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2015 DIGILAW 939 (MAD)

Bagyam v. Kalaivani

2015-02-16

K.KALYANASUNDARAM

body2015
JUDGMENT : 1. This civil revision petition is directed against the order dated 05.07.2014 passed by the Learned Principal Judge, Villupuram, in Election O.P.No.8 of 2012. 2. The civil revision petitioner is the second respondent in Election O.P.No.8/12. The first respondent filed the Election O.P. against the petitioner and five others under Sections 258, 259 and 260 r/w Rules 122 and 137 of the Tamil Nadu Panchayat Election Rules, 1955. 3. The brief facts of the case are as follows: On 19.10.2011, an election was conducted for the post of Mailam Union 3rd Ward Councilor. The petitioner, the first respondent and the respondents 3 to 5 herein contested in the election. On 21.10.2011, the 6th respondent counted the votes. Out of 3556 total votes, 3315 voters cast their votes. The petitioner had secured 1,031 votes, the first respondent had secured 966 votes, the 3rd respondent had secured 160 votes, the 4th respondent had secured 592 votes and the 5th respondent had secured 414 votes. 4. The first respondent filed the election petition alleging that the 6th respondent started counting the votes in the absence of contestants and the 6th respondent had taken independent candidate, the petitioner herein and one Prakash, the Son of D.M.D.K candidate with him and removed the seal from the ballot boxes and then only other contestants and agents were permitted to enter the counting centre. It is further alleged that the first respondent herein raised her objection for the improper counting of votes and immediately, after the counting process was over, the first respondent addressed letters to all the higher Authorities questioning the validity of the election of the petitioner herein and sought for re-counting of votes. Since it was not acceded by the election petitioner. Hence, the election petition. 5. The 6th respondent filed his counter specifically denying the allegations made by the first respondent in the election petition. 6. On the side of the election petitioner, two witnesses were examined as PW1 and PW2 and Exs.P1 to P18 were marked and on the side of the respondents the Block Development Officer, Mailam Union, was examined as R.W.1. and Exs.R1 to R4 were marked. 7. The petitioner, who was arrayed as second respondent in the election petition, was set ex parte for non-filing of the counter. and Exs.R1 to R4 were marked. 7. The petitioner, who was arrayed as second respondent in the election petition, was set ex parte for non-filing of the counter. The petitioner filed I.A.No.1633 of 2013 to set aside the ex parte order and the application was also allowed to be dismissed for non-prosecution. The learned Principal Judge, after considering the oral and documentary evidence of parties, has observed that there is absolutely no material to show that irregularities were committed at the time of counting of votes. However, considering the representation made by the first respondent to the higher Authorities, the learned Principal District Judge, ordered re-counting of votes, by order dated 03.04.2014. The respondents 2 and 6 herein have challenged the above said order in C.R.P.(NPD).No.1913 of 2014 and the same was dismissed by this Court. 8. As per the order dated 03.04.2014, re-counting was held on 05.07.2014 in the presence of Chief Judicial Magistrate, Villupuram, Principal Sub Judge, Villupuram, II Additional Subordinate Judge, Villupuram and Judicial Magistrate No. II, Villupuram and also in the presence of the Learned Government Pleader and counsel for the parties. In the re-counting, the petitioner had secured 1,017 votes and the first respondent had secured 953 votes. The votes secured by the respondents 3 to 5 are not necessary in this case. 9. The Election Tribunal, on 05.07.2014, held that the first respondent herein/petitioner therein, has lost election for the Member of Ward No.3 of Mailam Panchayat Union, by a margin of 64 votes and further, observed that as the petitioner remained ex parte and unless anduntil, the ex parte order is set aside, she has no manner of right to continue as Councilor of Ward No.3 of Mailam Panchayat Union. Aggrieved by the order of the Election Tribunal, the present civil revision petition has been filed. 10. Mr. Aggrieved by the order of the Election Tribunal, the present civil revision petition has been filed. 10. Mr. N. Suresh, learned counsel for the petitioner has submitted that the Election Tribunal having held that the first respondent herein had lost in the election by securing lessor votes than the petitioner, ought not to have passed the order stating that the petitioner has no manner of right to continue as Councilor, that the Election Tribunal has no jurisdiction to pass such order and the dismissal of I.A.No.1633 of 2013 cannot have any effect in deciding the matter on merits and the Election Tribunal has no jurisdiction to impose a bar against a validly elected member from discharging her duties for the people of the Ward, who have elected her as a councilor and as such, the order is illegal and void abinitio. 11. The learned counsel further submitted that the first respondent, whose election petition was dismissed, did not file a revision challenging the order of the Election Tribunal and even then, the petitioner could not discharge her constitutional obligation to the General Public. 