1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20-12-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.12552 of 2011 A.Devi .. Petitioner vs. 1.The Chief Election Commissioner, State Election Commission, Chennai-6. 2.The District Collector, Trichy District, Trichy. 3.The Union Election Officer/ Block Development Officer, Mannachanallur (Taluk), Trichy District. 4.Thavamani (R-4 impleaded as per order of Court dated 1.12.2011 in M.P.No.1 of 2011) .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents to declare the alleged invalid votes as valid votes on par with the corresponding votes which were declared as valid and counter by the counterparts of Counting Officer to Ward No.3 of Mathavaperumal Kovil Village Panchayat election. For Petitioners : Mr.S.Muthukrishnan for Mr.T.Vadivelan For Respondents-1to3 : Mr.K.Mahendran, Special Government Pleader. For Respondent-4 : Mr.Veera.Kathiravan O R D E R The petitioner has come up with the above writ petition, seeking a Mandamus, to direct the respondents to declare the alleged invalid votes as valid votes, in the election to the post of member of Ward No.3, Mathavaperumal Koil Village Panchayat. 2. I have heard Mr.S.Muthukrishnan, learned counsel for appearing on behalf of Mr.T.Vadivelan, learned counsel for the petitioner, Mr.K.Mahendran, learned Special Government Pleader for respondents 1 to 3 and Mr.Veera.Kathiravan, learned counsel for the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The petitioner and the fourth respondent contested for election to the post of member of Ward No.3 of Mathavaperumal Koil Village Panchayat. The election was held on 19.10.2011. The election was simultaneously held for the posts of Panchayat President, Union Councilor and District Councilor. 4. According to the petitioner, the Presiding Officer failed to bring the rubber stamp usually used for casting the votes. Instead he brought the round seal. Persons who had already arrived, were allowed to cast votes with the wrong seal, with an assurance that those ballot papers will not be declared invalid. But at the time of counting, they were declared invalid only in respect of Ward No.3. However, the very same votes were treated as valid for the post of Panchayat President, Union Councilor and District Councilor. Therefore, after giving a representation to the respondents pointing out this illegality and also the differential treatment meted out in the election of member of Ward No.3, the petitioner gave a representation. Since there was no response, the petitioner has come up with the above writ petition. 5. On 4.11.2011, when the writ petition came up for hearing, I directed the learned Special Government Pleader to take notice and produce copies of Form No.22 in respect of all the 4 elections viz., member of Ward No.3, President of the Panchayat, District Councilor and Union Councilor. The relevant Forms were produced by the learned Special Government Pleader on 1-12-2011. 6. Form Nos.22 in respect of all the 4 elections reveal that the total number of votes declared as invalid in respect of the election of member to Ward No.3 was 85. The number of votes declared as invalid in the election of Panchayat President, Union Councilor and District Councilor are 6 votes, 11 votes and 14 votes respectively. 7. Thus it is clear that the number of votes declared invalid for the post of Ward Member are very high than the number of votes declared invalid in respect of the other 3 elections. But the question to be considered is as to whether the same is sufficient for me to interfere in the declaration of results or not. 8. As pointed out earlier, elections were held simultaneously to all the 4 posts on 19.10.2011. The counting for all the 4 posts took place on 21.10.2011. As per Rule 66 (1) of the Tamil Nadu Panchayat (Elections) Rules, the request for re-counting should have been made immediately after the number of votes polled were recorded in the result sheet in Form No.22, but before the declaration of results of the election. If no request for re-counting is made immediately after the announcement and before the declaration of results, under Rule 66(1), the Returning Officer is obliged to proceed to certify a return in Form No.23 under Rule 67(2)(a) and declare the candidate who secured the largest number of votes as having won the election. Under the second part of Rule 66(5), no application for a re-count shall be entertained afterwards. 9. Unfortunately in this case, though the grievance of the petitioner appears to be justified, he made a representation only on 24.10.2011, but not on 21.10.2011 or 22.10.2011, immediately after the results were recorded in the record sheet. In the representation dated https://hcservices.ecourts.gov.in/hcservices/ 3 24.10.2011, sent by the petitioner, he has claimed that he made a request immediately after the counting was over. But the representation does not show whether it was a request for re-counting or merely an objection for declaring certain votes as invalid. A reading of the representation dated 24.10.2011 shows that at the time of counting, the petitioner protested about the declaration of certain votes as invalid votes and gave a representation immediately. But in the absence of a positive statement that it was a request for re-counting and in the absence of a copy of such a request being produced before this Court, it is not possible to conclude that a request for re-counting was made as per the Rules. 10. It is not as if the petitioner came to know about all the above facts only on 24.10.2011. Even on the date of the polling, the petitioner has come to know that due to the failure of the Returning Officer to bring the correct rubber stamp, the wrong seal was affixed in some of the ballot papers. Even on the date of the counting itself, the petitioner came to know that the very same votes were rejected as invalid in respect of one election, but accepted as valid in respect of other 3 elections. Therefore, the petitioner ought to have made a request for re-counting as per Rule 66(1) immediately. In the absence of clarity in the pleadings as to whether the petitioner sought recounting or merely lodged protests immediately after the counting was over, I cannot presume that a request for recounting was made and not considered. 11. In view of the above, the writ petition is dismissed. However, it will be open to the petitioner to file an election petition. If the petitioner files an election petition, it will be open to the petitioner to raise all the issues now raised and the Tribunal shall endeavour to dispose it within 6 months, without being carried away by any observations contained herein. There will be no order as to costs. Svn Sd/- Assistant Registrar[RTI] /True copy/ To Sub Assistant Registrar 1.The Chief Election Commissioner, State Election Commission, Chennai-6. 2.The District Collector, Trichy District, Trichy. 3.The Union Election Officer/ Block Development Officer, Mannachanallur (Taluk), Trichy District. Order in W.P.(MD)No.12552 of 2011 Dated:20.12.2011 3P/4C RPB : 02.01.2012 https://hcservices.ecourts.gov.in/hcservices/