BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12-10-2011 CORAM: THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)Nos. 11502, 11506, 11507, 11508, 11511, 11518, 11520, 11525, 11530, 11534 to 11540 of 2011, 11542 to 11547, 11548, 11549, 11551, 11552, 11553, 11555 to 11560, 11565, 11580 and 11581 to 11586, 11605, 11632, 11672 and 11678 of 2011 And M.P.(MD) Nos.1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 2, 3, 1, 2, 1, 1, 2, 1, 1, 1, 2, 3, 1, 1, 1, 1, 1, 1, 1, 2, 1, 2, 1, 1, 1, 1, 1, 1, 1, 1 and 1 of 2011 WP(MD) No.11540 of 2011 J.JEYAPRAKASH ... PETITIONER Vs 1. THE STATE ELECTION COMMISSIONER, 100 FEET ROAD, VADAPALANI, CHENNAI. 2. THE DISTRICT RETURNING OFFICER/ THE DISTRICT COLLECTOR, DINDIGUL DIST. 3. THE RETURNING OFFICER OTTANCHATHIRAM PANCHAYAT UNION, DINDIGUL. 4. SMT. LAKSHMI NOW WORKING AS ASSISTANT RETURNING OFFICER & ASSISTANT BLOCK DEVELOPMENT OFFICER, OTTANCHATHIRAM, DINDIGUL. 5. MR.K.P. NALLASAMY 6. MR.K.KARUPPASAMY ... RESPONDENTS Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents 1 to 4 herein to include the name of the petitioner in the final list of eligible candidates for Ward No.1 of Ottanchathiram Panchayat Union, Dindigul, thereby permitting the petitioner to participate in the ensuing election scheduled on 17.10.2011 for Ward No.1 of Ottanchathiram Panchayat Union, Dindigul. For Petitioner in all Wps : Mr.Veera.Kathiravan For State Election Commission : Mr.K.Mahendran, Special Government Pleader. For State of Tamil Nadu Respondents 2 & 3 : Mr.R.Karthikeyan AGP C O M M O N O R D E R All these writ petitions arise either out of the non-acceptance or rejection of the nominations filed by the petitioners or out of the alleged improper and illegal acceptance of the nominations of a few persons, for election to the local bodies in the State of Tamil Nadu, scheduled to be held on 17th and 19th October 2011. https://hcservices.ecourts.gov.in/hcservices/ 2. I have heard the learned counsel appearing for the respective petitioners, Mr.K.Mahendran, learned Special Government Pleader appearing for the State Election Commission and the Returning Officers and Mr.G.R.Swaminathan, learned counsel appearing for a contesting respondent in one writ petition viz., W.P.(MD) No.11506 of 2011. 3. The Tamil Nadu State Election Commission issued a notification on 13.9.2011 announcing the elections to the local bodies. The schedule drawn up in the election notification is as follows:- 29.09.2011 - Last date for filing nominations 30.09.2011 - Scrutiny of nominations 30.09.2011 - Publication of list of valid nominations 03.10.2011 - Last date for withdrawal of nominations and the publication of the final list of contesting candidates. 4. The petitioners in all these writ petitions filed nominations for contesting the elections either to the post of Ward Members of different Panchayat Unions or to the post of President of various Panchayats. After the scrutiny of nominations was over on 30.9.2011, the petitioners have come up with the above writ petitions, for ventilating a variety of grievances, which can be categorised into the following:- (i) The improper acceptance of the nominations of some candidates, who, according to the petitioners, are disqualified in terms of the provisions of the Act and the Rules, from contesting. (ii) The arbitrary rejection or non-acceptance of the nominations of the petitioners on flimsy or on no valid grounds. 5. Since the legal issues arising for consideration in the above two categories of cases differ from each other, to some extent, I have grouped all the cases under the above two categories and I shall deal with each of the above two categories of cases separately. CASES ARISING OUT OF IMPROPER ACCEPTANCE OF NOMINATIONS OF RIVAL CANDIDATES: 6. W.P.(MD) Nos.11502, 11530, 11551, 11552, 11605 and 11632 of 2011 fall under this category. 7. In W.P.No.11502 of 2011, the nomination filed by one Bhanumathi is objected to by the petitioner on the ground that her name is not found in the electoral roll and that she did not enclose the Voter ID card and ration card to the nomination paper. But the writ petitioner has not even impleaded her as a party. 