1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01-12-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.13174 of 2011 And M.P.(MD) No.2 of 2011 1.T.Boopathy 2.T.Gunasekaran 3.A.Periakaruppaiah 4.R.Gomathi 5.C.Lakshmi .. Petitioners vs. 1.The District Collector cum District Electoral Officer, Dindigul District, Dindigul. 2.The Returning Officer cum Block Development Officer, Natham Panchayat Union, Dindigul District. 3.Mr.A.M.Manchapagan .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents 1 and 2 to declare the petitioner as elected Vice President of Molaiyur Village Panchayat, Natham Panchayat Union, in view of the majority of votes cased in favour of the first petitioner and to permit the first petitioner to assume the charge as Vice President of the Molaiyur Village Panchayat, Natham Panchayat Union, Dindigul District. For Petitioners : Mr.Veera.Kathiravan For Respondents-1&2 : Mr.K.Mahendran, Special Government Pleader. O R D E R The petitioners have come up with the above writ petition, seeking a Writ of Mandamus, to direct the respondents 1 and 2 to declare the first petitioner as the duly elected Vice President of Molaiyur Village Panchayat, Natham Panchayat Union. 2. I have heard Mr.Veera.Kathiravan, learned counsel for the petitioners and Mr.K.Mahendran, learned Special Government Pleader for respondents 1 and 2. 3. The petitioners herein (5 persons) successfully contested for election to the post of Ward Councilors, from Ward Nos. 1, 2, 4, 5 and 8 of Molaiyur Panchayat in the elections held on 19.10.2011. The Panchayat has a total of 9 Wards. 4. After the declaration of results, a meeting was convened on 29.10.2011 for the election of the Vice President. According to the petitioners, they decided to elect the first petitioner as the Vice President. But the third respondent herein was declared elected as the Vice President. Contending (i) that the first petitioner had the support of 5 out of a total 9 Ward Councilors and (ii) that the directly elected President of the Panchayat cannot be allowed to vote, the petitioner has https://hcservices.ecourts.gov.in/hcservices/ 2 come up with the above writ petition, seeking a Mandamus, to declare the first petitioner as having been duly elected President of the Panchayat. 5. When the writ petition came up for admission, I directed the learned Special Government Pleader to take notice and produce the records. Accordingly, the learned Special Government Pleader produced the Register maintained in the Panchayat, recording the Minutes of the meetings. He also produced all the votes polled. 6. It is seen from the Register produced by the learned Special Government Pleader that all the 9 elected Ward Councilors and the President attended the meeting held on 29.10.2011 to elect the Vice President. The ballot papers produced by the respondents 1 and 2 show that 10 persons had voted. In other words, the 9 elected Ward Councilors and the President had been permitted to vote. 4 ballot papers contain a tick mark against the name of the first petitioner herein. 5 ballot papers contain a tick mark in favour of the third respondent herein. In one ballot paper, there is a mark to the left of the name of the third respondent herein. It does not appear to be a clear tick mark. Therefore, the respondents 1 and 2 have taken that the third respondent secured 6 votes and the first petitioner secured 4 votes. 7. Even if one vote where there is a mark to the left side of the name of the third respondent is taken to be an invalid vote, in view of lack of clarity, the third respondent has 5 votes and the petitioner had secured only 4 votes. Therefore, prima facie, I cannot set aside the election of the third respondent in a writ petition under Article 226. It is for the petitioner to raise an election dispute. 8. Mr.Veera.Kathiravan, learned counsel for the petitioner raised two contentions viz., (i) that as per Rule 90(1) of the Tamil Nadu Panchayats (Elections) Rules, 1995, the Returning Officer should keep the ballot papers and other records in a separate packet and seal it, but the respondents produced the ballot papers openly before this Court, violating the secrecy and (ii) that the whole election is vitiated due to the President being permitted to vote. 9. It is true that immediately after the elections are over, the second respondent is obliged by Rule 90(1) of the Tamil Nadu Panchayats (Elections) Rules to keep the ballot papers in a packet and seal it. The packet shall not be opened and their contents shall not be inspected or produced except under the orders of an election or other competent Court. But the second respondent has produced the ballot papers openly, though under orders of this Court. The second respondent ought to have been more careful by producing the ballot papers in a sealed cover, instead of producing them openly before Court. But on that ground, I do not wish to set aside the election in a writ petition. 10. The second ground of attack is that permitting the President to participate in the election for the post of Vice President is violative of the rules. But the said question was considered by me in great detail in W.P.Nos.12905 and 13322 of 2011, decided on 29.11.2011. After a sojourn through the provisions of the Act and the Rules, I have held that the President of a Village Panchayat is entitled to vote in the election to the post of Vice President, by virtue of Section 43(7) of the Act. Therefore, the second ground of attack is also not sustainable. Hence, the writ petition deserves to be dismissed. 11. Accordingly, the writ petition is dismissed. However, it will be open to the petitioners to file election petitions and upon the petitioners doing so, they may raise all the issues now raised. If the petitioners file an election petition, it will be open to the petitioners https://hcservices.ecourts.gov.in/hcservices/ 3 to 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. Consequently connected miscellaneous petition is also dismissed. Sd/- Deputy Registrar (Writs) /True Copy/ Assistant Registrar To 1.The District Collector cum District Electoral Officer, Dindigul District, Dindigul. 2.The Returning Officer cum Block Development Officer, Natham Panchayat Union, Dindigul District. Order in W.P.(MD)No.13174 of 2011 01-12-2011 Svn RJ/16.12.11 3p/3c https://hcservices.ecourts.gov.in/hcservices/