1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02.11.2011 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.12256 of 2011 And M.P.(MD) Nos.1, 2 and 4 of 2011 M.Kumaresan : Petitioner vs. 1.The State Election Commissioner, Office of the State Election Commission, Tamil Nadu State Government, 208/2, Jawaharlal Nehru Salai, Arumbakkam, Koyembedu, Chennai-600 106. 2.The District Electoral Officer-cum- District Collector, Dindigul. 3.The Returning Officer-cum-The Project Director, District Rural Development Agency Office of the District Collector, Dindigul District. 4.The Block Development Officer, Athur Panchayat Union, Dindigul District. 5.S.Rajendran (R-5 impleaded as per order of Court dated 2.11.2011 vide M.P.No.3 of 2011) : Respondents Writ petition filed under Article 226 of the Constitution, praying for the issue of a Writ of Mandamus, directing the respondents herein to permit the petitioner herein to take swearing as District Councillor for Ward No.18 of the Dindigul District Council thereby permitting the petitioner herein to participate in the further process of electing the District Chairman and Vice Chairman for the Dindigul District scheduled on 29.10.2011 in accordance with law and consequently direct the respondents herein not to interfere in the performance of the petitioner as District Councillor for Ward No.18 of Dindigul District Council. For Petitioner : Mr.Veera Kathiravan https://hcservices.ecourts.gov.in/hcservices/ 2 For Respondents-1to4 : Mr.K.Mahendran, Special Government Pleader. For Respondent-5 : Mr.R.Vijayakumar O R D E R The petitioner has come up with the above writ petition, seeking a Writ of Mandamus, to direct the respondents to permit him to be sworn in as the District Councillor of Ward No.18 of Dindigul District Council and to permit him to participate in the further proceedings of the Council. 2. Heard Mr.Veera Kathiravan, learned counsel for the petitioner, Mr.K.Mahendran, learned Special Government Pleader for the respondents-1 to 4 and Mr.R.Vijayakumar, learned counsel for the fifth respondent. 3. The petitioner as well as the fifth respondent contested in the election for the post of Councillor from Ward No.18 of the District Panchayat of Dindigul. The election was held on 17.10.2011. The counting took place on 21.10.2011. Thereafter, the Returning Officer completed and signed the result sheet in Form No.22 and made an announcement in terms of Rule 66 (5) of the Tamil Nadu Panchayats (Elections) Rules. It was also followed by a declaration in Form 23 as per Rule 67(1) (a) and the forwarding of Form 25 as per Rule 69(1) for publication. 4. However, on the ground that there was an arithmetical and clerical error, due to the wrong feeding of information in the computer by cutting and pasting the results from a few booths twice over, the Returning Officer appears to have withdrawn Form No.25 issued in favour of the petitioner and issued a fresh Form No.25 in the name of the fifth respondent herein. Consequently, the petitioner was not permitted to take oath. Hence, the petitioner came up with the above writ petition. 5. On 28.10.2011, the writ petition was moved for orders as to admission, seeking interim prayers also. At that time, the learned Special Government Pleader took notice for the respondents 1 to 4 and I passed an interim order. The order reads as follows:- "Mr.K.Mahendran, learned Special Government Pleader takes notice for the respondents. 2. The case of the petitioner is that he contested for Ward No.18 of the District Council of Dindigul and he was issued with a declaration in terms of Rule 69 in Form 25. But he was not sworn as an Elected Member. He has also produced a copy of Form 25 issued by the third respondent. 3. However, it is contended by the learned Special Government Pleader that a mistake was found out and the third respondent rectified the same by issuing Form 25 to another candidate. In other words, it appears that another candidate has been declared as https://hcservices.ecourts.gov.in/hcservices/ 3 elected subsequently. Therefore, the learned Special Government Pleader also raised the issue of non-impleadment of the other candidate. 4. But, once Form 25 is issued in terms of Rule 69 of the Tamil Nadu Panchayats (Elections) Rules, it is not permissible for the Returning Officer to review the same and issue Form 25 to another person. If such an act is accepted, the Writ Petitions challenging the issue of Forms 25 would become maintainable, leading to utter chaos and confusion. 