IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.6.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.286 of 2011 K.Murugeswari .. Petitioner Vs. 1. Tamil Nadu State Election Commission rep. by its Secretary, having its office at 100 Feet Road, Vadapalani Chennai – 106. 2. The District Election Officer/ District Collector, Madurai. 3. The Returning Officer Madurai City Municipal Corporation Madurai. 4. The Assistant Returning Officer Madurai City Municipal Corporation (East Zone) Madurai. 5. K.Chandrasekaran 6. A.Gounder 7. P.Rajendran .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records relating to the impugned statutory order of the first respondent bearing S.O.No.1/TNSEC/2011/ME-1, dated 3.1.2011 and quash the same and consequently direct respondents 2 to 4 to proceed further as per the poll schedule announced by the first respondent notification dated 16.12.2010. For Petitioner : Mr.R.Thiagarajan, Sr.Counsel for Mr.D.Veerasekaran For Respondents: Mr.K.Ramasamy Additional Advocate General for Mr.I.Paranthaman for 1st respondent https://hcservices.ecourts.gov.in/hcservices/ Mr.K.Balasubramanian Special Government Pleader for 2nd respondent Mr.R.Subramani, Sr.Counsel for Mr.L.Shaji Chellan for 5th respondent Mr.R.Srinivas for 7th respondent No representation for respondents 3, 4 and 6 ORDER This writ petition is directed against the order of the first respondent, viz., Tamil Nadu State Election Commission, represented by its Secretary, dated 3.1.2011, by which the first respondent by exercising the suo moto powers conferred under Rule 139 of the Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporations (Elections) Rules, 2006 (for brevity, "the Election Rules, 2006") has cancelled the proceedings of the Assistant Returning Officer publishing the list of validly nominated candidates in Form-6 on 30.12.2010 in respect of election of Councillor for Ward No.45 of Madurai City Municipal Corporation and directed to revise the same in accordance with the rule provisions. 2.1. The petitioner's husband was elected as a Ward Councillor of Ward No.45 of the Madurai Corporation and he died on 2.6.2010. In order to fill up the casual vacancy, the first respondent has issued a notification on 16.12.2010 publishing the programme of election for the said Ward No.45. According to the said notification, the program of election is as follows: (i) Date of commencement of receipt of nominated 22.12.2010 (ii) Last date for making nominations 29.12.2010 (iii) Date of scrutiny 30.12.2010 (iv) Withdrawal of nominations 03.01.2011 (v) Date of poll 10.01.2011 (vi) Counting of votes 12.01.2011 (vii) Completion of Election process 13.01.2011 2.2. The petitioner has filed nomination on behalf of DMK party with the Returning Officer after complying with the formalities. It is stated that respondents 5 to 7 have also filed https://hcservices.ecourts.gov.in/hcservices/ their nominations before the second respondent and there were four nominations at the time of scrutiny on 30.12.2010. It is stated that the nominations of respondents 5 and 6 were rejected by the Returning Officer, viz., the third respondent. It is stated that the seventh respondent, who has filed nomination as a dummy candidate, has informed the third respondent about his desire to withdraw the nomination and after such representation made in writing, as per Form-8, the nomination of the seventh respondent was withdrawn. 2.3. It is stated that, however, while the second respondent has issued the final list of candidates in Form-6 on 3.1.2011, the names of respondents 5 to 7 were also included treating their nominations as valid pursuant to the order of the first respondent. When that was objected to by the petitioner, respondents 2 and 3 furnished the copy of the impugned statutory order of the first respondent dated 3.1.2011. There is no adverse finding about the scrutiny made by the third respondent on 30.12.2010 and therefore, the order of the first respondent in exercising his suo moto power by including respondents 5 to 7 is ultra vires and unconstitutional, especially when the third respondent, who is the Returning Officer, has rejected the nominations of respondents 5 and 6 and the seventh respondent has voluntarily withdrawn his nomination and the second respondent has issued statutory notice in Form-8 according to the Election Rules, 2006. 