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2011 DIGILAW 1838 (MAD)

A. Shandha v. Kavitha

2011-03-31

K.MOHAN RAM

body2011
Judgment :- 1. The Petitioner in the above Civil Revision Petition is the Petitioner in B.O.P.No.65 of 2006 on the file of the learned Additional District Judge (Fast Track Court), Namakkal. 2. The Petitioner filed the said Election Petition under Sections 258 to 260 of the Tamil Nadu Panchayats Act, 1934 (hereinafter referred to as the Act) and Rules 61, 63, 65 and 66 of the Tamil Nadu Panchayats (Election) Rules, 1995 (hereinafter referred to as the Rules) seeking to declare the election of the First Respondent as the President of Kaliyanoor Agraharam Village Panchayat, Tiruchengode Taluk, Namakka District as null and void and to order recounting of the votes polled along with postal votes after sorting out the valid votes and invalid votes as per law and also to declare the Petitioner as the elected candidate for the post of President of Kaliyanoor Agraharam Village Panchayat. 2. In the said Petition, the following allegations have been made: (i) The First Respondent was residing at Singapore along with her husband till the announcement of election and continued so and as such, she cannot be deemed to be a voter at Kaliyanoor Agraharam Village and is not entitled to contest the election. In spite of the Objection Petition filed on 28.9.2006 and protest by the Petitioner, the nomination of the First Respondent was accepted by the Second Respondent, after refusing to receive the same. During the election campaign, the First Respondent, with the help of her father in law – Mr. Ramasamy and his brother Mr. Palanisamy, who was working as a Village Administrative Officer, Kaliyanoor Amani Village, adopted all sorts of corrupts practices and mal-practices apart from threatening and intimidating the voters using their muscle power and money power. The Complaint made by the Petitioner and the public to the Respondents 2 to 4 were turned down by them. (ii) The First Respondent is a voter both at Maniyakarampalayam, Ganapathi Village, Coimbatore Corporation and Kaliyanoor Agraharam Village and the same is against Section 17 of the Representation of the People Act, 1950. The inclusion of the name of the First Respondent in the voters’ list at Kaliyanoor Agraharam Village is illegal. At the time of counting, the Petitioner and her agents were not allowed reasonable opportunities to inspect the ballot papers at the inducement of the First Respondent and her father in law. The inclusion of the name of the First Respondent in the voters’ list at Kaliyanoor Agraharam Village is illegal. At the time of counting, the Petitioner and her agents were not allowed reasonable opportunities to inspect the ballot papers at the inducement of the First Respondent and her father in law. 35 valid votes polled in favour of the Petitioner were rejected by the Second Respondent without assigning any reason. 40 invalid votes were treated as valid votes and counted in favour of the First Respondent by the Second Respondent. The protest and objection raised by the Petitioner and her agents were unilaterally rejected by the Second Respondent. The Petitioner presented a Petition dated 18.10.2006 under Rule 66 for recounting of the votes. But, the Second respondent refused to receive the same. The First Respondent was declared as a winner at 8.30 p.m. on 18.10.2006. 4. The Election Petition was contested by the First Respondent by filing a detailed Counter specifically denying the aforesaid allegations contained in the Petition. The allegation that 35 valid votes polled in favour of the Petitioner were rejected by the Second Respondent has been denied. Similarly, the allegation that 40 invalid votes were treated as valid votes polled in favour of the First Respondent has also been denied. It has been specifically stated in the Counter that the counting agents of the Petitioner took part and there was no objection from the Petitioner’s against, since all the ballot papers were validly scrutinized and shown to the counting agents for verification before the counting was completed. It has also been stated specifically that the Petitioner and her agents did not demand to the Second Respondent for recounting as per Rule 66 by presenting a Petition on 18.10.2006. The allegation that the Second Respondent refused to receive the Petition has been denied. 