5. In view of the above, a direction is issued to the respondents not to publish the results of the Election to the post of Chairman and Vice Chairman of the District Board, schedule to be held tomorrow, namely 29.10.2011 and not to permit persons elected as Chairman and Vice Chairman to resume office until further orders of this Court. Post on 31.10.2011 for counter. For being mentioned 6. A few minutes after I dictated the above order, Mr.K.Mahendran, learned Special Government Pleader made a mention in the presence of Mr.Veera Kathiravan, learned counsel for the petitioner that instead of staying the elections to the post of Chairman and Vice Chairman, the petitioner can be permitted to participate in the election as an elected councillor. In other words, the respondents have no objection to permitting the petitioner to be sworn in as Councillor of Ward No.18 and to discharge his functions, subject however to the outcome of the Writ Petition. 7. Since the petitioner cannot have any objection to this course of action agreed to by the respondents, the earlier order is modified to the following effect:- "The respondents are directed to swear the petitioner as the Councillor of the 18th Ward and also permit him to participate in the Election to the post of Chairman and Vice Chairman of the District Council, subject however to the final outcome of the Writ Petition. The petitioner shall also be permitted to act as the Councillor of the 18th Ward until further orders, subject however to the outcome of the Writ Petition. Post on 02.11.2011 for counter and disposal." https://hcservices.ecourts.gov.in/hcservices/ 4 6. Thereafter, the Block Development Officer viz., the fourth respondent has come up with a vacate stay petition in M.P.No.4 of 2011. Similarly, the fifth respondent came up with two petitions one for impleading and the other for vacating the interim order. The impleading petition was numbered as M.P.No.3 of 2011 and it was allowed today. 7. Since the issue raised in the writ petition lies in a narrow campus and also since the respondents have meted the allegations made in the affidavit in support of the writ petition, in their affidavits in support of the vacate stay petitions, the learned counsel appearing for the fifth respondent as well as the learned Special Government Pleader submitted that the writ petition itself could be disposed of on the basis of the affidavits in support of the vacate stay petitions. Therefore, the writ petition itself was taken up for disposal. 8. The short question that arises for consideration is as to whether the Returning Officer is entitled to modify the declaration once made in favour of a candidate and to issue a set of fresh Forms in favour of another candidate on the ground of arithmetical or clerical error. 9. In the affidavit filed by the fourth respondent in support of his vacate stay petition, he has admitted that after the counting was over on 21.10.2011, the writ petitioner was declared elected. In para-11 of his affidavit, the fourth respondent has also conceded the fact that after the counting of votes, Form Nos.22, 23 and 25 were issued in favour of the writ petitioner. But according to the fourth respondent, a representation was made thereafter by the fifth respondent herein to the District Collector, pointing out arithmetical error in the calculation sheet. According to the fourth respondent, the second respondent forwarded the representation to the third respondent and the third respondent perused the original records and found out clerical and arithmetical mistakes. Therefore, according to the fourth respondent, the declaration issued in favour of the writ petitioner was cancelled and the cancellation was affixed in his residence on 22.10.2011 and a fresh declaration was issued in favour of the fifth respondent. 10. The mistakes which necessitated the cancellation of declaration in favour of the petitioner, according to the respondents 4 and 5, are (i) that double entries were found for Booth Nos.4, 6, 2, 8 and 14; (ii) that in respect of Booth No.76, only 301 votes were polled, out of which the writ petitioner secured 140 votes, but the same was wrongly indicated as 1,490 votes; and (iii) that the votes polled in Booth Nos.99 and 102 were not at all included in Form No.22. 11. The contention of the learned Special Government Pleader and the learned counsel for the fifth respondent is that when an error apparent on the face of the record is detected by the Returning Officer before much damage could be done, the Returning Officer is not powerless to withdraw the declaration already made and re-issue fresh Forms to the successful candidate. According to them, the mistakes in this case, were apparent on the face of the record and these mistakes did not https://hcservices.ecourts.gov.in/hcservices/ 5 require any detailed enquiry. Therefore, they were obliged to correct these mistakes. 12. I have carefully considered the above submissions. Fortunately, there is no dispute about two facts viz., (i) that the writ petitioner was declared as the successful candidate and that Forms 22, 23 and 25 were issued in favour of the writ petitioner in the first instance and (ii) that in supersession of such a declaration, a fresh one was sought to be made in favour of the fifth respondent. In the light of these admitted facts, the only question to be considered is as to whether the Returning Officer has any power at all to cancel the declaration once made and to re-issue fresh Forms. 