8. In W.P.No.11530 of 2011, the challenge is to the acceptance of the nominations of the respondents 5 and 6 therein, for the post of Panchayat Union Councilor of Vilathikulam Panchayat Union. According to the petitioner, the fifth respondent is a resident of Vilathikulam Township, but by making a false claim that she is a resident of Chithavanaickenpatti Panchayat, she filed a nomination. Similarly, it is claimed by the petitioner that the sixth respondent was a Government Contractor, but the same was suppressed by him. It is also claimed by the petitioner that the Returning Officer actually rejected the nominations of the respondents 5 and 6 on the grounds stated above and he also promised to issue orders of rejection later, since there was a power cut at that time. But subsequently, the names of the respondents 5 and 6 were found in the final list of candidates. Therefore, the petitioner has come up with a prayer to declare the inclusion of the names of the respondents 5 and 6 in the final list of candidates as null and void. In support of his contention that the Returning Officer originally rejected the nominations of the respondents 5 and 6 and promised to issue rejection orders later, the petitioner has also filed the copy of the proceedings dated 1.10.2011 of the Returning Officer. 9. In W.P.No.11551 of 2011, the petitioner sought the rejection of the nomination of the fourth respondent on the ground that the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent was convicted by a criminal court in C.C.No.114 of 1998 on the file of the Judicial Magistrate, Thanjavur which was also confirmed on appeal by the District and Sessions Court, Thanjavur in C.A.No.15 of 2009. But the nomination was accepted on the ground that a revision was pending on the file of this Court and that the conviction was not a disqualification. 10. In W.P.No.11552 of 2011, the petitioner sought the disqualification of the third respondent on the ground that he was not a resident of Bavajikottai Panchayat. The petitioner has also claimed that the third respondent has not paid professional tax and that without resigning the post of President of Kanyakurichi Panchayat, the third respondent could not be an Elector in Bavajikottai Panchayat. 11. In W.P.Nos.11605 and 11632 of 2011, the claim is that the names of the contesting respondents were not found in the electoral rolls and that they are not residents of the concerned village. Thus the prayer for the rejection of nominations of the respondents is sought, either on the ground of conviction in a criminal case or on the ground of residential status or on the ground that the Returning Officer played foul, after rejecting the nominations in public, but reversing it later in private. 12. In so far residential status is concerned, it is not a question which can be gone into at the pre-election stage. It is a matter which requires evidence. In Rampakavi Rayappa Belagali vs. B.D.Jatti {AIR 1971 SC 1348}, the Supreme Court made it clear that the entries made in the Electoral Roll of a Constituency can only be challenged in accordance with the machinery provided by the Act and the Rules and not in any other Forum. In Hari Prasad Mulshankar Trivedi vs. V.B.Raju {1974 (3) SCC 415}, the Constitution Bench of the Supreme Court went to the extent of holding that by virtue of Section 30(a) of The Representation of the People Act, 1950, the jurisdiction of the Court is ousted with regard to the entitlement of a person to be registered in an Electoral Roll. In both these cases, the Supreme Court held that even the jurisdiction of the Election Tribunal stands ousted, in respect of such matters unless the disqualification of the candidate could be traced to any of the Constitutional provisions. These decisions were followed by a Division Bench of this court in Dr.Subramaniam Swamy vs.T.T.V.Dinakaran {2004 (1) LW 712}. But if the disqualification could be traced to the Constitutional provisions, the same can be dealt with by the Election Tribunal, as pointed by me in S.Nagavalli vs. The Election Officer {2011 (4) LW 703}. But in any case, it is not a matter that could be considered in a writ petition under Article 226. Therefore, the writ petitions where the prayer is based upon the residential status of the rival candidates, are liable to be rejected. 13. In so far as W.P.No.11530 of 2011 is concerned, the petitioner raises a plea that the Returning Officer turned volte face, after orally rejecting the nominations of the respondents 5 and 6 with a promise to issue written orders later. But this is an issue which cannot be decided, especially in a writ petition without a counter affidavit. Once the Returning Officer chooses to deny this allegation, it becomes a disputed question of fact into which the Writ Court will not go, especially when the election is less than a week away. Therefore, W.P.No.11530 of 2011 is also liable to be rejected. 