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2002 DIGILAW 700 (MAD)

K. Arangasami v. S. Dhanam & Another

2002-07-30

P.D.DINAKARAN

body2002
Judgment :- "Democracy, much less its fruits at the grass-root level in Indian Polity, namely Panchayat Raj, is not a magic gold nor a hypothetical concept; but it is a matter to be practiced by proper and reasonable interpretation of the laws relating to election. Interpretation of laws relating to election which deal with valuable and lustrous rights in a democratic system should therefore stand to the test of logic and rationality, as otherwise it would be a mockery on democracy." 2. Here is an illustrative case, wherein, by an erroneous interpretation of laws relating to Panchayat election by the Returning Officer, a candidate was declared elected unopposed to the office of the President of the Village Panchayat, in spite of valid and effective contest by others. 3. The revision petitioner is the successful candidate, declared as President of the Melachery Village Panchayat of Senji Taluk, in the election held on 4.10.2001, pursuant to a notification issued by the Tamil Nadu State Election Commission dated 19.6.2001, under the provisions of the Tamil Nadu Panchayats Act, 1994 (hereinafter referred to as the Act), read with the Tamil Nadu Panchayats (Elections) Rules, 1995 (hereinafter referred to as the Rules), framed exercising the powers under Section 242 read with Sections 11, 20, 32 and 57 of the Act, for conduct of the elections to the office of the members to a single-member/multi-member ward(s) of Village Panchayat, the President of the Village Panchayat, the Member of a Panchayat Union Council or a District Panchayat, for a period of five years, simultaneously. 4. The election of the revision petitioner to the office of Melachery Village Panchayat President was challenged by the first respondent/election petitioner in E.O.P.No.80 of 2001 under Section 259(1)(c) of the Act before the Election Court, viz., the learned Principal District Judge, Villupuram, on the ground that the nomination papers of the first respondent herein had been improperly rejected. Section 259(1)(c) of the Act reads as follows: "Section 259: Grounds for declaring elections to be void.-- (1) Subject to the provisions of sub-section (2), if the District Judge is of opinion-- (a) ..... (b) ..... (c) that any nomination paper has been improperly rejected; (d) ..... the Court shall declare the election of the returned candidate to be void." (emphasis supplied) 5.1. (b) ..... (c) that any nomination paper has been improperly rejected; (d) ..... the Court shall declare the election of the returned candidate to be void." (emphasis supplied) 5.1. The brief, relevant and undisputed facts of the case are stated as follows: The nomination of the first respondent/election petitioner to contest as a candidate to the office of the President, Melachery Village Panchayat, was signed by one Mr.M.K. Annamalai, as a proposer for that election. The said M.K.Annamalai himself had filed his nomination to contest for the office of a Member in a multi-member ward of the same Village Panchayat. One another candidate, viz., Madurakavi, also filed his nomination to contest as a candidate to the office of the President of Melachery Village Panchayat. The second respondent/Returning Officer, rejected the nominations of the first respondent/election petitioner as well as that of Madurakavi, placing reliance on Rule 26(6) of the Rules, which reads as follows: "Rule 26: Presentation of Nomination Paper.-- (1) ... (2) ... (3) ... (4) ... (5) ... (6) An elector who wishes to stand as a candidate for an election, excepting for the election of a member in a multi-member ward of Village Panchayats, shall not sign any nomination paper as a proposer for that election. (7) ... (8) ...” (emphasis supplied) 5.2. Alleging that the nomination of the first respondent-election petitioner was improperly rejected by the second respondent/Returning Officer, on an erroneous interpretation of Rules 26(5), (6) and (7) of the Rules, the first respondent/election petitioner filed E.O.P.No.80 of 2001 before the Election Court/Principal District Judge, Villupuram, to declare that the election of the revision petitioner is not valid and thereby it is void, and that the revision petitioner has been elected in the place of the first respondent/election petitioner. 5.3. According to the revision petitioner as well as the second respondent/Returning Officer, the nomination of the first respondent/election petitioner itself is not valid as per Rule 26(6) of the Rules, as the same was proposed by one Mr.M.K.Annamalai, who also filed his nomination to contest for the post of member of a multi-member Ward of the same village panchayat. 5.4. According to the revision petitioner as well as the second respondent/Returning Officer, the nomination of the first respondent/election petitioner itself is not valid as per Rule 26(6) of the Rules, as the same was proposed by one Mr.M.K.Annamalai, who also filed his nomination to contest for the post of member of a multi-member Ward of the same village panchayat. 5.4. That apart, the revision petitioner inter alia contended that the election petition filed by the first respondent/election petitioner is not maintainable in law for non joinder of Madurakavi, whose nomination was also rejected by the second respondent/ Returning Officer, as per Rule 258(3) of the Act, which reads as under. “Section:258 Election Petitions.