1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.11.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)NO.12679 of 2011 S.Tamizhselvi .. Petitioner Versus 1.The State Election Officer, State Election Commissioner, Chennai - 600 008. 2.The District Election Officer Cum District Collector, Pudukottai District. 3.The Returning Officer, Karampakudi Panchayat Union, Karampakudi, Pudukottai District. 4.Kengaiyammal ... Respondents PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the 3rd respondent to re-do the process of drawal of lots for choosing the candidate to the post of Chairman of Karampakudi Panchayat Union in the presence of all the Ward Councillors. For Petitioner : Mr.G.R.Swaminathan For R - 1 to R - 3 : Mr.K.Mahendran, Special Government Pleader. O R D E R The petitioner has come up with the above writ petition seeking a mandamus, to direct the third respondent to re-do the entire process of drawal of lots for electing the Chairman of Karampakudi Panchayat Union, in accordance with Statutory Rules. 2. Heard Mr.G.R.Swaminathan, learned counsel for the petitioner. Mr.K.Mahendran, learned Special Government Pleader takes notice for the respondents 1 to 3. 3. The petitioner contested for the post of Union Councilor from ward No.10 of Karampakudi Panchayat Union, in the election held on https://hcservices.ecourts.gov.in/hcservices/ 2 19.10.211. He was declared as elected and he has also been sworn as the Councillor. 4. There are 16 wards in the Panchayat Union and according to the petitioner, 11 elected candidates belonged to the AIADMK Party, 3 belonged to the DMK Party and 2 belonged to the DMDK Party. 5. On 29.10.2011 election for the post of Chairman of the Panchayat Union was held. According to the petitioner, the Returning Officer made a statement after the election, as though there was a tie between the petitioner and the 4th respondent and that in a draw of lots held by the third respondent, the fourth respondent was declared elected. 6. Contending that there could never have been a tie and also contending that even if there was a tie, the draw of lots was not conducted in accordance with Rule 88(3) of the Tamil Nadu Panchayats (Elections) Rules, 1995, the petitioner has come up with the above writ petition seeking a mandamus, to direct the third respondent to re-do the drawal of lots for electing the candidate for the post of Karampakudi Panchayat Union. 7. Part-VII of the Tamil Nadu Panchayats (Elections) Rules, 1995 deals with the election of Chairmen and Vice-Chairmen of District Panchayat and Panchayat Union Councils. 8. Under Rule 73, the Assistant Director of Rural Development or any other officer equivalent in rank, nominated by the State Election Commission as the Returning Officer, is obliged to call for a meeting of the Panchayat Union Councils, immediately after the declaration of results of the Election under Rule 67. The Returning Officer is obliged to give seven clear days notice to all ward members, under Rule 73(3). Sub-rule (4) of Rule 73 also mandates that the Returning Officer shall not start the process of election unless there be present a majority of the ward members of the Panchayat Union Council. 9. Rule 75 prescribes the presentation of nomination. Rule 76 mandates the Returning Officer to read out the names of all candidates, who have been proposed and seconded and whose nominations have been accepted under Rule 75, for the benefit of the ward members present at the meeting. If there is only one candidate validly nominated, he shall be declared as elected under Rule 77. If there is a contest, the Returning Officer is obliged under Rule 78 to take the votes of the ward members by ballot in the manner laid down in the Rules. Under Rule 79, the Returning Officer should provide a voting compartment and under Rule 80 he must place a ballot box. Rule 83 prescribes the voting procedure, which is almost similar to the voting procedure of the other elections. Rule 84 also mandates that the Returning Officer should ensure secrecy of ballot and prevent the ward members, who have already voted from voting for the second time and also from having access to the ward members who are yet to vote. https://hcservices.ecourts.gov.in/hcservices/ 3 10. Under Rule 86, the Returning Officer should open the ballot box after the voting by the ward members is over. It should be done in the presence of the ward members present and he must take out the ballot papers, record the number of votes obtained by each candidates. After rejecting the invalid ballot papers under Rule 87, the Returning Officer should declare the results under Rule 88. Under Rule 88(3), a procedure is prescribed for deciding the winner in the case of equality of votes. Rule 88(3) reads as follows: "(3) If there is an equality of votes between two candidates and if the third candidate secures a lesser number of votes he shall be eliminated and a second ballot taken. If there is an equality of votes between two candidates and if the third candidate secures a larger number of votes than the two, a lot shall be drawn between the two candidates who had secured equal number of votes and the candidate whose name is first drawn shall be retained and second ballot taken between him and the third candidate." 11. Under Rule 89, the Retuning Officer should record the proceedings of the meeting in a minute book, immediately after the meeting, sign it, attest with his initials every corrections made therein and also permit the ward members to affix their signatures and thereafter, send a report of the result of the election to the election Commission and also publish a notice. 12. Once this process under Rule 89 is completed, it is akin to the issue of declaration under Form 25 in terms of Rule 69. Thereafter, the appropriate remedy open to the loser is only to go before the Election Tribunal. 13. Keeping in mind, the scheme of the Rules as indicated above, if we now get back to the allegations forming the basis of the above writ petition, it is seen that the case of the petitioner is that neither the voting took place in accordance with Rules 83 and 85 nor counting of the votes took place in accordance with Rule 86 nor the draw of lots took place in accordance with Rule 88(3). But all these allegations are allegations of facts, which require to be proved by evidence. Therefore, the writ petition is dismissed, leaving it open to the petitioner to raise an election dispute. As and when an election dispute is raised, the election tribunal shall make every endeavour to dispose of the same within a period of six months as prescribed by the Statute. It is open to the petitioner to raise all the issues including the issue relating to the difference in the language used between Rule 86 and Rule 88(1). No costs. Sd/- Assistant Registrar(Records) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The State Election Officer, State Election Commissioner, Chennai - 600 008. 2.The District Election Officer Cum District Collector, Pudukottai District. 3.The Returning Officer, Karampakudi Panchayat Union, Karampakudi, Pudukottai District. Vsm ssk/10.12.2011 /4c -4p/- W.P.(MD)NO.12679 of 2011 10.11.2011 https://hcservices.ecourts.gov.in/hcservices/