12. Per contra, Mr. Dalit Tiger C. Ponnusamy, learned counsel for the first respondent would submit that the first respondent herein contested for the post of Mailam Union, 3rd Ward Councilor, in the year 2006 under the symbol of a political party and won the election. In the election held on 19.10.2011 for 3rd Ward, Mailam Union, totally 3,315 votes were polled and there were 24 postal votes. On the date of counting, the 6th respondent colluding with the politicians have committed malpractice in counting the votes. The petitioner herein did not appear in the election original petition wantonly and she was set ex parte on 16.02.2012. The ex parte order was set aside by the tribunal on 09.12.2013 imposing cost of Rs.2,000/-. Since the petitioner has disobeyed the order, the petition was dismissed on 01.10.2014. The tribunal has ordered counting of votes on 03.04.2014, the first respondent, who was aggrieved party, did not challenge the order and on the other hand, the respondents 2 and 6 herein have challenged the order due to political motive in C.R.P.(NPD).No.1913 of 2014. 13. Since the petitioner has disobeyed the order, the petition was dismissed on 01.10.2014. The tribunal has ordered counting of votes on 03.04.2014, the first respondent, who was aggrieved party, did not challenge the order and on the other hand, the respondents 2 and 6 herein have challenged the order due to political motive in C.R.P.(NPD).No.1913 of 2014. 13. The learned counsel further submitted that the vote boxes were kept in treasury and before they were brought for recounting, were taken to the office of the Block Development Officer; that the authorities have committed illegal acts only to satisfy the local politicians; that the first respondent had sent complaints to the Director General of Police, Inspector General, Inspector of Police, and Superintendent of Police and that, the petitioner, who remained ex parte, has no right to continue as Ward Councilor. 14. It is seen from the records that the first respondent had filed the election petition against the petitioner and the respondents 2 to 6 alleging some irregularities and malpractice in counting the votes. The Tribunal, an proper appreciation, has categorically held that the first respondent herein has not proved her allegations and there is no material to prove the alleged irregularities at the time of counting of votes. It is to be noted that originally, the petitioner was declared, elected by a margin of 65 votes and after recounting, the petitioner was declared by margin of 64 votes. Indisputably, the first respondent has not challenged the order of recounting and the final order passed in the election petition. 15. The only question to be decided in the revision is that whether the tribunal can impose a bar on the petitioner from functioning as Councilor of 3rd Ward of Mailam Panchayat Union, on the sole ground that she is set ex parte in the election petition. 16. It is useful to refer the following Rules of Tamil Nadu Panchayats Act; “122. Election petitions: Save as otherwise provided, no election held under the Act, shall be called in question except by an election petition presented in accordance with Section 258 of the Act or the Rules, to the District Judge under whose jurisdiction the Panchayat or the Planning Committee or other statutory Committees fall, by any Candidate or elector against the Candidate who has been declared to have been duly elected. Explanation. Explanation. In this Rule ' elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election, or not. 127. Relief that may be claimed by the petitioner.- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned Candidates is void, claim a further declaration that he himself or any other Candidate has been duly elected. 134. Decision of the Election Court.- At the conclusion of the trial or an election petition, the election Court shall make an order - a. dismissing the election petition; or b. declaring the election of all or any of the returned Candidates to be void; or c. declaring the election of all or any of the returned Candidates to be void and the petitioner or any other Candidate to have been duly elected.” 17. Rule 122 stipulates the manner and place of challenge of the candidate declared elected. Rules 127 and 134 prescribe reliefs which could be sought for in the election petition and granted by the Election Tribunal. 18. The plain reading of the Rules referred supra would indicate that the Election Tribunal, after conclusion of the trial of an election petition, shall make an order of dismissing the election petition or declaring the election of all or any of the returned candidates to be void and can further declare that the petitioner is duly elected. 19. In the case on hand, the first respondent has filed the election petition to declare that the announcement made by the 6th respondent declaring the petitioner elected in the local body election held on 19.10.2011 as null and void and also to order recounting of the votes polled for election of Councilor 3rd Ward in Mailam Panchayat Union. After trial and on appreciation of evidence, the Election Tribunal found that there was no irregularities at the time of counting of votes. The tribunal after recounting of the votes held that the first respondent herein has lost the election for the Member of 3rd Ward of Mailam Panchayat Union by margin of 64 votes. 20. After trial and on appreciation of evidence, the Election Tribunal found that there was no irregularities at the time of counting of votes. The tribunal after recounting of the votes held that the first respondent herein has lost the election for the Member of 3rd Ward of Mailam Panchayat Union by margin of 64 votes. 20. Neither the Tamil Nadu Panchayats Act nor the Election Rules gives power to the tribunal to impose a bar on the petitioner from functioning as a Ward Member on the only reason, the petitioner was set ex parte in the election petition. Therefore, I am of the view that the Election Tribunal has exceeded its jurisdiction in imposing ban on the petitioner. 21. In fine, the civil revision petition is allowed. The order of the learned Principal Judge, Villupuram, dated 05.07.2014, in Election O.P.No.8 of 2012 imposing bar on the petitioner from functioning as a Member of 3rd Ward, is set aside. No costs. Consequently, connected miscellaneous petition is closed.