5. In the Counter filed by the Second Respondent, which was adopted by the Respondents 3 to 5, it has been specifically stated that at the time of scrutiny of nomination, no Petition or representation was received either by the Assistant Returning Officer or the Returning Officer regarding the name of the First Respondent listed in the voters’ list of two places. The Assistant Returning Officer, after verifying the Panchayat Electoral Roll, 2006, had accepted the nomination of the First Respondent. The Assistant Returning Officer, after verifying the Panchayat Electoral Roll, 2006, had accepted the nomination of the First Respondent. The Electoral Roll of Coimbatore Corporation was not placed before the returning Officer at the time of nomination. It has been specifically stated that during counting, the counting assistants, only after verifying the ballot papers, had counted them. The votes have been counted strictly adhering to the Election Code and Procedure. The counting was completed with the consent of counting agents and supervisors under the supervision of the Assistant Returning Officer. It has also been stated specifically that the total votes polled were 1033; the votes secured by the First Respondent were 503 and the votes secured by the Petitioner were 469 and that there were 61 invalid votes. It has been further stated that no Petition under Rule 56 was received by the Returning Officer and that after completion of counting and recording in Form 22, the Returning Officer announced the total number of votes polled in favour of each candidate. After the announcement of the results, the contesting candidate or in her absence, her election agent may apply in writing to the Returning Officer for a recount stating the grounds on which she demands such a recount. In this case, no written request was received before declaration of results for recounting. 6. Before the Election Tribunal, on the side of the Petitioner, six witnesses were examined and; Ex.P1 to Ex.P9 were marked. On the side of the First Respondent, two witnesses were examined and Ex.R1 to Ex.R9 were marked. Further, Ex.X1 to Ex.X5 were marked though the official witness. On a consideration of the materials on record, the Election Tribunal rejected the contention put forth by the Petitioner and dismissed the Election Petition. Being aggrieved by that, the Petitioner is before this Court. 7. Heard both. 8. Mr. Valliappan, learned Counsel for the Petitioner made the following submissions: “i. As per the Election Manual, the person, who is having votes at two places, is disqualified to contest the election to the post of President of Village Panchayat; in this case, it has been pointed out that the First Respondent is having vote at Kaliyanoor Agraharam Village Panchayat and also at Maniyakarampalayam, Ganapathi Village, Coimbatore Corporation and that the same has been established by the respective Electoral Rolls. But, that has not been properly considered by the Election Tribunal. ii. But, that has not been properly considered by the Election Tribunal. ii. It has been admitted by RW1 that the total number of votes polled were 1035 whereas only 1033 votes have been counted and in view of the said discrepancy, the Election Petition should have been allowed. iii. As per Section 17 of the Representation of the People Act, 1950, no person shall be entitled to have the name in the Votes List in more than on constituency. In this case, as the name of the First Respondent had been included in two Electoral Rolls relating to two constituencies, she is debarred from contesting the elections. iv. Since the First Respondent is residing with her husband at Singapore and is not a resident of Kaliyanoor Agraharam, she is not entitled to contest the election. A notice to produce the Passport containing visa entries was issued to the First Respondent calling upon to produce the same. But, she has not produced it and therefore, as adverse inference out to have been drawn by the Tribunal, and v. The order passed by the tribunal is a non-speaking order and no reasons have been recorded for dismissing the Election Petition.” 9. In support of his contentions, learned Counsel for the Petitioner placed reliance on the decision in the cases of – i. Gopal Krishnaji Ketkar v. Mohammed Haji Latif and others, AIR 1968 SC 1413 , wherein the Apex Court has laid down as follows: “Even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.” and ii. Assistant Commercial Tax Officer v. Rijhumal Jeevandas, 2010 (6) SCC 748 . This decision has been relied upon for the proposition that an order should contain reasons for the conclusion reached. 10. Assistant Commercial Tax Officer v. Rijhumal Jeevandas, 2010 (6) SCC 748 . This decision has been relied upon for the proposition that an order should contain reasons for the conclusion reached. 