- (1) ... (2) ... (3) A petitioner shall join as respondents to his petition all the candidates at the election. (4) ... " (emphasis supplied) 6.1. The first respondent/election petitioner examined himself as PW1 along with another witness, PW2 and marked four documents of which the following are relevant to be mentioned: (i) Exhibit A1 dated 7.9.2001 – the acknowledgment receipt for nomination papers of the election petitioner; (ii) Exhibit A2 dated 4.10.2001 – withdrawal notice of M.K.Annamalai; and (iii) Exhibit A3 dated 4.10.2001 – the order passed by the second respondent dismissing the nomination papers of the election petitioner/first respondent herein. 6.2. The revision petitioner, who was declared elected to the office of the President of the Melachery Village Panchayat examined himself as RW1 and marked five documents, viz. Exhibits B1 to B5. 6.3. The second respondent/Returning Officer examined himself as RW2 and marked the following relevant documents, viz., (i) Ex.X1 dated 4.10.2001 -Petition given by the first respondent to the 2nd respondent for furnishing reasons for rejection his nomination paper. (ii) Ex.X2 dated 3.10.2001 - Order issued by the 2nd respondent for dismissing the nomination paper. (iii) Ex.X7 dated 3.10.2001 – Objection given by the revision petitioner to the second respondent. (iv) Ex.X8 dated 3.10.2001 - Objection given by the revision petitioner to the Returning Officer. (v) Ex.X9 dated 3.10.2001 - Objection given by the revision petitioner to the Assistant Returning Officer. (vi) Ex.X10 dated 3.10.2001 - Objection given by the revision petitioner to the Assistant Returning Officer. 7. (iv) Ex.X8 dated 3.10.2001 - Objection given by the revision petitioner to the Returning Officer. (v) Ex.X9 dated 3.10.2001 - Objection given by the revision petitioner to the Assistant Returning Officer. (vi) Ex.X10 dated 3.10.2001 - Objection given by the revision petitioner to the Assistant Returning Officer. 7. The Election Court, after due consideration of the evidence on record, by a decree dated 27.3.2002, held that the rejection of nomination of the first respondent/election petitioner is improper, and therefore, declared the election of the revision petitioner to the office of the Melachery Village Panchayat as void, as per Section 259(1)(c) of the Act. However, rejected the consequential relief viz., to declare the first respondent/election petitioner herself has been duly elected, and directed the authorities concerned to notify and hold a fresh election to the office of the Melachery Village Panchayat as per the Rules. Hence, the above revision. 8. Heard Mr.R.Subramanian, learned counsel appearing for the revision petitioner and Miss.R.T.Shyamala, learned counsel appearing for the first respondent/election petitioner. 9. I have bestowed my careful consideration to their respective submissions. 10. The issues that arise for my consideration in the above revision are: (i) Whether the election petition filed by the first respondent/election petitioner is maintainable in law in view of Section 258(3) of the Act, for non-joinder of the other candidate, viz., Madurakavi, whose nomination was also rejected? (ii) Whether the nomination of the first respondent/election petitioner was improperly rejected by the second respondent/returning officer? and (iii)To what relief the first respondent/election petitioner is entitled? 11.1. Issue No.(i): Whether the election petition filed by the first respondent/election petitioner is maintainable in law for non-joinder of the other candidate, viz., Madurakavi, whose nomination was also rejected? 11.2. In this regard, I am obliged to extract Section 258 of the Tamil Nadu Panchayats Act, 1994 and Rule 126 of the Tamil Nadu Panchayats (Elections) Rules, 1995, which read as follows: "Section 258: Election Petitions.- (1) No election of a president or a chairman 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 forty-five days from the date of the publication of the result of the election under this Act. (2) An election petition calling in question any such election may be presented on one or more of the grounds specified in Section 259 by any candidate at such election, by any elector of the ward concerned or by any member. (3) A petitioner shall join as respondents to his petition all the candidates at the election. (4) An election petition - (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall, with sufficient particulars, set forth the ground or grounds on which the election is called in question; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908) for the verification of pleadings. ” "Rule 126: “Parties to the petition.-A petitioner shall join as respondents to his petition- (a)(i) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and; (ii) Where no such further declaration is claimed, all the returned candidates, and; (iii) any other candidate against whom allegations of any corrupt practice are made in the petition. ” (emphasis supplied) 11.3. Mr.R.Subramanian, learned counsel appearing for the revision petitioner, contends that the first respondent/election petitioner ought to have impleaded the other candidate, viz., Madurakavi, as a respondent in the election petition, whose nomination was also rejected, as in the case of the first respondent/election petitioner, as per Section 258(3) of the Act, which contemplates that an election petitioner shall join as respondents to his petition all the candidates at the election. 