Thimiae Gowder v. K. R. Kannappan — 1987 DIGILAW 362 (MAD)

Judgement ORDER :- This civil revision petition under Art.227 of the Constitution of India, has been preferred against the judgement of the Election Tribunal (District Munsif) Coimbatore, in O.P. 8 of 1986. The petitioner, the first respondent and six other persons contested the election to the office of President of Kemmarampalayam Village Panchayat, which was held on 23-2-1986. Out of a total of 2277 votes polled, the petitioner secured 690 votes, while, the first respondent in this civil revision petition obtained 521 votes. On the basis of the votes so secured by the petitioner and the first respondent, the petitioner was declared elected. The first respondent in this civil revision petition challenged the election of the petitioner as the President of Kemmarampalayam village Panchayat, on the ground that the petitioner had incurred a statutory disqualification for purposes of contesting the elections. According to the first respondent, the nomination papers were filed on 10-2-1986 by the petitioner, himself and several others and that when the nomination papers were scrutinised, the first respondent and others raised an objection that the electoral roll of the Panchayat did not contain the name of the petitioner as a voter. It was also the case of the first respondent that one of the contestants, viz., G. Rangasami Gowder, filed a written objection; but no reply was given by the Returning Officer regarding the validity of the nomination of the petitioner, though there was also public agitation in this regard. The further case of the first respondent was that the Returning Officer informed the first respondent and others that they can meet him the next day and when they so met him on 11-2-1986, he and three others filed written objections to the effect that the name of the petitioner is not borne on the electoral rolls of the Panchayat, but the Returning Officer did not take any action, though it was accepted that the name of the petitioner was omitted in the electoral rolls. The absence of the name of the petitioner in the electoral rolls, according to the first respondent, disqualified and prevented him from filing his nomination papers and figuring as a candidate in the elections, as per the provisions of the Tamil Nadu Panchayats Act. The absence of the name of the petitioner in the electoral rolls, according to the first respondent, disqualified and prevented him from filing his nomination papers and figuring as a candidate in the elections, as per the provisions of the Tamil Nadu Panchayats Act. On account of the improper reception of the nomination paper of the petitioner in the manner done by the Returning Officer, the election of the petitioner was materially affected, according to the first respondent. In addition, the first respondent also attributed certain corrupt practices to the petitioner in the election and prayed for setting aside the election of the petitioner and to declare him as the successful candidate in the election held for the office of the President of the Panchayat. 2. The petitioner, in his counter statement maintained that no objection was raised by any of the contesting candidates and no written objection was filed at any point of time. He also claimed that he is a native of the village in question having been born and brought up there and that the Village Administrative officer had also given a certificate to him. He further claimed to have voted in the election for the Tamil Nadu Legislative Assembly but stated that the Panchayat voters' list had not been printed properly and that it was a clerical or printing mistake committed. Maintaining that there was a printing mistake in the Panchayat electoral list, that the petitioner filed his nomination papers correctly and denying the corrupt practices attributed to him, the petitioner prayed for the dismissal of the election on petition. 3. Before the Election Tribunal, on behalf of the first respondent, Exs. A.1 to A.5 were marked and the first respondent and two others were examined as P.W. 1 to P.W. 3, while, on behalf of the petitioner, Ex. B.1 was filed and R.Ws. 1 to 3 gave evidence. On a consideration of the oral as well as the documentary evidence, the Election Tribunal found that the name of the petitioner had not been included in the electoral roll of the Panchayat, that objections were raised regarding the validity of the nomination papers filed by the petitioner and, that the election of the petitioner was not valid. On a consideration of the oral as well as the documentary evidence, the Election Tribunal found that the name of the petitioner had not been included in the electoral roll of the Panchayat, that objections were raised regarding the validity of the nomination papers filed by the petitioner and, that the election of the petitioner was not valid. Consequent upon the conclusion so arrived at, the Tribunal set aside the election of the petitioner and declared the first respondent as the successful candidate, as he had secured the next highest number of votes in the election. It is the correctness of this order, that is challenged by the petitioner in this civil revision petition. 4. Learned counsel for the petitioner submitted that at the time of the presentation of the nomination paper, it was noticed that a clerical error had crept into the electoral roll and at the time of the scrutiny of the nomination paper, the clerical or printing error with reference to the name of the petitioner had been overlooked and therefore, the Election Tribunal was not in order in concluding that there was an improper reception of the nomination papers of the petitioner and in invalidating his election. A faint attempt was also made by the learned counsel for the petitioner to contend that the result of the election had not been in any manner materially affected to justify the setting aside of the election of the petitioner. On the other hand, learned counsel for the first respondent referring to the relevant entries in Exs. A.3 and A.1, submitted that there was no question of any clerical or technical error having crept in the non-inclusion of the name of the petitioner in the electoral