13. The Tamil Nadu Panchayats (Elections) Rules, 1995, issued in exercise of the powers conferred by Sections 11, 20, 32 and 57 of the Tamil Nadu Panchayats Act, 1994, are a complete Code in itself, in so far as the election to Panchayats are concerned. Part III of the said Rules contains a detailed procedure for the preparation and publication of Panchayat electoral rolls. Part IV contains Rules relating notification of election and nomination of candidates. Part V contains elaborate procedure for the conduct of the poll. Part VI relates to the counting of votes. This Part details the steps to be taken by the Returning Officer. We are not concerned in this case with the matters covered by Rules 60 to 63. Therefore, I do not advert to them. 14. As per Rule 64(2), the Returning Officer should prepare a result sheet in Form 22, after completion of counting and entering the same in Part II of Form 20. Thereafter, the Returning Officer is obliged in terms of Rule 66 (1) to make an announcement. Under Rule 66(1), a contesting candidate or his agent is entitled to seek the Returning Officer for a recount. However, the request should be made after the announcement, but before the declaration of the result of the election. 15. In this case, it is not the contention of the Returning Officer or the fifth respondent that any request for recounting was made by the fifth respondent in terms of Rule 66 (1), after the announcement was made after preparation of the result sheet in Form No.22, but before the declaration of the result of the election. 16. Sub Rule (5) of Rule 66 makes it clear that after the total number of votes polled by each candidate has been announced under Sub Rule (1), the Returning Officer should complete and sign the result sheet in Form No.22. Rule 66(5) also states that thereafter, no application for a recount should be entertained. 17. Rule 67 elaborates the procedure for declaration of result of election. Under Clause (a) of Sub Rule (1) of Rule 67, the Returning Officer should declare after completion of scrutiny and counting of votes, the candidate who secured the highest number of votes as duly elected. Thereafter, he must complete and certify the return in Form No.23 and send the signed copy thereof to the District Election Officer and the State Election Commission. Under Clause (b) of the very same Sub Rule, the Returning Officer should also affix a copy of the declaration made under Clause (a) in his office as well as in https://hcservices.ecourts.gov.in/hcservices/ 6 the office of the District Panchayat or Panchayat Union. 18. Sub Rule (2) of Rule 67 prescribes the very same procedure in the case of election of President of Village Panchayats. Sub Rule (1) relates to the election of members of the District Panchayat. We are concerned in this case only with Rule 67(1). 19. A careful reading of Rule 67(1)(a) and (b) shows that the moment the Returning Officer completes and certifies the return in Form No.23, he is obliged to do two things viz., (i) to send a copy thereof to the District Election Officer as well as to the State Election Commission and (ii) to affix a copy of the declaration in his office as well as in the office of the District Panchayat. Once this declaration is made, even this Court does not have the power to interfere with such a declaration and it is for the person aggrieved by such a declaration to invoke the remedies available under Section 259 before the Election Tribunal. Therefore, Rule 67(1) does not give any leverage or scope for the Returning Officer to withdraw a declaration once made and a certificate of return once issued in Form No.23. 20. As a matter of fact, after the certification of the return in Form No.23 and the affixture of the declaration as per Rule 67(1)(b), the Returning Officer is mandated to do certain things for the disposal of ballot papers under Rule 68 of the Rules. I am making a reference to Rule 68 just for the purpose of showing that the Returning Officer's role gets reduced after the affixture of the declaration, to that of a person winding up the whole process. This is why Rule 69(1), mandates the Returning Officer to forward without any delay in Form No.25, the name of the duly elected candidate to the State Election Commission and the District Election Officer to enable the latter to publish the same in the District Gazette. As a matter of fact, the declaration of results made in Form No.23 and Form No.25 is for the purpose of completion of the formality to ensure that the name of the elected candidate is published in the Gazette. Rule 69(1) obliges the Returning Officer to issue Form No.25 "without delay". Therefore, the Returning Officer should actually switch over to the hands off mode, the moment Form No.25 is issued to a person. Thereafter the question of the elected members taking oath, is found in Section 70-A. The Returning Officer is not in any way concerned with the same. His role is over with the forwarding of Form No.25 under Rule 69(1). 