IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.04.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN .. WRIT APPEAL NO.594 of 2007 and Writ Petition No.45416 of 2006 .. Writ Appeal No.594 of 2007: The Commissioner City Municipal Corporation Coimbatore. .. Appellant/2nd Respondent vs. 1. N.Chinnathurai ..1st Respondent/Petitioner 2. Tamil Nadu State Election Commission, Vadapalani Chennai rep. By its Secretary. 3. V.P.Selvaraj 4. V. Raju City Engineer Coimbatore City Municipal Corporation Coimbatore. 5. Pongalur Na.Palanisamy Minister for Rural Development Fort St.George Chennai 600 009. .. Respondents Writ Appeal is filed against the order of the learned single Judge made in M.P.No.1 of 2006 in W.P.No.45416 of 2006 dated 09.03.2007. MP 1 of 2006: to appoint an Advocate Commissioner to take possession of the Votes polled on 15.11.2006 for the West Zone Chairmanship of Coimbatore City Municipal Corporation and deposit https://hcservices.ecourts.gov.in/hcservices/ the same before the Honourable Court pending disposal of the WP 45416/2006. W.P.No.45416 of 2006: N.Chinnathurai .. Petitioner vs. 1. Tamil Nadu State Election Commission, Vadapalani Chennai rep. By its Secretary. 2. The Commissioner City Municipal Corporation Coimbatore. 3. V.P.Selvaraj 4. V. Raju City Engineer Coimbatore City Municipal Corporation Coimbatore. 5. Pongalur Na.Palanisamy Minister for Rural Development Fort St.George Chennai 600 009. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Declaration as stated therein. WP 45416/2006: to declare the election of the 3rd respondent as Zone Chairman West as invalid and consequently direct the respondents 1 and 2 to recount the votes polled in the election held on 15.11.2006 for the post of Chairman, West Zone, Coimbatore City Municipal Corporation. For appellant : Mr.P.S.Raman in Writ Appeal Addl.Advocate General & R.2 in Writ for Mr.K.Ilango Petition. Asst.Solicitor General For respondents: Mr.G.Rajagopalan, Sr.Counsel for M/s.G.R.Assocaites for R.2 & R.1 respectively in Writ appeal and Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ Mr.Vijay Narayan, Sr.Counsel for Mr.J.Ravindran for R.3 in both Writ Appeal and Writ Petition. Ms.P.Selvi for R.4 in both Writ Appeal and Writ Petition. Mr.V.Srikanth for R.5 in in both Writ Appeal and Writ Petition. COMMON JUDGEMENT P.JYOTHIMANI,J. The writ appeal arises from the order passed in M.P.No.1 of 2006 in W.P.No.45416 of 2006 filed by the writ petitioner for appointment of Advocate Commissioner to take possession of the votes polled on 15.11.2006 for the West Zone Chairmanship of Coimbatore City Municipal Corporation and deposit the same before this Court pending disposal of the writ petition. 2. In the miscellaneous petition itself, the issue of maintainability of the writ petition was raised, especially by the third respondent in the writ petition and the learned Judge, while holding that the writ petition is maintainable insofar as it relates to the challenge of election to the Chairman of a Wards Committee (Zone), directed the second respondent, the Commissioner of City Municipal Corporation, Coimbatore, who is the Returning Officer to produce the ballot papers in the Court, since there are only 18 ballot papers and the dispute relates to one ballot paper on which a zigzag mark was alleged to have been made. It is, as against the said interim order, the Commissioner, City Municipal Corporation, Coimbatore has filed the above appeal. 3. On the basis of a direction from the Division Bench, the appellant in the writ appeal, the Returning Officer produced the ballot papers and other connected papers in a sealed cover before the Registrar (Judicial) of this Court. The Division Bench, by order dated 10.12.2008, after hearing the submissions made by both the counsel that the matter need not be sent back to the learned Judge for decision on the writ petition and the Division Bench itself may decide the issue, directed the Registry to list the writ petition along with the writ appeal. The sealed cover in which the ballot papers and other papers were sent by the appellant, was opened in the Open Court on 3.4.2009 and the counsel for the appellant as well as the respondents including the Assistant Solicitor General perused the same, and the said cover was also placed before the Court during the time of argument in the appeal as well as the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 4. For the purpose of brevity, the parties are referred to as per the ranking in the Writ Petition. The facts relevant for the purpose of this case are that the writ petitioner, who is the first respondent in the appeal contested in the election to the Coimbatore City Municipal Corporation from Ward No.56 and was declared elected. The third respondent belonging to the ruling party, contested from Ward No.49 and he also got elected as Ward Member. The West Zone of the Coimbatore City Municipal Corporation consists 18 wards and the election to the post of Chairman of West Zone was held on 15.11.2006, among the 18 elected councillors. 5. It is also stated that in respect of other zones, Chairmen were elected unopposed. In the election of West Zone Chairman, which took place in the presence of the 2nd respondent, Returning Officer, the petitioner as well as the third respondent contested. The petitioner and the third respondent secured 9 votes each resulting in a tie and ultimately there was a draw of lot, after which the second respondent has declared the third respondent elected as Chairman of Coimbatore City Municipal Corporation - West Zone. Challenging the said election of the third respondent, the appellant filed the writ petition for declaration that the election of the third respondent as the West Zone Chairman is invalid and to direct the respondents 1 and 2 to recount the votes and pass orders. 