roll; but that the name of the petitioner had not been included at all and the petitioner had thus incurred disqualification under Secs. 22 (a) and 30(1)(a) of the Tamil Nadu Panchayats Act, that the petitioner had been permitted to contest the election on the basis of the improper reception of his nomination paper by the Returning Officer contrary to the provisions of Sec. 22(a) of the Tamil Nadu Panchayats Art (hereinafter referred to as 'the Act' for short), and therefore, his election was rightly set aside by the Tribunal. Learned counsel further pointed out that if the name of the petitioner had been omitted in the electoral roll, then, he should have followed the procedure prescribed for the inclusion of his name in the Voters' list and without doing so, the petitioner cannot claim to contest the election by filing his nomination as if his name had already been included in the Voters' list when factually it was not so included. 5. The principal question that has to be decided is whether the name of the petitioner is borne on the electoral rolls for the Panchayat. Ex. A.3 is the Electoral roll for the elections held for the Tamil Nadu Legislative Assembly. It is seen from Ex. A.3 (at page 8) that as against serial Nos. 853 to 856, the names of four persons have been shown. The first name is 'Timme Gowder' (son of Tirumaya Gowder) aged 46 years; the second name is 'Tiruma Gowder' (son of Tirumappa Gowder) aged 73 years; the third name is 'Savithiri Ammal' (whose husband's name is Subbiah Gowder) and she is shown as 48 years old and the fourth and the last name shown is that of 'Kannammal' (wife of Timma Gowder), aged about 33 years. There was no dispute before this Court that the first and fourth names viz. Timma Gowder and Kannammal refer to the petitioner herein and his wife. Likewise, there was also no controversy that the second name viz., Thiruma Gowder, is the name of the father of the petitioner and the third name, viz. Savithiri Ammal refers to the aunt of the petitioner, being the sister of Tiruma Gowder. Ex. A.1 is the Electoral roll for Kemmarampalayam Panchayat election. The relevant entries are found against serial numbers 494 and 495. The two names which are borne in Ex. A.1 are Thimma Gowder, son of Thimmappa Gowder, aged 75 years and Kannammal wife of Tirumayya Gowder, aged about 30 years. From a comparison, of the entries found in Ex. A.3 and A.1, it is seen that while in Ex.A. 3, the names of the father of the petitioner, the petitioner, his wife and his aunt have been given in Ex. A.1, only the name of the father of the petitioner and the wife of the petitioner have been given and the other two names have not been included in the electoral roll. A.1, only the name of the father of the petitioner and the wife of the petitioner have been given and the other two names have not been included in the electoral roll. It is also significant that the petitioner has accepted in the course of his cross-examination that Ex. A.3 contains the names of his father, his wife, his aunt and himself. He would also further admit that prior to the filing of the nomination paper, his name as Thimma Gowder was not in the voters' list and that he had with him a certificate from the Village Administrative Officer to be filed before the Returning Officer, if permitted. He frankly accepted that with reference to the names found in Ex. A.3, two names had been omitted in Ex. A.1. R.W. 3 stated in his evidence that the name of the petitioner is found in the nomination paper; but he did not in any manner attempt to connect the petitioner with any name actually found in Ex. A.1. He, also did not give any evidence to the effect that in the process of including the name of the petitioner in the electoral roll, some technical or clerical error had crept in. Thus from the entries appearing in Exs. A.3 and A.1 and also the evidence of the petitioner himself in cross-examination as well as the evidence of R.W. 3, it is clearly established that the name of the petitioner was not borne on the electoral list for the Panchayat under Ex. A.1. 6. Whether there was any clerical or printing error, may now be considered. From the circumstances, that in Ex. A.3 the names of four voters have been given as against only two under Ex. A.1, it is clear that there has been a total omission to include two names, viz., that of the petitioner and his aunt. That would exclude the possibility of any clerical or printing error in the names as found in Ex. A.1. The name of the father or husband, as the case may be, with reference to the persons, whose names are found in Ex. A.1, as well as their age has already been referred to. Those details found in Ex. A.1 also clearly rule out any clerical or printing error as claimed by the learned counsel for the petitioner. A.1. The name of the father or husband, as the case may be, with reference to the persons, whose names are found in Ex. A.1, as well as their age has already been referred to. Those details found in Ex. A.1 also clearly rule out any clerical or printing error as claimed by the learned counsel for the petitioner. According to Rule 11(3) of the Rules relating to the Conduct of Election of Chairman of Panchayat Union Council and President and Members of Panchayats, framed in 1978, the Returning Officer should satisfy himself that the names and electoral roll numbers of the candidates and his proposers in the nomination paper are the same as those entered in the electoral rolls. Applying this rule, in the light of the entries found in Ex. A.3 and A.1, it is obvious that the name of the petitioner and his electoral roll number, could not be said to have been entered in the nomination paper, as found in the electoral roll, Ex. A.1 for, Ex. A.1 did not contain the name of the petitioner at all. The proviso to Rule 11(3) is an enabling one and cannot be pressed into service to receive the nomination papers of a candidate, whose name is not borne out at all in the electoral roll. The object behind the proviso is to correct clerical or technical error in the nomination paper and to bring the entries therein in conformity with the corresponding entries in the electoral roll. In other words, any error, clerical or technical, in