2.4. The order dated 3.1.2011, impugned in this writ petition, is challenged by the petitioner on various grounds, including that it violates Article 14 of the Constitution of India and is ultra vires the Constitution; that the first respondent has no power to issue a statutory order when the third respondent, being the authority, has rejected the nominations of respondents 5 and 6 on 30.12.2010; that even if such rejection is not valid, that can only be questioned in an election petition as per the provisions of the Madurai City Municipal Corporation Act and the Election Rules, 2006 and therefore, the suo moto exercise of power by the first respondent in this regard is without jurisdiction; that the seventh respondent having withdrawn the nomination, his name cannot be permitted to be included in the list by the suo moto powers and if the withdrawal is not valid, that can only be the subject matter of an election dispute. 3. When the matter was taken up for admission, this Court, having been prima facie satisfied and also knowing that it is not the intention of the petitioner to stall the election, has passed a detailed order on 6.1.2011 granting interim stay of the impugned order of the first respondent. 4. The first respondent, along with its counter in the writ petition, has filed M.P.No.3 of 2011 to vacate the interim order on https://hcservices.ecourts.gov.in/hcservices/ 7.1.2011. The fifth respondent in the writ petition has filed M.P.No.4 of 2011 on 18.1.2011 to vacate the interim order of stay and also filed M.P.No.5 of 2011 for an order of injunction against the writ petitioner, who was declared elected, from functioning as a Ward Councillor. 5.1. In the counter affidavit filed by the first respondent in the writ petition, while stating that the impugned order has been passed well within the suo moto powers conferred under the Election Rules, 2006, it has been emphasized that the Articles 243-K and 243-ZA of the Constitution of India provide for superintendence, direction and control for the preparation of electoral rolls and conduct of elections to local bodies by the State Election Commission. 5.2. It is also stated that the fourth respondent/Assistant Returning Officer has rejected the nominations of respondents 5 and 6 without any valid reason prescribed in the Election Rules, 2006. It is further stated that the seventh respondent has withdrawn his nomination on 3.1.2011, viz., the last date for withdrawal of candidature, as per the report of the Assistant Returning Officer. 5.3. It is stated that as per Rule 27(5) of the Election Rules, 2006, the Returning Officer cannot reject any nomination paper on the ground of any defect which is not substantial in nature and the mistake committed by the fourth respondent has been corrected by the first respondent and the impugned order is only to correct the mistake. 5.4. It is stated that the Observer in his report dated 1.1.2011 has clearly stated that the rejection of nominations of respondent 5 (candidate of CPI(M)) and respondent 6 (independent candidate), was not attracted under the grounds for rejection as per the Election Rules, 2006. Therefore, according to the first respondent, the further proceedings issued under Form-6 by the fourth respondent, based on the impugned order of the first respondent, is valid in law and the impugned order, which is a statutory order, is within its powers. 5.5. The remedy of filing of election petition is only after declaration of results of election as per Rule 118 of the Election Rules, 2006 and the discrepancies can always be set right by the Election Commission and that has been done under the impugned order and therefore, the petitioner cannot presume that her nomination alone should be considered, even if the rejection of nominations of respondents 5 and 6 is not valid. It is stated that claiming a right to be declared as unopposed is not a right vested with the petitioner in an election process. https://hcservices.ecourts.gov.in/hcservices/ 5.6. It is stated that the State Election Commission is a constitutional authority to conduct election to the local bodies and the Returning Officer and the Assistant Returning Officer are under the disciplinary control of the State Election Commission. It is also stated that under Articles 243-O and 243-ZG of the Constitution of India there is no bar for the Court to interfere. It is further stated that the petitioner has not exhausted the remedy of filing an appeal against the impugned order. 6.1. In the affidavit filed by the fifth respondent, it is stated that there are 72 wards in Madurai Corporation and the elected Ward Councillor for Ward No.45, one Ganesan, died in June, 2010 and by-election was announced and the election was scheduled to 10.1.2011. The fifth respondent belonging to CPI(M) has decided to contest the election and filed the documents and asked for allotment of party symbol, viz., hammer, sickle and star. The nomination of the fifth respondent was proposed by one Rajkumar of Ward No.45 and he is one of the voters. 