Judgment :- 1. The petitioner prays for the issue of a writ of mandamus/declaration declaring that the members of the respective wards shall cease to hold the respective office and shall deem to have become vacant as per Section 40 (2) of The Tamil Nadu Panchayats Act, 1994 and consequently direct the first respondent to hold election for Veliyanur Panchayat as early as possible in accordance with the provisions of the said Act. 2. Rule NISI was issued on 21.3.2002 and notice was ordered in W.P.M.P. No.13257 of 2002 seeking an order of injunction restraining the 4th respondent from holding the meeting in future to take oath in contravention of Section 40 (2) of The Tamil Nadu Panchayats Act, 1994. When the miscellaneous petition came up for orders, with the consent of counsel for either side, the writ petition itself was taken up for final disposal. 3. Heard Mr.Varadarajulu, learned counsel appearing for the petitioner, Mr.V.Subbarayan, learned Special Government Pleader appearing for respondents 1 to 3 and Mr.Bharatha Chakravarthy, learned counsel appearing for the 4th respondent. 4. According to the petitioner, election to Veliyanur in Mayilam Panchayat Union was conducted on 18.10.2001. The petitioner and four other candidates including the 4th respondent contested for the office of President of the said village panchayat. According to the petitioner, the counting which was conducted on 22.10.2001, 397 votes were polled in favour of the petitioner while 395 votes were polled in favour of the 4th respondent. The petitioner was declared elected as President on 23.10.2001 at 5.15 a.m. But, the 3rd respondent had issued the declaration certificate for the Presidentship in contravention of democratic system and the 4th respondent was declared as the President. The villagers complained to the 3rd respondent and on 22.10.2001 the 3rd respondent intimated them that he will enquire and will decide to whom the declaration certificate should be given. As there was a default, the villagers went on road block at Kootteripattu cross road on 23.10.2001. The Revenue and Police Officials intervened and the agitation was withdrawn on oral assurance. The petitioner complained to the District Collector on 24.10.2001 to intervene. As there was no action, once again there was agitation. There was an attempt to take oath for the Presidentship on 25.10.2001 by the 4th respondent and another attempt was made to elect the Vice-President on 21.10.2001 as well as on 1.11.2001. The petitioner complained to the District Collector on 24.10.2001 to intervene. As there was no action, once again there was agitation. There was an attempt to take oath for the Presidentship on 25.10.2001 by the 4th respondent and another attempt was made to elect the Vice-President on 21.10.2001 as well as on 1.11.2001. Very many complaints have been lodged before various authorities, but no action has been taken. On the other hand, provoked by the complaints, the 4th respondent assaulted the petitioner's relative and a crime has been registered. 5. The petitioner has already filed an election petition in the District Court at Villupuram under Section 258 of The Tamil Nadu Panchayats Act, 1994, seeking to set aside the election declaring the 4th respondent elected as void. The Election O.P. No.157 of 2001 is still pending. According to Section 40 of The Tamil Nadu Panchayats Act, 1994, the person, who has been elected to be a member or President fails to take oath within three months on the date on which his term of office commences or at one of the first three meetings held after the date of election, whichever is later, the oath or affirmation has to be made failing which he ceases to hold office and his seat shall be deemed to have become vacant. Hence, the present writ petition. 6. It is contended that the 3rd respondent had declared the 4th respondent elected by tampering the records. The 4th respondent has not so far taken the oath though the results were declared on 22.10.2001 and, therefore, the 4th respondent has lost his Presidentship. The 4th respondent has no locus standi to act or continue as President or send notice to members to take oath. The 4th respondent and other ward members had not taken oath of office till the date of filing of the writ petition (20.3.2002) and as they failed to take oath within 90 days from the date of declaration of result, the 4th respondent shall cease to be the President of the Panchayat. 