IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01 ..04..2011 Coram: The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE and The Honourable Mr.Justice T.S.SIVAGNANAM Writ Petition Nos. 8103, 8034, 6936 & 7736 of 2011 and connected miscellaneous petitions ----------- W.P.No. 8103 of 2011 K.Manivannan … Petitioner vs. 1. Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi. 2. The Chief Executive Officer, Election Commission of India, Fort.St.George, Chennai – 600 009. 3. The Government of Tamil Nadu, Rep. by its Secretary, Home Department, Fort.St.George, Chennai – 600 009. 4. The Director General of Police, Police Headquarters, Dr.Radhakrishnan Road, Mylapore, Chennai – 600 004. 5. The District Election Officer & District Collector, Mannargudi, Tiruvarur District. 6. Mr.A.Selvaraj Revenue Department Officer, Mannargudi, Tiruvarur District. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr.Ranjit Singh, Inspector of Police, Mannargudi, Tiruvarur District. … Respondents W.P.No.8034 of 2011 M.Vetri Selvan ... Petitioner vs. 1. Election Commission of India, Rep. by the Chief Election Commissioner, Nirvachan Sadhan, Ashoka Road, New Delhi – 110 001. 2. The Chief Electoral Officer, Tamil Nadu & Pondicherry, Secretariat, Chennai – 600 009. 3. State of Tamil Nadu, Rep. by the Chief Secretary, Secretariat, Chennai – 600 009. … Respondents W.P.No. 6936 of 2011 Mr.Thillai Natarajan … Petitioner vs. 1. The Chief Executive Officer, Election Commission of India, Fort.St.George, Chennai – 600 009. 2. The Government of Tamil Nadu, Rep. by its Secretary, Home Department, Fort.St.George, Chennai – 600 009. 3. The Director General of Police, Police Headquarters, Dr.Radhakrishnan Road, Mylapore, Chennai – 600 004. 4. The District Election Officer & District Collector, Chennai District, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 5. The District Election Officer & District Collector, Chengalpattu District, Chengalpattu. 6. The District Election Officer & District Collector, Villupuram District, Villupuram. 7. The District Election Officer & District Collector, Cuddalore District, Cuddalore. 8. The District Election Officer & District Collector, Nagapattinam District, Nagapattinam. 9. The District Election Officer & District Collector, Tiruvarur District, Tiruvarur. 10.The District Election Officer & District Collector, Thanjavur District, Thanjavur. 11.The District Election Officer & District Collector, Trichy District, Trichy. 12.The District Election Officer & District Collector, Pudukottai District, Pudukottai. 13.The District Election Officer & District Collector, Perambalur District, Perambalur. 14.The District Election Officer & District Collector, Ariyalur District, Ariyalur. 15.The District Election Officer & District Collector, Karur District, Karur. 16.The District Election Officer & District Collector, Erode District, Erode. 17.The District Election Officer & District Collector, Salem District, Salem. 18.The District Election Officer & District Collector, Namakkal District, Namakkal. 19.The District Election Officer & District Collector, Coimbatore District, Coimbatore. 20.The District Election Officer & District Collector, Dindigul District, Dindigul. 21.The District Election Officer & District Collector, Madurai District, Madurai. https://hcservices.ecourts.gov.in/hcservices/ 22.The District Election Officer & District Collector, Theni District, Theni. 23.The District Election Officer & District Collector, Tirunelveli District, Tirunelveli. 24.The District Election Officer & District Collector, Tuticorin District, Tuticorin. 25.The District Election Officer & District Collector, Sivaganga District, Sivaganga. 26.The District Election Officer & District Collector, Ramnad District, Ramnad. 27.The District Election Officer & District Collector, Kanyakumari District, Kanyakumari. 28.The District Election Officer & District Collector, Nilgiris District, Nilgiris. 29.The District Election Officer & District Collector, Tiruvallur District, Tiruvallur. 30.The District Election Officer & District Collector, Vellore District, Vellore. 31.The District Election Officer & District Collector, Dharmapuri District, Dharmapuri. 32. The Nodal Cell Officer, Flying Squad Team, Chennai District, Chennai. 33. The Nodal Cell Officer, Flying Squad Team, Chengalpattu District, Chengalpattu. 34. The Nodal Cell Officer, Flying Squad Team, Villupuram District, Villupuram. 