10. Countering the said submissions, learned Senior Counsel appearing on behalf of the First Respondent, placing reliance on the decision in the case of Baburao v. Manikrao, AIR 1999 SC 2028 , submitted that the inclusion of the name of the First Respondent in the Electoral Roll at two constituencies/two Panchayats will not invalidate the elections. Placing reliance on the decision in the case of Dr. Subramanian Swamy v. T.T.V. Dinakaran, Member of Parliament, 2004 (2) MLJ 238 , learned Senior Counsel contended that once a persons is shown as a voter in the Electoral Roll, it raises a statutory presumption that he is entitled to both contest and vote and the said rights cannot be curtailed by any other process otherwise than by resorting to Section 22 of the Act providing for correction of entries in the Electoral Roll. 11. Learned Senior Counsel for the First Respondent further submitted that it has not been established by the Petitioner that a Petition in writing requesting for recounting of the votes was presented by the Petitioner to the Second Respondent as contemplated under Rule 66 of the Rules. In support of the said contention, he placed reliance on the decision in the case of, Vadivelu v. Sundaram 2000 (4) CTC 302 (SC) : 2000 (8) SCC 355 ). 12. Learned Senior Counsel for the First Respondent submitted that when admittedly the difference in votes between the Petitioner and the First Respondent is 34, the alleged discrepancy regarding the total votes polled and the number of votes accounted for as per Form 22 will not affect the result of the election. Learned Senior Counsel further submitted that when RW2 deposed that no written request for recounting was filed by the Petitioner or her agent as per Rule 66 of the Rules, not even a suggestion has been made to RW2 suggesting that a written request was made for recounting of the votes as per Rule 66. 13. I have considered the aforesaid submissions. 14. 13. I have considered the aforesaid submissions. 14. It was contended by the learned Counsel for the Petitioner, by relying upon Clause 3.4 of the Manual on Panchayat Elections, that since the First Respondent is not shown as ordinarily residing within the constituency area, she is not entitled to contest the election. But, Clause 3.4 of the Manual, relates to qualification for an election. One of the conditions for registration of a person as an elector in the Legislative Assembly Electoral Rolls of the relevant panchayat is “he should ordinarily be a resident of the constituency area”. But, this condition has not been stipulated as a qualification for contesting the election. Therefore, the said contention of the learned Counsel cannot be accepted. 15. When admittedly, the name of the First Respondent finds place in the Electoral roll, she is entitled to contest the election. In the decision rendered in Dr. Subramanian Swamy v. T.T.V Dinakaran, Member of Parliament, 2004 (2) MLJ 238 , it has been held that once a person is shown as a voter in the Electoral Roll, it raises a statutory presumption that he is entitled to both contest and vote and the said rights cannot be curtailed by any other process otherwise than by resorting to Section 22 of the Act providing for correction of entries in the Electoral Rolls. In view of the said decision, the contention of the Petitioner that the First Respondent is residing with her husband in Singapore and that she is not residing within the Panchayat limits have no relevance and that therefore, the said submission based on this contention is not sustainable. 16. It is no doubt true, as contended by the learned Counsel for the Petitioner, that the name of the First Respondent finds place in the Electoral Roll at two Panchayats namely Kaliyanoor Agraharam, Tiruchengode Taluk, Namakkal District and Maniyakarampalayam, Ganapthi Village, Coimbatore Corporation. The contention is that since her name finds place in the Electoral Roll of two Panchayats, her nomination ought not to have been accepted and she is not entitled to contest the election and that therefore, the election should be declared as null and void. But, the said contention is to be rejected straightway, in view of the decision of the Apex Court in the decision rendered in Baburao v. Manikrao, AIR 1999 SC 2028 . But, the said contention is to be rejected straightway, in view of the decision of the Apex Court in the decision rendered in Baburao v. Manikrao, AIR 1999 SC 2028 . In the said decision, in paragraph 15, the Apex Court has laid down as follows: “There is nothing to suggest in Section 16 of the 1950 Act that if a person’s name finds a place in more than one constituency that would automatically entail disqualification from