6. After going through the ballot papers as stated above, Mr.G.Rajagopalan, learned senior counsel appearing for the writ petitioner while referring to Article 243S(i) and 243 ZG(b) of the Constitution of India, has contended that it is true that the election to Wards Committees is provided in the Constitution and such election shall not be questioned except by filing an election petition, however, as per sections 10-B and 62-A of the Coimbatore City Municipal Corporation Act,1981 and the Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporation (Elections) Rules, 2006, particularly Rule 118, the remedy of filing an election petition is available only in respect of election to Wards Committee members and there is no provision for filing an election petition regarding the election of Chairman and therefore, it is his submission that in the absence of an effective remedy of filing an election petition, the petitioner had to resort to this Court by filing the writ petition under Article 226 of the Constitution of India. 7. It is also his submission that when it is the admitted case of the respondents that out of 18 votes, 9 votes have been polled in favour of the petitioner and in the remaining 9 votes, 8 votes were cast in favour of the third respondent about which there is no dispute, that in one vote, on the name of third respondent there is a zigzag mark put by the voter and the question that has to be https://hcservices.ecourts.gov.in/hcservices/ decided is as to whether such mark would indicate the intention of the voter to vote for/against the third respondent and if such zigzag mark is taken to be the indicative intention of the voter against the third respondent, the further question is whether the petitioner should be declared as elected and even if it is taken in favour of the third respondent, there would be a tie and in such case the question would be as to whether the second respondent has properly followed the Rules in this regard in declaring the third respondent as elected person. 8. His further contention is that the second respondent while resolving the question of tie, had written the names of petitioner and third respondent in separate slips in the presence of the Executive Engineer of the Corporation, the 4th respondent, and after folding the slips, the second respondent placed the slips in a tray and directed the Executive Engineer to pick up one and the Executive Engineer who was aware of the nature of folding of paper slips, has picked up a slip which was that of the 3rd respondent and the said method is improper and therefore, there must be a fresh draw. 9. On the other hand, Mr.P.S.Raman,learned Additional Advocate General appearing for the second respondent in the writ petition, viz., the Commissioner, City Municipal Corporation, Coimbatore, who is the Returning Officer and the appellant in the writ appeal has submitted that with reference to the disputed vote, there is no striking of the name of third respondent and simply because a line has been put on the name of a person, it does not mean that the voter who is an elected councillor wanted not to elect the third respondent. The intention, according to the learned Additional Advocate General, has to be drawn from the overall situation. He would rely upon the judgment of the Supreme Court in Era Sezhiyan vs. T.R.Balu [AIR 1990 SC 838] and contend that it is the intention of the voter which has to be taken into consideration. 10. In respect of the procedure followed by the second respondent, for the purpose of drawing a lot, it is his submission that the second respondent in his counter affidavit has stated that he has written the names on two papers and the 4th respondent/Executive Engineer has never written the names and hence, it is not correct to state as if the allegation of the writ petitioner that the 4th respondent has seen the second respondent writing the names on the papers has not been denied in the counter affidavit. 11. It is his further submission that irrespective of whether the remedy of filing an election petition is available in respect of the election of Chairman of West Zone, the factual allegations raised by the writ petitioner that the 4th respondent saw the 2nd respondent writing the names on the papers and that one State Cabinet Minister https://hcservices.ecourts.gov.in/hcservices/ sitting in the first floor was giving some direction to the 4th respondent are all matters of evidence, especially in the circumstance that the concerned Minister has filed an affidavit denying the same and hence, such factual assertions which require evidence cannot be decided in the writ petition under Article 226 of the Constitution of India and the same can be decided only in a proper forum. 12. It is also his submission that inasmuch as the election to Wards Committee is provided in the Constitution, mere absence of procedure to file election petition in respect of Chairman election does not mean that no election petition would lie. 13. Mr.Vijay Narayan, learned senior counsel appearing for the third respondent who has been declared elected, by referring to various provisions of Article 243 of the Constitution of India, especially in the light of the fact that there is a non obstantic clause under Article 243ZG of the Constitution, would submit that the filing of election petition alone is a remedy. He would also refer to various provisions of the Coimbatore City Municipal Corporation Act, 1981 to substantiate his contention that the Wards Committee, being one of the authorities of the Municipality, the term 'Chairman' would also come within its fold. That apart, he would contend that by seeing the ballot papers the intent of the voter has to be assessed on the overall situation. 