7. The petitioner also filed supporting affidavits of M/s.S.Varadaraj, S.Kumaran, R.Lakshmi and K.Arumugam, returned elected ward members to the effect that each one of them has been elected as ward member and each one of them has not taken oath as required by Section 40 (2) of The Tamil Nadu Panchayats Act. 7. The petitioner also filed supporting affidavits of M/s.S.Varadaraj, S.Kumaran, R.Lakshmi and K.Arumugam, returned elected ward members to the effect that each one of them has been elected as ward member and each one of them has not taken oath as required by Section 40 (2) of The Tamil Nadu Panchayats Act. Out of five members only two members have taken oath. In the supporting affidavit, the deponents stated that the 4th respondent has not taken the oath of office as required by and in conformity with Section 40 (2) of The Act and, therefore, he ceased to hold the office. It is further stated that the 4th respondent is implicated in a murder case, the victim being the grandfather of the petitioner. The 4th respondent is the first accused and he was absconding from 24.11.2001. The 4th respondent was arrested on 13.12.2001 by Mayilam Police and, thereafter, he moved this Court for getting bail. Bail was granted on 8.2.2002. Four of the ward members who have been elected have also not taken oath so far according to their supporting affidavits. 8. The 3rd respondent, Returning Officer, has filed a counter affidavit. The election for local bodies in the State were scheduled on 16.10.2001 and 18.10.2001. On 18.10.2001, the election for Velliyanur Panchayat was conducted. The writ petitioner and four others including the 4th respondent were the contestants for President. The writ petitioner was allotted the symbol "Electric Bulb" and the 4th respondent was allotted the symbol "Lorry". In the counting held on 21.10.2001, the writ petitioner has secured 397 votes, which includes 8 postal ballots. The 4th respondent has secured 397 votes including two postal ballots. It is the assertion of the 3rd respondent that the petitioner and the 4th respondent polled equal votes and in the lots drawn, the 4th respondent has been declared elected as per Rules and the allegation to the contra are false. While referring to the instances of road block, etc., the 3rd respondent has stated that a certificate of declaration cannot be withdrawn nor a fresh declaration could be issued. The 4th respondent approached the 3rd respondent for taking oath at the office of the 3rd respondent. The 4th respondent gave an oath of affirmation form duly filled up by the 4th respondent, signed by the 4th respondent, which was received and acknowledged by the 3rd respondent on 25.10.2001. The 4th respondent approached the 3rd respondent for taking oath at the office of the 3rd respondent. The 4th respondent gave an oath of affirmation form duly filled up by the 4th respondent, signed by the 4th respondent, which was received and acknowledged by the 3rd respondent on 25.10.2001. The oath was not taken in the premises of the village panchayat due to the continuous road roko and agitation. According to the 3rd respondent, the 4th respondent has actually taken oath of office before the 3rd respondent at his office in the panchayat union building. There was law and order problem, besides there were number of complaints. 9. A criminal case has also been registered against the 4th respondent and his group. It is true that election petition is pending and the 3rd and 4th respondents are contesting. The members of Ward No.1 (Mr.V.E.Thanigaivelan) and Ward No.3 (Mrs.K.Vijaya) have taken oath on 18.3.2001. The delay is due to the criminal case filed against the 4th respondent and the said Thanigaivelan. The said two members took oath on 18.3.2002 and the oath of affirmation has been made by the 4th respondent in his office on 18.3.2002. Out of six ward members, four ward members, namely, Mr.Varadaraju, Mr.Kumaran, Mr.Arumugam and Mrs.Lakshmi (who have filed supporting affidavits for the petitioner) have not taken oath of office. The 3rd respondent has prayed for dismissal of the writ petition. 10. The 4th respondent has filed a counter stating that the petitioner secured 397 votes (8 postal ballots and booth votes 389). The 4th respondent has secured 397 votes (booth votes 395) inclusive of two postal ballots. As the petitioner and the 4th respondent polled equal votes, a lot was drawn by the 3rd respondent, Returning Officer and the 4th respondent was declared elected. The election result was declared on 23.10.2001 at 5.15. a.m. All the allegations to the contra have been denied. The 3rd respondent issued a declaration certificate to the 4th respondent on 22.10.2001. The statement that the petitioner secured more votes than the 4th respondent is not correct. It is stated that the 4th respondent and his supporters resorted to road roko and various other activities. The 3rd respondent was forced to give a letter dated 22.10.2001 under threat and pressure. The certificate issued in favour of the 4th respondent cannot be modified or withdrawn. There were complaints and counter complaints. 