14. In so far as W.P.No.11551 of 2011 is concerned, it is the case of the petitioner that the third respondent was convicted for an offence under Section 3(a) of The Railway Property (Unlawful Possession) Act, 1966. He was sentenced to imprisonment for one year and ordered to pay a fine of Rs.1,000/- by the Trial Court. The same was confirmed by the Sessions Court on appeal. On a revision filed by the fourth respondent, the fourth respondent was let on bail by this Court, on 11.12.2009. Therefore, the question to be considered is as to whether the above https://hcservices.ecourts.gov.in/hcservices/ conviction is a disqualification under the Act and the Rules. 15. Section 33 of The Tamil Nadu Panchayats Act, 1994, prescribes two qualifications, for candidates seeking election as Member or President of a Panchayat. They are (i) that his name should appear on the electoral roll of the Panchayat and (ii) that he should have completed his 21st year of age. Sections 34, 35 and 37 speak of disqualifications of candidates, while Section 36 speaks of disqualification of voters. Section 38 deals with disqualification of the members already elected to hold office. Fortunately, we are not concerned here with cases under Sections 36 and 38. Persons who are disqualified under these provisions (34, 35 and 37), are:- Persons disqualified under Section 34: (i) Village Administrative Officer or Village Servant (ii) Other Officers or Servants of the State or Central Government or of a Village Panchayat, Panchayat Union Council, District Panchayat, Municipal Council or the Municipal Corporations of Chennai, Madurai, Coimbatore or any other Corporation. (iii) Officers or Servants of any Industrial Township, Cantonment or any body corporate owned or controlled by the State or Central Government. Persosn disqualified under Section 35: (iv) Every person convicted of an offence punishable under Sections 58 to 71 of The Tamil Nadu Panchayats Act, 1994. (v) Every person convicted of an offence punishable under Chapter IX-A of The Indian Penal Code (offences relating to elections). (vi) Every person disqualified by or under any law for the time being in force for the purposes of election to the Legislative Assembly of the State. The above disqualifications are for a period of 5 years from the date of conviction. Persons disqualified under Section 37: (vii) A person sentenced by a Criminal Court to imprisonment for any offence involving moral delinquency, is disqualified when the sentence is in force and for 6 years from the date of expiry of the period of sentence. (viii) A person convicted of an offence punishable under The Protection of Civil Rights Act, 1955, disqualified for a period of 6 years from the date of conviction. (ix) A person who is of unsound mind or a deaf-mute as at the last date of filing the nomination or at the date of election. (x) A person adjudicated as insolvent or an undischarged insolvent. (xi) A person interested in a subsisting contract with the Panchayat, except as a shareholder in a company. (xii) A person employed as a paid legal practitioner on behalf of the Panchayat or against the Panchayat. (xiii) A person found not to belong to the Scheduled Castes or Scheduled Tribes, is disqualified for contesting from a reserved constituency. (xiv) A person who is already a member of a Panchayat whose term of office has either not expired or not commenced. (xv) A person who is in arrears of any kind to a Panchayat, upto and inclusive of the previous year. (xvi) A person who failed to lodge an account of the election expenses within the time and in the manner prescribed and who has no good reason or justification for such failure. 16. Therefore, the question as to whether the conviction of the fourth respondent in W.P.No.11551 of 2011 would be a disqualification within the ambit of Section 35 or 37 (1) of the Act, is a question which deserves consideration. But such consideration is not possible at the hands of the Returning Officer, in view of the limited scope of the https://hcservices.ecourts.gov.in/hcservices/ enquiry that he is entitled to undertake at the time of scrutiny of nominations. 17. As a matter of fact, the issue relating to disqualification of persons with a criminal background has engaged the attention of the Courts as well as the Law Commission of India and the Government for quite some time. If we have a look at the decisions of the Supreme Court in Union of India vs. Association of Democratic Reforms {2002 (5) SCC 294} and in People's Union of Civil Liberties vs. Union of India {2003 (4) SCC 399}, it could be seen that the proviso to Direction No.4 contained in paragraph 14 of the order of the Election Commission of India dated 28.6.2002, empowering the Returning Officers to conduct a summary enquiry, was held to be invalid by the Apex Court. I had an occasion to deal with this aspect in greater detail in Krishnamoorthy vs. Sivakumar {2009 (3) CTC 446}. In PUCL, the Supreme Court held in para 73 as follows:- “73. While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Association for Democratic Reforms case, 2002 (5) SCC 294, the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. ....” 