11.4. Mr.R. Subramanian, learned counsel for the revision petitioner, further contends that since the election petitioner, in addition to claiming a declaration that the election of the revision petitioner is void, claims a further declaration that she herself has been duly elected, she should have joined all the contested candidates as respondents in the election petition, as per Rule 126(a)(i) of the Rules, which provides a clear distinction between a returned candidate and all contested candidates. 11.5. 11.5. According to Mr.R. Subramanian, learned counsel for the revision petitioner, as it is not in dispute that there were three candidates who filed their nominations to the election to the office of the Village Panchayat, viz. (i) the revision petitioner, who was declared elected as President of the Melachery Village Panchayat; (ii) the first respondent/election petitioner; and (iii) Madurakavi, whose nomination was also rejected by the second respondent/Returning Officer, the first respondent/election petitioner ought to have impleaded Madurakavi as a respondent in the above election petition, as per Section 258(3) of the Act. 11.6. Mr.R. Subramanian, learned counsel for the revision petitioner, further contends that when Section 258(3) of the Act contemplates that the election petitioner shall join as respondents to his petition all the candidates at the election, the same shall prevail over Rule 126(a)(i) of the Rules, which requires only to join all the contesting candidates. 12. The learned counsel for the first respondent/ election petitioner contends that a harmonious construction of Section 258(3) and 126(a)(i) of the Rules would require the first respondent/election petitioner to implead only the revision petitioner as the respondent in the election petition, as he was the only candidate at the election or the contested candidate, because the nomination of other candidates, viz., the first respondent/election petitioner as well as one Madurakavi, were rejected. 13.1. It is well settled in law that the provision of the Act shall always prevail over the Rules framed under the Act. But, that question will arise only if there is any repugnancy or inconsistency between the provision of the Act and the Rules. In the instant case, I do not find any conflict between the provisions of the Act and Rules, i.e. between Section 258(3) of the Act and Rule 126(a)(i) of the Rules. 13.2. But, that question will arise only if there is any repugnancy or inconsistency between the provision of the Act and the Rules. In the instant case, I do not find any conflict between the provisions of the Act and Rules, i.e. between Section 258(3) of the Act and Rule 126(a)(i) of the Rules. 13.2. A reference to words Returned Candidate used in Rule 126(a)(i) of the Rules, would not in any way give room for a different interpretation to the above harmonious construction, because Rule 126(a)(ii) of the Rules would be applicable in a totally different situation where there are more than one Returned Candidate in the same election, as in the case of the election to the office of the members of the multi-member ward; and where a declaration is sought for that the election of all or any of the Returned candidate is void without any further declaration mentioned in Rule 126(a)(i) of the Rules. 13.3. Rule 126(b) of the Rules which requires the election petitioner to join as a respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition, would further make the position clear that the election petitioner is required to implead only the candidate at the election, viz. the candidates who contested in the election after acceptance of their nomination, but not the candidate(s) who filed their nomination(s) which had been rejected by the Returning Officer and in the case where allegations of any corrupt practice are made. Rule 126(b) of the Rules requires to implead such candidate against whom allegations of any corrupt practice are made, as he is also a candidate at the election contested. Therefore, Rule 126(a) and (b) squarely fits in Section 258(3) of the Act. 13.4. Rule 126(b) of the Rules requires to implead such candidate against whom allegations of any corrupt practice are made, as he is also a candidate at the election contested. Therefore, Rule 126(a) and (b) squarely fits in Section 258(3) of the Act. 13.4. On the other hand, if the argument of Mr.R.Subramanian, learned counsel for the revision petitioner, viz., the names of all the candidates who have filed their nominations to the election are to be joined in the election petition is accepted, it would require the election petitioner to implead even the candidates who have filed their nominations, but had withdrawn the same as well as the candidates, whose nominations are liable to be rejected on certain statutory disqualification under Sections 33, 34, 35 and 37 of the Act, which could never be the intention of the legislature to include such ineligible candidates who suffer from statutory disqualification under Sections 33, 34, 35 and 37 of the Act. Hence, in my considered opinion, the election petition filed by the first respondent/election petitioner is maintainable in law notwithstanding the non-joinder of Madurakavi as a party respondent. 13.5. Issue (i) is answered accordingly. 14.1. Issue No.(ii): Whether the rejection of nomination of the first respondent/election petitioner by the second respondent –Returning Officer was improper? 