35. The Nodal Cell Officer, Flying Squad Team, Cuddalore District, Cuddalore. 36. The Nodal Cell Officer, Flying Squad Team, Nagapattinam District, Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/ 37. The Nodal Cell Officer, Flying Squad Team, Tiruvarur District, Tiruvarur. 38. The Nodal Cell Officer, Flying Squad Team, Thanjavur District, Thanjavur. 39. The Nodal Cell Officer, Flying Squad Team, Trichy District, Trichy. 40. The Nodal Cell Officer, Flying Squad Team, Pudukkottai District, Pudukkottai. 41. The Nodal Cell Officer, Flying Squad Team, Perambalur District, Perambalur. 42. The Nodal Cell Officer, Flying Squad Team, Ariyalur District, Ariyalur. 43. The Nodal Cell Officer, Flying Squad Team, Karur District, Karur. 44. The Nodal Cell Officer, Flying Squad Team, Erode District, Erode. 45. The Nodal Cell Officer, Flying Squad Team, Salem District, Salem. 46. The Nodal Cell Officer, Flying Squad Team, Namakkal District, Namakkal. 47. The Nodal Cell Officer, Flying Squad Team, Coimbatore District, Coimbatore. 48. The Nodal Cell Officer, Flying Squad Team, Dindigul District, Dindigul. 49. The Nodal Cell Officer, Flying Squad Team, Madurai District, Madurai. https://hcservices.ecourts.gov.in/hcservices/ 50. The Nodal Cell Officer, Flying Squad Team, Theni District, Theni. 51. The Nodal Cell Officer, Flying Squad Team, Tirunelveli District, Tirunelveli. 52. The Nodal Cell Officer, Flying Squad Team, Tuticorin District, Tuticorin. 53. The Nodal Cell Officer, Flying Squad Team, Sivaganga District, Sivaganga. 54. The Nodal Cell Officer, Flying Squad Team, Ramnad District, Ramnad. 55. The Nodal Cell Officer, Flying Squad Team, Kanyakumari District, Kanyakumari. 56. The Nodal Cell Officer, Flying Squad Team, Nilgiris District, Nilgiris. 57. The Nodal Cell Officer, Flying Squad Team, Tiruvallur District, Tiruvallur. 58. The Nodal Cell Officer, Flying Squad Team, Vellore District, Vellore. 59. The Nodal Cell Officer, Flying Squad Team, Dharmapuri District, Dharmapuri. 60 The Catalyst Trust, Rep. by its Trustee, Mr.S.P.Ambrose, A5, Second Main Road, Thiruvalluvar Nagar, Thiruvanmiyur, Chennai – 600 041. https://hcservices.ecourts.gov.in/hcservices/ 61. A. Narayanan, S/o T.N.Ananthapadmanabhan, No.7C, Daffodil Ceebros Gardens, Arcot Road, Virugambakkam, Chennai – 600 092. 62. 5th Pillar, Rep. by its Secretary, No.41, Circular Road, United India Colony, Kodambakkam, Chennai – 600 024. … Respondents (R-60 to R-62 impleaded as per order dated 28.03.2011 By Hon’ble CJ & TSSJ in M.P.no.1/2011 in W.P.No.6936/2011) W.P.No.7736 of 2011 K.P.P. Samy … Petitioner vs. 1. Election Commission of India, Nirvachand Sadan, Ashoka Road, New Delhi. 2. The Chief Executive Officer, Election Commission of India, Fort.St.George, Chennai – 600 009. 3. The Government of Tamil Nadu, Rep. by its Secretary, Home Department, Fort.St.George, Chennai – 600 009. 4. The Director General of Police, Police Headquarters, Dr.Radhakrishnan Road, Mylapore, Chennai – 600 004. 5. The District Election Officer & District Collector, Chennai District, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 6. Mr.Maheswaran, Flying Squad Team, Chennai District. 7. Mr.Ramamurthy, Flying Squad Team, Chennai District. … Respondents Prayer in W.P.No. 8103 of 2011: Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus directing the respondents to forbear from conducting search or seizure in the office or any other premises of the petitioner without the authority of law or in derogation of Articles 14, 19 & 21 of the Constitution of India. Prayer in W.P.No. 8034 of 2011: Petition filed under Article 226 of the Constitution of India praying for the issue of Writ of Mandamus directing the respondents to put adequate number of check posts on major roads or arterial roads in Tamil Nadu for the purpose of checking and search of vehicles and persons by the Static Surveillance Team and the Flying Squads of respondents 1 and 2 in compliance with the Instructions on Expenditure Monitoring in Elections, more specifically paragraphs 4.6.1, 4.6.2, and 4.7.1 thereof issued by respondent no.1, and act strictly according to those instructions with a view to ensuring free and fair general election to the Legislative Assembly of Tamil Nadu, 2011. Prayer in W.P.No. 6936 of 2011: Petition filed under Article 226 of the Constitution of India praying for the issue of Writ of Mandamus forbearing