IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. No.14325 of 2008 and M.P.No.1 of 2008 S.R.Velusamy ..Petitioner Vs. 1. The District Collector Coimbatore & District. 2. The State Election Commission 6, Revathy Street Jawaharlal Nehru Road Vadapalani Chennai – 600 026. 3. The Managing Director The Coimbatore District Co-operative Milk Producers' Union Limited New Dairy Complex, Pachapalayam Kalampalayam Post Perur (Via), Coimbatore – 641 010. 4.R.Saminathan ..Respondents Writ petition has been filed under Article 226 of The Constitution of India to issue a Writ of Quo Warranto, to call upon the 4th respondent herein to show under what authority of law he is holding the public office of the President of Gubbepalayam Village Panchayat in Annur Taluk of Coimbatore District and consequently declare the post of President of Gubbepalayam Village Panchayat in Annur Taluk of Coimbatore District as vacant. For Petitioner : M/s.S.Sathia Chandran For R-1 & 2 : Mr.V.R.Thangavelu Government Advocate For R-4 : Mr.V.Suthakar https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner herein is the unsuccessful candidate who was lost in the election to the fourth respondent. The election was conducted in the year 2006 for the Gubbepalayam Village Panchayat. In pursuant to the said election, the fourth respondent has been elected as a member and thereafter, he has been elected as a President. 2.The petitioner has made a representation to the second respondent herein on 08.08.2007 stating that the fourth respondent has suppressed certain material facts in the nomination papers filed by him to the effect that the fourth respondent was a contractor with the Coimbatore District Co-operative Milk Producers' Union Limited providing the supply of transport vehicles for the period between 01.03.2006 to 31.12.2007. Therefore, the petitioner has requested the second respondent to take action by dismissing the fourth respondent. 3.Thereafter, the second respondent has sent a letter to the first respondent in-turn directed the Commissioner of Annur Panchayat Union to initiate an enquiry. The said Commissioner in and by proceedings dated 24.09.2007 has given a finding that the fourth respondent was a contractor with the third respondent at the time of contesting the election. The said letter was followed by another letter dated 10.10.2007 sent by the Commissioner of Annur Panchayat Union that for the period between 01.03.2006 to 31.12.2007 the fourth respondent was having a contract to supply transport vehicles in favour of the third respondent Co-operative Society. The third respondent has also given a letter to the Commissioner of Annur Panchayat Union to the said effect. In pursuant to the same, the first respondent has sent a letter to the second respondent in the month of December 2007 that the only option open to the petitioner is to file appropriate petition before the Court of law. 4.The learned Government Advocate also gave a opinion to the Commissioner of Annur Panchayat Union stating that no proceedings can be taken and it is always open to the petitioner to take action through the Court of law. Consequent to the same, the Commissioner of Annur Panchayat Union wrote a letter to the petitioner to have recourse by a Court of law on the ground that the existing provisions contained in the Tamil Nadu Panchayat Act, 1994 do not confer such an action against the fourth respondent. In view of the above said facts, the petitioner has preferred the present writ petition seeking the relief of Quo Warranto to show-cause under what authority the fourth respondent is holding his post as the president. 5.The learned counsel for the petitioner submitted that a reading of Section 37 and 38 of the Tamil Nadu Panchayat Act, 1994 would clearly show that the fourth respondent is disqualified to hold the post of President as well as the Member. According to the learned counsel in view of the undisputed fact that the fourth respondent was https://hcservices.ecourts.gov.in/hcservices/ having interest with the third respondent before the election and even thereafter the fourth respondent should be removed from the post of the President as well as from the Membership of the Panchayat. The learned counsel for the petitioner further submitted that Section 41 of the Tamil Nadu Panchayat Act, 1994 would not be applicable since the petitioner is not a member of the Panchayat and therefore, a writ of Quo Wwarranto is maintainable. 6.The learned counsel for the petitioner has relied upon the judgment reported in (1999) 4 SCC 526 [K.VENKATACHALAM vs. A.SWAMICKAN AND ANOTHER] in support of his contentions and submitted that when the facts are not in dispute, the power under Article 226 of the Constitution of India will have to be exercised by the Hon'ble High Court, not withstanding the fact that the petitioner has not availed the alternative remedy of filing an election petition and the same having because time barred. 7.According to the learned counsel, when it is very obvious that the fourth respondent is not competent to hold the post then the Hon'ble High Court has exercise the power under Article 226 of the Constitution of India since the same would amount to committing a fraud on the Constitution. The learned counsel for the petitioner also relied upon the judgment reported in (1999) 8 SCC 532 [LACHHMAN DAS ARORA vs. GANESHI LAL AND OTHERS] to submit that the provisions of the limitation act cannot be extended to the petitioner supersede representation of People's Act and therefore the petitioner cannot be made to seek his remedy under the said act. The learned counsel for the petitioner further relied upon the judgment reported in 2000-3- L.W.553 [SANNIYASI vs. SRINIVASAN AND ANOTHER] in support of his case to submit that when there is a subsisting contract between a member of the Panchayat then the same would amount to disqualification wanting the removal of the member. 