14.2. In this regard, I am obliged to refer Rule 26 of the Rules, which reads as follows: Rule 26: Presentation of Nomination Paper-- (1)The nomination of every candidate shall be made by means of a nomination paper in Form 3. Copies of the form can be had from the offices specified in the notice of election on any working day. In this regard, I am obliged to refer Rule 26 of the Rules, which reads as follows: Rule 26: Presentation of Nomination Paper-- (1)The nomination of every candidate shall be made by means of a nomination paper in Form 3. Copies of the form can be had from the offices specified in the notice of election on any working day. (2) On the date or dates specified in the election notice for the presentation of nomination papers, each candidate qualified to contest the election as per Section 33 of the Act shall, either in person or by his proposer, deliver to the Returning Officer at the place and during the hours specified in that behalf, a nomination paper completed in Form 3 and signed by the candidate and by a proposer who shall be an elector-- (a) in the respective ward of Village Panchayat in the election of member or members of Village Panchayat; (b) in the Village Panchayat in the election of President; (c) in the ward of the Panchayat Union in the election of member of the Panchayat Union; and (d) in the ward of the District Panchayat in the election of member of District Panchayat: Provided that no nomination paper for election shall be delivered to the Returning Officer on a day which is a public holiday. (3)If a seat is reserved for Scheduled Caste or Scheduled Tribe, a candidate shall furnish a declaration, in the nomination form made by him specifying the particular caste or tribe of which he is a member and the area in relation to which the caste or tribe is notified as a Scheduled Caste or Scheduled Tribe of the State. (4)On the presentation of a nomination paper, the Returning Officer shall 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 those entered in the electoral roll: Provided that the Returning officer shall permit any misnomer or inaccurate description or clerical or printing error in the nomination paper in regard to the said names or numbers to be corrected or to bring them in conformity with the corresponding entries in the electoral roll and wherever necessary, direct that any clerical or printing error in the said entries shall be overlooked. (5) Nothing contained in this rule shall prevent any candidature from being nominated by more than one nomination paper for any one election: Provided that not more than four nomination papers shall be presented by or on behalf of any candidate for any one election. (6) An elector who wishes to stand as a candidate for an election, excepting for the election of a member in a multi-member ward of Village Panchayats, shall not sign any nomination paper as a proposer for that election. (emphasis supplied). (7) In the case of election of members of a Panchayat or President of a Village Panchayat, an elector can sign as many nomination papers as there are vacancies to be filled, but no more. An elector who wishes to stand as a candidate in an election to a single member ward of a Village Panchayat, or a member of a Panchayat Union Council or of a District Panchayat or President of a Village Panchayat, shall not sign any nomination as proposer. An elector who wishes to stand as a candidate in a multi-member ward of a Village Panchayat, may propose other candidates, provided, the maximum number of nomination papers signed by him as proposer shal be one less than number of members to be elected to that ward. (8) If a person presents nomination papers in violation of sub-rule (1) by Rule 30 the Returning Officer shall pending scrutiny and orders and also subject to the provisions contained in sub-rule (3) of Rule 30. ” (emphasis supplied) 14.3. Mr.R.Subramanian, learned counsel for the revision petitioner, contends that even though it was notified to conduct election to different offices, viz., (i) office of the Member of the Village Panchayat from the respective wards of the village panchayats; (ii) office of the President of the Village Panchayat; (iii) office of the member of the Panchayat Union Council and (iv) office of the Member of the District panchayat, as specified in Rule 26(2) of the Rules, the entire process of conduct of elections notified is considered as only ‘one election’ as per Rule 26(5) of the Rules. 14.4. 14.4. I am unable to appreciate the above contention of the learned counsel for the revision petitioner, because, even though the election to four different offices are conducted pursuant to a single notification issued by the Tamil Nadu State Election Commission under the statute, viz., the provisions of the Tamil Nadu Panchayats Act and the Tamil Nadu Panchayats (Elections) Rules, they are four different elections for different offices, but conducted simultaneously by the Tamil Nadu State Election Commission, as provided under Rule 3 of the Rules, which reads as follows: Rule 3: “Conduct of more than one election simultaneously.-- A notified polling station can be used for the purpose of conducting elections either for a Member of Village Panchayat or President of a Village Panchayat or a Member of a Panchayat Union Council or a District Panchayat either individually or simultaneously. The Presiding Officers, Polling Officers and such other officers appointed for the purposes of conducting one election shall be deemed to have been appointed for the purposes of holding all other elections so held simultaneously at that polling station. Unless otherwise directed by the State Election Commission, the polling materials like ballot boxes, rubber stamps, distinguishing marks, etc., as well as records like marked copy of the electoral roll, covers, etc., used for one election may also be used for other such elections. ” (emphasis supplied) Therefore, merely because the elections for four different offices are conducted pursuant to a single notification of the Tamil Nadu State Election Commission for the election to the said offices simultaneously, in my considered opinion, it, by itself, would not mean that election to the four different offices, viz., (i) office of the Member of the Village Panchayat from the respective wards of the village panchayats; (ii) office of the President of the Village Panchayat; (iii) office of the member of the Panchayat Union Council and (iv) office of the Member of the District panchayat, are all held by way of “one election”. 