the respondents 2 to 59 from in any manner preventing or obstructing free movement or causing inconvenience to the travelling public in Light Motor Vehicles and in transport Corporation buses, and to the persons operating public carrier goods vehicles for carrying essential and basic articles, through various important Highways roads situated in the State of Tamil Nadu and by adopting illegal and arbitrary methods of search and seizure of their properties like cash, agricultural products, textiles, and other basic public utility items etc. Prayer in W.P.No. 7736 of 2011 : Petition filed under Article 226 of the Constitution of India praying for the issue of Writ of Mandamus directing the respondents to forbear from conducting search or seizure in the dwelling house, office or other premises used by the petitioner and other candidates for election purpose without the authority of law in derogation of Articles 14, 19 & 21 of the Constitution. ******** https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in W.P.No.8103/2011 ::: Mr.R.Viduthalai, & W.P.No.7736/2011 Senior Counsel for Mr.M.Rangarajulu For Petitioner in W.P.No.8034/2011 ::: Mr.M.Radhakrishnan For Petitioner ::: Mr.R.Thiagarajan, in W.P.No.6936/2011 Senior Counsel for Mr.R.Srinivas For Respondents 1 & 2 in W.P.No.8103/2011, W.P.No.8034/2011, ::: Mr.G.Rajagopalan, For R1 in W.P.No.6936/2011 & Senior Counsel For R1 & R2 in W.P.No.7936/2011 for M/s.G.R.Associates For Respondents ::: Mr.Sriram Panchu, 60 to 62 in W.P.No.6936/2011 Senior Counsel for Mr.R.Kumar For Respondents 3 to 7 in W.P.No.8103/2011, Respondent 3 in W.P.No. 8034/2011, :::: Mr.P.S.Raman, Respondents 2 & 3 in Advocate General W.P.No.6936/2011 & Assisted by Respondents 3 to 5 Mr.Raja Kalifulla, in W.P.No.7936/2011 Government Pleader COMMON ORDER THE HON’BLE CHIEF JUSTICE W.P.No.6936/2011 In this writ petition, styled as a public interest litigation, the petitioner has prayed for the issue of Writ of Mandamus forbearing the respondents 2 to 59 from in any manner preventing or obstructing free movement or causing inconvenience to the travelling public in Light Motor Vehicles and in transport Corporation buses, and to the persons operating public carrier goods vehicles for carrying essential and basic articles, through various important Highways roads situated in the State of Tamil Nadu and by adopting illegal and arbitrary methods of search and seizure of their properties like cash, agricultural products, textiles, and other basic public utility items etc. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.8034 of 2011 2. It is interesting to note that on the other hand, the aforesaid public interest litigation has been filed for the issue of Writ of Mandamus directing the respondents to put adequate number of check posts on major roads or arterial roads in Tamil Nadu for the purpose of checking and search of vehicles and persons by the Static Surveillance Team and the Flying Squads of respondents 1 and 2 in compliance with the Instructions on Expenditure Monitoring in Elections, more specifically paragraphs 4.6.1, 4.6.2, and 4.7.1 thereof issued by respondent no.1, and act strictly according to those instructions with a view to ensuring free and fair general election to the Legislative Assembly of Tamil Nadu, 2011. 3. In W.P. No.6936 of 2011, the first respondent is the Chief Executive Officer, Election Commission of India, Chennai. The second respondent is the Secretary, Home Department, Government of Tamil Nadu, Chennai. The third respondent is the Director General of Police, Police Headquarters, Chennai. Respondents 4 to 31 are the District Election Officers of various Districts in the State of Tamil Nadu. Respondents 32 to 59 are the Nodal Cell Officers, Flying Squad Team posted in various Districts in the State of Tamil Nadu. 4. The petitioner’s case is that the Election Commission of India, New Delhi has issued instructions dated 7.2.2011 bearing No.76/Instructions/2011/EEm to the first respondent with reference to Election Expenditure Monitoring in Annexure Part I and Part II. Clause 3 speaks about Election Expenditure Monitoring Mechanism. The above clause also refers to appointment of Expenditure Observers, Assistant Expenditure Observers, Video Surveillance Team, etc., to monitor the Election Expenditure incurred by the candidate during the course of election. Clause 3.1.8 indicates of deploying flying squad for tracking illegal cash transaction or distribution of liquor or bribing the voters. Clause 3.1.19 indicates that there will be one or two surveillance team with three or four police personnel and one Magistrate in each team for manning the check post. According to the petitioner, the above clauses indicate that every endeavour should be made for tracking the complaints mentioned in the clauses. 