8.Per contra, the learned counsel for the fourth respondent submitted that the relief sought for in the writ petition is not maintainable in law and facts. The writ petitioner after having failed to avail the alternative remedy cannot invoke the discretionary jurisdiction of the Hon'ble High Court. It is further submitted that even assuming the writ petitioner has a grievance then there is a remedy open to the petitioner under Section 41 of the Tamil Nadu Panchayat Act, 1994. 9.According to the learned counsel, the said exercise is automatic since admittedly there is no disqualification even assuming the documents relied upon by the petitioner are true. The mere fact that the fourth respondent is having a subsisting contract with the third respondent cannot be a ground to disqualify the fourth respondent since the same is not been mentioned as a disqualification under Section 37 and 38 of the said Act. It is further submitted that in the judgment reported in 2003-1-L.W.740 [K.V.MUTHURAMALINGAM vs. https://hcservices.ecourts.gov.in/hcservices/ SOLOMAN AND ANOTHER] the Hon'ble High Court has held that if a member is having subsisting contract with the Public Works Department as well as Highways Department, the same would not attract the disqualification under Section 37 of the Act. 10.It is further submitted that the disqualification for a candidate as mentioned in Section 37 is parametric with the provision contained for disqualification for a member as envisaged under Section 38 of the Act. Therefore, the entire writ petition is misconceived since the same has been filed by a person who has lost the election and hence the writ petition will have to be dismissed as the one which lacks bonafides. 11.The learned Government Advocate submitted that the first respondent has rightly rejected the request of the petitioner since no action can be taken under the District Municipalities Act. The petitioner cannot invoke the jurisdiction of the Hon'ble High Court under Article 226 of the Constitution of India. 12.I have heard the arguments of the learned counsels appearing for the parties. 13.In the present case on hand ,there is no dispute of the fact that the fourth respondent was having a contract at the time of filing his nomination and the said contract continued after the election of the fourth respondent. Further, the said contract has been entered into between the fourth respondent and the third respondent. Section 37 of the Tamil Nadu Panchayat Act, 1994 disqualifies a candidate provided the said candidate is having interest in a subsisting contract made with or any work done for any Panchayat. Similarly, Section 38 of the said Act provides that a member to be disqualified if he acquires any interest in any subsisting contract made with or work being done for any Panchayat. Therefore, a reading of the above said Sections would clearly show that there is no bar for the fourth respondent for having entered into contract with the third respondent. 14.The third respondent is an independent body owning its creation to the Co-operative Societies Act, 1983. It cannot be said that the third respondent forms part and parcel of the Panchayat. The provisions for disqualification will have to be construed strictly by this Hon'ble High Court. As already observed a reading of the said provisions contained in Section 37 and 38 of the Tamil Nadu Panchayat Act, 1994 would not include the contract between the Co-operative Society and the fourth respondent. Further, the judgment relied upon by the learned counsel for the fourth respondent reported in 2003-1- L.W.740 [K.V.MUTHURAMALINGAM vs. SOLOMAN AND ANOTHER] is squarely applicable to the present case on hand. In the said judgment, the Hon'ble High Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.The Court below based upon a decision of this Court in Sanniyasi ..vs.. Srinivasan And The Returning Officer, Sankarapuram Panchayat Union, Villupuram Taluk (2000 (3) L. W. 553) came to the conclusion that although the revision petitioner is a contractor in Public Works Department and Highways Department, he is disqualified from contesting the election in the Panchayat also. The learned counsel for the revision petitioner contended that the order passed by the Election Tribunal is not correct. Under Section 37(3)(c) of the Panchayat Act, only candidates having subsisting contract with the Panchayat are disqualified from contesting the election. He did not have any contract with any Panchayat. He never suppressed that he was a Government Contractor. The decision relied on by the court below, will not apply to the facts of the case. The Tribunal also committed an error of jurisdiction in declaring elected the 1st respondent as President in the place of the revision petitioner. The matter was also not referred to the competent authorities for consideration of disqualification as provided under Article 243(f)(2) of the Constitution of India." 15.Therefore, taking into consideration of the above said judgment and on a consideration of the factual position is not in dispute, this Court is of the opinion that the writ petition filed is totally misconceived. Accordingly, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sri To 1. The District Collector, Coimbatore & District. https://hcservices.ecourts.gov.in/hcservices/ 2. The State Election Commission, 6, Revathy Street, Jawaharlal Nehru Road, Vadapalani, Chennai – 600 026. + 1 c.c. to Mr. S. Sathia Chandran, Advocate. S.R.No.42079. + 1 c.c. to Mr. V. Suthakar, Advocate. S.R.No.42204. + 1 c.c. to The Government Pleader. S.R.No.41883. W.P.No.14325 OF 2008 VSN (CO) GSK 09.09.2009. https://hcservices.ecourts.gov.in/hcservices/