21. If a Returning Officer is made entitled to review either Form No.25 sent in terms of Rule 69(1) or to review Form No.23 issued in terms of Rule 67(1), it would amount to conferring a power which is not recognised to be in existence either in the Act or in the Rules. When the set of rules provide a complete Code, the Returning Officer cannot assume to himself any residuary or inherent powers to withdraw any declaration made or any Form already issued by him. Therefore, the act done by the Returning Officer in seeking to withdraw Form Nos.22, 23 and 25 issued in favour of the petitioner and to issue a set of fresh Forms in favour of the fifth respondent, is completely in violation of the statutory rules. https://hcservices.ecourts.gov.in/hcservices/ 7 22.In P.K.K.Shamsudeen vs. K.A.M.Mappillai Mohindeen {1989 (1) SCC 526}, the Supreme Court went to the extent of holding that "even if the recount disclosed that the elected candidate had not secured highest number of votes, the result of the election cannot be disturbed if the order of recount itself is invalid". Thus the Courts have always safeguarded the purity of the entire election process and recognised the sanctity of declaration of results once made. 23. In Sohan Lal vs. Babu Gandhi {2003 (1) SCC 108}, the Returning Officer orally declared one Sohanlal to have won the election. But when the official declaration was made, it was shown that one Babu Gandhi had won. A recounting was ordered and Sohan Lal was found to have won. Therefore, the Returning Officer corrected the mistake and declared Sohan Lal to have won. On a writ petition filed by Babu Gandhi, the High Court remanded the matter back. The Returning Officer again ordered recount and again declared Sohan Lal to have won. A second writ petition was filed by Babu Gandhi, which was allowed following the decision of the Supreme Court in Ram Rati vs. Saroj Devi {1997 (6) SCC 66}, in which it was held that unless a party first applied to the Returning Officer for recounting, neither the Tribunal nor the Court can direct recounting. But when Sohan Lal took the matter on appeal to the Supreme Court, a Bench of two Judges had reservation about the principles laid down in Ram Rati case and hence the matter was referred to a 3 Member Bench. The 3 Member Bench held in Sohan Lal that "after the declaration of results, the Returning Officer had no power either to direct recount or to change the results of the election". Once the result is declared, the only remedy of an aggrieved party is to file an election petition. The Tribunal may order recount depending upon the evidence. But the Returning Officer has no power to change it. 24. A contention was raised by Mr.R.Vijayakumar, learned counsel for the fifth respondent that it was the fifth respondent who was sworn as the elected member on 25.10.2011 and that the petitioner who filed the writ petition on 28.10.2011, cannot unseat a person, who is already sworn in as an elected member. 25. But unfortunately for the fifth respondent, it was the petitioner who had a valid declaration in terms of Form No.23 and Form No.25. Any declaration issued in Form No.23 or 25 subsequent to the issue of the very same Forms to the petitioner, have no force or authority in the eye of law. The Forms issued to the fifth respondent are of no consequence and they are no more than a mere nullity. Therefore, if a person, who did not have a valid Form No.23 or Form No.25 is sworn in, it will not confer any benefit upon such person. Hence, the above contention is also rejected. 26. In view of the above, the writ petition is allowed, the writ petitioner shall be allowed to continue as elected member of the Ward No.18. However, it will be open to the fifth respondent to raise all the issues now raised before the Election Tribunal in terms of Section 259 of the Act. No costs. https://hcservices.ecourts.gov.in/hcservices/ 8 Consequently connected miscellaneous petitions are closed. Sd/- Assistant Regsitrar(Crl.Side) /True Copy/ Sub-Assistant Registrar To 1.The State Election Commissioner, Office of the State Election Commission, Tamil Nadu State Government, 208/2, Jawaharlal Nehru Salai, Arumbakkam, Koyembedu, Chennai-600 106. 2.The District Electoral Officer-cum- District Collector, Dindigul. 3.The Returning Officer-cum-The Project Director, District Rural Development Agency Office of the District Collector, Dindigul District. 4.The Block Development Officer, Athur Panchayat Union, Dindigul District. Svn rl/5c – 16.11.2011 WP(MD) No.12256/2011 02-11-2011 https://hcservices.ecourts.gov.in/hcservices/