5. The petitioner’s further case is that based on the instructions issued by the Election Commission of India, respondents 4 to 31 have appointed respondents 32 to 59 as Nodal Officers of Flying Squad and Static Surveillance Teams in all the Districts in Tamil Nadu. But, significantly, neither the Instruction No.76, nor the orders of the District Collector appointing the Nodal Officers for the Flying Squad authorize them to detain the travelling public carrying cash for their personal/business purpose in Light Motor Vehicles or in any transport methods. According to the petitioner, they have also not been given any authority to intercept and harass the travelling public using the highways under the pretext of acting https://hcservices.ecourts.gov.in/hcservices/ as per the instruction of the first respondent to seize the cash components from the travelling public. It is alleged that the respondents have thoroughly misconstrued the instruction of the Election Commission of India and are acting in an arbitrary manner by seizing the cash from the travelling public. It is common knowledge that the business man travelling in cars and other vehicles used to carry cash from one place to another across Tamil Nadu. Some times it is also meant for the patients who undergo surgery in Super Specialty Hospitals. As long as the travelling public carries legal valid currency, the respondents cannot arbitrarily seize the same. The newspaper reports and clippings shown in various Television Channels reveal that the respondents have been treating all the amounts carried on by the travelling public as if the same is meant for the Election Expenditure, and the adamant attitude of the respondents in not accepting the oral explanation of the travelling public. It is further alleged that the pubic at large who wanted to go for purchase clothes from leading textile shown situated in near by towns and also jewels to perform marriages are now put to severe hardship by the action of the respondents 4 to 59. Moreover, respondents 32 to 59 are filing cases for the sake of publicity in the media against the travelling public as if huge amounts, which are meant for election, have been seized. According to the petitioner, respondents 4 to 59 can act only in terms of the letter no.76 and there is nothing to indicate that power has conferred on them to conduct searches and seizure in the highways in the State of Tamil Nadu. Since right of movement is a fundamental right of the citizen, and equally when those citizens carry money depending upon their requirement, the respondents 4 to 59 have no right to interdict or prevent free movement of the public. 6. The petitioner therefore contended that the attitude of the respondents 2 to 59 in harassing and causing inconvenience to the general public needs to be condemned. The instruction issued is meant to monitor the expenses and other illegal acts perpetrated by the candidates contesting the election. The respondents contrary to the well settled principles of Criminal Jurisprudence wantoned the innocent travelling public and other public carrying essential materials to prove otherwise. Even in the instructions given in Letter No.76, Election Commission has asked the Income Tax Department to take necessary action with regard to large scale cash movement, cash-gift distribution and influencing the voters by any political parties/entities/individual. When the Income Tax Department has been assigned the task, it is highly deplorable on the part of the respondents to cause inconvenience to the travelling public and other essential goods public carriers. Because of the act of the respondents, the public carriers and the public apprehend to carry goods or cash to purchase items from the nearby towns. The petitioner has, therefore, stated that the action of the respondents (Flying Squad) in preventing the travelling public is an unreasonable restriction imposed on the public and the public at large is put to great inconvenience and hardship due to the arbitrary action of the https://hcservices.ecourts.gov.in/hcservices/ search and seizure made under the guise of Election Commission of India instructions. 