6.2. It is stated that in the valid list of nominations published by the third respondent on 28.12.2010, the name of the fifth respondent was in the first place and the fifth respondent himself was an eligible voter in Ward No.39 and the Voter identity card number and the number stated in the voter's list is one and the same. 6.3. It is stated that, on 30.12.2010, the nominations were scrutinized by the Assistant Returning Officer and according to the fifth respondent, he has rejected his nomination and other nominations only to favour the writ petitioner. It is stated that the fifth respondent is fully eligible to contest the election and he is not suffering from any disqualification listed under Section 56(2) of the Madurai City Municipal Corporation Act, 1971 and was not affected by any penal laws or corrupt practices. 6.4. It is stated that it was in those circumstances, the fifth respondent has filed W.P.(MD) No.4 of 2011 before the Madurai Bench of this Court for a direction against the Election Commission to conduct the by-election on 10.1.2011 for Ward No.45 by accepting his nomination. When the writ petition was taken up for hearing on 3.1.2011 by the Madurai Bench, during the hearing, the impugned communication of the first respondent dated 3.1.2011 was received, by which the first respondent has directed to include the names of the rejected candidates also and therefore, the writ petition was disposed of. 6.5. It is stated that on the basis of the impugned order, the Assistant Returning Officer has revised the nominations and declared the names of the contesting candidates. It is stated https://hcservices.ecourts.gov.in/hcservices/ that suppressing the same the petitioner has filed the present writ petition challenging the impugned order and obtained an order of stay on 6.1.2011 and taking advantage of the order passed by this Court, the writ petitioner was declared to be elected unopposed on 7.1.2011. It is stated that the order of stay granted by this Court on 6.1.2011 does not enable to declare the writ petitioner elected unopposed and the election result is subject to the writ petition and therefore, declaring the writ petitioner as elected unopposed on 7.1.2011 has to be set aside. 7.1. The seventh respondent has filed counter affidavit stating that he has decided to withdraw his nomination on 30.12.2010 and Form-8 was also issued declaring that his nomination was withdrawn, but to his shock and surprise the third respondent has chosen to issue a notice on 3.1.2011 in Form-6 announcing as if his nomination is a valid nomination and that was passed because of the impugned order passed by the first respondent. 7.2. It is also stated that the order of the first respondent is unlawful inasmuch as the seventh respondent is concerned, since he has withdrawn his nomination and the first respondent has no power to declare the rejected or withdrawn nominations as valid nominations and any person who is aggrieved can only approach the election tribunal. 8.1. The main contention of Mr.R.Thiagarajan, learned Senior Counsel appearing for the petitioner is that, in the present writ petition, the writ petitioner has only challenged the statutory order passed by the first respondent, whereas the fifth respondent has moved the Madurai Bench of this Court against the order of the fourth respondent in rejecting his nomination and by that time, the present impugned order has not been passed by the first respondent and therefore, there is no deliberate suppression of any material fact. In effect, his contention is that the case filed by the fifth respondent before the Madurai Bench is totally different from the writ petition which relates to the suo moto exercise of powers by the first respondent. 8.2. He would submit that by virtue of the detailed order passed by this Court on 6.1.2011 staying the impugned statutory order passed by the first respondent, following the election schedule, the writ petitioner was declared elected unopposed, which is only consequential. Therefore, according to the learned Senior Counsel, the declaration of election of the petitioner unopposed is valid in law and it is still open to the fifth respondent or any other respondents, whose nominations have been rejected, to question the validity of such election. In the absence of such bar on the fifth respondent, the fifth respondent cannot raise the issue of res judicata. https://hcservices.ecourts.gov.in/hcservices/ 8.3. It is his submission that, in the present circumstance, the validity or otherwise of the order of the first respondent need not be gone into, since the writ petition itself has become infructuous as the writ petitioner has been declared elected and the other rights of the respondents are left open. 9.1. On the other hand, Mr.R.Subramani, learned Senior Counsel appearing for the fifth respondent would submit that the filing of the writ petition by the petitioner is a fraudulent suppression. It is