the nomination papers may be permitted to be corrected to bring it in accordance with the entries found in the electoral roll and for this purpose, any clerical or printing error in the entries shall be overlooked, The applicability of the proviso presupposes that the name of a candidate, who had filed his nomination paper, is borne on the electoral roll and in such a case, any clerical or printing Error therein can be overlooked and the clerical or technical error in the nomination paper can be corrected to bring it in conformity with the entries found in the electoral roll. Neither Rule 11(3) nor the proviso thereunder can enable the filing of a nomination paper by a person, whose name is not borne out on the electoral rolls at all. 7. Neither Rule 11(3) nor the proviso thereunder can enable the filing of a nomination paper by a person, whose name is not borne out on the electoral rolls at all. 7. It would be necessary at this stage to refer to the statutory provisions regarding the incurring of disqualification in the matter of contesting elections by a person, whose name is not borne out on the electrol rolls. Under Sec.30(1)(a) of the Tamil Nadu Panchayats Act (Act 35 of 1958), the President shall be elected by the persons, whose names appear in the electoral rolls for the panchayat from among themselves in accordance with such procedure, as may be prescribed. In other words, before a person can contest the election for the office of President, he must be voter of the Panchayat and his name should appear in the electoral roll. Under Sec.22 of the said Act, no person shall be qualified for election as President of a Panchayat unless his name appears on the electoral roll for the Panchayat. Earlier it has been found that though the name of the petitioner is found in Ex. A.3, there has been an omission to include his name in Ex. A.1, and thus, the name of the petitioner is not borne out in the electoral rolls of the Panchayat in question. Under those circumstances, the petitioner undoubtedly suffered a statutory disqualification in the matter of contesting the election to the office of the President of the Panchayat. 8. It is also necessary to notice that under Rule 14(3)(a) of the Tamil Nadu Panchayats (Conduct of Election of Chairman of Panchayat Union Councils and Presidents and Members of Panchayats) Rules 1978 (hereinafter referred to as 'the Rules' for short), a duty is cast on the Returning Officer to examine the nomination papers and to decide either on objection or on his own motion, whether the nomination paper deserved rejection on the ground that the candidate is not qualified or disqualified for being elected under any of the provisions of the Act. Unfortunately, the Returning Officer in this case, has not proceeded to discharge the duty enjoined upon him under Rule 14(3)(a) of the Rules and reject the nomination paper, but had proceeded to improperly receive the same. In other words, the nomination paper of the petitioner, who was statutorily disqualified from contesting the elections, had been entertained and the election process proceeded with. In other words, the nomination paper of the petitioner, who was statutorily disqualified from contesting the elections, had been entertained and the election process proceeded with. That would also vitiate the election of the petitioner, though the petitioner by reason of the statutory disqualification, had already become ineligible to contest the elections at all. 9. It is also appropriate to notice at this stage that elaborate directions have been given for the purpose of preparation and publication of the electoral rolls for the Panchayats and also for inclusion of names of electors omitted. By Order No. 77 R.D. and L.A. department, dated 17-1-1969, elaborate directions have been issued to the concerned authorities in the matter of preparation of the electoral rolls. Under Direction 27 it is open to any person, whose name is not included in the electoral roll of a Panchayat, to make an application to the Panchayat Electoral Roll Registration Officer for inclusion of his name in the rolls. Direction 13 provides for such claims for inclusion being lodged within a period of 30 days from the date of publication of the roll in draft under Direction 11. This period has been reduced to 15 days by G.O.Ms. No. 79 R.D. and L.A. dated 17-1-1969. The Panchayat Electoral Roll Registration Officer is empowered to include the names of persons in the electoral roll, if he is satisfied that the applicants are entitled to be included. Under Direction 28, provision is made for inviting objections to such application within a period of seven days from the date of such posting of the application on the notice board and for a consideration of those objection, if received by the Panchayat Electoral Roll Officer and for passing orders. A further remedy by way of appeal to the Divisional Development Officer is also provided for under Direction 29. There is no dispute in this case that the draft electoral roll had been published in the manner contemplated under the provisions of the Act and the Rules and if the petitioner found that his name had not been included in the electoral rolls, nothing prevented him from resorting to the procedure referred to above for including his name also in the electoral roll under Ex. A.1. A.1. Without doing so the petitioner cannot be permitted to take shelter under a clerical or technical or printing error as it were in the electoral roll and seek to contest the election as if the nomination paper filed by him, without his name being found in the electoral roll was in order. The Election Tribunal was therefore right in its conclusion that the petitioner had suffered a statutory disqualification in the matter of contesting the election to the office of the President of the Panchayat and that there had been an improper reception of his nomination paper justifying the setting aside of the election of the petitioner as such President and in declaring the first respondent duly elected. No case is therefore made out to interfere with the order. Consequently, the civil revision petition fails and is dismissed with costs of the first respondent. Counsel fee Rs. 500.