18. Therefore, it may not be possible for the Returning Officer to hold an enquiry into these aspects. Hence the refusal of the Returning Officer to reject the nomination of a candidate, cannot be the subject matter of a writ petition, especially pre-election. The only remedy open to the petitioners in these cases, without any doubt in my mind, is to raise an election dispute, if at all, the candidates against whom the petitioners make allegations, get elected. Hence these 6 writ petitions W.P.Nos.11502, 1530, 11551, 11552, 11605 and 11632 of 2011 are dismissed. No costs. Consequently connected miscellaneous petitions are also dismissed. CASES ARISING OUT OF REJECTION OR NON-ACCEPTANCE OF NOMINATIONS OF THE PETITIONERS: 19. The grounds on which the nominations of the writ petitioners have been either rejected or simply not accepted, fall under various categories. They are:- (i) that the candidate has failed to fill up the column relating to age; (ii) that the name of the candidate was not found in the electoral list, though the RDO has given a Certificate dated 29.9.2011; (iii) that the candidate has not paid the current house tax; (iv) that the name of the candidate is found in the electoral rolls of more than one constituency; (v) that the candidate has failed to furnish the name of the Bank in which he holds an account; (vi) that the last page of the nomination form alone was not notarised, though the other pages were duly attested and notarised; (vii) that the candidate had not mentioned the dues payable to the Cooperative Bank; (viii) that the deposit made had been taken in the name of somebody else (proposer) and not in the name of the candidate; (ix) that page-7 of the affidavit not enclosed, though the candidate actually had enclosed; and (x) that the candidate had not submitted his letter of resignation from the post of Librarian to the Competent Authority though he submitted to an incompetent Authority. 20. Before I could take up for consideration the individual writ petitions in which either the orders of rejection or the non-acceptance https://hcservices.ecourts.gov.in/hcservices/ of the nominations are under challenge, I must deal with two preliminary objections raised by Mr.K.Mahendran, learned Special Government Pleader appearing for the Election Commission. They are:- (i) that in respect of elections to the Wards which form the subject matter of W.P.Nos.11525, 11534, 11535, 11538, 11539, 11540, 11555, 11558 and 11583 to 11585 of 2011, the results of elections have already been declared, in view of the fact that the nomination of only one candidate survived in the final list; and (ii) that in any case, there is a bar of jurisdiction of this Court, both in terms of the Constitution of India and in terms of the provisions of The Tamil Nadu Panchayats Act, 1994. 21. The first preliminary objection of the learned Special Government Pleader in respect of those 11 writ petitions, can be disposed of without much ado. As seen from the election schedule announced by the State Election Commission, the last date for filing nominations was 29.9.2011. The date for scrutiny was 30.9.2011. The date for withdrawal of nominations and publication of final results was 3.10.2011. The nominations of the petitioners in these 11 writ petitions were either rejected or not accepted. This fact became obvious by the Evening of 30.9.2011. On 3.10.2011, after the time fixed for withdrawal of nominations expired, the Returning Officer is obliged as per Rule 32 of The Tamil Nadu Panchayats (Elections) Rules 1995 to declare the results. As per Rule 32(1)(a) of the Rules, immediately after the preparation of the list of contesting candidates in Form-9, in accordance with Rule 31, the Returning Officer is obliged to affix a copy of Form No.9 in the Notice Board in his office and also affix the declaration of the candidate duly elected, if there was only one contesting candidate. Therefore, on the Evening of 3.10.2011, if the Returning Officer had found that there was only one contesting candidate, he must immediately declare the election of such candidate. Once the declaration of election has been made, it is not possible for this Court to go into the question of rejection of nomination of the rival candidate. 