submitted that the rejection of the nomination of the fifth respondent was never communicated to the fifth respondent by the fourth respondent till 3.1.2011, which is the last date for withdrawal and therefore, on 3.1.2011, the fifth respondent has moved the Madurai Bench and when the matter was moved as lunch motion, the impugned order was brought to the notice of the Court and hence, the writ petition was closed. The learned Senior Counsel would submit that the writ petitioner herein, who was the fifth respondent in the said writ petition before the Madurai Bench, was represented by a counsel and after recording the impugned order, the Madurai Bench has held that no further order is necessary and closed the writ petition. 9.2. It is submitted that deliberately suppressing the same the writ petitioner, who was represented by the counsel in the Madurai Bench, has moved the present writ petition and obtained an order of interim stay and therefore, according to the learned Senior Counsel, by virtue of such stay if the petitioner was declared unopposed, the same has to be set aside for the reason of fraudulent misrepresentation made and suppression of material facts. 9.3. He has also referred to the Election Rules, 2006 and also the constitutional powers of the High Court under Article 226 of the Constitution of India, by referring to the decisions in K.Venkatachalam v. A.Swamickan and another, [1999] 4 SCC 526, and Manda Jaganath v. K.S.Rathnam and others, [2004] 7 SCC 492. He would rely upon the decision in Prestige Lights Limited v. State Bank of India, [2007] 8 SCC 449 to substantiate his contention that suppression of material facts would entail dismissal of the writ petition. 10. I have heard Mr.R.Thiagarajan, learned Senior Counsel for the petitioner, Mr.K.Ramasamy, learned Additional Advocate General appearing for the first respondent, Mr.K.Balasubramanian, learned Special Government Pleader appearing for the second respondent, Mr.R.Subramani, learned Senior Counsel for the fifth respondent and Mr.R.Srinivas, learned counsel for the seventh respondent. 11. On fact, it is not in dispute that the writ petitioner has been declared elected as unopposed as a Councillor of Ward No.45 of https://hcservices.ecourts.gov.in/hcservices/ the Madurai City Corporation. But the question to be decided is as to whether the prayer in the writ petition becomes infructuous by virtue of the declaration of election. 12. The impugned order passed by the first respondent is by virtue of the powers conferred on him under Rule 139 of the Election Rules, 2006. The said rule, which has been captioned as "removal of difficulties", is as follows: "Rule 139. Removal of difficulties.- (1) The State Election Commission may issue such general or special directions as may in its opinion be necessary, for the purpose of giving due effect to these rules, or for holding any election under the Act. (2) If any difficulty arises in giving effect to the provisions of these rules or in holding any election, the State Election Commission as occasion may require, may, by order do anything which appears to it necessary for the purpose of removing the difficulty." 13. In exercise of the powers conferred under the Tamil Nadu District Municipalities Act, Chennai City Municipal Corporation Act, Madurai City Municipal Corporation Act, Coimbatore City Municipal Corporation Act, Tiruchirapalli City Municipal Corporation Act, Tirunelveli City Municipal Corporation Act, Salem City Municipal Corporation Act, the Governor of Tamil Nadu in consultation with the Tamil Nadu State Election Commission has framed the Election Rules, 2006 in supersession of the Tamil Nadu Third Grade Municipalities and Municipal and Corporation Councils (Elections) Rules, 1996. 14. Part IV of the Election Rules, 2006 enables notification of election and nomination of candidates. It is by exercise of the power conferred under Rule 22 of the Election Rules, 2006, the first respondent has issued a notification for election to various corporations in respect of various wards on 16.12.2010, which includes Ward No.45 of the Madurai Corporation. The programme of election was notified by the first respondent as follows: 1 Publication of notice of election and commencement of receipt of nominations : 22.12.201 0 11.00 A.M. to 3.00 P.M. 2 Last date for making nominations : 29.12.201 0 3 Scrutiny of nominations : 30.12.201 0 11.00 A.M. https://hcservices.ecourts.gov.in/hcservices/ 4 Withdrawal of nominations : 03.01.201 1 Up to 3.00 P.M. 5 Date of Poll : 10.01.201 1 7.00 A.M. to 5.00 PM 6 Date of commencement of counting of votes : 12.01.201 1 7 Date before which the election shall be completed : 13.01.201 1 15. The nomination papers were presented by the petitioner as well as respondents 5 to 7. Rule 27 of the