14.5. 14.5. The further contention of Mr.R.Subramanian, learned counsel for the petitioner, is that the elector shall not sign any nomination paper as a proposer for that election, as per Rule 26(6) of the Rules, and therefore, the nomination of the first respondent/election petitioner to the office of the President of the Melachery Village Panchayat, having been proposed by Mr.M.K.Annamalai, is invalid, as per Rule 26(6) of the Rules, and hence, the second respondent-Returning Officer, had properly rejected the same, as the said M.K.Annamalai himself has filed his nomination as a candidate in a multi-member ward of the Melachery Village Panchayat. According to Mr.R.Subramanian, learned counsel for the revision petitioner, as per Rule 26(7) of the Rules, Mr.M.K.Annamalai, having filed his nomination as a candidate to the office of the Member of the multi-member ward of the Melachery Village Panchayat, could propose other candidates at the maximum of one less than the number of members to be elected to that ward, but he, being an elector himself, shall not propose a candidate to the office of the President of the Melachery Village Panchayat for that election as per Rule 26(6) of the Rules. 14.6. I am unable to agree with the above contention of the learned counsel for the revision petitioner, as the same is not only illogical, but also irrational. I have already held that even though the elections for four different offices, viz., (i) office of the Member of the Village Panchayat from the respective wards of the village panchayats; (ii) office of the President of the Village Panchayat; (iii) office of the member of the Panchayat Union Council and (iv) office of the Member of the District panchayat, are conducted pursuant to a single notification of the Tamil Nadu State Election Commission, for the election to the said offices simultaneously, they are four different elections for four different offices, statutorily, but not ‘one election’. That apart, the procedure followed in filing, scrutinisation and finalisation of the nomination papers as well as in conducting the election for the said offices are also quite distinct. 14.7. That apart, the procedure followed in filing, scrutinisation and finalisation of the nomination papers as well as in conducting the election for the said offices are also quite distinct. 14.7. The logic and rationality behind Rules 26(5)(6) & (7) of the Rules, if read together, is that the elector, who wishes to stand as a candidate for an election, cannot himself propose another candidate for that election, as he cannot be a proposer of his own opponent, which would not only be contradictory to the spirit of election, but would also render the election, a mockery on democracy. If that be so, I wonder how the second respondent-Returning Officer, under the shield of a totally illogical and irrational interpretation of Rules 26(5)(6) & (7) of the Rules, rejected the nomination of the first respondent-election petitioner, giving room for this election petition, on account of which, the revision petitioner had been declared elected unopposed, to the office of the President of the Melachery Village Panchayat, which, in my considered opinion, is not only impinge on the individual rights of the first respondent-election petitioner, but also curtails the very valuable right of the voters of the Village Panchayat to elect their President, rendering the impugned Panchayat Raj of Melachery Village Panchayat, a mirage. 14.8. For the above reasons, I am obliged to hold that the rejection of nomination of the first respondent/election petitioner by the second respondent/Returning Officer is improper, and consequently render the election of the revision petitioner to the office of the President of the Melachery Village Panchayat as illegal and void. 14.9. Issue (ii) is answered accordingly. 15.1. Issue (iii): To what relief the first respondent-election petitioner is entitled? 15.2. Since the first respondent/election petitioner was not even a candidate at the election, in view of the rejection of his nomination by the second respondent/Returning Officer, he cannot be automatically declared duly elected to the office of the President of the Melachery Village Panchayat in place of the revision petitioner. Hence, this Court is obliged to direct the authorities concerned, to notify a fresh election to the office of the President of the Melachery Village Panchayat and conduct the same as expeditiously as possible, in any event, within six months from the date of receipt of a copy of this order. 15.3. Issue (iii) is answered accordingly. The above Civil Revision Petition is dismissed with the above direction. 15.3. Issue (iii) is answered accordingly. The above Civil Revision Petition is dismissed with the above direction. No costs. Consequently, CMP No.4769 of 2002 is also dismissed.