contesting in any one of the constituencies. It is relevant to note that Section 2(1)(e) of 1951 Act refers disqualification under Section 16 of 1950 Act alone while interpreting the word ‘Elector’ and has not mentioned any contravention of Section 17 as disqualification. No doubt Section 17 of 1950 Act expressly states that no person shall be entitled to be registered in the Electoral Roll for more than one constituency. But if a person’s name finds a place in more than one constituency does not automatically entail the disqualification under Section 16? We do not think so. Objection under Section 17 could have been successfully raised to prevent Respondent No.1’s name from being included in Nilanga Constituency.” In the said decision, it has been clearly laid down that if a person’s name finds a place in more than one constituency, it will not disentitle him to contest the election. 17. The further contention of the learned Counsel for the Petitioner is that the total number of votes polled is 1035, which has been admitted by RW1. But, Form 22 shows as if only 1033 votes have been polled. But, in this regard, the evidence of RW2 is that the total number of votes polled is only 1033 and not 1035 as contended by the Petitioner. Form 22 also corroborates the aforesaid version of RW2. There is no material produced by the Petitioner to show that any protest or objection was raised at the time of counting of votes regarding the total number of votes polled. Therefore, the contention of the learned Counsel for the Petitioner cannot be countenanced. 18. It was further contended by the learned Counsel for the Petitioner that the valid votes polled in favour of the Petitioner were declared as invalid and the invalid votes were counted as valid votes in favour of the First Respondent. Therefore, the contention of the learned Counsel for the Petitioner cannot be countenanced. 18. It was further contended by the learned Counsel for the Petitioner that the valid votes polled in favour of the Petitioner were declared as invalid and the invalid votes were counted as valid votes in favour of the First Respondent. But, there is no material on record to show that any protest or objection was raised at the time of counting. The evidence of RW2 clearly shows that the Petitioner and her agent were given ample opportunity to scrutinize the votes and only after they were satisfied, the votes were counted and at that time, no such objection was raised as now sought to be contended. It has to be pointed out that no such suggestion has been put to RW2. Therefore, the aforesaid contention of the learned Counsel cannot be countenanced. 19. As per as the contention of the learned Counsel for the Petitioner that the written request made by the Petitioner for recounting the refused to be received by the Second Respondent is concerned, it has to be pointed out that in the Counter filed by the Second Respondent, it has been specifically stated that no such written request was received under Rule 66. In his chief-examination also, RW2- has stated so. In his cross-examination, no suggestion has been put to him suggesting that after filling up of Form 22 and before the election results were announced, a written request was made to the Second Respondent seeking recounting. Therefore, the finding of the Tribunal below that no request was made in accordance with Rule 66, in writing seeking recounting of the votes cannot be faulted with. 20. It was further contended by the learned Counsel for the Petitioner that the order of the Tribunal is a non-speaking order. But, a perusal of the order passed by the Tribunal show that the Tribunal has considered the entire evidence, both oral and documentary and has not believed the evidence adduced on the side of the Petitioner, but accepted the evidence adduced on the side of the First Respondent and recorded its findings. It cannot be said that the order does not contain reasons. It cannot be said that the order does not contain reasons. Therefore, the decision rendered in Assistant Commercial Tax Officer v. Rijhumal Jeevandas, 2010 (6) SCC 74; is not applicable to the facts of this case- There cannot be quarrel over the proposition of law rendered in Gopal Krishnaji Ketkar v. Mohammed Haji Latif and others, AIR 1968 SC 1413 , which has been extracted above. But, this decision is of no use to the contentions put forth by the learned Counsel for the Petitioner. 21. In view of the findings recorded above, I do not find any reasons to interfere with the order passed by the Tribunal. According, the Civil Revision Petition is dismissed. No costs. Consequently, the above MP is also dismissed.