11. It is stated that the 4th respondent and his supporters resorted to road roko and various other activities. The 3rd respondent was forced to give a letter dated 22.10.2001 under threat and pressure. The certificate issued in favour of the 4th respondent cannot be modified or withdrawn. There were complaints and counter complaints. 11. The 4th respondent approached the 3rd respondent for taking oath of office. The 3rd respondent gave oath of affirmation form duly filled up and the same was signed and acknowledged by the 3rd respondent on 25.10.2001. The oath was not taken in the premises of the village panchayat due to continuous road roko or agitation. The 4th respondent took oath at the office of the panchayat union before the 3rd respondent as there was a law and order problem in the village. The Police has registered a criminal case. The petitioner has already filed election O.P. No.157/2001 and the 4th respondent is defending the same. Ward members Mr.Thanigaivelan and Mrs.Vijaya have taken oath on 18.3.2002, which delay was due to pending criminal case filed against the 4th respondent herein. The ward member was released and he has taken oath on 18.3.2002, besides one Mrs.Vijaya. The 3rd respondent conducted the Vice-President election on 23.3.2002 at 10.15 a.m. At the panchayat office premises and Mrs.K.Vijaya was declared and elected as Vice-President. The 4th respondent is the President, Mrs.Vijaya is the Vice-President and one member alone are holding the office and acting as such. The Panchayat under the President of the 4th respondent is validly constituted. The four ward members have not taken oath till 20.9.2002 and the 4th respondent has reserved his right to take action. 12. The writ petitioner has already filed an election O.P. and, therefore, with respect to the declaration whether the 4th respondent has been elected validly as President of the Panchayat, need not be gone into that nor it is required. There is controversy with respect to the votes polled in favour of the petitioner and the 4th respondent. The petitioner claims that he has polled more votes than the 4th respondent, while the 4th respondent asserts that the petitioner and the 4th respondent have polled equal votes, which led to drawing of lots. The pending election petition has to be decided on merits. 13. The petitioner claims that he has polled more votes than the 4th respondent, while the 4th respondent asserts that the petitioner and the 4th respondent have polled equal votes, which led to drawing of lots. The pending election petition has to be decided on merits. 13. The only point that arise for consideration in this writ petition are :- "Whether the 4th respondent has taken oath of office within the time prescribed and in the manner contemplated by Section 40 (2) of the Act ? and 2) Whether the 4th respondent ceased to hold office and the office of President has fallen vacant ?" Both the points could very well be discussed jointly as they revolve around the same set of facts. 14. According to the petitioner as the 4th respondent has failed to take oath of affirmation as prescribed in sub-section (1) of Section 40 and within three months from the date on which his term of office commence or at one of the first three meetings held after the date on which the term commenced, he cease to hold his office and, consequently, his seat shall be deemed to have become vacant. Sub-section (4) provides that the President of a Panchayat, who has not made the oath of affirmation shall not be entitled to act as President. The oath of affirmation has to be taken at the first meeting of the Panchayat which he attends within two months after he is elected. Section 41 prescribes the authority to decide the question of disqualification of members, who has to issue a notice in writing and place the matter before the panchayat concerned in its next meeting. 15. Section 43 of the Act provides for election of President. Concedingly, four of the ward members who were declared elected out of six wards have not taken oath till date as seen from their supporting affidavits as well as counter affidavit filed by respondents 3 and 4. Therefore, they cease to hold office in terms of Section 40 (2) of the Act and consequential vacancy has arisen. That apart, only two other members, it is claimed by the 4th respondent, have taken oath of affirmation on 18.3.2002. The panchayat President election was conducted on 28.3.2002 in which Mrs.K.Vijaya was declared elected. On that day when Vice-President election was conducted, there were only two members. 