22. However, Mr.Veera.Kathiravan, learned counsel for the petitioners contended that under the proviso to Sub-Rule (7) of Rule 29, the Returning Officer is obliged to allow time to the candidate in respect of whose nomination he has raised objections. The time allowed to the candidate is prescribed as until 11.00 A.M., of the next day following the date fixed for scrutiny. In this case, the date fixed for scrutiny was 30.9.2011. Therefore, according to the learned counsel, the Returning Officer ought to have allowed time to the petitioners till 11.00 A.M., on 1.10.2011 to rebut the objections, in terms of the proviso to Sub-Rule (7) of Rule 29. It is the contention of the learned counsel for the petitioners that since this was not done, the declaration of results was vitiated. 23. But the said contention does not take the petitioners anywhere. The date for withdrawal of nominations was fixed as 3.10.2011. In terms of Rule 32(1)(a), Form-9 could be prepared only on 3.10.2011. Therefore, irrespective of whether an opportunity was given to the petitioners on 1.10.2011 or not, what followed on 3.10.2011 is a matter of fact. Even if there has been a wrong declaration of results, the same cannot be upset by this Court in a writ petition, since the writ petition itself was filed only on 4.10.2011, after such declaration. There can be no doubt that after the declaration of results, the only remedy is to file an election dispute. 24. Mr.Veera.Kathiravan, learned counsel for the petitioners raised a contention that in view of the holidays for the Court, the writ petitions could be filed only on 3.10.2011 and moved before the Vacation Judge on 4.10.2011. It is his contention that on 4.10.2011, this Court made it clear that any thing done on and from 4.10.2011 till the date of re- https://hcservices.ecourts.gov.in/hcservices/ opening of the Court viz., 10.10.2011, shall not prejudice the interest of the petitioners. Therefore, according to the learned counsel, the respondents are not entitled to take refuge under the declaration of results. 25. But unfortunately for the petitioners, the declaration of results under Rule 32(1)(a) was to be made on the Evening of 3.10.2011 itself, immediately after the time for withdrawal of nominations expired. The writ petitions came up for admission only on 4.10.2011. Therefore, any order passed by this Court on 4.10.2011, cannot have the effect of annulling the declaration of results made on 3.10.2011 in terms of Rule 32(1)(a). Hence, all these 11 writ petitions are dismissed, leaving it open to the petitioners to raise election disputes. No costs. Consequently connected miscellaneous petitions are also dismissed. 26. The second preliminary objection with regard to the maintainability of the writ petitions in view of the constitutional and the statutory bar, requires a more elaborate consideration. Therefore, let me now take up the issue relating to maintainability. 27. Article 243-O of the Constitution bars the jurisdiction of Courts to call in question (i) the validity of any law relating to de-limitation of constituencies or allotment of seats and (ii) an election to any Panchayat, except by way of an election petition, presented to such authority as provided by any law made by the State Legislature. A similar bar is found in respect of elections to Municipalities under Article 243- ZG and in respect of elections to the Parliament and the Legislatures of States under Article 329. 28. Apart from the above constitutional bar, there is also a statutory bar under Section 258 (1) of The Tamil Nadu Panchayats Act, 1994. It says that no election of a President 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 45 days from the date of publication of the result of the election under the Act. 29. It may be noted that the bar under Articles 243-O(b), 243-ZG(b) and 329(b) of the Constitution and the bar under Section 258(1) of the 1994 Act, are identically phrased. All of them speak of a challenge to an election. The phrase “no election” appearing both in the above provisions of the Constitution and in the provision of the Act, carry the same meaning, as the latter is the adoption of the former. The interpretation to be given to the expression “election” was considered by a Constitution Bench of the Supreme Court in N.P.Ponnuswami vs. Returning Officer, Namakkal {AIR 1952 SC 64}. It was held therein that the word “election” appearing in Article 329 (b) of the Constitution was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate. The Court further held that a petition under Article 226 challenging the validity of any of the acts forming part of that process would be barred. The principles laid down in the said decision were reiterated by a 7 Member Bench of the Apex Court in Hari Vishnu Kamath vs. Ahmed Ishaque {AIR 1955 SC 233}. However, the larger Bench added a rider holding that the decisions of the Tribunals before whom election disputes are raised, are subject to the supervisory jurisdiction of the