry of the time fixed for receipt of nomination papers on the last day, a notice in Form-5 has to be affixed.

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(ix) If a candidate's name has been incorrectly spelt or shown, the candidate may make a request for correcting the mistake and the Returning Officer is obliged to correct the mistake.

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(x) On the date and hour notified, the Returning Officer shall take up the scrutiny of nominations. Every candidate is entitled to attend the scrutiny along with one of his proposers and one other person duly authorised by him.

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(xi) Any person can object to any nomination either orally or in writing and the Returning Officer shall examine the nomination papers and decide one by one and Ward by Ward, all objections. After holding a summary enquiry as found necessary, the Returning Officer may reject the nomination of any person on any of the 4 grounds stipulated in clauses (a) to (d) of Rule 29(3).

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(xii) The grounds on which a nomination could be rejected are:-

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(a) that the candidate was either not qualified or disqualified under the provisions of the Act;

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(b) that there was a failure to comply with Rules 26 or 27;

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(d) that where the election is in respect of a reserved constituency, the candidate who filed the nomination did not belong to such category;

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(xiii) The Returning Officer should not reject any nomination on the ground of any defect which is not of a substantial character. The failure to complete or any defect in completing the declaration as to symbols, is not a defect of a substantial character.

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(xiv) The proceedings for scrutiny shall not be delayed or postponed except when they are interrupted or obstructed, by riot or open violence or by causes beyond his control.

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(xv) If an objection is raised to the candidature of any person, the Returning Officer shall give time to the candidate to rebut it, till 11.00 A.M., on the next day, following the date of scrutiny.

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(xvi) The Returning Officer shall give his decision on that nomination on the adjourned date.

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(xvii) The Returning Officer should endorse on each nomination paper, his decision accepting or rejecting the nomination. He should also record in writing, his reasons for rejecting a nomination. A copy of the reasons may be furnished to the candidate, if any application is made to him in this behalf.

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(xviii) After all the nomination papers have been scrutinised and the decisions accepting or rejecting the same have been recorded, the Returning Officer should prepare a list of validly nominated candidates in Form-6 and publish the same in the place notified for receipt of nominations.

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On the basis of the procedure laid down as above, the learned counsel appearing for the various petitioners contend (i) that in a few cases rejection of nominations has been done on grounds other than those https://hcservices.ecourts.gov.in/hcservices/ specified in Rule 29(3); (ii) that the rejection of nominations in some cases has been done on the ground of defects which are not of substantial character, which is violative of Rule 29(5); (iii) that no opportunity as

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contemplated by the proviso to Sub Rule (7) of Rule 29 was granted to candidates to rebut the objections, until 11.00 A.M., on 1.10.2011; and (iv) that the copy of the reasons for rejection was not furnished to the candidates.

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In one case viz., W.P.No.11580 of 2011, the rejection is purportedly on the ground that the name of the petitioner was found in the electoral rolls of more than one constituency. But it is not a disqualification, as seen from the law laid down by the Supreme Court in Baburao vs. Manikrao {AIR 1999 SC 2028} and Pothula Rama Rao vs. Pendyala Venkata Krishna Rao {AIR 2007 SC 2924}.

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In W.P.No.11506 of 2011, the rejection is on the ground of nonpayment of house tax for the current year. It is in violation of the prescription contained in Section 37 (f) of the Act which mandates payment of arrears only upto and inclusive of the previous year. Therefore, it is the contention of the petitioner that in violation of Section 37 (f) of the Act and in violation of the law laid down by this Court in B.R.Venkatachalapathy vs. N.Manickam {1967 (2) MLJ 398}, the nomination has been rejected.

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In one case, the rejection was on account of failure of the candidate to mention his age. In one case, it is for failure to have the last page attested by the notary public. In another case, the deposit as required by Rule 27 (1) had been made in the name of the proposer and not in the name of the contesting candidate. In one case, a sheet of paper was missing.

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But, in my considered view, the rejection or non-acceptance of the nominations of the writ petitioners, on the grounds stated above, would not make these cases come under the category of "rarest of rare cases", warranting interference under Article 226 of the Constitution. It is not the case of any of the petitioners that his/her nomination has been rejected on no ground whatsoever. The uniform contention of all the writ petitioners is that the rejection has been done on flimsy grounds or on untenable or unacceptable or trivial grounds. Therefore, it is clear that the nominations filed by the petitioners were, in fact, defective, however insignificant they may be. The question as to whether the defects were substantial or inconsequential in nature, is not only a question of fact, but also one to which different people would respond differently, depending upon their own perceptions. A stickler to Rules, like Appeal Examiners of this Court of the olden days, may treat every omission and commission as of importance. A person known for liberal views may condone even substantial defects on the ground that it had become the order of the day. The Returning Officers, being no less infallible than the other category of men, may also fall under any of the above two categories. Therefore, on a strict interpretation of the Rules, if a Returning Officer had rejected the nomination on the ground that age was not indicated or on the ground that one page was not notarised or on the ground that the name of the bank was not mentioned or on the ground that the deposit was not made in the name of the candidate, the same cannot be taken to indicate the prevalence of a monstrous situation, so as to warrant interference by this Court under Article 226 of the Constitution.