16. That apart, only two other members, it is claimed by the 4th respondent, have taken oath of affirmation on 18.3.2002. The panchayat President election was conducted on 28.3.2002 in which Mrs.K.Vijaya was declared elected. On that day when Vice-President election was conducted, there were only two members. 16. In exercise of powers conferred under Section 242 read with Sections 11, 20, 32 and 57 of The Tamil Nadu Panchayats Act, 1994, Tamil Nadu Panchayat (Election) Rules, 1995 was framed and it is in force. Part-IV of the Rules prescribed for the notification of election and nomination of candidates. Rules in Part-V provides for the poll. Part-VI provides for counting of votes. Rule 67 provides for declaration of results of election. Rule 67 (1)(c) provides for drawal of lots in case of equal votes and declaration of results and the candidate on whom the lot falls according to the rule shall be deemed to have received an additional vote. Rule 69 provides for publication of names of successful candidates. Part-VIII provides for the election of Vice-President of Village Panchayat. Part-XI provides for adjudication of election disputes. 17. Section 40 (4) provides that the Panchayat President shall be entitled to act provided he takes oath within two months after he is elected. A conjoint reading of sub-sections (2) and (4) of Section 40 would show that the President of the Panchayat who had not made the oath or affirmation, though he shall be entitled to act as such President provided if he affirms an oath within two months after he is elected. Therefore, what applies to a member would also apply to a President of the Panchayat and if he fails to take oath or affirmation, the office held by him shall be deemed to have become vacant or he shall cease to hold his office. Section 43 (5) provides that Sections 34 and 41 (both inclusive) shall be applied in relation to the office of the President as they apply in relation to the office of an elected member of the Panchayat and Sub-section (7) of Section 43 provides that the President shall be a member of the village panchayat. Failure to take an oath or affirmation within the period prescribed, the President shall cease to hold his office and his seat shall be deemed to have fallen vacant. 18. Failure to take an oath or affirmation within the period prescribed, the President shall cease to hold his office and his seat shall be deemed to have fallen vacant. 18. According to the writ petitioner, the 4th respondent has not taken oath or affirmation till his filing of the present writ petition on 20.3.2002. It is also the case of the petitioner that uptill now the 4th respondent has not taken oath of office, while according to the 3rd and 4th respondents, the 4th respondent, the elected President, has taken oath on 25.10.2001. Admittedly the said oath was not taken in the premises of the village panchayat or Panchayat meeting, but it is claimed that oath was taken at the office of the 3rd respondent, namely, the Returning Officer at Mayilam and by the responding affixing his signature on the form prescribed and the same has been acknowledged by the 3rd respondent by signing the above affirmation on 25.10.2001. 19. Therefore, it is clear that the oath, if any has been taken in the office of the 3rd respondent at Mayilam not in a Panchayat meeting. Sub-section (1) of Section 40 provides that oath shall be taken at a meeting of the panchayat. Even in terms of Sub-section (4) of Section 40, oath or affirmation is required to be made at the first meeting of the panchayat. 20. Though it is claimed that the oath or affirmation has been taken by the 4th respondent in the presence of the 3rd respondent and the 3rd respondent has initialled it or affixed his signature on the said affirmation, in the file produced (page 115 of the file), the affirmation is available, but there is no endorsement of taking of affirmation by the 3rd respondent, but the affirmation has been made before a witness. The file would show very many representations, complaints, road roko and meetings of compromise. 