Dismissed

V.A. Zakir Hussain v. the Tamil Nadu State Election

Madras HC11 Sept 2014WP(MD)/14902/2014

Case brief

AI extract

What is this about?

The Madurai Bench dismissed a writ petition challenging the rejection of a nomination paper for the post of Town Panchayat Chairman. The Court held that the question of whether defects were substantial was a matter of fact requiring election trial remedies, not writ interference.

What did the court decide?

Writ petition dismissed; connected miscellaneous petitions closed; no costs; option to file election original petition.

V.A. Zakir Hussain Vs the Tamil Nadu State Election — Election Law | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.09.2014 CORAM:

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THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM

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W.P.(MD) No.14902 of 2014 and M.P.(MD) Nos.1, 2 & 3 of 2014

V.A.Zakir Hussain

... Petitioner

-vs-

1.The Tamil Nadu State Election Commissioner Tamil Nadu State Election Commission

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No.208, Jawaharlal Nehru Street

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Arumpakkam, Chennai-106

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2.The District Election Officer/ District Collector

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Ramanathapuram District

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3.The Returning Officer/Executive Officer Abiramam Town Panchayat Ramanathapuram District

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4.M.Kumanan ... Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records relating to the impugned Form No.6, issued by the third respondent under Rule 27(9) Tamil Nadu Town Panchayats Third Grade Municipalities, Municipalities and Corporation (Elections) Rules, 2006 and quash the same and consequently direct the third respondent to accept the petitioner's nomination papers as valid and conduct the election of Abiramam Town Panchayat, Ramanathapuram district in accordance with the provisions of the above Election Rule, 2006.

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For Petitioner : Mr.D.Shanmuga Raja Sethupathy for Mr.D.Senthil

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For Respondents : Mr.M.Govindan, Spl. Govt. Pleader for R1 to R3 Mr.G.Prabhu Rajadurai for R4

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O R D E R

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Reserved on : 10.09.2014 Pronounced on : 11.09.2014

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With the consent of both parties, this writ petition is taken up for https://hcservices.ecourts.gov.in/hcservices/ final hearing.

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The petitioner seeks for issuance of a writ of certiorarified mandamus to quash the Form No.6, issued by the third respondent, under the provisions of Rule 27(9) of the Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporation (Elections) Rules, 2006 (hereinafter, referred to as 'the Act') and for consequential direction upon the third respondent to accept the petitioner's nomination paper as valid and to conduct the election of Abiramam Town Panchayat, Ramanathapuram District, in accordance with the provisions of the Rules.

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The petitioner filed his nomination for the post of Chairman of Abiramam Town Panchayat on 03.09.2014. As per the schedule of election, the last date for filing nomination was on 04.09.2014. The petitioner's nomination along with other nominations were taken up for scrutiny on 05.09.2014. The petitioner and his authorized representative were present at the time of scrutiny. According to the petitioner, at the instigation of certain people, belonging to the ruling party, the nomination of five candidates including that of the petitioner were rejected and the third respondent declared the nomination of the fourth respondent as accepted by the impugned notification in Form No.6.

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It is further submitted that on 06.07.2014, the vernacular newspapers reported the news about the rejection of the nomination of the petitioner and four other candidates alleging that the nominations were rejected since the candidates signed the nomination form in one ink and the form was filled up in another ink. Therefore, the petitioner approached this Court by filing this writ petition challenging the acceptance of the nomination of the fourth respondent.

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The learned counsel for the petitioner submitted that the rejection of the petitioner's nomination is arbitrary and illegal and in violation of the statutory provisions. Further, it is submitted that the nomination was rejected with mala fide intention at the behest of the ruling party members and the third respondent exercised it's power for extraneous consideration. It is further submitted that Sub-Rule (8) to Rule 27 of the Rules contemplates that if nomination paper is rejected, the Returning Officer shall record in writing his reasons for such rejection and the copy of the same should be furnished to the candidate, but in the instant case, no reason has been assigned nor copy has been furnished to the petitioner.

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Further, it is stated that Rule 27(3) of the Rules does not prescribe that same pen should be used for filling up nomination paper and putting signature. It is further submitted that in the report filed by the third respondent, four reasons have been assigned for rejection of the petitioner's nomination and none of those reasons would fall within the ambit of clauses (a) to (d) of the Rule 27(3) and therefore the rejection of nomination is illegal. Further, it is submitted that even if there are defects in the nomination papers, they are not substantial in character and in accordance with sub-rule (5) of Rule 27 of the Rules, the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of a substantial character.

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It is further submitted that the discrepancies pointed out in the https://hcservices.ecourts.gov.in/hcservices/ nomination form and the affidavit appended thereto are all very minor issues and the same cannot be a ground to reject the nomination and

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prevent the petitioner from participating in the election. In support of his contention, the learned counsel placed reliance on the decision of the Honourable Division Bench of this Court in the case of All India Anna Dravide Munnetra Kazhagam v. State Election Commissioner , reported in 2007 (1) CTC 705 and submitted that this Court, invoking the power under Article 226 of the Constitution of India, is entitled to adjudicate into the facts and it is not in all cases the petitioner should be directed to file an election petition. Further, it is submitted that the petitioner is not questioning the election, but only questioning the rejection of nomination form and that too prior to the election and therefore the petitioner need not file an election petition under Section 51(A) of the Tamil Nadu District Municipalities Act, 1920 (hereinafter, it is referred to as 'the Act').