14. Before adverting to various provisions of the Constitution of India as well as the Coimbatore City Municipal Corporation Act,1981, it is relevant to mention that the perusal of the ballot papers produced before the Court by the second respondent, which were also perused by the counsel for all the parties, would show that out of 18 ballot papers, nine were voted in favour of the writ petitioner while the remaining 9 votes were cast in favour of the third respondent who was declared elected and out of 9 votes cast in favour of the third respondent, in one ballot paper it is seen that on the name of third respondent, 'V.P.Selvaraj', a tick mark [ ] has been put. The stand of the writ petitioner in the affidavit is that it is a zigzag mark amounting to scoring out the name of the third respondent. 15. On seeing the disputed ballot paper, we are sure that it is only a tick mark which has been put after the 4th letter in the name 'Selvaraj' in Tamil and we are fully satisfied that the intention of the voter is not to vote against the third respondent by putting a cross mark on his name. On the other hand, it is only a tick mark after the 4th letter in the name 'Selvaraj' and therefore, the contention of the learned senior counsel for the petitioner that from the disputed ballot paper the mind of the voter cannot be ascertained and it is doubtful and therefore, the benefit should be given to the https://hcservices.ecourts.gov.in/hcservices/ petitioner, has no meaning. 16. In this context, the further contention of the learned senior counsel for the petitioner that when all other voters have put their tick mark next to the name of the candidate, the disputed voter has put the tick mark on the name of the third respondent and therefore, that should be declared as an invalid vote is also liable to be rejected. Apart from seeing the said ballot paper, the intention of the disputed voter to vote in favour of the third respondent can be deduced from the mark that has been put on the name of third respondent, as the marking on the name of contestant cannot be said to be against the voting procedure. 17. Rule 107 of the Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporation (Election) Rules, 2006, (in short, "the Rules") framed by the Government in exercise of its powers under Section 303 of the District Municipalities Act,1920 and the other relevant provisions of the Chennai City Municipal Corporation Act,1919, Madurai City Municipal Corporation Act,1971, etc., make it clear that a voter has to put a mark on the ballot paper against the name or names of the candidate or candidates for whom he wishes to vote. The Rule 107 is as follows: " Rule 107: Voting procedure.- Every Member shall, on receiving the ballot paper, proceed to the voting compartment for the purpose of recording his vote or votes and put a mark on it with the help of the instrument provided for this purpose by the Returning Officer, on the ballot paper against the name or names of the candidate or candidates for whom he wishes to vote. He shall, before quitting the voting compartment fold up the ballot paper so as to conceal the mark and put the ballot paper so folded, into the ballot box in the presence of the Returning Officer." 18. The Rule nowhere contemplates that the mark should be put at a particular place alone. The words, 'against the name or names of the candidate or candidates', should be construed that anywhere near the name of the candidate including on the name of the candidate the mark can be put. In the absence of any specific provision invalidating the vote if the mark is put on the name of candidate, it is not possible to accept the contention of the learned senior counsel for the petitioner that the mark put on the name of third respondent would make the vote invalid, especially when it is not in dispute that the marking has been put on the ballot paper with the help of the instrument provided for the said purpose by the Returning Officer. 19. While considering a similar case, referring to the https://hcservices.ecourts.gov.in/hcservices/ Representation of the People Act, 1951 and the Conduct of Election Rules, 1961, particularly Rule 39(2)(b),wherein the expression used is 'on or near the symbol of the candidate for whom he intends to vote', in S.Sivaswami vs. V.Malaikannan [AIR 1983 SC 1293], it was held by the Hon'ble Apex Court that in such a situation when a ballot paper bears the mark made with the instrument supplied for that purpose, the ballot paper cannot be rejected. The following is the relevant portion for the purpose of the present case: " 7. ...... The essence of the principle incorporated in the rule is that so long as the ballot paper bears a mark made with the instrument supplied for the purpose, the ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given. ......" 20. Again, in Era Sezhiyan vs. T.R.Balu [AIR 1990 SC 839], while dealing with the Representation of the People Act, 1951 and the Conduct of Election Rules, 1951, especially Rule 39A (2)(b) and Rule 73(2)(b) & (e), in respect of Rajya Sabha election, it was held that when the rule does not invalidate the marking made on the written column, the ballot paper cannot be treated as invalid. The Supreme Court has held that it is the intention of the voter that must be culled out from the totality of the situation. The relevant portion of the judgment of the Supreme Court is as follows: " 17. It is significant that in this sub-rule also there is nothing to indicate that the preference must be indicated in the column reserved for that purpose, the only requirement being that the figure 1 should be written opposite the name of the candidate. Similarly, sub-rule (2) (b) of Rule 73 only lays down that