21. As seen from the letter of the Commissioner, Mayilam Panchayat Union addressed to the District Collector (page 161 of the file) there was no oath or affirmation taken on 25.10.2001, but the 4th respondent, an elected President of the village came forward and taken the affirmation before the 3rd respondent, Election Officer. This stand of respondents is prima facie blisters with serious doubts as inconsistency stares at such a plea. This stand of respondents is prima facie blisters with serious doubts as inconsistency stares at such a plea. It is also stated that the Vice-President election, though was scheduled, but it was not conducted on 31.10.2001 or on 19.11.01 or on 28.12.2001. Up to 7.1.2002 there was no meeting of panchayat and no member has taken oath. 22. Even according to the counter affidavit filed by the 4th respondent, Thanigaivelau, Mrs.Vijaya took the oath only on 18.3.2002 while the election results were declared on 22.10.2001. For the election of the Vice-President in terms of Section 44 read with Rule 94, seven clear days notice shall be given for the meeting specially convened for the election of Vice-President. The counter affidavit filed by the Returning Officer, Mayilam Panchayat Union is silent about the alleged election to the office of Vice-President. Since Mr.Thanigaivelan and Mrs.Vijaya took oath on 18.3.2002, the said taking of oath or affirmation being beyond three months of the date on which their term of office commenced, legally speaking, they also cease to hold office. 23. However, this Court is not expressing any opinion in this respect as the said two members are not arrayed as respondents nor any relief has been prayed for in this respect. Even though a general relief that all the members ceased to hold office is prayed, however, this Court will not be justified in granting a relief as against the said Mr.Thanigaivelan and Mrs.Vijaya, since they are not parties to this writ petition. 24. However, it is made clear that it is open to the petitioner to move the authority under Section 41 of the Act as non-compliance with Section 40 is one of the grounds of disqualification enumerated under Section 41. 25. In terms of Section 40, every person who is elected to be a member or becomes a member shall before taking the seat, make , at a meeting of the panchayat on an oath or affirmation. Section 40 read with Section 43 (6) for not taking an oath or affirmation at a meeting of the panchayat, the contesting respondent shall cease to hold his office and the office to which he has been elected shall be deemed to have become vacant. Section 40 read with Section 43 (6) for not taking an oath or affirmation at a meeting of the panchayat, the contesting respondent shall cease to hold his office and the office to which he has been elected shall be deemed to have become vacant. The version of the contesting respondent that he has taken oath in the office of the 3rd respondent being invalid as it is not being in conformity with the mandatory provision, there is no escape for the 4th respondent. 26. When the statutory provision requires the oath or affirmation shall be taken at a meeting of the panchayat, means that he shall not take oath at any other place and taking oath at any other place will not save him from the disqualification attached in terms of Section 40 read with Section 43 (6) of the Act. When a statutory provision requires a particular thing to be done in a particular manner, it shall be done only in that manner and no other manner is permissible. 27. As already pointed out, the very taking of oath as claimed by the petitioner is unbelievable, yet assuming for the purpose of arguments such an oath has been taken by the 4th respondent, such oath or affirmation being invalid, the sanctity attached for taking such an oath or affirmation is lost and the 4th respondent has suffered the disqualification and he cease to hold the office and the office of President has fallen vacant in terms of statutory provision. 28. Assuming for the purpose of argument that the 4th respondent was prevented by unlawful means, as claimed hy him, for which there is some material at least for a few days or for two or three weeks tension prevailed and, therefore, the 4th respondent could not have taken an oath or affirmation in the meeting of the panchayat, but thereafter nothing prevented him from taking an oath or affirmation in the panchayat meeting. 29. There is no provision under the Panchayat Act which could be invoked for extension of the period prescribed under Section 40 (2) and, therefore, the 4th respondent cannot take an oath or affirmation even as of today. In any view of the matter the 4th respondent incurs the disqualification and the office held by him has fallen vacant. Thus the office of President of Veliyanur Panchayat has fallen vacant. 30. In any view of the matter the 4th respondent incurs the disqualification and the office held by him has fallen vacant. Thus the office of President of Veliyanur Panchayat has fallen vacant. 30. In the result, this writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed. There will be a consequential direction to respondents 1 to 3 to hold a fresh election to the office of the President of the said Panchayat within six months from the date of this order.