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The learned Special Government Pleader appearing for the third respondent submitted that the nomination papers were filed and scrutinized on 05.09.2014 in the presence of the petitioner and since it was not in proper format and incomplete in several aspects, the same was rejected and the petitioner was orally informed about the rejection of his nomination form. However, the petitioner did not seek for the reasons for rejection of his nomination to be furnished in written form. Therefore, the Returning Officer has not furnished the same. Further, it is submitted that the defects in the nomination are substantial in character and the authority has taken note of the matter and rejected the nomination and the same is legal and valid.

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It is further submitted that though the rejection of nomination was on 05.09.2014, the petitioner did not give any representation till the declaration of the result i.e., on 08.09.2014, wherein the fourth respondent has been declared as elected and thereafter filed this writ petition, which an after-thought. The learned Special Government Pleader produced the original nomination form and original affidavit and the reasons for rejection recorded by the third respondent. The copies of the original materials have also been filed in the form of typed set of papers before this Court and copies were furnished to the learned counsel for the petitioner. Therefore, the learned Special Government Pleader sought to sustain the impugned proceedings and submitted that since the fourth respondent is declared as elected, the only remedy available to the petitioner is to file election original petition, if he is so advised.

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The learned counsel for the fourth respondent submitted that the contentions raised by the third respondent is perfectly valid and the petitioner cannot maintain this writ petition and this very same issue was considered by this Court in a batch of cases in C.S.Bhuvaneswari v. The State Election Commissioner , reported in 2012 (1) CTC 67 . Further, it is submitted that the decision of the Honourable Supreme Court in the case of All India Anna Dravide Munnetra Kazhagam (cited supra) is factually different and the situation therein warranted such a direction and the decision cannot be applied to the facts of the present case.

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Heard the learned counsel for the parties and perused the materials placed before this Court.

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

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The first contention raised by the learned counsel for the petitioner is by contending that the reason for rejection of the

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petitioner's nomination is not of substantial character and in terms of Sub-Rule (5) of Rule 27 of the Rules, the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. However, it has to be noted that the explanation to Sub-Rule (5) to Rule 27 stipulates that for the purpose of this subrule, failure to complete or any defect in completing the declaration as to symbols in a nomination paper shall not be a defect of a substantial character. Therefore, the explanation clearly defines what is not a defect of substantial character and the defects pointed out in the petitioner's nomination would not stand excluded under Sub-Rule 5 of Rule 27 of the Rules.

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That apart, it is submitted that none of the grounds fall under Sub-Rule 3 of Rule 27 of the Rules have been attracted for rejecting the petitioner's nomination. It is seen that the Returning Officer examined the petitioner's nomination in his presence. Sub-Rule (5) of Rule 27 empowers the Returning Officer to reject any nomination paper on the ground of any defect, which is of a substantial character. The issue as to whether the defects pointed out in the petitioner's nomination were substantial in character is admittedly a question of fact. This cannot be gone into a writ petition, precisely this was the view taken by this Court in the case of C.S.Bhuvaneswari (cited supra), wherein it has been held that:

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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 of India. 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 respondent 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 https://hcservices.ecourts.gov.in/hcservices/ ground that one page was not notarized or on the ground that the name of the bank was not mentioned or

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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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Therefore, the contention raised by the petitioner that the defects are not substantial character cannot be adjudicated in this writ petition. Further, the Returning Officer has endorsed in the nomination paper his decision rejecting the nomination of the petitioner and this has been found in the original records produced before this Court. Admittedly, the petitioner had not filed an application for obtaining copy of the same. Necessarily an application has to be submitted in writing and without submitting an application the petitioner cannot state that he has been denied the copy, when the Rules specifically mandates a copy to be furnished only on application. Sofar as the reliance placed on the decision of the Honourable Division Bench in the case of All India Anna Dravide Munnetra Kazhagam (cited supra), is concerned, in the facts of that case, the Honourable Division Bench observed that the monstrosity of the situation compelled exercise of it's jurisdiction and only in rarest of rare cases, the High Court would exercise it's jurisdiction. Taking into consideration of the facts placed before this Court, this Court is of the view that the petitioner's case is not one of the rarest of rare cases, where this Court should exercise it's jurisdiction under Article 226 of the Constitution of India. Furthermore, the allegation of mala fide made against the named persons cannot be gone into at this stage of the matter as they are all disputed questions of fact, which the petitioner has to agitate before the appropriate forum.

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In the light of the above, this Court is of the view that the petitioner has not made out any case for interference with the impugned proceedings and the relief sought for by the petitioner in this writ petition is not feasible for consideration or for granting the same. Hence, this writ petition is liable to be dismissed. However, it is open to the petitioner to raise an election original petition, if he is so advised, and any observation contained in this order will not be hold against the petitioner in the event of he raising an election dispute.

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