7. In W.P. No.8034 of 2011, the petitioner, who is a practising advocate, has stated inter alia that notification regarding the General Elections was issued by the Election Commission of India on 19.03.2011. The Static Surveillance Team should keep a watch on large quantities of cash, illegal liquor, any suspicious item or arms being carried in the area. For this purpose, checking and search of vehicles and persons can be carried out by a team by putting check posts on major roads or arterial roads right from the date of notification. But, according to the petitioner, the respondents 1 and 2 have not so far put adequate number of check posts on major roads or arterial roads in the State of Tamil Nadu. The instructions issued are clear that if unexplained cash without proper documents are found in the possession of any person and is suspected to be used for bribing the voters, the same shall be seized and action be taken under the relevant provisions of the law. 8. According to the petitioner, the Flying Squad, as stated in paragraph 4.6.1 and 4.6.2 of the instructions will start functioning from the date of notification of election till the completion of poll. The District Educational Officer and the Superintendent of Police of the District will ensure that the teams are constituted and trained before the notification of the election. The petitioner reliably learnt that there are no adequate number of Flying Squads in Tamil Nadu with a view to keep watch on all the constituencies including the sensitive constituencies. Whenever a complaint is received, the Flying Squad are required to reach the spot immediately and are required to gather necessary evidence and seize the items of bribe, gather evidence and record statement of witnesses and persons and to send a report immediately to the Returning Officer with a copy to the Superintendent of Police and the Assistant Expenditure Observer. Unfortunately, according to the petitioner, even after the issuance of the notification regarding the general election, respondents 1and 2 have not taken adequate measures to comply with the instructions in letter and spirit. 9. The petitioner, therefore, contended that even assuming there is inconvenience by Flying Squad such inconvenience can never be characterized to be interference with the personal liberty or freedom of a citizen. It is the contention of the petitioner that when searches promote public interest, inconvenience or discomfort to the persons, who are searched cannot be allowed to prevail over public interest in a democracy. According to the petitioner, such inconvenience should be tolerated by the responsible citizen in a democracy, as it is only a temporary phenomenon. The petitioner contends that respondents 1 and 2 should bear in mind the observations of the Supreme Court in Rajendran Chingaravelu’s case (2010) 1 SCC 457 to act in accordance with the instructions contained in paragraphs 4.6.1, 4.6.2 and 4.7.2, failure of which would amount https://hcservices.ecourts.gov.in/hcservices/ to failure of their constitutional duty under Article 324 of the Constitution of India. W.P.No. 7736 of 2011 10. This writ petition, styled as public interest litigation, has been filed directing the respondents to forbear from conducting search or seizure in the dwelling house, office or other premises used by the petitioner and other candidates for election purpose without the authority of law in derogation of Articles 14, 19 & 21 of the Constitution. 11. The petitioner’s case is that he has been nominated as a candidate by one of the political party for contesting the Legislative Assembly Election to be held on 13th April, 2011. He has been forced to file this Public Interest Litigation to restrain the respondents from taking indiscriminate and arbitrary action invading and infringing the fundamental rights guaranteed under the Constitution of India. The respondents on 22.03.2011 without prior intimation barged into my house and started searching the house on the information that free dhotis and sarees meant for distribution are lying in the petitioner’s house. The search went for over an hour and finally the respondents informed that nothing as alleged was found in the house. During the search, videographers were also present. The incident was reported in the newspaper and was also telecasted in Jaya T.V. According to the petitioner, the respondents in order to harm his reputation not only in the society, but also amongst the voters, had carried such search. 