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As pointed out above, the question as to whether the rejection of the nomination papers was on substantial grounds or not is a question of fact. The non-compliance with the prescription contained in some of the Rules such as Rule 29(5), the proviso under Rule 29(7) and Rule 29(8), may be good grounds for the petitioners to successfully challenge the election of the returned candidates in election petitions. But such noncompliance with statutory rules in individual cases cannot give raise to https://hcservices.ecourts.gov.in/hcservices/ a presumption that a monstrous situation had arisen. Perhaps an allegation that throughout the State of Tamil Nadu, a similar situation had arisen in many of the Constituencies with the wholesale rejection of

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nominations of the candidates of the rival party in a concerted manner, may bring the cases within the category of rarest of rare cases. But that is not so as on date. Therefore, I am of the view that the cases on hand do not fall under the category of rarest of rare cases to invoke the jurisdiction of this Court under Article 226 of the Constitution.

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It is now well settled that it is not always necessary for this Court exercising jurisdiction under Article 226 of the Constitution to give relief to the petitioners, even if a case is made out. The grant of relief depends upon various factors including the consequences that would flow out of the grant of the relief. As on date, the election to the local bodies is just about 5 days and 7 days away. The finalisation of the list of candidates had taken place on 3.10.2011 and everything is in place. Though many of the writ petitioners were filed on 3.10.2011 itself, they could come up for hearing only on 4.10.201. By that time, the final list of candidates in the fray had been published in accordance with Rules 31 and 32. Therefore, an order directing the respondents redo the whole exercise is simply out of question, especially in view of the fact that the cases of the writ petitioners do not fall under the category of rarest of rare cases.

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At this juncture, it may be useful to take note of a decision of a 3 Member Bench of the Supreme Court in Boddula Krishnaiah vs. State Election Commissioner {AIR 1996 SC 1595}. In that case, the names of 94 persons were found in the draft electoral roll prepared by the competent authority. But their names were deleted subsequently in the final electoral roll. In a writ petition filed by those persons, the High Court granted an interim order permitting them to participate in the election. But they could not exercise their franchise. Therefore, the High Court passed another order not to declare the results of the election. The High Court also issued another direction to the Revenue Divisional Officer to find out how many of those persons whose names were deleted, were eligible to be included in the list of voters. On the basis of the findings rendered by the RDO, the High Court allowed them to participate in the election. When these directions were challenged before the Supreme Court, the Supreme Court held as follows:-

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"11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.

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Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that although we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate to canvass the correctness of the election. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules."

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https://hcservices.ecourts.gov.in/hcservices/ 50. Therefore, it is not possible for me to issue any direction today (i) permitting the petitioners to participate in the election (ii) ordering the Election Commission to re-print the ballot papers, including

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the names of the petitioners and (iii) to go ahead with the process of election thereafter.

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It was contended by the learned counsel appearing for the petitioners that the petitioners are not seeking either the cancellation or the postponement of the elections. The petitioners are only seeking the acceptance of their nominations and permission to contest the elections. Therefore, the learned counsel submitted that any order conceding their request would not amount to interference with the election process. The learned counsel also relied upon a decision rendered by D.Hariparanthaman, J., on 4.10.2011 in W.P.No.22964 of 2011.

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Though technically it is true that the petitioners are not seeking the postponement of the elections, but they are only seeking the acceptance of their nominations, the grant of the said relief is not possible today without actually interfering with the election process. As pointed out earlier, the last date for filing nominations was 29.9.2011. The date for scrutiny of nominations was 30.9.2011. The date for withdrawal of nominations and for finalising the list of candidates was 3.10.2011. It appears that one person by name N.Kasi moved a writ petition in W.P.No.22964 of 2011 before the learned Vacation Judge at Chennai on 3.10.2011 at 2.15 P.M., before the deadline for finalising the list of candidates expired. Therefore, the learned Judge issued a direction to the Returning Officer to consider the nomination of the writ petitioner. But the observations made by the learned Judge in paragraph-7 would really clinch the issue. They are as follows:-

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"7. Taking into account the urgency involved in the

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case, the same was heard on 2.15 P.M., on 3.10.2011 and the learned Advocate General was present. This Court expressed its view that since the petitioner approached this Court before the last date for withdrawal of nomination, his case could be considered separately. It is a different matter, if the petitioner approaches this Court after the symbols are allotted and ballet papers are printed. In such cases, the persons aggrieved over their rejection of nominations, could have only option to agitate against the order of rejection, by way of election petition."

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Therefore, in view of what is stated above, a grave situation warranting the exercise of jurisdiction under Article 226 of the Constitution had not arisen in the cases on hand. Moreover, we have reached a stage today in the election process, where it is neither feasible nor justifiable, to grant the reliefs sought for by the petitioners, overlooking the Constitutional and Statutory bar of jurisdiction. Hence all the writ petitions are dismissed. It is open to the petitioners to raise election disputes and if they choose to do so, any observations contained herein on merits, may not be held against them. There will be no order to costs. Consequently connected miscellaneous petitions are also dismissed.

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Sd/-

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Assistant Registrar (RTI)

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/True copy/

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Sub Assistant Registrar(CS)

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https://hcservices.ecourts.gov.in/hcservices/

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