1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petition (MD)No.11850 of 2011 and M.P.(MD)No.1 of 2011 R.Mayilammal ... Petitioner Vs. 1.The Chief Election Commissioner, Chennai. 2.The District Collector, Collector's Office, Theni, Theni District. 3.The Returning Officer, Panchayat Union Office, Andipatti, Theni District. 4.The Revenue Divisional Officer, Collector Office, Theni, Theni District. 5.The Superintendent of Police, Theni District, Theni. 6.Arasaiya, S/o.Rasu Thevar ... Respondents Writ Petition under Article 226 of the Constitution of India praying for issuance of a Writ of mandamus directing the 1st respondent to take necessary legal action against the 6th respondent to stop him from contesting for the post of Panchayat Board President of Ramakrishnapuram Village, Theni District, in the ensuing Tamil Nadu Local Body Election. For Petitioner : Mr.Siva.Ayyappan For Respondents : Mr.K.Mahendran, 1 to 5 Spl.Govt.Pleader https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R [Order of the Court was made BY K.N.BASHA, J] The petitioner has filed this petition seeking for a direction to the 1st respondent to take necessary legal action against the 6th respondent stopping him from contesting for the post of Panchayat Board President of Ramakrishnapuram Village, Theni District, in the ensuing Tamil Nadu Local Body Election. 2.Mr.K.Mahendran, learned Special Government Pleader takes notice for respondents 1 to 5. By mutual consent of the counsel on either side, the writ petition itself is taken up for final hearing at the stage of admission itself. 3.Mr.Siva.Ayyappan, learned counsel appearing for the petitioner, would contend that the 6th respondent herein was convicted in a criminal case and sentenced to two years rigorous imprisonment and to pay a fine of Rs.2000/-, in default one month rigorous imprisonment, for an offence under Sections 147, 148 and 435 IPC and as such, he is a disqualified person and he cannot contest in election. It is pointed out by the petitioner that, however, the nomination of the 6th respondent was accepted by the Returning Officer, namely the 3rd respondent herein. The learned counsel for the petitioner also submitted that in this regard the petitioner has made representations to the respondents on 01.10.2011 and 10.10.2011 protesting acceptance of the nomination of the 6th respondent. Since no order was passed, the petitioner is constrained to approach this Court with this petition with the aforesaid prayer. 4.Heard Mr.K.Mahendran, learned Special Government Pleader, on the submissions made by the learned counsel for the petitioner. He would submit that as per Articles 243 (ZG) and 243 (O) of the Constitution of India, the writ petition filed by the petitioner is not maintainable and if she is aggrieved by the action of the Returning Officer in accepting the nomination of the 6th respondent, the remedy available to her is only to file an election petition before the competent court as per Section 259 of the Tamil Nadu Panchayats Act, 1994. Hence he prayed for the dismissal of the writ petition. 5.We have carefully considered the submission made by the learned counsel for the petitioner as well as the learned Special Government Pleader and also perused the affidavit and other materials available on record. 6.At the outset, it is to be stated that as per Articles 243 (ZG) and 243 (O) of the Constitution of India, there is a specific bar for the interference of the Court in electoral matters. It is further to be stated that election process is deemed to have commenced right from the issue of notification. In the present case, there are only two days more for polling. Apart from that factor, the First Bench of this Court in W.A.No.1846 of 2011, decided on 29.09.2011, placing reliance on various decisions of the Hon'ble Apex Court, has https://hcservices.ecourts.gov.in/hcservices/ 3 held as under: "19.In Anugrah Narain Singh vs. State of U.P. (supra), the appeal before Hon'ble Supreme Court was against an order passed by the Division Bench of Allahabad High Court, whereby Municipal Election in the State of U.P. were cancelled and/or postponed and a former member of the legislative assembly and a candidate for the post of Mayor, Allahabad, were the appellants. One of the question which was decided is as to whether in terms of Article 243ZG of the Constitution, is there a complete bar for entertaining any petition and their Lordships observed as follows:- "12. .... 15.The Court also quoted from its order dated 30-3-1982 that: (SCC pp. 219-20, para 1) “... no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. ... The High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution”. .... 25. In this connection, it may be necessary to mention that there is one feature to be found in the Delimitation Commission Act, 1962 which is absent in the U.P. Act. Section 10 of the Act of 1962 provided that the Commission shall cause each of its order made under Sections 8 and 9 to be published in the Gazette of India and in the Official Gazettes of the States concerned. Upon publication in the Gazette of India every such order shall have the force of law and shall not be called in question in any Court. Because of these specific provisions of the Delimitation Commission Act, 1962, in the case of Meghraj Kothari v. Delimitation Commission2, this Court held that notification of orders passed under Sections 8 and 9 of that Act had the force of law and therefore, could not be assailed in any court of https://hcservices.ecourts.gov.in/hcservices/ 4 law because of the bar imposed by Article 329. ...... 29. Dealing with the provisions of the Constitution relating to panchayats contained in Articles 243-A to 243-O (which are similar to Articles 243-Q to 243-ZG relating to Municipalities), this Court in the case of State of U.P. v. Pradhan Sangh Kshettra Samiti3, held: (AIR p. 1528: SCC p. 331, paras 44 and 45) “It is for the Government to decide in what manner the panchayat areas and the constituencies in each panchayat area will be delimited. It is not for the court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in conformity with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same. ......" In view of the above decision of the First Bench of this Court, we are of the view that we cannot interfere at this stage by invoking the writ jurisdiction under Article 226 of the Constitution of India. 7.Further, Section 259 of the Tamil Nadu Panchayats Act, 1994 deals with the grounds for declaring elections to be void. To the facts of the present case, sub- Section (d)(i) of Section 259 (1) of the Tamil Nadu Panchayats Act, 1994 applies, which reads as under: "259(1)(d) that the result of the election insofar as it concerns a returned candidate has been materially affected-- (i)by the improper acceptance of any nomination, or". Therefore, it is not as if the petitioner is left with no other remedy. She can very well challenge the acceptance of nomination of the 6th respondent, if, in the opinion of the petitioner, the acceptance of 6th respondent's nomination is improper acceptance, if he is announced as a returned candidate. Therefore, on this ground also the writ petition is liable to be dismissed. 8.Accordingly, the writ petition is hereby dismissed. No costs. Connected M.P.(MD)No.1 of 2011 is also dismissed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5 To: 1.The Chief Election Commissioner, Chennai. 2.The District Collector, Collector's Office, Theni, Theni District. 3.The Returning Officer, Panchayat Union Office, Andipatti, Theni District. 4.The Revenue Divisional Officer, Collector Office, Theni, Theni District. 5.The Superintendent of Police, Theni District, Theni +One CC to Mr.Siva. Ayyappan, Advocate, SR.No.35839 +One Cc to The Spl. Govt. Pleader, SR.No.35864 gb rl/8c – 28.10.2011 ORDER IN WP(MD)No.11850/2011 and M.P(MD)No.1 of 2011 Dated:14.10.2011 https://hcservices.ecourts.gov.in/hcservices/