12. It is the case of the petitioner that the video taken during the search somehow found its way to Jaya T.V channel and it is not known how the channel came in possession of the same, which the Election Commission is duty bound to explain. The petitioner’s case that he being a sitting MLA and Minister for Fisheries is aware of the constitutional duty cast upon him and the necessity to have free and fair election. The respondents, without application of mind, have conducted search in his residence, which is a clear violation of Right of Privacy and right to live with dignity. 13. The petitioner states that his father is running a Welfare Society, which is situate opposite to his residence and the name board of the Society contains paintings of the Chief Minister of Tamil Nadu and the Deputy Chief Minister. The officials of the Flying Squad, who raided the house namely, Meshwaran and Ramamurthy, directed the petitioner to cover the name board, which is totally uncalled for and offends Article 19(1)(a) of the Constitution of India. Hence, the action of the Election Commission in conducting indiscriminate search and seizure without verifying the authenticity of the complaint amounts to arbitrary and capricious power of offending Article 14 of the Constitution of India. The videograph taken during the course of search, in the absence of any media, found https://hcservices.ecourts.gov.in/hcservices/ its way to Jaya T.V channel which telecasted the same for which the Election Commission is liable to pay damages. The petitioner therefore seeks interim direction to the respondents to pay a sum of Rs.5 crores by way of damages for the loss of reputation suffered by him in view of the unfounded and unauthorized search in the dwelling house of the petitioner on 22.03.2011 by the Flying Squad Officials of the first respondent. W.P.No.8103 of 2011 14. In this writ petition, the petitioner has sought for issue of mandamus directing the respondents to forbear from conducting search or seizure in the office or any other premises of the petitioner without the authority of law or in derogation of Articles 14, 19 & 21 of the Constitution of India. 15. The petitioner’s case is that he is the proprietor of Eswari Transports Pvt. Ltd. and is operating lorry service in Thiruvarur District, and he is affiliated to a leading political party. According to the petitioner, on 24.03.2011 at around 2.30 p.m. the 6th and 7th respondent barged into my office along with police officers and informed me that they received information from Collector Office, Tiruvarur stating illegal money transaction is being carried out in his office. The search went for two and half hours after which the respondents informed that no cash as alleged was found in his office premises. According to the petitioner, because of the search, the reputation which he had built for more than four decades has been shattered and this has been done by the respondents in order to harm his reputation. The search was completely videographed and widely reported in local newspapers. According to the petitioner, the action of the respondents is arbitrary, totally motivated besides being whimsical. The first respondent is taking action beyond the scope of the powers vested in the Election Commission of India. Due to indiscriminate search and seizure by the Election Commission without verifying the authenticity of the complaint amounts to arbitrary and capricious powers of offending Article 14 of the Constitution of India. According to the petitioner, the Election Commission has not followed this criteria and has spoilt his name and reputation and business activities, and hence he seeks an interim direction directing the respondents to pay compensation of Rs.5 crores by way of damages for the loss suffered by the petitioner in view of the unfounded and unauthorized search. 16. The Election Commission of India has filed common counter affidavit contending inter alia that Article 324(1) of the Constitution provides for the superintendence, direction and control of the preparation of the electoral rolls, and the conduct of all elections to the