Election Rules, 2006 enables the Returning Officer to scrutinize the nominations. The Rule contains the procedure to be followed for scrutiny, including the rejection of nominations. Under Rule 27(3) of the Election Rules, 2006, the grounds for rejection of nomination by the Returning Officer are mentioned and under Rule 27(5) of the Election Rules, 2006 it is stated that the rejection of nomination shall not be on the ground of any defect, which is not of substantial character. For proper appreciation of the powers of the Returning Officer regarding scrutiny, which includes the power of rejection of nominations, it is relevant to extract Rule 27 of the Election Rules, 2006, which is as follows: "Rule 27. Scrutiny of nomination.- (1) On the date and hour notified, the Returning Officer shall take up the scrutiny of nominations at such place fixed for scrutiny. The candidate, one of his proposers and one other person duly authorised by him, but no other person, may attend the scrutiny. The Returning Officer shall give them all reasonable facilities for examining the nomination papers of all the candidates which have been entered in the list in Form 5. (2) If any person objects to any nomination, he shall do so in writing. (3) The Returning Officer shall then examine the nomination papers and decide ward by ward all objections which may be raised to any nomination and may either on such objection, or on his own motion, after such summary inquiry, as he thinks necessary, reject any nomination on any of the following grounds:- (a) that on the date of filing of nomination papers, the candidate either was not qualified or was disqualified for being elected to fill the vacancy under any of the provisions of the https://hcservices.ecourts.gov.in/hcservices/ Act; or (b) that there has been a failure to comply with any of the provisions in rule 24 or 25; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine; or (d) that, where the election is solely for a seat or seats reserved for Scheduled Castes or Scheduled Tribes and/or women, the candidate does not belong to such category. (4) Nothing contained in clause (b) or (c) of sub-rule (3) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any defect in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no defect has been noticed. (5) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Explanation.- For the purpose of this sub-rule, failure to complete or any defect in completing the declaration as to symbols in a nomination paper shall not be a defect of a substantial character. (6) Where a person has signed as proposer more than one nomination paper in respect of an election only that nomination paper which has been first received shall be accepted if it is otherwise valid. (7) The Returning Officer shall hold the scrutiny on the date and time notified in this behalf in the election notice and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided if an objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than 11.00 a.m. on the next day but one following the date fixed for scrutiny. The Returning Officer shall record his decision on that nomination on the adjourned date. https://hcservices.ecourts.gov.in/hcservices/ (8) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same. If the nomination paper is rejected, he shall record in writing a brief statement of his reasons for such rejection. A copy of the same may be furnished to the candidate concerned, if any application in this behalf has been made to him. (9) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of validly nominated candidates in Form-6 and publish a copy thereof at the place notified for receipt of nominations. The list of candidates should be drawn up in the order of Tamil alphabet." 16. Rule 28 of the Election Rules, 2006 relating to the withdrawal of candidature, which is as follows: "Rule 28. Withdrawal of candidature.- (1) Any candidate may withdraw his candidature by a notice in Form 7 subscribed by him and delivered to the Returning Officer before the time fixed for the purpose. The notice may be delivered either by such candidate in person or by his proposer, who has been authorised in this behalf in writing, by such candidate. (2) On receipt of such notice, the Returning Officer shall note thereon the date and time at which it was delivered to him. (3) No person who has given notice of withdrawal of his candidature under sub-rule (1), shall be allowed to cancel the notice. (4) The Returning Officer shall, on being satisfied as to the genuineness of the notice of withdrawal and the identity of the person delivering it under sub-rule (1), cause a notice showing the list of candidates who have withdrawn their candidature in Form 8 to be affixed in the notice board of his office." makes it clear that