if the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it applied, the ballot paper would be invalid. Sub-rule (2) of Rule 73 deals with the invalidity of ballot papers and that sub-rule nowhere states that merely by reason of the preference being marked in the wrong column, if the marking is opposite the name of the candidate concerned, the ballot paper shall be rendered invalid. It is true that the column in which the preference should have been marked and intended for that purpose was the column on the right-hand side of the first column where the name of the candidate was to be put; but there is no express provision to the effect that unless the preference is marked in the correct column, the ballot paper would be invalid. In such a situation, the principle enunciated by this Court in several judgments and reiterated in S. Sivaswami v. V. https://hcservices.ecourts.gov.in/hcservices/ Malaikannan (AIR 1983 SC 1293), that the primary task of the court in a case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter, must be applied. In that case, the court held that the ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking so as to identify the candidate in favour of whom the vote had been intended to be given. This, of course, is subject to the rule that before a ballot paper is accepted as valid the ballot paper must not be invalid under any other express provision and the intention of the voter must not be expressed in a manner which is contrary to or totally inconsistent with the manner prescribed under the said Act or the Election Rules for expressing the same. In the case of the said three votes in question, the figure 1 was clearly marked opposite the name of respondent 1, being the candidate concerned, as required by the express provision of the said Rule 37-A and the intention of the voter was clearly to cast the first preference in favour of respondent No. 1. In these circumstances, the ballot papers were rightly accepted by the Returning Officer as valid and the High Court was justified in coming to the conclusion to which it has arrived." 21. In these circumstances, it is not possible to hold that the disputed ballot paper should be construed to be invalid. The necessary consequence is that both the petitioner and the third respondent have secured equal number of votes viz., 9 votes each. In such circumstances, when there is equal number of votes between two candidates, Rule 112 of the above said Rules enables the Returning Officer to draw a lot in the presence of the members and to declare the result. Rule 112(1)(a) is as follows: " Rule 112. Declaration of result of election.- (1)(a) In the case of election under this part, if the number of candidate is two, the candidate who obtains the largest number of votes shall be declared to have been duly elected. In the case of there being an equality of votes between the two candidates and the addition of one vote to any of such candidate will entitle him to be declared duly elected, the Returning Officer shall draw a lot in the presence of the member present and the candidate whose name is drawn shall be deemed to have the additional vote and shall be declared to have been duly elected." 22. It is not in dispute that the Returning Officer, the second https://hcservices.ecourts.gov.in/hcservices/ respondent, has followed the said Rule 112. The allegation of the petitioner as it is seen in the affidavit filed in support of the writ petition is that the second respondent, the Returning Officer, while deciding to go for a lot, wrote on the lot papers in the presence of 4th respondent, the Executive Engineer of the Corporation. It is his further allegation that at that time, the State cabinet Minister Mr.Pongalur Na.Palanisami, who was sitting in the first floor of the building gave certain directions by signs from time to time. It is the allegation of the petitioner that he had suggested that one of the 18 Ward Members or an outsider could be permitted to pick up the lot, in spite of which the second respondent, directed the fourth respondent, the Executive Engineer of the Corporation to pick up the lot. It is the petitioner's case that he protested the same since, according to him, the 4th respondent knew what was written on the folded papers and therefore, he should not be permitted to pick up the lot and in spite of it, the fourth respondent was allowed to pick up the lot and consequently, the name of third respondent was picked up and he was declared as elected Chairman of the West Zone. 23. The second respondent in the counter affidavit dated 27.11.2006 filed in the writ petition has clearly stated that he has prepared the lot in the presence of both the writ petitioner and the third respondent and placed it in a tray and since he happened to be the Returning Officer, he requested the 4th respondent Mr.S.Raju, Executive Engineer, Coimbatore City Municipal Corporation to pick up the lot. It is also stated by him that all the Ward Members including the writ petitioner and the third respondent have unanimously agreed for the 4th respondent to pick up the lot and accordingly, he picked up the lot. Following is the relevant portion of the counter affidavit: " 6. The allegations and averments made in paragraph 5 are denied as incorrect, baseless and unsustainable. As both the candidates have got equal votes, I have no option except to proceed with the election under rule 112 of the above referred Election Rules and draw a lot in the presence of both the contestants and other ward members. I have accordingly prepared the lots in presence of both the Writ petitioner and the 3rd respondent and placed it in a tray. Since I am the Returning Officer for the said election, I did not want to directly participate in picking up the lot.